url stringlengths 55 59 | text stringlengths 0 818k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/1614534/ | 331 N.W.2d 513 (1983)
213 Neb. 732
Michael A. ENYEART, Appellant,
v.
Steven P. SWARTZ, Appellee.
No. 82-073.
Supreme Court of Nebraska.
March 18, 1983.
*514 Jeffrey A. Silver, Omaha, for appellant.
Jerry J. Milner of Grimminger, Milner & Lamberty, Grand Island, for appellee.
KRIVOSHA, C.J., WHITE, and CAPORALE, JJ., BUCKLEY, District Judge, and COLWELL, District Judge, Retired.
BUCKLEY, District Judge.
This action results from a motor vehicle accident on September 7, 1978, at the intersection of Eddy and West Fourth Streets in Grand Island, Nebraska. Plaintiff-appellant, in his petition, and defendant-appellee, in his counterclaim, alleged damages resulting from the other driver's negligence. Neither party alleged contributory negligence as an affirmative defense.
Trial was had to a jury, which found against both parties on their respective claims. Defendant filed a motion for a new trial, which was sustained, and from that order plaintiff appeals.
Plaintiff was operating an automobile and the defendant a motorcycle. Plaintiff *515 was proceeding north on Eddy Street and was attempting a left turn in the intersection when the defendant, proceeding in the opposite direction on Eddy Street, collided with him. Neither driver saw the other before the collision. It was between dusk and dark at the time and the evidence varied as to the need to have headlights on. Plaintiff's headlights were on; whether defendant's headlight was on was in conflict. Issues of negligence as to reasonable control and proper lookout were properly submitted to the jury.
Although the trial court did not specify its reasons for granting a new trial, both parties concede by their briefs and oral arguments that the only apparent issue is whether the jury was adequately instructed as to right-of-way.
Defendant's allegations of plaintiff's negligence included the charge that plaintiff failed to yield the right-of-way. Right-of-way is defined in the statutory Nebraska Rules of the Road as "the right of one vehicle or pedestrian to proceed in a lawful manner in preference to another vehicle or pedestrian approaching under such circumstances of direction, speed, and proximity as to give rise to danger of collision unless one grants precedence to the other." Neb.Rev. Stat. § 39-602(80) (Reissue 1978).
Further, Neb.Rev.Stat. § 39-636 (Reissue 1978) provides that "The driver of a vehicle who intends to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or approaching so close as to constitute an immediate hazard."
The trial court did instruct the jury that the defendant charged the plaintiff with the specific act of negligence in failing to yield the right-of-way, and it did submit the standard instruction on lookout and reasonable control, which advises the jury that a motorist has a duty to keep a proper lookout and watch where he is driving, even though he has the right-of-way. However, the instructions did not define right-of-way, nor did they submit the left turn statutory rule of the road embodied in § 39-636, nor did they instruct the jury in any other manner as to the rights and duties of a motorist intending to make a left turn at an intersection.
It is the uniform and proper practice in this state that where specific acts of negligence are charged and supported by the evidence, the trial court instructs as to specific acts so alleged and supported. The failure to do so, even though not requested, is error. Pool v. Romatzke, 177 Neb. 870, 131 N.W.2d 593 (1964); Herman v. Midland Ag Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978). The instructions given were wholly lacking in any advice to the jury as to what facts and circumstances would entitle either party to the right-of-way. They provided no guidance to the jury to determine which party had the right-of-way over the other as they approached and entered the intersection. The failure to so instruct is clearly prejudicial error.
Plaintiff, however, contends that even if the court should have so instructed, no request for any instructions was made by defendant at the instruction conference and, therefore, he cannot object now. The trial court did hold an instruction conference at which each of the instructions given were reviewed. The court neither invited nor did counsel tender any requested instructions. Counsel for defendant in his brief claims that he requested the statutory left turn instruction prior to the instruction conference, but there is no record of it.
It is true that, ordinarily, a failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection thereafter. McCready v. Al Eighmy Dodge, 197 Neb. 684, 250 N.W.2d 640 (1977). However, in that case we also said that such noncompliance by counsel does not bar this court from opting to consider plain errors in a record indicative of a probable miscarriage of justice. In addition thereto, we do not intend to abrogate the long-standing rule that it is the duty of the trial court, whether requested to do so or not, to submit to and properly instruct the jury on all material issues *516 presented by the pleadings and supported by the evidence. This fundamental duty of the trial court has not been altered by our rule adopted in 1969, which formalized the trial court's instruction conference. Herman v. Midland Ag Service, Inc., supra; Pool v. Romatzke, supra. Here, the instructions given were correct as far as they went. Therefore, it was not defendant's failure to object to the instructions given but the trial court's failure to adequately instruct that requires a new trial.
The trial court's order sustaining defendant's motion for new trial was correct and should be affirmed. We also note that the trial court did not instruct the jury on comparative negligence. If, upon retrial of the case, the issue of both plaintiff's and defendant's negligence is submitted to the jury, the comparative negligence instruction should be given.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612583/ | 5 Mich. App. 20 (1966)
145 N.W.2d 853
PEOPLE
v.
CARLTON.
Docket No. 1,256.
Michigan Court of Appeals.
Decided November 9, 1966.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John C. Leaming, Assistant Prosecuting Attorney, for the people.
Peter J. Carras, for defendant.
FITZGERALD, P.J.
Defendant Carlton pleaded guilty December 20, 1960 to breaking and entering in the nighttime[*] in Bay county circuit court. On January 10, 1961, he was placed on five years' *22 probation. On September 10, 1963, he was found guilty of probation violation (absconding from the State) but probation was reinstated. On August 31, 1964, he was again before the court for violation of probation (absconding from supervision). Defendant waived hearing, admitted the charge, and was sentenced to 3 to 15 years.
Application for delayed appeal was filed in this Court by appointed counsel March 2, 1965. The application alleged the following grounds for appeal: (1) that defendant did not receive a copy of the probation violation charges; (2) the charge of absconding from supervision was not explained to the defendant; (3) that the transcript of the December 20, 1960, arraignment did not contain a verbatim record of the reading of the information; (4) that defendant was not represented by counsel at the December 20, 1960, arraignment. The application for delayed appeal was denied by the third district March 29, 1965.
On April 10, 1965, appointed counsel filed an application for leave to appeal from this Court's decision in the Supreme Court. This likewise presented four grounds for appeal, only one of which was raised before the Court of Appeals (that the defendant did not receive a copy of the probation violation charged). The other grounds, raised for the first time, were: (1) that defendant was detained 75 hours before being arraigned before a magistrate on the breaking and entering charge; (2) that defendant's plea of guilty to that charge was extorted by mental coercion and undue influence by police officers during said detention; (3) that the warrant for defendant's arrest was defective in that the complainant had no personal knowledge of the facts upon which it was based.
The application before the Supreme Court raised new issues not presented to the Court of Appeals *23 despite the fact that (1) it was filed only a little over a month after the application to the Court of Appeals; (2) counsel was the same on both applications; (3) the affidavit of counsel filed in the Court of Appeals stated that "all possible grounds for appeal have been considered."
It should also be noted that the pleadings before the Court of Appeals contained no mention of the facts upon which the new Supreme Court issues were based, amounting to a saving of issues which can hardly be lauded as exemplary appellate practice.
The Supreme Court remanded the case to the trial court to determine the voluntariness of defendant's confession and his plea of guilty. The lower court was instructed to vacate the sentence and plea of guilty, if, after hearing, he determined that the plea was involuntarily made. The order also provided that the order of the lower court would constitute a final judgment for purposes of review.
On July 30, 1965, Bay Circuit Judge Leon R. Dardas found the confession voluntary and denied permission to withdraw the plea of guilty. Timely claim of appeal was made to this Court pursuant to the Supreme Court order.
This is not the first time this Court has reviewed a trial court's determination upon the sort of record presented here. In People v. Daniels (1966), 2 Mich App 395, a similar record was presented following remand to inquire into the voluntariness of a confession. There the defendant claimed he had not been advised of his rights and had been promised leniency in the course of the interrogation. This Court noted that at the hearing the defendant's testimony was in direct conflict with the people's witnesses as to the facts concerning the interrogation and circumstances surrounding the confession (2 Mich App at 397). The trial court's determination of voluntariness, being supported by the record, *24 was affirmed. (2 Mich App at 404). A study of the record before the trial court in the instant case commands the same conclusion herein.
There remains defendant's claim that his detention in police custody for 75 hours was illegal and thus his confession was unlawfully obtained under People v. Hamilton (1960), 359 Mich 410. The thrust of People v. Hamilton is embodied in the following quotation therefrom (p 416):
"Hamilton's continued detention was unwarranted and so unlawful under these sections [CL 1948, § 764.13 (Stat Ann 1954 Rev § 28.872) and CL 1948, § 764.26 (Stat Ann 1954 Rev § 28.885)]. It was unlawful because the delay was unnecessary, and unlawful because its manifest purpose was that of `sweating' a confession after officers were fully enabled to complain and arraign according to the requirements of said section 26 [CL 1948, § 764.26, supra]. His unjustifiably continued detention, coupled as it was with undisputed proof that counsel engaged for him was, during such detention, refused even limited conference, amounted to a denial of due process."
In the instant case, the record does not reveal facts sufficient to show an unnecessary delay caused without proven justification for prolonged interrogatory purposes.
A reading of Hamilton, and of subsequent cases interpreting and explaining it, leads to the conclusion that it is unnecessary delay in arraignment "when done for prolonged interrogatory purposes without proven justification for the delay" which renders unlawful a confession made during such a period. People v. Hamilton, supra, at 417; People v. McCager (1962), 367 Mich 116 at 119; People v. Ubbes (1965), 374 Mich 571 at 576 (per O'HARA, J.) *25 and at 587 (per SOURIS, J.). No such facts appear here.
Affirmed.
BURNS 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/1612600/ | 4 Mich. App. 697 (1966)
145 N.W.2d 359
GRANADER
v.
VILLAGE OF BEVERLY HILLS.
Docket No. 838.
Michigan Court of Appeals.
Decided October 25, 1966.
*698 Paruk & Miller, for plaintiffs.
Bond & Dillon, for defendant.
FITZGERALD, J.
Plaintiffs attacked the validity of a zoning ordinance of the village of Beverly Hills as it applied to their property located on the southwest corner of Fourteen Mile road and Southfield road in Oakland county, and described in their complaint as having dimensions of 101.59 feet on Southfield road by 110 feet on Fourteen Mile road. Fourteen Mile road is 2-lane and comes to a dead-end about one-fourth mile west of the property, and the zoning ordinance limits uses of parcels along it to nonretail businesses in the village of Beverly Hills.
The classification B-1 limited the use of plaintiffs' property to nonretail business. They requested defendant village to rezone the parcel to a B-2 classification, retail business, so that they could construct a filling station. This request was denied and the instant court action ensued.
Plaintiffs claimed that the Beverly Hills zoning ordinance, insofar as it affected their property, bore no reasonable relationship to the public health, safety, welfare or morals of the inhabitants of the village, and asked that the ordinance, No 29, adopted in 1959, be declared unconstitutional, void, invalid and of no legal force and effect. Following trial of the matter with the taking of considerable expert testimony, the court granted defendant village's motion to dismiss at the close of plaintiffs' proofs.
*699 On appeal, plaintiffs maintain that they established a prima facie case that the ordinance in its application to their property was confiscatory, unreasonable, unconstitutional and therefore invalid. They further allege that the trial court committed error in finding that plaintiffs could use as additional parking area, a strip of land lying between their lot line and the highway, thereby enlarging the usable dimension of their property.
At the outset, we are met with the presumption of validity which cloaks zoning ordinances of this nature. The particular facts and opinions adduced here, however, provide an excellent place for application of the observation that each zoning case stands by itself and must be judged by the circumstances present.
An exhaustive review of the record before us leads us to temporarily defer consideration of appellants' contention concerning the making of a prima facie case of unreasonableness as the ordinance applies to their property and to dwell on the finding that they had available to them for development a considerably larger area, increasing plaintiffs' usable land by 64 feet on each side, yielding what is called in the trial court's finding of law and fact, a parcel "which is 174 feet by 165 feet." In its opinion, the trial court makes the following statement:
"At the point involved now is a two-lane highway. The evidence shows that it is soon to be a four-lane highway, and that a right-of-way extends west of the projected future four-lane highway so that there is 64 feet of unoccupied right-of-way beyond the westerly part of the paved future highway and running from that to the front line of the lots in question; namely, the easterly line of the property in question."
*700 Later in the opinion, the trial court indicates a belief that such area could be used for parking.
But from whence comes the basis for awarding plaintiffs the use of this quantum of property which is admittedly highway right-of-way?
A review of the transcript indicates that the genesis of this figure was from the lips of the attorney for defendant village as he cross-examined plaintiffs' witness, and architect:
"Q. And are you aware that there presently exists 64 feet from the south side of Fourteen Mile road to the property line here?
"A. I wasn't aware of the exact distance. I knew it was considerable.
"The Court: Do you gentlemen agree that is the same on both sides?
"Mr. Allen: I don't agree. I don't really know what the right-of-way of the county right-of-way is.
"Mr. Dillon: We will have testimony."
But the testimony does not materialize. The figure, however, becomes implanted in the mind of the witnesses, counsel, and the court, not however, without considerable confusion arising therefrom as demonstrated by this portion of the transcript:
"Q. Now, if my figures are correct regarding the 64 feet on both sides of the road here on Southfield and on Fourteen Mile road, this would add, would it not, an additional 18,000 square feet surrounding the property; that is, along its width north and south on Southfield road and east and west on Fourteen Mile road?
"Mr. Allen: I would object to that, Your Honor, because this is Oakland county property.
"The Court: You may take an answer.
"A. Would you ask that again.
"Q. 64 by 64 is 18,000, is that right?
"A. 64 and 64.
*701 "Q. I am taking the dimensions of the property, the lengthwise and adding the additional 64 feet.
"The Court: 64 by 110, 64 by 100.
"Q. Would you agree?
"A. Would you ask the first part of the question again, please.
"The Court: This is a mathematical question, statement. I think we can accept the answer as mathematics brings it out.
"Q. Would you agree with me this would add an additional 18,000 square feet to the property.
"Mr. Allen: Now, Your Honor, again I would object to the question as calling for a conclusion, and an interpretation of law.
"The Court: I will take judicial notice of that.
"Mr. Dillon: That it does add an additional 18,000 square feet, Your Honor?
"The Court: Yes."
The testimony and confusion compound in the following exchange:
"The Court: On the record here I don't agree with your 18,000 square feet of usable highway space. Maybe I missed a point. But it seems to me there is 100 feet by 64 feet on Southfield.
"Mr. Dillon: 101.
"The Court: Well, 101.
"Mr. Dillon: Your Honor, Mr. Allen, himself, on the testimony here, said 101 by 110 feet is the size of these lots, of this property.
"Mr. Allen: The topographical matter is 101.69 feet on Southfield, and 110 on Fourteen Mile.
"The Court: That is what I mean. My question was that you got 64 times 101, which is 64,000, well, 6,464 feet. Now, on the other, Fourteen Mile road, you got 110 feet deep by 64, which would be 7,040.
"Mr. Dillon: Just one moment, please. Your Honor, the way this has been arrived at is to take the 101 by 64 feet, which would be from the south *702 boundary line of the property up to the north boundary line out to Southfield road.
"The Court: Yes.
"Mr. Dillon: That would give us 6,400 square feet.
"The Court: Well, 6,464.
"Mr. Dillon: Yes. Then we start at the north boundary line of the subject property, from the west boundary line and extend it right over easterly to Southfield road, which is approximately 174 feet. This is 110 plus 64.
"Mr. Allen: You are using it twice.
"Mr. Dillon: No, no.
"The Court: He is using the corner. But exclusive of the corner, it makes 13,504.
"Mr. Dillon: 13,000.
"The Court: It is dubious of how much of that would be usable for any purpose.
"Mr. Dillon: Right. This is the 101 by 64, right to here, which is the north boundary line.
"The Court: Well, you said eighteen.
"Mr. Dillon: Well, if you take this, the 110 here, plus the 64, on the corner, it is roughly that.
"The Court: I agree. Well, this is the question, it is for you, Witness. If you have for use of parking 13,504 feet, you can build a very substantial building on the property, can't you?
"A. Yes, if this were taken into consideration."
That the court took this into consideration is borne out by the following from the court's opinion:
"There isn't the slightest question in my mind that the board of appeals of the defendant village of Beverly Hills not only would grant an appropriate variance for the use of the highway in front of the property for parking, but also it is my opinion that unless facts are shown which are not exhibited in this case, they would be arbitrary and capricious in denying the use of such property for public parking. This for many practical purposes means that the property in question at the southwest corner of *703 Southfield and Fourteen Mile road is not a parcel for total use 110 by 100, but is actually a parcel which is 174 feet by 165 feet."
We believe that acceptance of the 64-foot figure as available to plaintiffs for their use as parking area as a fait accompli, thereby enlarging the dimensions of their property, is a questionable, if not unwarranted, assumption. Defendants parry this fact with the statement that there is no testimony or other type of evidence in the record that appellants may not use this additional property for parking purposes in the development of their property. However, it is likewise true that there is no testimony that they may use this property and even its ultimate availability falls in the category of conjecture of high order.
It is not necessary to review extensively the fact that in Michigan a landowner who is the owner of the fee over which a street has been established, continues to own the fee, subject, however, to a public easement. It is established that the public is not now using the land in question between plaintiffs' property and the street, but evidence is sketchy that it may not be used. Indeed, the trial court in its opinion makes the statement:
"The growth of the area in question has been tremendous, I take judicial notice of this, and during the past comparatively short period of time Southfield road has been widened to its present good width south of the property in question."
And later:
"What may happen to Fourteen Mile road or its equivalent west of Southfield is a matter of great uncertainty. As one views the area and property now Fourteen Mile does not seem to be usable as a through road, other than for access to these fine homes in this area."
*704 Cases are cited by both sides for the proposition that the area may or may not be used, specifically People, ex rel. Director of Department of Conservation, v. LaDuc (1951), 329 Mich 716, and Highway Commissioners of Eagle Township v. Ely (1884), 54 Mich 173, for plaintiffs, and Smeberg v. Cunningham (1893), 96 Mich 378 (35 Am St Rep 613), and Crosby v. City of Greenville (1914), 183 Mich 452, for defendants. These cases, however, did not deal with the reasonableness of a zoning ordinance, and in this particular instance can be said to have little bearing other than to demonstrate the rights of an abutting owner subject to the rights of the public.
The assumption of the availability of the extra land to plaintiffs as a parking area to enlarge the dimensions of their property and the conjecture about the future as it affects that availability leads us to the conclusion that the matter should be remanded to the circuit court for the county of Oakland for consideration of the validity of the zoning ordinance without respect to the possible availability of the right-of-way area or, in the alternative, the taking of testimony which will more narrowly define this proposition and support the fact with competent evidence rather than supposition.
The matter being remanded, consideration of the first question raised on appeal relative to the validity of the ordinance itself, is obviated.
Remanded for proceedings in conformity with this opinion. No costs, a public question being involved.
J.H. GILLIS, P.J., and QUINN J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612441/ | 282 So.2d 898 (1973)
Jimmy Lee LOGAN
v.
STATE of Alabama.
SC 358.
Supreme Court of Alabama.
September 13, 1973.
*899 John S. Glenn, Opelika, for appellant.
Edward B. McDermott, Special Asst. Atty. Gen., Mobile, for the State.
MERRILL, Justice.
Jimmy Lee Logan, a sixteen-year-old boy, was convicted in Lee County Circuit Court of raping a twenty-seven-year-old unmarried girl in Auburn, Alabama. Logan appealed from his conviction and twenty-four year penitentiary sentence to the Alabama Court of Criminal Appeals. On April 24, 1973, the cause was transferred to this Court, pursuant to Title 13, § 111(11a), Code of Alabama 1940, Recompiled 1958.
It appeared on the trial that the victim had been window-shopping in Auburn the night of the crime. As she was walking home, several males dragged her into the bushes alongside Drake Avenue, a block from her home. She was forcibly raped three times and there was a fourth unsuccessful attempt. It was her impression there were four different assailants.
Willie Scott, fourteen years old, testified that he, the defendant Logan, and two others had been the assailants. Willie testified that as the defendant and the others were raping the woman, he thought she seemed hurt, so he put his hand on her heart to make sure she was alive. When the three were finished, they forced Willie to get on top of the woman, but he did not penetrate.
A cellmate testified that while he and the defendant were locked up together, Logan had told him the full story of the assault, including an admission that he and each of the others had raped the victim, except for little Willie, who "[didn't] get too much."
The defendant himself took the stand and denied everything. He claimed to have been at home watching television during the time of the assault.
The jury returned a verdict of guilty as charged, and imposed a twenty-four year penitentiary sentence.
The warrant on which appellant was arrested recited:
"Before me, Hal Smith, Clerk of the Court of Common Pleas of Lee County, Alabama, personally appeared Frank deGraffenried who being first sworn, deposes and says on oath, that he has probable cause for believing and does believe that
"Jimmy Lee Logan, alias, forcibly ravished [victim's name, omitted by this court in the interest of her privacy] a woman."
Appellant argues that the warrant was issued on the "mere conclusion of a Police officer," and, therefore, the arrest warrant was invalid; and, if invalid, the detention of appellant was invalid. Based on these premises, appellant then argues that the alleged verbal statements of the appellant to cellmate Parker that he took part in the rape and that he was the second of the group to have sexual intercourse with the prosecutrix were inadmissible because they were made while appellant was illegally detained and were "fruit of the poisonous tree" doctrine. We cannot agree.
In Loyd v. State, 279 Ala. 447, 186 So.2d 731, this court said:
"We are not advised of any case holding that a confession is inadmissible for *900 the reason that it was made while a defendant was being held after being unlawfully arrested. As we note hereafter, the Supreme Court of the United States has held that evidence obtained as the result of an illegal search is not admissible, but we are not advised that the rule of exclusion has been applied to a confession, which is shown to have been voluntarily made, although the confessing person may have been illegally arrested. We are of opinion that the confession was not inadmissible on the ground that it was made after defendant had been taken into custody by an unlawful arrest."
Other recent cases holding the same are Bridges v. State, 284 Ala. 412, 225 So.2d 821[6]; Braggs v. State, 283 Ala. 570, 219 So.2d 396[3]; Hutto v. State, 278 Ala. 416, 178 So.2d 810[6]; Goldin v. State, 271 Ala. 678, 127 So.2d 375[8]; Ingram v. State, 252 Ala. 497, 42 So.2d 36[11]; Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240[5]; Reed v. State, 48 Ala.App. 120, 262 So.2d 321[2]. In Ingram v. State, supra, this court approved and agreed with a statement of Harwood, J., writing for the Court of Appeals in the same case, (Ingram v. State, 34 Ala.App. 597, 42 So. 2d 30) in which it was stated, "* * * we do not consider that the McNabb Rule (McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819) is binding on us. In Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690, the United States Supreme Court said in reference to the McNabb Rule: `But the rule there applied was one against use of confessions obtained during illegal detention and it was limited to federal courts, to which it was applied by virtue of our supervisory power.'"
It follows that the rule in federal courts is not applicable in our courts. We also note that appellant was tried on a valid indictment which is not questioned.
In addition, there is a major distinction in this case and the cases cited in brief of appellant and in the dissenting opinion. In those cases, the court deals mostly with the question of illegal searches or seizures and some do not deal with confessions at all. But in those cases dealing with confessions or admissions, they were made to officers in custodial interrogations, either at the time or shortly after an illegal arrest.
But here, the confession was made to a cellmate and was admitted after a proper predicate had been laid to as its voluntariness. There is no evidence or inference therefrom that any officer was present or heard the confession or that cellmate Parker was a "plant" or undercover agent of any officer. So there was no "poisonous tree" and no "fruit" of any illegal search or seizure or custodial interrogation.
In Sanders v. State, 202 Ala. 37, 79 So. 375, this court held that a prisoner in jail could testify as to a conversation he heard between two fellow prisoners, accused of a crime, upon the issue of the guilt vel non of one of them after a showing that the statements were not otherwise than voluntary.
We find no error in the admission of the testimony of the cellmate Parker.
Appellant also raises questions of (a) error in the court's refusal to transfer the case to the juvenile court; (b) that the testimony of the alleged accomplice, Willie Scott, was not corroborated; (c) that the court erred in allowing hearsay evidence to be adduced from Deputy Sheriff Watkins.
The answer to (a), the transfer question, is that when a youth 16 to 18 years of age is charged with a crime in a court of criminal jurisdiction, the statute, Tit. 13, § 363, vests in the court a discretion to put him to trial or transfer him to the jurisdiction of a juvenile court. Whitfield v. State, 236 Ala. 312, 182 So. 42; Davis v. State, 259 Ala. 212, 66 So.2d 714. The appellant was 16 years old and the trial court had the right, in his discretion, to put him on trial in the circuit court. We cannot say that from a consideration *901 of the record, the trial court abused his discretion.
We now consider the argument that the court erred in admitting Willie Scott's testimony because Scott was an accomplice. Appellant concedes that the testimony of Parker corroborated that of Scott, but insists that Parker's testimony was not admissible. We have already decided that question adversely to appellant.
The State argues that Scott was not an accomplice because he could not have been convicted of rape since, even under the testimony of the prosecutrix, he achieved no penetration.
The test of whether a witness is an accomplice is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712; Strange v. State, 43 Ala.App. 599, 197 So.2d 437.
Assuming, without conceding, that Scott was an accomplice, still there was ample corroborating evidence to support the conviction without Scott's testimony.
Finally, the point that hearsay evidence of Deputy Watkins was not admissible. Appellant states in brief: "The record clearly shows that trial counsel properly objected to the hearsay testimony of Ronnie Watkins, concerning a conversation between Watkins and the witness for the State, Charlie Parker."
On direct examination, the appellant testified that his cellmate, Parker, after returning from a session with some officers, including Deputy Ronnie Watkins, told him (appellant) as follows:
"* * * He was one that came and got Charlie Parker and carried him downstairs. He said he was Deputy Ronny Watkins and that the two Opelika detectivesand that Auburn detectives wanted to pay Charlie Parker, pay him some money to testify against me. He said Ronny Watkins hadhe didn't want the money, he'd rather have his case dropped."
The appellant was the concluding defense witness and the defendant rested, but another cellmate corroborated the statement.
The only rebuttal witness was Deputy Ronnie Watkins. After Watkins had testified that he had talked with Parker in the presence of other officers about appellant's case (no details were stated), the following transpired:
"Q. What, if anything, was said between the two of you all?
"A. After we had finished our conversation in reference to him testifying and the preliminary the next morning, he started to leave and he turned and he came back and asked me had I found out anything about his case. And I didn't know what he was talking about and I inquired into it and asked him what the charges were and he informed me that he was charged with assault with intent to murder and he had talked to Deputy Popwell, Jerry Popwell, about waiving action to the Lee County Grand Jury, and pleading guilty to those charges and I asked him exactly what had taken place that he was in jail for those charges for. And he informed me that he had got in an altercation
"MR. GLENN: We have to renew the objection on the grounds of hearsay.
"MR. WRIGHT: It's just rebuttal, that's already been brought out.
"THE COURT: That's right. The district attorney has the right to rebuttal. You have put on testimony, Mr. Glenn, before the jury to the effect that Ronny Watkins and Mr. deGraffenried, witnesses for the State, had offered the man money just to get him to testify.
"MR. GLENN: The defense was just being cautious, Your Honor, to be sure that it is in the record.
*902 "THE COURT: Yes, sir, well, the Court is going to permit him, Mr. Wright, to put on rebuttal testimony in connection with your direct testimony to the effect that these two gentlemen, Det. deGraffenried and Ronny Watkins, had offered some money to a man for him to change his story or to testify falsely
"MR. GLENN: Your Honor, I'm not
"THE COURT: Respectfully overruled, and you have an exception.
"MR. GLENN: Yes, sir, Your Honor. Defendant takes an exception to the Court's ruling.
"THE COURT: Yes, sir, you have an exception. Now, go ahead.
"A. When I inquired as to what he was charged with, I also inquired into the result of those charges and he informed me that he had been in an altercation with Johnny Fowler and that he struck him in the jaw and broke his jaw and as a result an Assault with Intent to Murder warrant was signed against him. And on my own recommendation, I asked Charlie Parker not to waive action by the Lee County Grand Jury, but to wait for the action of the Grand Jury for indictment, to see if they indicted him on that charge; that in my opinion, they probably wouldn't, that they would probably return an assault and battery indictment, if any. And this was the extent of our conversation on his charges."
The trial court was correct in allowing the rebuttal witness to testify that he offered no money or inducements to Parker since the charge had been made by the defendant while testifying in his own behalf.
Such evidence is competent and it is elementary that the State may examine a prosecuting witness as to facts tending to rebut the defendant's testimony, or reasonable tendencies thereof. Deloney v. State, 225 Ala. 65, 142 So. 432; Emerson v. State, 281 Ala. 29, 198 So.2d 613.
Even so, if there had been error, it was rendered harmless. When the direct examination of the rebuttal witness was concluded, appellant's counsel made the following statement:
"We have no questions of Deputy Watkins. I would like to say at this time we don't think that Deputy Watkins offered him any money. That's just what Charlie Parker said. We don't think he did that."
Obviously, the objection that the evidence was hearsay could not apply to Deputy Watkin's testimony denying the offer of money. It could only apply to matter of the difference in the charge against cellmate Parker in that he was arrested on a charge of assault with intent to murder and later the indictment against him was assault and battery.
The matter was brought up when Parker, on cross-examination by defendant, was asked if after he had talked with Deputy Watkins (and it was undisputed that they had only one conversation) and had testified at the preliminary hearing of appellant, that he (Parker) was indicted for assault and battery. Over the State's objection, the witness testified that the indictment charged assault and battery. The appellant also introduced the warrant charging assault with intent to murder, and the indictment charging assault and battery.
In rebuttal, Deputy Watkins denied offering to or even talking about reducing the charge against Parker in their conversation and stated that the only reference to the charges was that already recorded.
Two principles demonstrate that no reversible error was committed in admitting this evidence, some of which was hearsay. First, the admission or rejection of evidence on rebuttal is addressed largely to the trial court's discretion. Goldin v. State, 271 Ala. 678, 127 So.2d 375; Caldwell v. State, 203 Ala. 412, 84 So. 272. The matter was material and important *903 and the trial court did not err in permitting the witness to attempt to clear himself of the charge.
The second principle is that when part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171. Further, it has been held that when the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation. Davis v. State, 131 Ala. 10, 31 So. 569; Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218.
No error to reverse appearing, the judgment is due to be affirmed.
Affirmed.
COLEMAN, HARWOOD, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
HEFLIN, C. J., concurs in the result.
BLOODWORTH, J., dissents.
HEFLIN, Chief Justice (concurring in the result):
I concur in the affirmance of the case because the confession was made to a cellmate rather than to a law enforcement officer. I would agree with Justice Bloodworth's dissent except for the fact that none of the United States Supreme Court cases that he cites involve non-law enforcement personnel. I would not extend the doctrine of the "fruit of the poisonous tree" to a confession given to a cellmate.
BLOODWORTH, Justice (dissenting):
I must respectfully dissent, as I think there was error in the admission of the confession made while defendant was being held in jail under an illegal and unconstitutional arrest, in the absence of a showing that the confession was not a product of the illegal detention. I agree with the rest of the majority opinion.
Perhaps as much or more than any member of this court, I dislike having to place myself in the posture of voting to remand this cause for further proceedings. But, I think the United States Supreme Court decisions compel this result. And, of course, we have a duty to follow those cases, whether we agree with them or not.
In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the United States Supreme Court held:
"The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. * * *" (Emphasis added)
The affidavit upon which the warrant in Whiteley was based averred in relevant part:
"I, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A.D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building * * *."
This affidavit was rejected by the United States Supreme Court as being "nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense." Id. at 565, 91 S.Ct. at 1035. Having found the affidavit insufficient to support the warrant, the Court in Whiteley declared the arrest invalid and reversed the conviction because evidence seized at the time of the illegal arrest was improperly admitted at trial, being the "fruits" of the illegal arrest.
*904 The case at bar is controlled by the Supreme Court's decision in Whiteley, in my judgment. The officer who swore to the affidavit in the present cause merely stated:
"* * * that he has probable cause for believing and does believe that Jimmy Lee Logan, alias, forcibly ravished * * * a woman * * *."
Such a bald, conclusory statement cannot "support the independent judgment of a disinterested magistrate" as required by Whiteley. The affidavit is clearly insufficient, thus the warrant is invalid as is the resulting arrest.
Not many of us thought, before the United States Supreme Court told us so in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), that a purely conclusionary affidavit wouldn't do to support a search warrant. (See Knox v. State, 42 Ala.App. 578, 172 So.2d 787, cert. den. 277 Ala. 699, 172 So.2d 795 (1965).)
Neither did many of us think, before the United States Supreme Court decision in Whiteley v. Warden, supra, that a purely conclusionary affidavit wouldn't do to support an arrest warrant.
Now, it seems absolutely clear to me that, as to both search and arrest warrants, the affidavit must contain sufficient allegations to constitute "probable cause." Whiteley, supra; Aguilar, supra; Spinelli, supra.
Logically, it may be asked what difference does it make if the affidavit in support of the arrest warrant is conclusionary and the subsequent arrest therefor invalid?
Probably, it makes no difference if the defendant is indicted, as he must be in Alabama to be tried for a felony, provided no fruits of a search and seizure, line-up, confession, fingerprints (see Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed. 2d 676), etc., obtained during the illegal detention, are sought to be introduced against the defendant.
Having concluded that the arrest in this case was invalid, the question then arises whether the defendant's confession to his cellmate while he was being unlawfully detained was tainted by his illegal arrest.
While the United States Supreme Court in Clewis v. Texas, 386 U.S. 707, 711 n. 7, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), purported to reserve the question of the admissibility of statements obtained from a defendant following an unconstitutional arrest, later cases require that it clearly appear on the record that the confession was not caused or brought about by the illegal detention.
In State v. Traub, 150 Conn. 169, 187 A.2d 230 (1962), the Supreme Court of Errors of Connecticut upheld a conviction based upon a voluntary confession obtained while the defendant was being unlawfully detained. However, when the case came before the United States Supreme Court in Traub v. Connecticut, 374 U.S. 493, 83 S. Ct. 1899, 10 L.Ed.2d 1048 (1963), the Court summarily remanded the case for further consideration in the light of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
After remand, the Connecticut court, in State v. Traub, 151 Conn. 246, 196 A.2d 755, held that while a "confession made in the course of, or following, an illegal detention * * * [is not] per se inadmissible as matter of law," it is "prima facie, inadmissible under the Wong Sun rule * * *." In other words, the state is required to prove voluntariness as a prerequisite to the admissibility of a confession in any case, but the effect of an illegal detention, under the Wong Sun rule, * * * is to add to that burden." The court concluded that:
"* * * even though, from the evidence produced, a confession made during *905 an illegal detention is properly found to have been truly voluntary, nevertheless, if the illegal detention was an operative factor in causing or bringing about the confession, then the confession will be considered as the fruit of the illegal detention and will be inadmissible. It is this causation factor which Wong Sun added to the previously settled voluntariness requirement in the sense that proof of its absence is now a prerequisite to the admissibility of an otherwise voluntary confession, if the confession was made during an illegal detention. * * *"
In Traub, the Connecticut court, after examining the record, found sufficient evidence to conclude that the detention was not an operative factor in producing the confessions. The United States Supreme Court denied certiorari in Traub v. Connecticut, 377 U.S. 960, 84 S.Ct. 1637, 12 L. Ed.2d 503 (1964).
Similarly, in Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), the United States Supreme Court vacated a conviction based upon a confession obtained from the defendant while in police custody. The Court acknowledged that the circumstances showed that the confession was voluntary, but remanded the cause for determination as to the lawfulness of the police detention at the time the confession was obtained in order to determine whether the confession was properly admitted at trial.
Thus, it appears to me to be the law that confessions obtained while under unlawful detention, even though shown to be voluntary, are subject to the "fruit of the poisonous tree" doctrine of Wong Sun, supra, if caused or brought about by the illegal detention, and that such doctrine is fully applicable to the states through Ker v. California, supra.
Upon reviewing the transcript in the instant case, I find nothing in the record to affirmatively show that the confession admitted into evidence was not a product of the illegal arrest and detention. The trial judge never considered the issue, because he was of the opinion that the arrest was constitutional.
Therefore, I am of the opinion that this cause should be remanded for further proceedings to determine whether or not the confession was the product of the illegal detention.[1]
NOTES
[1] Even though the affidavit is insufficient on its face to support probable cause, our decisions permit the State to show by adducing testimony that there were sufficient facts presented under oath to the issuing magistrate to constitute probable cause. See Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966); § 3.9, Searches & Seizures, 17A Ala.Dig. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645444/ | 40 So.3d 68 (2010)
Jose VEGA, Petitioner,
v.
UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
No. 3D10-1595.
District Court of Appeal of Florida, Third District.
July 7, 2010.
Lopez & Best and Virginia Best, for petitioner.
Michael J. Neimand, Miami, for respondent.
Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
SCHWARTZ, Senior Judge.
This is a petition for second-tier certiorari in a case involving Personal Injury Protection benefits. The petition is denied on the authority of Ulloa v. United Automobile Insurance Co., 36 So.3d 184 (Fla. 3d DCA 2010); United Automobile Insurance Co. v. Eduardo J. Garrido, D.C., P.A., 22 So.3d 120 (Fla. 3d DCA 2009); United Automobile Insurance Co. v. Perez, 21 So.3d 886 (Fla. 3d DCA 2009); Partners in Health Chiropractic v. United Automobile Insurance Co., 21 So.3d 858 (Fla. 3d DCA 2009); United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) (en banc), petition for review pending, No. SC09-2100, proceedings stayed (Fla. Jan. 5, 2010); United Automobile Insurance Co. *69 v. Metro Injury & Rehab Center, 16 So.3d 897 (Fla. 3d DCA 2009).
Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612395/ | 282 So. 2d 779 (1973)
Isham WINCH and Wayne Winch, Plaintiffs and Appellees,
v.
John A. VEAZEY, Defendant and Appellant.
No. 4258.
Court of Appeal of Louisiana, Third Circuit.
September 18, 1973.
*780 Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Abbeville, for defendant and appellant.
Cooper & Sonnier by Silas B. Cooper, Jr., Abbeville, for plaintiffs and appellees.
Before HOOD, CULPEPPER and MILLER, JJ.
CULPEPPER, Judge.
This is a boundary action brought by plaintiffs, Isham Winch and Wayne Winch to have the boundary line between their property and that of the defendant, John M. Veazey, judicially established. The defendant answered and plead the prescriptions of ten and thirty years. Harold J. Letz, a duly qualified surveyor, was appointed by the court to survey and fix the disputed boundary line, which he did. After a trial on the merits, judgment was rendered in favor of the plaintiffs fixing the *781 boundary line between their property and that of defendant in accordance with the plat of survey prepared by Mr. Letz. Defendant appealed from that judgment.
GENERAL FACTS
The properties of the plaintiffs and defendant are contiguous.
The property owned by the defendant Veazey is a ridge of high land running in a generally east and west direction on Pecan Island in Vermilion Parish, Louisiana, and the property owned by the plaintiffs is marsh land.
The plaintiffs' property is described as:
"That certain tract of land in Vermilion Parish, Louisiana, being * * * Lots 17 and 19 of Section 5, T16S, R1E, containing 127.25 acres, as per the United States Government plat of survey dated September 8, 1890."
This property was conveyed to the State of Louisiana by the Federal Government under the Swamp Lands Selection Act (U. S.C. 43:981, et seq.) and was acquired by plaintiffs' father, Isham Winch, from the State of Louisiana at public sale held on the 28th day of June, 1955.
The lands of the defendant are described as:
"One certain tract of land in Vermilion Parish, Louisiana at a place called Pecan Island, and being designated as Lots 7 and 8 of Section 5, T16S, R1E, containing 37.48 acres, more or less.",
and was patented by the Federal Government to Andre Veazey, an ancestor of defendant, the entire interest in the property being acquired by the defendant.
Lot (19) owned by plaintiffs is bounded on the south by Lot (7) owned by defendant, and this is the boundary line in dispute, this boundary line being the line separating the ridge from the marsh.
The controversial boundary line was first established by a government surveyor named Bilbo about the year 1845 and was established for the purpose of fixing the boundary line of the properties to be acquired by the State of Louisiana from the Federal Government under the Swamp Lands Selection Act, 43 U.S.C.A. 891 et seq. The line between the properties of the plaintiffs and defendant was part of the line so surveyed.
In the year 1890 a surveyor named George Elms was employed by the Surveyor General of the State of Louisiana to resurvey Pecan Island situated in Townships 15 and 16, Ranges 1 East and 1 West, and Township 5 South, Range 2 West to re-establish the Bilbo line, i. e., the line between the marsh and the ridge at Pecan Island. He completed this survey during the later part of that year.
A copy of the original survey notes of George Elms, the government surveyor as above mentioned, was introduced in evidence (Exhibit D-2) and these notes were used and followed by Mr. Letz in making his survey of the disputed boundary line.
With minor and unimportant variations the line as surveyed and established by Mr. Letz follows exactly the line surveyed and established by Mr. Elms in 1890. This fact is not disputed by the defendant who simply assumes the position that the Elms line does not correctly delineate the boundary line between the ridge and the marsh and accordingly does not properly delineate the boundary line between the property of the plaintiffs and the defendant.
A survey of the boundary line was made by a surveyor employed solely by the plaintiffs some time prior to the year 1959. At that time, the plaintiffs advised the defendant of the survey and told him that if he did not agree with this survey he could get a surveyor of his own choice so that the two surveys could be compared and some agreement reached as to the correct boundary lines. This the defendant did not do.
In 1969, the plaintiffs employed a Mr. Noy O. Lewis, a surveyor, to make a survey *782 of the boundary line, but he was prevented from so doing by the defendant.
In 1969, the defendant constructed a canal along what he asserts was the correct boundary line between his properties and the properties of the plaintiffs with a spoil bank or levee along the northern edge of the canal and a fence on the northern side of the spoil bank. The canal with the spoil bank and fence is approximately 200 feet north of the boundary line as fixed by Mr. Letz and it is the property between the Letz line and the canal that is in dispute.
BOUNDARY FIXED BY COURT SURVEYOR
The defendant submitted no evidence which showed that the Elms survey was not the correct and proper line and should not have been followed by Mr. Letz. He did submit a plat prepared by a surveyor named Sellers who made no survey of the property but simply prepared a plat showing the location of various other surveys or lines run in this area. Sellers referred to the V. E. Smith survey and plat (D-20) dated May 23, 1958. This survey appears to have been made at defendant's expense and it set out the line which defendant claims as the boundary.
The district court found the Letz survey shows the boundary line between the estates of the plaintiffs and defendant. This holding is clearly correct.
TEN YEARS PRESCRIPTION
Defendant's plea of prescription of ten years under LSA-C.C. Article 853 has no merit. Prior to the 1968 amendment to LSA-C.C. Article 833, there was a conflict in the jurisprudence as to whether Article 853 was applicable where there was no formal survey. Harvey v. Havard, 225 So. 2d 615 (La.App. 1st Cir. 1969) held that a formal survey, meeting the requirements of Article 833, was necessary. In LaCalle v. Chapman, 174 So. 2d 668 (3rd Cir. 1965) we took the position that a formal survey was not necessary, it being sufficient under Article 853 to show an extrajudicial survey or the consent or active acquiescence of the adjacent landowners to a visible boundary line, citing Sessum v. Hemperley, 233 La. 444, 96 So. 2d 832 (1957).
In the present case, it makes no difference which of these constructions of Article 853 is correct. Here, there has been neither a formal survey nor an extrajudicial survey to which both parties agreed, nor has there been any mutual consent to or active acquiescence in a visible boundary. Even if we were to accept defendant's argument, which we do not, that there was a visible boundary line between his land on the ridge and plaintiffs' land in the marsh, evidenced by a difference in the soil and the vegetation on the ridge and that in the marsh, defendant could not prevail under Article 853, because there is no evidence that the plaintiffs consented or actively acquiesced in such a line for ten years.
THIRTY YEARS PRESCRIPTION
Defendant's plea of acquisitive prescription by uninterrupted possession during thirty years beyond his title to a visible boundary, under LSA-C.C. Article 852, likewise has no merit. Our jurisprudence under this article requires (1) a visible boundary and (2) uninterrupted possession for thirty years to that boundary, Sessum v. Hemperley, 233 La. 444, 96 So. 2d 832 (1957); Ponder v. Fussell, 180 So. 2d 413 (La.App. 1st Cir. 1965) and Stanford v. Robertson, 144 So. 2d 747 (La.App. 3rd Cir. 1962).
In the present case, there was no visible boundary to which defendant possessed for thirty years. Defendant does not contend that there has ever been a fence or other artificial monument establishing a boundary line between his property and that of plaintiffs. His sole contention is that there is a visible line where the ridge stops and the marsh begins, evidenced by sandy soil on the ridge and black much in the marsh, and by short *783 grass on the ridge and saw grass in the marsh.
The evidence convinces us, as it did the trial judge, that there was no visible boundary line between the lands possessed by the parties. Defendant's own witness, Mr. Wiley Bertrand, admitted under cross-examination that there is an area from 40 to 200 feet wide where the ridge and the marsh run together, depending on whether the weather is wet or dry. Defendant's witness, Mr. Avery Choate, testified that prior to 1940 marsh grass evidenced the line between the ridge and the marsh, but in that year the saw grass was destroyed by a hurricane, and since that time the grass has been different and the line indefinite. This is not the type of visible boundary contemplated by Article 852 as sufficient to show definitely the extent of possession.
THE PRE-EMPTION STATUTE
Defendant contends next that the State of Louisiana could not have sold the land to the plaintiffs in 1955 because of the Pre-emption Statute, Act 21 of 1886 (which has since been repealed, see LSA-R.S. 41:171-176). This statute gave the possessor of property the first option to purchase the land from the State under certain procedures. Disregarding arguments as to whether the procedures under the statute were followed, the evidence does not show that defendant possessed any portion of the property sold to plaintiffs.
SWAMP LAND SELECTION ACT
Defendant's final argument is that the land in dispute is high land, not sea marsh or overflow land, and therefore was improperly selected by the State of Louisiana under the Swamp Land Selection Act, 43 U.S.C.A. 981 et seq. This argument is based on the contention that the notes of Elms' survey refer to crossing fences and fields, indicating that Elms was proceeding on high ground and not through the marsh.
The basic fallacy in this contention is that the Elms survey of 1890 was not the basis for the State selection of this land. The selection had been made on the basis of Bilbo's survey of 1845. Elms was hired by the State in 1890 to resurvey the lands it had selected, by re-establishing the Bilbo survey of 1845.
Furthermore, it is immaterial whether the Elms line encroaches on the ridge. The State of Louisiana made its selection according to the Bilbo line of 1845, which was re-established by Elms in 1890 and was followed by Letz in the present boundary action. Whatever is south of that line, whether ridge land or marsh land, constitutes the land which was purchased by defendant. Conversely, whatever is north of that line was selected by the State of Louisiana and later purchased by the plaintiffs.
For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant appellant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612405/ | 282 So. 2d 19 (1973)
MULFORD HICKERSON CORPORATION, a Florida Corporation, Appellant,
v.
ASGROW-KILGORE COMPANY, a Corporation, and Southeastern Ag Helicopters, Inc., a Corporation, Appellees.
No. 72-29.
District Court of Appeal of Florida, Fourth District.
July 27, 1973.
Rehearing Denied September 17, 1973.
*20 Charles T. Wells of Maguire, Voorhis & Wells, Orlando, for appellant.
Gobel D. Dean and Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellees Asgrow-Kilgore.
James R. Hunkapiller of Gurney, Gurney & Handley, Orlando for appellee Southeastern AG Helicopters.
WALDEN, Judge.
This is an appeal of a final judgment rendered in defendants' favor after a nonjury trial on plaintiff's complaint for damages negligently caused to plaintiff's crop. We reverse and remand with instructions.
Plaintiff-appellant, Mulford Hickerson Corp., a commercial grower of ornamental plants, raises caladiums. Part of plaintiff's lands are adjacent to canals and ditches in the Zellwood Drainage District. Defendant-appellee, Asgrow-Kilgore Co., prepared a herbicide spray containing the chemical 2,4D, which was applied from a helicopter owned by defendant-appellee, Southeastern AG Helicopter, Inc., to plants in the canals and ditches of the Zellwood Drainage District. A few days after the herbicide was applied to the canals the plaintiff's caladium fields showed damage and signs of decline from contact with the 2,4D, which had drifted over from the intended target.
Plaintiff's caladium plants produced a poor yield of caladium tubers for the year. The yield per acre, which was much lower than expected, was the smallest yield ever, even though plaintiff cultivated greater acreage than it had in the past. Plaintiff sued defendants, charging that Asgrow-Kilgore Co. was negligent in preparing the spray and that Southeastern AG Helicopter, Inc. was negligent in applying the spray. The trial court, finding in defendants' favor, determined that Asgrow-Kilgore Co. was not negligent in preparing the herbicide, but had sufficient control over Southeastern AG Helicopter, Inc. to be responsible for its negligence. It found that the herbicide came into contact with plaintiff's caladium plants as a result of the negligent application of that spray by Southeastern AG Helicopter, Inc., but that plaintiff failed to prove that the helicopter company's negligence was the proximate cause of the damage to the caladium tuber crop. The court specifically observed:
"2. The court finds, from the greater weight of the evidence, that the Herbicide spray containing 2,4D prepared by ASGROW KILGORE COMPANY and applied by Defendant SOUTHEASTERN AG HELICOPTER, INC. came into contact with some of Plaintiff's caladium plants. The court further finds, from the greater weight of the evidence, that this contact was a result of the negligent application of that spray by Defendant SOUTHEASTERN AG HELICOPTER, INC.
"3. The court finds, however, that Plaintiff failed to establish, by the greater weight of the evidence, that the negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. was the proximate cause of the alleged damage to the caladium tuber crop complained of by Plaintiff.
"Although not necessary to a final determination of this cause, the court makes the following findings:
"(a) That Plaintiff failed to establish, by the greater weight of the evidence, the nature and extent of the damage to the caladium tuber (bulb) crop by reason of the 2,4D formula coming in contact with some of the caladium plants, and
"(b) That Plaintiff also failed to establish, by the greater weight of the evidence, the amount of the money damages suffered by Plaintiff.
"The evidence as to the nature and extent of the damage to the tuber crop and the amount of the money damages suffered by Plaintiff, was, for the most part, speculative in nature."
*21 The trial court very studiously presided over this case and there was much expert testimony one way and the other and statistical projectments as to possible damages. In their appellate presentation counsel have minutely assessed the problem. However, from our after view we feel the issue and the problem is perhaps simpler than that suggested in the briefs.
The defendants' negligence and liability has been clearly demonstrated, as recognized by the trial court. This negligence manifestly and proximately produced damages to the plaintiff's tuber crop.[1] Thus, the basic underlying issue is the legal sufficiency of the proofs as to plaintiff's damages.
It is our assessment that the trial court, conscientious and careful as it was, was laboring under a misapprehension in this instance as to the law of damages. The fact of damages must be shown with reasonable certainty to warrant recovery, however there are situations where the fact of damages is certain, but the amount is uncertain. The amount of damages need only be ascertainable with a reasonable degree and not exactly calculable. Approximate results suffice. McCall v. Sherbill, Fla. 1953, 68 So. 2d 362. Once the right to recover damages is established, difficulty in assessing damages is not sufficient basis for denying their recovery. Twyman v. Roell, Fla. 1936, 123 Fla. 2, 166 So. 215.
Some damages may be measured with certainty and others not, depending on their nature. To illustrate with common examples known to all, usually the complete destruction of a chattel of established market price and replacement value can be measured with exactness. At the other end of the spectrum, items such as loss of consortium and pain and suffering are necessarily uncertain and incapable of exact definition. See 9A Fla.Jur., Damages, §§ 21, 43; Seaboard v. McKelvey, Fla. 1972, 270 So. 2d 705.
And now we come to the law of damages as concerns crops. In 21 Am.Jur.2d, Crops § 74, it is stated:
"The questions relating to the measure of damages for injuries to, or destruction of, a growing crop are not altogether devoid of difficulty. The courts are not agreed on the subject, partly from a difference in the rules applicable to the measure of damages and in the various holdings as to what evidence is admissible in such cases, and partly from the way in which various propositions of law as well as of fact have been stated. These differences, added to the inherent difficulty of estimating the value of a growing crop, create some misgiving in the formulation of general rules respecting the subject, but there is no doubt that compensation for the real injury is the purpose of all remedies." (Emphasis supplied.) 21 Am.Jur.2d, Crops § 74.
In this case the crop was not completely destroyed, but a lower yield was produced at the end of the season due to the defendants' negligence. Some courts in such instances where the crop is not completely destroyed assess the measure of damages as the difference between the value at maturity of the probable crop if it had remained uninjured and the value of the actual crop produced less the marketing costs for that portion of the probable crop destroyed by the injury. If the reduced yield caused no reduction in labor and expense, then no deduction need be made for such costs. 21 Am.Jur.2d, §§ 78 and 79. See also McCormick on Damages, § 126, pp. 486-490 (1935), Annot. 175 A.L.R. 159 (1948).
A case arising in Florida, Wm. G. Roe & Co. v. Armour & Co., 5th Cir.1969, 414 F.2d 862, assessed the measure of damages where annual orange production was reduced partially due to defendant's negligence as the normal yield, less the amount harvested, (less the amount lost due to a *22 freeze), calculated on the basis of the average market price for the same kind of fruit established during the season that the injury occurred.
It is our judgment from an assessment of the record that the trial court was unduly rigid in determining the degree of certainty as to proofs of damages that would be required under the circumstances of this case. We feel that there is a basis in the record whereby the formula utilized in Wm. G. Roe & Co. v. Armour & Co., supra, comparable to the method discussed in 21 Am.Jur.2d § 78, can be used in the instant case. The suggested formula is the (expected) normal yield less the amount harvested and reduced by marketing costs, if any, for that portion of the crop destroyed by the injury, calculated on the basis of the average market price for the same crop during the season that the injury occurred. Somewhat as an aside, we record that the difficulties as to pre-injury production statistics are not insurmountable for there are either written production records or oral testimony as to yield for most of the critical pre-injury years.
And now we digress for a moment to touch somewhat repetitively upon the concept of proximate cause which appears to occasionally engender a degree of confusion. The text book definition found at 23 Fla.Jur., Negligence, § 26, is:
"The proximate cause of an injury may be generally defined as that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred... . the cause that leads to, produces or contributes directly to, the production of the injury of which complaint is made." Id. at 271.
See also Florida Standard Jury Instruction 5.1(a).
And there is an overlap with term being in general and essential use in both the law of negligence and the law of damages. See 23 Fla.Jur., Negligence, § 25 and 9A Fla.Jur., Damages, §§ 12, et seq. In its simplest context with reference to the instant suit there must be shown a causal relationship between the negligent act complained of, i.e. the negligent application of a herbicide or weed killer to defendant's growing crop, and the damage about which complaint is made, that damage being a smaller yield of bulbs of a diminished size and quality.
A fair reading and analysis of the appealed judgment and the testimony of the witnesses makes it totally clear from the standard of manifest and overwhelming weight that:
1. Defendants negligently sprayed herbicide upon plaintiff's caladium crop and same came into actual contact with a measurable portion of the crop.
2. The herbicide is decidedly harmful and has a deleterious effect upon caladium plants. It produces burnt leaves, contorted, crooked or S-like stems and a stunted growth which results in a smaller and puny tuber or bulb. Plant size is indicative of potential yield.
3. The plants and potential crop suffered substantial damage and a reduced yield was realized.
4. The judgment reference that plaintiff failed to establish that the negligence was the proximate cause of the damage, when read in pari materia, can only mean not that there was not damage but that the evidence as to it was uncertain and not capable of ascertainment in the opinion of the trial judge.
And so we hark back to the earlier portions of this opinion wherein we suggest that the able trier of the fact was laboring under a misapprehension as to the law of damages. His standard was, in our opinion, simply too rigid when applied to growing bulb crops. Thus, he ruled that the plaintiff failed to prove a causal relationship between the application of the herbicide *23 to the plants and the diminished yield in terms of dollars. In conclusion and other words, his mention of no proximate cause is altogether harmonious with the trial court's other findings and we deem it only reflective of his view that the damages were too uncertain and speculative according to his erroneous criteria and views.
We must say that this court has vacillated between applying the test which we now adopt to the naked record before us and determining at this stage the monetary value of the damages or remanding with respectful request and instructions to assess the damages consistent with the views we now express. We have adopted the latter procedure as a way of getting the best result because we feel that the trial judge is necessarily and inherently in the superior position to make this assessment. He can, from his first hand exposure to the witnesses evaluate the testimony and resolve the conflicts and assign the proper weight to the evidence. We do, therefore, reverse the appealed judgment and remand with instructions to assess damages in plaintiff's favor in accordance with the views herein expressed.
Reversed and remanded with instructions.
REED, J., concurs.
MAGER, J., dissents with opinion.
MAGER, Judge (dissenting):
I must respectfully dissent because in my humble opinion the majority decision has overlooked certain fundamental principles relating to appellate review and the law of damages.
In Golden Hills Turf & Country Club, Inc. v. Buchanan, Fla. 1973, 273 So. 2d 375, 376, the Supreme Court of Florida stated:
"`Clearly, it is not the function of an appellate court to substitute its judgment for that of the trier of fact, be it a jury or a trial judge. Accordingly, although an appellate court might have reached a different conclusion had it been the initial arbitrator of the factual issues, if a review of the record reflects competent, substantial evidence supporting the findings of the chancellor, the judgment should be affirmed. (Citations omitted)'"
Where there is conflicting evidence it is not the function of the appellate court to interfere with a determination of a trial court based upon an interpretation of the evidence before it. Koones v. Koones, Fla.App. 1963, 149 So. 2d 88; State v. Thomas, Fla.App. 1968, 212 So. 2d 910; 2 Fla.Jur. Appeals Sections 342 and 346.
In the case sub judice the final judgment reflects that the testimony before the trial court was technical, conflicting and speculative.[1] Based upon its consideration of the nature of the evidence before it, the trial court determined that, although there was negligence in applying the spray which came in contact with the plaintiff's caladium plants, the plaintiff "failed to establish by the greater weight of the evidence, that the negligence of the defendant ... was the proximate cause of the alleged damage to the caladium tuber crop complained of by plaintiff".
The majority, therefore, exceeded the scope of appellate review when it endeavored to resolve conflicting evidence on the issue of causation. One cannot quarrel with the majority's observation and analysis of the law relating to certainty of damages. Clearly, where the right to damages has been established the mere difficulty in *24 the assessment of damages is not a sufficient reason for refusing them. 22 Am. Jur. Damages Section 23. The trial court, however, found that the greater weight of the evidence did not prove the cause of damage. Had the trial court found that the defendant's negligent spraying of the plaintiff's plants was the proximate cause of the damage to the caladium plants but, nevertheless, proceeded to hold for the defendant because of the plaintiff's inability to precisely fix with mathematical certainty the amount of damages, I would concur with the majority opinion.
The majority opinion appears to confuse the principles applicable to certainty of damages with the principles necessary to establish the cause of damages. In 9A Fla.Jur., supra, Sections 18, 20 and 21, this distinction is clearly pointed out:
"The rule of certainty is entirely distinct from and independent of the rules that the damages recoverable in tort actions must be the natural and proximate results of the wrong complained of, or, in actions ex contractu and for torts arising from contract, such as may reasonably be supposed to have been within the contemplation of the parties... .
* * * * * *
"The damages recovered in any case must be shown with reasonable certainty both as to their nature and in respect of the cause from which they proceed. Accordingly, there can be no recovery in those cases in which the fact of damage to plaintiff is not reasonably certain. And there can be no recovery unless it is shown with reasonable certainty that the loss resulted from the wrong complained of. . .."
* * * * * *
"There is a clear distinction between the measure of proof necessary to establish the fact that the plaintiff has sustained some damage and the measure of proof necessary to enable the jury to fix the amount of damages. While there may be many types of cases in which the damage is certain, but the amount of damages is uncertain, such uncertainty does not necessarily preclude recovery. The uncertainty which defeats recovery has reference to the cause of damage rather than to the amount of it. ..."[2] (Emphasis added.)
See Saporito v. Bone, Fla.App. 1967, 195 So. 2d 244.
The majority's misconception of this distinction is further evidence of its reliance on Wm. G. Roe & Co. v. Armour & Co., supra. There, the Fifth Circuit was concerned primarily with a determination of the amount of damages rather than the cause of damages. As a matter of interest, the Court of Appeals in Armour had previously remanded the cause to the district court with the instruction that the trial court assess damages if it determined that the emission of fluorine gas from Armour's phosphate plant was "a proximate cause of the reduction in yield". The district court determined the issue of causation first and then proceeded to determine the amount of the loss based upon a formula which the Court of Appeals ultimately approved.
The majority's decision to reverse and remand for the purpose of assessing damages completely disregards the trial court's determination that the negligence of the defendant was not the proximate cause of the alleged damage. This issue was resolved by the trial court based upon its consideration of the conflicting evidence before it, and it has not been clearly demonstrated that this determination is erroneous. I would affirm.
NOTES
[1] In this case plaintiff would have, at the least, been entitled to nominal damages as there was an invasion of plaintiff's rights. 9A Fla.Jur., Damages §§ 7, 8.
[1] The evidence was conflicting as to whether the spray was the material and controlling factor in causing the decreased yield in plaintiff's caladium crop. There were other factors, such as the condition of the soil, lack of water, frost, method of planting, disease of tubers, all of which can affect the yield.
[2] See cases cited in the footnotes and pocket parts with reference to the aforementioned quoted statements. See also 22 Am.Jur. Damages Sections 22-25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612401/ | 282 So. 2d 819 (1973)
Roger Lee LaFLEUR et al.
v.
BOYCE MACHINERY CORPORATION.
No. 9460.
Court of Appeal of Louisiana, First Circuit.
August 22, 1973.
Rehearing Denied September 26, 1973.
Writs Granted November 9, 1973.
*820 Gordon A. Pugh, Breazeale, Sachse & Wilson, and John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, for appellant.
Donald Soileau, Mamou, for appellees.
Before LANDRY, TUCKER and PICKETT, JJ.
LANDRY, Judge.
Defendant (Boyce) appeals a judgment in favor of plaintiff, LaFleur and his associate, Percy Fontenot (Appellees), decreeing rescission of the sale of a used D-7E Caterpillar Tractor for alleged vices and defects rendering the machine unsuitable for its intended purpose, namely, heavy land clearing involving the felling of trees, removal of stumps and related activities. The lower court found the machine defective in that it could not be put to sustained use due to engine overheating. Based on said finding, the court below entered judgment as follows: (1) Ordering return of the machine to Boyce and repayment by Boyce to Appellees of the $32,130.00 purchase price; (2) in favor of Appellees against Boyce for $1,724.86 paid for repairs to the machine during its use by Appellees; (3) in favor of Boyce as plaintiff in reconvention against LaFleur and Fontenot on unrelated open accounts in the sum of $790.15 and $1,130.00, respectively, and (4) in favor of Boyce rejecting Appellees' claims for alleged loss of profits and attorney's fees.
Boyce maintains the lower court erred in concluding the machine overheated because of vices and defects rather than due to improper maintenance as alleged by Boyce and reputedly established by the record. Alternatively, Boyce contends Appellees' remedy should be limited to reduction in the purchase price because Appellees caused extensive repairs (a complete engine overhaul) to be performed on the machine after institution of this action, thus making it impossible for Appellees to restore *821 the status quo. Appellees have answered the appeal reurging their rejected claims for lost profits and attorney's fees. We reverse the judgment ordering rescission, return of the machine to Boyce, and return of the purchase price to Appellees. We affirm the judgments rendered on Boyce's reconventional demands on unrelated open account. We affirm the judgment in Appellees' favor for repairs made to the machine by the vendor, and also affirm the judgment rejecting Appellees' demands for alleged lost profits and attorney's fees. We concur in the finding that the machine was defective, but reverse the trial court's judgment ordering rescission, and render judgment ordering a reduction in price because of purchaser's inability to restore the status quo, and remand this matter to the trial court for determination of the amount of reduction due Appellees. In all other respects, we affirm the judgment below.
The parties are in agreement that the following rules of law pertain herein: All sales contain an implied warranty that the object thereof is free of redhibitory vices and defects and, unless such warranty is waived, the seller warrants the thing sold as being fit for its intended purpose and use. Lee v. Blanchard, La.App., 264 So. 2d 364, and cases therein cited.
Redhibition is the avoidance of a sale on account of a vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect, it may be presumed the buyer would not have purchased it had he known of the defects. Lee v. Blanchard, above.
In an action to avoid a sale for redhibition of a complicated piece of machinery, it is not necessary that the buyer establish the precise cause which renders the object unsuitable. It suffices if the buyer alleges and proves such a defect exists. Lee v. Blanchard, above, and cases cited therein. In such instances, the buyer need only establish that the thing failed, under normal usage conditions, to perform as intended. Lee v. Blanchard, above, and numerous cases cited therein.
To avoid a sale for redhibition, the buyer must establish that the defect existed at the time of sale. If the vice is manifest within three days of the sale, it is presumed to have existed before the sale, and the burden then shifts to the seller to prove the contrary. LSA-C.C. art. 2530.
A redhibitory action may not be maintained unless the buyer is in a position to maintain the seller in the status quo, that is, to return the thing sold in the same condition as it existed at the time of sale. Johnson v. Parson Motors, Inc., La.App., 231 So. 2d 73.
The sale of machinery or equipment will not be rescinded for redhibitory defects where the cause of failure is shown to be abuse, neglect, or improper use or maintenance thereof. Ditta v. Polk, La. App., 196 So. 2d 672; Peters v. Pattison Pontiac Co., La.App., 259 So. 2d 99.
Boyce contends the trial court erred in: (1) Finding that plaintiff proved the alleged defects appeared within three days of sale; (2) Holding that the cause of engine overheating was inherent defects and not improper use and maintenance; (3) Ordering rescission of the sale and return of the purchase price, and (4) Alternatively, ordering return of the purchase price instead of limiting plaintiff to a reduction in price because plaintiff had extensive repairs made to the tractor by a third party and was therefore unable to return the machine in the same condition it was at the time of sale.
The tractor had been previously owned by Luke Grizzaffi, who resold it to Boyce several months before Appellees acquired it from Boyce on June 10, 1968, for the sum of $32,100.00 cash. Before its sale to Appellees, one of Boyce's officers used the machine on his farm or estate during the winter of 1967-1968. An employee of the officer drained the machine of water during *822 a freeze, and inadvertently ran the tractor without water, cracking its cylinder heads. The machine was taken to Boyce's shop where it was repaired and checked on an adjacent proving ground and found to be in proper operating order. Thereafter it was sold by Boyce's salesman, Leon F. Hill, to Appellees, sight unseen. It is undisputed that Appellees bought the machine after informing Hill they intended to use it in a partnership venture for mutual profit in land clearing operations for third parties, including the removal of trees and stumps. Because of its intended use, Boyce made certain alterations or improvements to the tractor, including, inter alia, installation of side screens to protect the radiator from trees and brush, and a shield or screen to protect the driver from trees and limbs. Additionally, it was equipped with a cutting blade. The machine was sold with a warranty of 250 hours operation or 90 days, whichever lasted longer.
The record discloses that Appellees each own a Caterpillar D-6 (D-6), a smaller machine than a D-7E, which Appellees intended to use in conjunction with the D-7E. Both type machines can be and are used in the removal of trees and stumps, but the D-7E, being heavier and more powerful, is capable of downing larger trees and removing bigger stumps. Appellees intended to use the D-7E in removing larger trees and the smaller D-6 in removing small trees and brush, and in piling downed trees and uprooted stumps and the moving of dirt when required. It is further shown that LaFleur is a knowledgeable tractor operator with experience in operating both D-7Es and D-6s. It also appears that Appellees' operators are all experienced in the operation and maintenance of D-6s, and one of said operators, Isom Odom, had experience in operating a D-7, which is a larger machine than a D-7E.
Commencing with its first trial use by LaFleur on the afternoon of its purchase, the tractor overheated and could not be operated for sustained periods. The record discloses that the machine would overheat after one to two hours operation. When this occurred, it became necessary to let the machine idle from twenty to thirty minutes in order to cool before it could resume the work of land clearing. It is conceded by all concerned that this condition rendered the tractor unfit for its intended purpose. Appellees contend the condition resulted from a defect in the machine. Boyce claims the condition resulted from lack of proper maintenance, namely, failure of Appellees to keep the radiator grill and protective screens free of leaves and trash thus shutting off adequate air flow required to cool the engine during operation.
We find no merit in Boyce's contention that the defect did not manifest itself within three days of the sale. In this regard, Boyce relies principally upon hour meter readings recorded by its employees during numerous service calls made on the tractor after the sale. It is contended that the number of hours logged on the machine refute the contention it could not be operated without undue cooling off time. It is also contended the first complaint of overheating appears on its service report on July 31, 1968, at which time the tractor had logged 187 hours of operation, and had been in Appellee's possession more than a month. Boyce also relies on the testimony of Luke Grizzaffi, former owner of the tractor, who testified in effect that he had not had any insolvable problem with the tractor which he considered to be in reasonably good condition at the time he sold it to Appellant.
LaFleur, an experienced tractor operator, testified that on the evening of delivery, he attempted to use the machine to clear some trees, and after about two hours operation, it ran hot. He checked the radiator and found it full of water. He then cooled the tractor by letting it sit and run at idle speed. It again overheated after a short period of operation. LaFleur also stated a normal working day lasted 10 to 12 hours. According to LaFleur, when he attempted to use the tractor the morning following its purchase, after a short use, a *823 limb went through the radiator. This incident was reported to Ogden Abshire, Manager of Boyce's Lake Charles office, who sent a mechanic out with a new radiator. Boyce's reports, which are dated on completion of a repair job, regardless of the date on which commenced and the time taken to accomplish, show the repairs were completed June 21, 1968, at which time the hour meter indicated 38 hours use. Boyce claims this shows the machine was used more than the few hours indicated by LaFleur when the limb damage occurred to the radiator. It does not appear whether the meter was set at zero hours when the machine was delivered. In this regard, Boyce's Sales Manager, Hugh Palmer, testified it is possible for a mechanic to misread a meter, and that Palmer himself had on occasion done so.
LaFleur also testified that when the radiator was removed, it was discovered that a universal joint located beneath the radiator needed replacing. This repair was accomplished at the same time the radiator was fixed. Boyce contends the universal joint was repaired, according to its reports, on June 25, 1968, which report shows the work was performed at Basile, Louisiana, at which time the hour meter showed 107 hours of use. The record, however, contains another service report indicating the universal joint was replaced June 17, 1968, at Ville Platte, Louisiana. The reports are, to say the least, confusing. It would appear the June 17th report confirms LaFleur's testimony that this repair was done at the same time the radiator was repaired. Assuming the meter readings were correct, if the tractor worked June 22, 23 and 24, following its repair on June 21st, and before the repairs made June 25th, a period of three days during which it logged a total of 69 hours, it would mean the machine operated 23 hours daily. Such use is highly unlikely. Under the circumstances, we place little reliance upon the meter readings. A service report dated July 11, 1968, shows a meter reading of 187 hours, and that the winch on the machine was checked. On July 31, 1968, Boyce's employees repaired the tractor's winch and checked the engine for overheating. At this time, the report again shows a meter reading of 187 hours, indicating no use since July 11, 1968. If the readings of June 25, July 11, and July 31, 1968, are accurate, it indicates a use of 80 hours during the 16 days between June 25th and July 11th, and no operation whatsoever between July 11th and July 31st. It seems clear from the record that of the hours logged between date of acquisition and July 31st, a considerable portion thereof was in idle time to permit cooling of the engine.
We find the record establishes that the defect of overheating occurred within three days of the sale as attested by LaFleur who also stated he made repeated complaints about the overheating to defendant. He was not certain when he first complained, but believed it to be around June 21, 1968, when the damaged radiator was repaired. Boyce's salesman, Hill, conceded numerous complaints were made to him about the machine overheating. Although he was not certain as to the date of the first complaint, he believed it to be within about two weeks of the time the radiator was damaged. We note that the record conclusively establishes that Boyce's employees did not keep records of complaints unless a service man was sent to investigate, and a service report was made of the action taken thereon. We find that the first reporting of an overheating problem, appearing on Boyce's records as of June 31, 1968, is of little or no significance.
Boyce's records show the machine was first checked for overheating on July 31, 1968. Kermit Pitre, Boyce's mechanic, found the problem to be due to leaves and dirt on the radiator guards and insufficient water in the radiator. He did not clean the radiator because the work was performed at LaFleur's place, and no air compressor was available. Pitre stated he informed LaFleur about the condition of the radiator, which LaFleur denied. Pitre *824 again checked the tractor for overheating on August 9, 1968, at which time the hour meter showed 195 hours or 8 hours use since the prior checking for the same problem. This time Pitre attributed the problem to the setting of the idle R P M, and the position of the fuel oil racks, and made indicated adjustments. He made no mention of a clogged radiator. Testing of the tractor produced no overheating. On August 26, 1968, Pitre again checked the machine for overheating. The tractor was brought to Boyce's shops and the heads reconditioned. The radiator was not examined, neither was it cleaned while the tractor was in the shop. After completion of the repairs, the machine was tested and did not overheat. On August 28, 1968, Pitre again checked the tractor for overheating. He found air bubbles in the radiator to be the cause of the problem. He was of the opinion a head had probably cracked.
At this point plaintiffs tendered the machine to defendant, which offer was declined. On September 13, 1968, the machine was checked by defendant's employee, Harold Shelton, who found both cylinder heads cracked, and also discovered that the water regulators were not opening properly. Although he also found the radiator and side screens plugged up with leaves, he did not testify that this condition caused the trouble. He removed and replaced both heads and installed new water regulators. In effect, he attributed the trouble to the fact that both heads were cracked where they had been remolded by defendant. We find it significant that during the numerous repairs noted, on only one occasion was overheating attributed by Boyce to improper maintenance. Also significant is the fact that all of these repairs were performed by Boyce pursuant to its warranty, notwithstanding its claim the overheating was due to improper maintenance.
Boyce's claim that the difficulties experienced by Appellees resulted from improper care and maintenance of the tractor are not borne out by the record. Plaintiffs introduced in evidence a manufacturer's manual allegedly furnished by Boyce at the time of sale. The manual recommends cleaning dirt and trash from in between radiator tubes every 10 service hours by washing, blowing or brushing the dirt out by whichever means is available and proves most effective. Boyce produced the former owner, Grizzaffi, who stated in essence that when he used the machine, he had some difficulty with overheating due to trash and leaves clogging the radiator. He solved the problem by keeping on hand an air compressor with which the machine was cleaned an average of two to six times daily, or whatever number of times proved necessary depending upon the circumstances. He also testified that only a few minutes work time was lost during each cleaning operation.
In addition, Boyce's salesman, Hill, testified he informed LaFleur, within a week of the sale, that the radiator had to be kept clear of debris for the tractor to operate properly, and that he suggested that LaFleur obtain an air compressor to accompany the machine and clean it at least once a day. LaFleur emphatically denied being so advised. Defendant's mechanic, Pitre, also testified that he informed LaFleur the machine was overheating due to a clogged radiator, which LaFleur likewise denied.
Defendant's sales manager, Hugh Palmer, also deposed that proper maintenance requires a tractor's radiator be maintained free of dirt and trash, otherwise it will overheat. He suggested such could best be accomplished by having an air compressor or high pressure water system on the job to blow out the radiator and side screens at least twice daily. To Palmer's knowledge, two things could cause overheating, namely, insufficient water in the radiator, and obstruction of the cooling system either inside or out. He conceded Boyce never dismantled the tractor's engine to check for a possible internal obstruction.
John H. Reynolds, Boyce's used equipment manager, testified substantially to the *825 same effect, and added that at the time of purchase, he instructed Hill to inform the purchaser an air compressor would be needed to keep the machine clean if it was used in land clearing. Reynolds was not certain Hill communicated this message to plaintiffs, but believes that Hill did so inform LaFleur within a few days of the sale. He also stated that on one occasion, he personally told LaFleur an air compressor would be vital if the tractor was used in heavy land clearing.
Defendant also produced Ogden Abshire, service manager of defendant's Lake Charles, Louisiana establishment. Abshire stated that proper maintenance on D-6 tractors and D-7Es is essentially the same. He recalled discussing with LeFleur on three or four occasions the matter of overheating. He recalled suggesting that screens be installed on top of the tractor in addition to the side screens, which suggestion Abshire made on Reynolds' recommendation. He admitted this was the first and only time he made such a recommendation. Abshire admitted that many conditions can cause overheating besides an unclean radiator. He mentioned, among such other causes, insufficient water in the radiator, obstruction inside the engine block or head, fan belt slippage, torque converter malfunction, thermostat failure, failure of the radiator cap to seal causing loss of pressure, any other condition causing a loss of seal or pressure maintenance, and a cracked sleeve.
LaFleur supervised operation of the machine after its acquisition. He testified that essentially the same maintenance procedures were followed with respect to subject tractor as was employed on his personally owned D-6. He noted that on an average of once daily, the radiator and screens were brushed clean with a broom. He also testified to occasional cleaning with an air pressure hose located at his father's nearby service station. He further stated he had operated other D-7Es, following basically the same operating and maintenance policies, and never experienced any difficulty whatsoever. In ten years experience, five involving land clearing, he never had similar problems with either D-6 or D-7Es, despite his not having an air compressor on the job. His usual practice was to clean radiators about once daily. He operated subject tractor along with the D-6s owned by himself and Fontenot individually, and noted that he took even better care of subject machine in an attempt to stop its overheating.
Isom Odom, LaFleur's employee, had 16 years experience as an operator. He stated that during his years of operating tractors similar to subject machine, he never experienced an overheating problem similar to that he encountered with the machine in question. He stated the machine would overheat after about 3 hours operation, and required about 30 minutes cooling off time. He estimated he put in about 6 hours daily work time with subject machine, the rest of the day being spent in cooling it off. He corroborated LaFleur's testimony regarding use of air pressure at LaFleur's father's service station to clean the tractor on occasions. He also testified that once daily, in the morning, the tractor's radiator screens were cleaned with water pressure supplied by a gas pump using water from a canal at the job site.
LaFluer delivered the machine to Fontenot in or about March, 1969, stating that he could not successfully use it in performing clearing work. From this time on, the machine was placed under the supervision of Fonenot's employee, Ray Guillory, who stated the machine ran hot from his first attempted use. He testified that on Fontenot's individually owned D-6 and the D-7E, oil, grease and air filters were checked each day. The radiators were checked periodically during the day, but were not cleaned daily unless the machines were operated under dusty or leafy conditions such as land clearing, in which event the radiators might be cleaned daily. Ordinarily, however, the radiators were washed or blown clean every third work day, a water pressure pump and air compressor being *826 available for that purpose. As an extra precaution, the radiator of subject tractor was washed each night at quitting time, but this did no appreciable good. He stated he paid particular attention to cleaning the D-7E, but that it ran hot even when clean. He explained that cleaning while the machine was in operation consisted of brushing the leaves away by hand which occurred from 5 to 10 times daily. The reason water and air pressure were not used on the job was that leaves, dirt and debris collected on the outside of the screens which would require blowing from inside to remove such matter. Guillory stated he had never worked on a project where an air compressor was kept on the jobsite. He stated that some of the things done by the numerous mechanics who worked on the tractor were checking the water pump, inspecting the fan belt for slippage, replacing the torque converter, replacing the thermostats, running the machine without thermostats, checking water pressure in the radiator, checking to see if enough air was flowing through the radiator, pumping additional air into the radiator to increase pressure, and installing additional screens recommended by Boyce to replace a section of the tractor's hood to permit a greater flow of air. Guillory also stated that at no time during the numerous checks for overheating did anyone suggest the cause of overheating was lack of or improper maintenance.
We find the evidence establishes the degree of care ordinarily exercised in the operation of a D-6 and D-7E tractor are essentially the same. We are also impressed by the uncontroverted testimony that subject machine was operated alongside the D-6s owned and operated by plaintiffs and received at least as good care and maintenance as did the slightly smaller tractors, which latter machines gave plaintiffs no trouble whatsoever. LaFleur, Odom and Guillory, all experienced operators, testified they undertook extra precautions with the larger machine because of the problems noted. Based on the evidence detailed, we conclude that the record does not support Appellant's contention that the defect of overheating resulted from improper maintenance or abuse on plaintiffs' part. On the contrary, we conclude the record shows that the purchasers did in fact properly care for and maintain the tractor, and that the defect repeatedly manifested itself under normal conditions of use, operation and maintenance.
Testimony was taken in this matter in February, 1971. Judgment was rendered herein in December, 1972. Because of the time lapse involved, counsel for Boyce contends the manifest error rule should not apply, citing Ellis v. Kolb, La.App., 196 So. 89; Smith v. Tri-State Transit Co. of Louisiana, La.App., 175 So. 83; Smythe v. Great American Indemnity Co., La.App., 35 So. 2d 267. It is unnecessary to comment on this argument except to say that, in this instance, we do not rely upon the manifest error rule, but reach our conclusions of fact herein upon our own independent perusal and consideration of the record.
We next consider Appellant's contention that rescission should be denied because Appellees had extensive repairs made to the tractor by a third party. Following Appellees' second tender to Appellant by letter dated October 29, 1968, Appellees had repairs performed on the machine by Louisiana Machinery Company, Inc. The records of said concern show that on November 21, 1968, the governor was replaced. It appears that LaFleur had the work done by Louisiana Machinery because Boyce refused to make further service calls pursuant to its warranty. On November 7, 1969, after institution of this action, Appellees had Louisiana Machinery perform a complete overhaul of the tractor's motor and cooling system, including reconditioning both cylinder heads, at a cost in excess of $3,000.00. Under the circumstances, rescission may not be allowed because the purchaser is incapable of restoring the machine to the seller in the *827 same condition as it existed at the time of sale. In Johnson v. H. W. Parson Motors, Inc., La.App., 231 So. 2d 73, rescission was denied, and the purchaser limited to recovery of part of the purchase price because extensive repairs to the automobile involved had been performed by a third party. The rule in Johnson, above, is peculiarly applicable here.
Since it is impossible from the record for this court to assess the amount of reduction in price due Appellees, it is necessary that this matter be remanded to the trial court for determination of this issue.
We find plaintiffs' claims for damages in the form of alleged lost profits, and attorney's fees, were properly denied by the trial court. The contention is made that since Boyce restored the tractor before selling it to plaintiffs, Boyce is in the same position as an artisan, craftsman, builder or manufacturer who is presumed to know the defects of his products, and who is answerable to a purchaser for damages and attorney's fees sustained because of defects in the thing sold as provided in LSA-C.C. art. 2545. The rule invoked by Appellees is inapplicable herein inasmuch as Boyce was not the manufacturer of the tractor. A similar contention was made and judicially rejected in Compte v. Rateau, La.App., 242 So. 2d 82, which involved the sale of a used automobile to which the purchaser had extensive repairs made by a third party. Under the circumstances, Boyce is not presumed to know of defects in the tractor. Neither does the record establish actual knowledge of defects on Boyce's part.
It is ordered, adjudged and decreed that the judgment of the trial court ordering rescission of the sale of a D-7E Caterpillar Tractor by defendant, Boyce Machinery Corporation, to plaintiffs, Roger LaFleur and Percy Fontenot, and awarding said plaintiffs judgment against defendant in the sum of $32,130.00, is reversed and set aside.
It is further ordered, adjudged and decreed that judgment be and the same is rendered herein in favor of plaintiffs and against defendant ordering a reduction in the purchase price of subject machine for defects rendering same unfit for its intended purpose, and this cause remanded to the trial court for determination of the amount of such reduction.
In all other respects, the judgment of the trial court is affirmed at the cost of Appellant, Boyce Machinery Corporation.
Affirmed in part, reversed in part, and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612415/ | 745 F. Supp. 1331 (1989)
QUALITY TECHNOLOGY COMPANY, Plaintiff,
v.
STONE & WEBSTER ENGINEERING COMPANY, INC., Stemar Corporation, Beta, Inc., and Steven A. White, Defendants.
No. CIV-1-87-054.
United States District Court, E.D. Tennessee, S.D.
March 27, 1989.
Opinion on Motion to Alter or Amend June 1, 1990.
*1332 *1333 *1334 Harry L. Dadds and W. Ferber Tracy, Spears, Moore, Rebman & Williams, Chattanooga, Tenn., and Donna Keene Holt, Gilreath & Associates, Knoxville, Tenn., for plaintiff.
Edward S. Christenbury, Gen. Counsel, James E. Fox, Deputy Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Robert C. Glinski, Asst. Gen. Counsel, Brent R. Marquand, Thomas C. Doolan, Helen de Haven, Tennessee Valley Authority, Knoxville, Tenn., for defendants.
MEMORANDUM
EDGAR, District Judge.
The defendants in this civil action have filed a motion to dismiss the plaintiff's complaint, or in the alternative, for summary judgment as to those claims therein. (Court File No. 31). In support of their motion, defendants have filed the affidavits of two present, and one former, TVA Office of Nuclear Power employees, as well as that of a TVA attorney. (Court File Nos. 32-35). The plaintiffs have responded in opposition to the defendants' motion (Court File No. 86), filing supporting affidavits and deposition exhibits. (Court File Nos. 89-93). This case was originally filed in the Circuit Court of Hamilton County, Tennessee and removed by the diverse defendants pursuant to 28 U.S.C. § 1441 upon their representations that the plaintiff's complaint alleges claims governed by federal law, and that the parties are diverse. 28 U.S.C. §§ 1331 and 1332. See Court File No. 2.
Factual Background
In 1985, the Tennessee Valley Authority (hereinafter "TVA") hired the plaintiff, Quality Technology Company (hereinafter "QTC"), to perform various contract services specifically related to interviewing TVA employees of the Watts Bar Nuclear Plant pursuant to an employee concern program established by TVA. This program was created in response to the many complaints the Nuclear Regulatory Commission ("NRC") received from TVA/Watts Bar employees regarding safety violations alleged to have occurred during construction of that nuclear facility. The contract between TVA and QTC, Contract No. TV-66317A (Exhibit 30, Court File No. 92) was entitled "Tennessee Valley Authority Contract for Personal Services," and provided that the contractor, QTC, would perform certain services for TVA "[w]hen and as requested by the Director of TVA's Nuclear Safety Review Staff (NSRS)...." The term of the contract was for one year, beginning on April 26, 1985. As indicated from the contract, those services included generally: conducting interviews of present and former TVA employees at Watts Bar, developing and implementing procedures for gathering and processing employee interviews confidentially, certain investigatory work necessitated by employed interviews and complaints, and reporting those results to the TVA while maintaining employee confidentiality.
As the TVA/QTC contract and working relationship progressed, QTC made its reports and answered to the TVA Nuclear Safety Review Staff, which in turn reported directly to the TVA Board of Directors. With regard to certain complaints of intimidation and harassment, QTC reported to the TVA Office of the General Counsel. *1335 As the employee concerns program developed, the volume of complaints and issues raised in the interviews drastically increased. As a result of the unexpected number of issues and complaints received, TVA and QTC modified the personal services contract to include additional funds and time for the performance of more investigatory services by QTC, necessitated by those complaints. See Exhibits 31-33.
In late 1985, TVA began to consider the alternative of creating its own internal program for identifying and addressing nuclear employee concerns. In an effort to establish its own program, TVA and QTC entered into a second contract for the services of QTC. This contract, No. TV-68705A, was separate and distinct from the original one-year contract to respond to employee complaints, and provided that QTC was to aid TVA in the development of its own in-house system for dealing with employee safety concerns. During this same period, TVA began to contemplate the need to modify the investigatory functions being performed by QTC under the original contract. In an effort to facilitate the investigation and resolution of the large number of employee safety concerns, the TVA General Manager proposed a change in the structure of the review program to create a "management review group." It was the purpose of this change to coordinate all pending investigations of safety-related concerns and complete their review within a six-month period. It is QTC's position that it was to be heavily involved in this new program, being assigned new responsibilities for investigating pending employee concerns pursuant to an agreement with TVA's general manager. QTC was asked by TVA's general manager to submit a contract modification proposal incorporating QTC's additional responsibilities, and did so in December of 1985.
It was during the following months of January and February of 1986 that defendant Steven White assumed his duties as Manager of TVA's Office of Nuclear Power pursuant to a contract between TVA and defendants Stone & Webster Engineering Co. and Stemar Corp. See Exhibits 49-55, Court File No. 92. White assumed the job of operating TVA's nuclear power program as a "loaned employee" (Exhibit 49), with his responsibilities and authority defined by the "Memorandum of Understanding" between the TVA Board of Directors and White. See Attachment to Exhibit 49, Court File No. 92. It is clear from this document that TVA clothed Steven White with very broad and "direct authority for the management, control and supervision of TVA's entire nuclear power program...." Id. at ¶ 2. As a result of White assuming control of TVA's nuclear power program, QTC asserts that drastic changes in the scope of QTC's responsibility under the original contract occurred. It is QTC's treatment by the Manager of the Office of Nuclear Power and those working directly for him pursuant to contract that gives rise to QTC's claims.
QTC's Claims
In its complaint, QTC alleges four causes of action against these individual and corporate defendants. QTC asserts state law causes of action based on the defendants' alleged inducement of TVA to breach its contract with QTC for continued personal services under contract No. TV-66317A. See T.C.A. § 47-50-109. QTC further alleges that the defendants tortiously interfered with QTC's business relationship with the TVA. QTC's third cause of action alleges that the defendants engaged in trade disparagement, an injury alleged to have resulted from certain remarks defendants White and a representative of Beta, Inc. made regarding QTC's job performance and White's dissatisfaction therewith. This is a claim of defamation under Tennessee law. Lastly, QTC asserts as its fourth cause of action that the defendants' alteration or termination of the TVA/QTC personal services contract resulted in a violation of QTC's Fifth Amendment rights under the Constitution to due process, where the defendants' actions denied QTC a property right in the performance of the contract in bad faith.
Plaintiff also seeks to amend its complaint to add a claim for deprivation of *1336 "liberty" interests under the Fifth Amendment. See Court File No. 84. The Court has not yet acted on this motion.
Defendants' Motion for Summary Judgment
Defendants' motion seeking dismissal of QTC's case, or in the alternative, summary judgment, will be treated as a motion for summary judgment pursuant to Fed.R. Civ.P. 56(c) due to the parties' and the Court's reliance upon affidavits and documents outside the pleadings. 10 C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 2713 (1983).
QTC asserts that the defendants failed to timely raise their affirmative defense of official and qualified immunity under Fed. R.Civ.P. 8(c). Professor Wright has stated the general rule that "a failure to plead an affirmative defense results in the waiver of that defense and its exclusion from the case." 5 C. Wright and A. Miller, Federal Practice and Procedure § 1278 (1969). However, he goes on to note that some federal courts limit this waiver provision to only those affirmative defenses noted in Rule 12(h). Id. In this circuit, it has been held "that immunity, whether qualified or absolute, is an affirmative defense which must be affirmatively pleaded; ... [the] failure to do so can work a waiver of the defense." Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.1986) (emphasis added). However, "[w]here the matter is raised in the trial court in a manner that does not result in unfair surprise, ... [the] technical failure to comply precisely with Rule 8(c) is not fatal." Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.1983), quoted in Lucas v. United States, 807 F.2d 414, 417 (5th Cir.1986). As noted in Lucas, "the defendant does not waive an affirmative defense if `he raised the issue at a pragmatically sufficient time, and the plaintiff was not prejudiced in its ability to respond.'" 807 F.2d at 418, quoting Mackay, 695 F.2d at 856.
As noted by other courts, "liberal pleading rules are equally applicable to the pleading of affirmative defenses." Baker v. City of Detroit, 483 F. Supp. 919, 921 (E.D.Mich.1979). The key to this analysis is apparently whether, absent asserting immunity as an "affirmative defense" in the pleadings, the parties otherwise had notice of the issue. As Professor Wright notes, "[a]nother highly relevant consideration is whether plaintiff will be taken by surprise by the assertion at trial of a defense not pleaded affirmatively by defendant." C. Wright and A. Miller, Federal Practice and Procedure § 1271 at 315. In this case, the defendants raised in their answer (Court File No. 3) the issue of privilege, designated as defenses. In several of these defenses defendants assert that their activity and involvement with TVA's federal nuclear power program entitle them to the defense of privilege from liability, making the plaintiff's claims non-actionable. Defendants filed their answer on March 3, 1987. After several months of discovery, the defendants filed their motion for summary judgment (Court File No. 31) asserting official and qualified immunity on January 19, 1988.
QTC has alleged no facts to support the assertion that it has been prejudiced by the defendants' failure to raise as an affirmative defense the issue of immunity. There will be no element of unfair surprise visited on the plaintiff at trial since the issue was raised at a relatively early stage of these proceedings. The Court can assume that some discovery was necessary in order for the defendants to be in a position to factually and legally appreciate the claims made against them in the complaint. The Court does not find that the timing of the defendants' motion has resulted in any prejudice to QTC or its ability to fully respond to the defense of immunity. For these reasons, the Court does not find that the defendants waived their right to assert official or qualified immunity.
The defendants' motion seeks summary judgment on several grounds. With regard to plaintiff's state law claims for trade disparagement, defendants assert that the applicable six-month Tennessee statute of limitations, T.C.A. § 28-3-103, bars plaintiff's claim for commercial defamation.[1]*1337 As for the remaining state law claims for interference with contract and inducement to breach, defendants claim that absolute official immunity shields them from suit. See Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959); Howard v. Lyons, 360 U.S. 593, 79 S. Ct. 1331, 3 L. Ed. 2d 1454 (1959); and more recently, Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988). Defendants also assert that principles of qualified official immunity bar plaintiff's claim based on deprivation of its liberty and property interests protected by the Fifth Amendment to the United States Constitution. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). Defendants further challenge the merits of plaintiff's claim based on deprivation of Fifth Amendment due process on the ground that plaintiffs have no recognized liberty and/or property interest in the subject contract.[2]
Because the Court finds the applicability of absolute official immunity and qualified immunity is, if legally available to the defendants, dispositive of the issues raised by the defendants' summary judgment motion, the Court will address the immunity question first.
QTC's complaint alleges three state law causes of action under Tennessee common law and statutes, together with a fourth federal constitutional claim grounded in Fifth Amendment due process protections. Defendants assert that they are immune from suit on the state law claims because they are entitled to absolute official immunity under the principles announced by the Supreme Court in Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959), and Howard v. Lyons, 360 U.S. 593, 79 S. Ct. 1331, 3 L. Ed. 2d 1454 (1959). QTC responds in opposition to defendants' claim of absolute immunity by pointing out that such federal official immunity does not apply to defendant Steven White because he is not a federal employee of the kind entitled to immunity from suit. QTC points to the specialized nature of the contractual relationship between TVA and its contractor, defendant Stone & Webster, which in turn contracted with Stemar Corp. for the services of White. As QTC points out, the arrangements between these contracting parties to secure White's services as TVA's Manager of Nuclear Power reveal an intent to side-step regular hiring practices and the related federal statutory and regulatory limitations on salary and compensation. QTC relies heavily on distinguishing White's employment status with TVA as a "loaned employee" in its assertion that he is not the type of federal employee or independent contractor entitled to the benefit of official immunity. The Court believes QTC's focus on Steven White's employment "status" in determining his entitlement to immunity from suit is misplaced.
*1338 In Barr v. Matteo, the Court was faced with the issue of whether a federal executive branch official could be held civilly liable under the libel laws of the District of Columbia for allegedly defamatory statements contained in a press release regarding the reason for the suspension of other officers of his agency. The issue as framed by the Court, that also describes the rationale for the official privilege, is the balance between the individual's right to protection from pecuniary damages caused by the actions of government officials and "the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities." 360 U.S. at 565, 79 S.Ct. at 1336, 3 L.Ed.2d at 1438.
The purpose of this grant of official immunity is plainly described in Barr:
It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.
360 U.S. at 571, 79 S.Ct. at 1339, 3 L.Ed.2d at 1441. See also Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2910, 57 L. Ed. 2d 895 (1978).
However, the privilege or immunity against civil suits afforded government officials is not unlimited in its scope, where its application in the federal courts requires that the act complained of "must have been within the scope of [the official's] powers; ..." Barr, 360 U.S. at 572, 79 S.Ct. at 1340, 3 L.Ed.2d at 1441. Nor is the reach of immunity protection limited by position or status. Specifically, the Barr Court held that principles of immunity extend beyond "executive officers of cabinet rank," noting "[t]he privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government." Id. at 572-73, 79 S.Ct. at 1340-41, 3 L.Ed.2d at 1442. It is not the status or level of an official within the hierarchy of government that is determinative. It is, instead, the scope of that official's duties which defines the bounds of his protection. So long as the act complained of is within those bounds, i.e., "within the outer perimeter" of the official's duties, the official is entitled to immunity. Barr at 575, 79 S.Ct. at 1341, 3 L.Ed.2d at 1443.
Very recently in Westfall v. Erwin, the Supreme Court refined the standards applicable to absolute official immunity, making the official's exercise of discretion a necessary element. 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988). The rule stated in Westfall is that "absolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature." Westfall clarified the "discretionary" requirement previously assumed to be an element in Barr by many courts, on the theory that it inherently arose from an officials' status. See Westfall, 484 U.S. at 298, n. 4, 108 S.Ct. at 584, n. 4, 98 L.Ed.2d at 626, n. 4. Westfall also reinforces the Barr Court's holding that it is not the public official's status that is determinative of his entitlement to immunity, but rather the focus is a "functional inquiry" whereby "immunity attaches to particular official functions, not to particular offices." Westfall, at 296, n. 3, 108 S.Ct. at 583, n. 3, 98 L.Ed.2d at 625, n. 3 (citations omitted). As the footnote explains:
The adoption of this functional approach reflects the Court's concern expressed in Doe [Doe v. McMillan, 412 U.S. 306, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973)], that federal officials be granted absolute immunity only insofar as the benefits of immunity outweigh the costs. Because the benefits of official immunity lie principally in avoiding disruption of governmental functions, the inquiry into whether absolute immunity is warranted in a particular context depends on the degree to which the official function would suffer *1339 under the threat of prospective litigation.
Id. There is additional authority for this proposition in other Supreme Court decisions applying absolute and qualified immunity. See Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S. Ct. 496, 500, 88 L. Ed. 2d 507, 514 (1985); Briscoe v. LaHue, 460 U.S. 325, 342, 103 S. Ct. 1108, 1119, 75 L. Ed. 2d 96 (1983); Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2734, 73 L. Ed. 2d 396 (1982); Butz v. Economou, 438 U.S. 478, 511, 98 S. Ct. 2894, 2913, 57 L. Ed. 2d 895 (1978); Mitchell v. Forsyth, 472 U.S. 511, 521, 105 S. Ct. 2806, 2812, 86 L. Ed. 2d 411, 422 (1985); Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555, 563 (1988); Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896).
QTC's argument that White's employment status is determinative of his entitlement to immunity ignores the Supreme Court's determination that a functional inquiry is in fact the proper analysis. Likewise, QTC's reliance upon Tennessee immunity cases in support of its argument that White is not entitled to immunity is misplaced, where it is clear that "the scope of absolute official immunity afforded federal employees is a matter of federal law, `to be formulated by the courts in the absence of legislative action by Congress.'" Westfall, 484 U.S. at 296, 108 S.Ct. at 583, 98 L.Ed.2d at 625, quoting Howard v. Lyons, 360 U.S. at 597, 79 S.Ct. at 1333.
The issue raised by the defendants' claim of absolute official immunity is whether, when applying the "functional inquiry" to these defendants, they performed the type of federal government function contemplated by the applicable Supreme Court precedent. The Court finds they did. The Tennessee Valley Authority was created by an Act of Congress in 1933. See 16 U.S.C. §§ 831 et seq. It's primary purpose at the time of its creation was the promotion of navigation on the southeastern waterways within its jurisdiction, and controlling floods. See Grant v. Tennessee Valley Authority, 49 F. Supp. 564 (D.C. Tenn.1942). The TVA was also vested with the authority to create facilities for the generation of electric power, originally invisioned as a natural outgrowth of the construction of dams and reservoirs necessary to facilitate flood control and waterway navigation. See 16 U.S.C. § 831h-1. As has been declared by many courts, the TVA is a federal government corporation"an agency performing wholly governmental services, and is an instrumentality of the United States." PRI Pipe Supports v. TVA, 494 F. Supp. 974, 975 (N.D.Miss.1980) (citations omitted); see also TVA v. Kinzer, 142 F.2d 833 (6th Cir.1944). It is clear that TVA performs a governmental function of the type contemplated by the judicially-created official immunity doctrine.
With regard to Steven White and the other defendants hired by TVA to manage its nuclear power program, the "functional inquiry" described in Westfall requires consideration of the functions these defendants performed for the TVA. The relationship between the TVA and the defendant Steven White is defined by the January 3, 1986 "Memorandum of Understanding" made a part of the record in this case.[3]See Collective Exhibit 1 to Affidavit of Glinski, Court File No. 26; also contained as Exhibit 49, Court File No. 92. That memorandum of understanding contains the following provisions, relevant to this inquiry:
1. Steven White and "certain other personnel" are loaned employees pursuant to TVA contracts with defendant Stone & Webster, and White is the "Manager of Nuclear Power."
2. The Manager of Nuclear Power will have direct authority and responsibility for the management, control and supervision of TVA's entire nuclear power program, including but not limited to, the design, construction, maintenance and operation of all existing or planned TVA *1340 nuclear power plants. The Manager of Nuclear Power shall have the authority to establish management and operating policies and procedures related to TVA's nuclear power program. The Manager of Nuclear Power shall also have the authority to hire, remove, assign, reassign, or direct any personnel supplied by outside contractors, and subject to the approval of the Board of Directors with respect to senior level TVA managers in accordance with existing reservation of authorities by the TVA Board, any TVA personnel engaged in nuclear power program activities as he may deem necessary or desirable to implement such policies or procedures.... [T]he manager of Nuclear Power shall be responsible for all personnel, planning, scheduling, regulatory, licensing, engineering, construction, operational, quality assurance, training, maintenance, and other technical or administrative matters relating to the TVA nuclear power program and shall have the authority to review and approve, and subject to the approval of the General Manager and the Board of Directors, redirect and/or restructure the activities and functions of any existing TVA office in these areas insofar as they pertain to the nuclear power program. The manager of Nuclear Power shall be TVA's principal spokesman on public information matters.... The Manager of Nuclear Power shall be the primary line manager with responsibility to determine the need for, requisition, technically evaluate, and receive all materials and services required for the nuclear power program.... The Manager of Nuclear Power is authorized and directed to cooperate fully with the United States Nuclear Regulatory Commission and any other agency or entity, governmental or otherwise, with jurisdiction over or interest in TVA's nuclear power program to assure the safe, reliable and efficient design, construction, operation, and maintenance of TVA's nuclear facilities, and shall be responsible for all aspects of TVA's relations with such agencies and entities.
3. The Manager of Nuclear Power shall have direct access to the TVA Board of Directors and shall report directly to the General Manager and the Board of Directors.... With the exception of the Inspector General and General Counsel functions, all internal TVA activities or functions and/or outside contractors currently reporting to the TVA Board with respect to the TVA nuclear power program shall report to the Manager of Nuclear Power.... The Manager of Nuclear Power shall be authorized to contract for such personnel services as he shall deem necessary to support the TVA nuclear power program or the functions of the Office of Nuclear Power. In addition to the specific powers described herein, the Manager of Nuclear Power is authorized to undertake or have the appropriate TVA office or outside contractor(s) undertake, such studies, activities, or programs he deems necessary to improve the safety, reliability, or efficiency of TVA nuclear facilities and to take any other actions that he deems necessary or appropriate to improve the effectiveness of the overall management of TVA's nuclear power program and carry out the purposes of the Memorandum of Understanding.
....
5. As Manager of Nuclear Power, Mr. White will be subject to all applicable TVA rules and procedures covering TVA employees, including specifically the regulations and other requirements on employee conduct, conflicts, and ethics....
Also relevant to this inquiry are the contract supplements and revisions subsequently negotiated between Stone & Webster and TVA respecting arrangements for "loaned employees." Specifically, Supplement 2 to contract No. TV-68879A (Exhibit 51, Court File No. 92) contains modifications of the parties agreement, including the following relevant amendments:
Appendix 1 Guidelines For Senior Manager (STEMAR)
....
2. The Manager of ONP [Office of Nuclear Power] may make decisions on the *1341 need for additional services or equipment of any type. He may also identify companies deemed qualified to supply such services or equipment,....
In addition to the above-cited documents which define the scope of authority of the TVA Manager of Nuclear Power, the defendants have filed the affidavit of William F. Willis, General Manager of TVA (Court File No. 35), whose duties include direct involvement with the matters relevant to this case, and who has personal knowledge of the facts here relevant. In his affidavit, Willis defines the authority given the Manager of Nuclear Power by the TVA Board, as follows:
3. The TVA Board of Directors determined that, in order to ensure that such safety concerns would be properly addressed and the units put into operation, a Manager of TVA's Office of Nuclear Power (ONP) was needed with direct authority and responsibility for the total management, control, and supervision of TVA's entire nuclear power program. The TVA Board sought a highly qualified and nationally respected manager in the nuclear field and on January 3, 1987, the TVA Board selected retired Admiral Steven A. White for this position.
....
5. The Board delegated to Mr. White, who assumed his duties on January 13, 1986, broad and far-reaching authority. Mr. White is responsible for the daily management of the nuclear power program and looks to me as the TVA General Manager and to the TVA Board for oversight, direction, and support.
Affidavit of Willis, Court File No. 35.
As recently stated by the Supreme Court, in applying the requisite analysis contemplated by the "functional" approach to immunity questions, courts are to:
examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and ... seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy, and the Court has recognized a category of "qualified" immunity that avoids unnecessarily extending the scope of the traditional concept of absolute immunity.
Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555, 563 (1988) (citations omitted). It is this framework under which this Court must assess the defendants' claim of absolute official immunity.
As the provisions cited from the Memorandum of Understanding between TVA and Stone & Webster regarding White's duties as Manager of Nuclear Power indicate, taken together with the affidavit of TVA General Manager Willis, as TVA Manager of Nuclear Power, Steven White was given responsibility for the operation of TVA's entire nuclear program, answering only to the General Manager and the Board of Directors. His authority included supervision of the daily operation of the nuclear power program, as well as any employees and contractors involved in all phases of TVA nuclear power, including QTC. His duties encompassed authority over TVA nuclear power personnel and contracts for work to be performed for TVA at the various plants. The broad grant of authority given White is evidenced by the parties' use of both specific grants of authority and general terms indicating that many management decisions were discretionary. Clearly, White was authorized to take most any action deemed "necessary or appropriate" by him to accomplish his task of restoring the TVA nuclear power program to operation. See ¶¶ 2, 3 of Exhibit 49, Memorandum of Understanding, Court File No. 92. It is clear that the job for which QTC was hired and which it substantially performed (contract No. TV-66317A) fell within the parameters of the management duties for which White was hired. At the relevant time, identifying and addressing the safety concerns expressed by TVA employees was a high priority task, crucial to returning the TVA nuclear program to operating status. See Willis Affidavit at ¶¶ 2, 3; White Affidavit at ¶¶ 2-5, Court File No. *1342 34; Mason Affidavit at ¶¶ 2-3; Plaintiff's Brief in Response to Motion for Summary Judgment, Court File No. 87, at 1.
The Court finds, based on the terms of the documents above-cited and the affidavits filed by the defendants that QTC's contractual relationship with TVA was "within the scope of [the defendant White's] official duties." See Westfall, 484 U.S. at 296, 108 S.Ct. at 583, 98 L.Ed.2d at 625. QTC has offered no evidence to rebut this conclusion. It is, therefore, clear that the first prong of the absolute immunity test set out in Westfall is satisfied. Id.
Second-Prong Analysis
The second prong of the Westfall test, that the challenged official actions be discretionary in nature remains to be considered. Plaintiff QTC was a contractor hired by TVA to conduct interviews and compile information relevant to TVA nuclear power employee safety complaints. The terms of its contract call for it to perform "personal services" on a "when and as requested" basis for TVA. See Exhibit 30, Court File No. 92. The contract was expanded and extended on more than one occasion. See Exhibits 31-33, Court File No. 92. Steven White, as Manager of Nuclear Power, had the direct authority and responsibility to manage the TVA nuclear power program pursuant to certain specific grants of authority (see Memorandum of Understanding) including the authority "to hire, remove, assign, reassign, or direct any personnel supplied by outside contractors ... as he may deem necessary or desireable [sic]...." ¶ 2, Exhibit 49, Court File No. 92. The Manager of Nuclear Power certainly had responsibility for the safety of the nuclear program and administering the contract with QTC for review of employee safety complaints pursuant to the broad authority given him. The choices made regarding the QTC contract, its subject matter and performance were within his scope of authority. As Manager of Nuclear Power, he was ultimately responsible for decisions regarding the performance of that contract and was surely the official with ultimate authority to determine the services required of QTC on an "as and when requested" basis.
Whether or how to utilize the "personal services" of QTC under the contract certainly fell within the broad grant of general authority given White to operate the TVA nuclear power program. Within that scope of responsibility, White dealt with the QTC contract and its implications for the nuclear program restart. His actions affecting the QTC contract challenged by QTC in this case include his allegedly making defamatory statements about QTC personally to other federal officials statements which were also published in the press, and his alleged tortious interference with QTC's existing contractual relationship with the TVA. QTC's claims arise from White's decision to stop requesting its services because QTC's contract performance was not what he as Manager of Nuclear Power desired. Despite the fact that White himself has not offered evidence to explain his decision regarding QTC, or the manner in which it was made, the decision of how best to use a contractor was certainly within the scope of his discretionary authority, outlined previously.
Specifically, QTC alleges that defamatory statements were made to a Congressman and later given by White to the press to the effect that QTC was terminated because it did not measure up to White's own quality standards and QTC's services cost too much. See Plaintiff's Response, Court File No. 87, and Exhibits 8 and 9, Court File No. 92. These statements were apparently made by White in response to inquiries regarding why QTC was being phased out by TVA. The Court finds ample evidence in the record to support the conclusion that such statements were made within the scope of White's duties as TVA Manager of Nuclear Power and reflect his personal opinion as to the quality and performance of QTC. See, e.g., Queen v. Tennessee Valley Authority, 689 F.2d 80, 86 (6th Cir.1982); Walters v. Tennessee Valley Authority, 503 F. Supp. 111, 115 (E.D. Tenn.1980), aff'd 698 F.2d 1225 (6th Cir. 1982) (Table, No. 80-5430), cert. denied, 459 U.S. 823, 103 S. Ct. 54, 74 L. Ed. 2d 59 (1982). Plaintiffs have failed to challenge *1343 the defendants' claim that their actions were discretionary, and may not rely on the allegations of their complaint to create an issue of fact in light of the affidavits offered by the defendants relevant to this issue. These factual circumstances lead the Court to conclude that the challenged actions were in fact discretionary, and therefore satisfy the second prong of the Westfall test. For these reasons, the Court finds the standards for absolute official immunity have been satisfied. See Westfall, 484 U.S. at 297, 108 S.Ct. at 584, 98 L.Ed.2d at 626. The plaintiffs' state-law tort claims against Steven White will be DISMISSED. Because QTC alleges its injury to be the direct result of the discretionary actions of Mr. White, while acting in his official capacity, and because this Court has found him to be absolutely immune from common law tort liability, there can be no liability as to defendants STEMAR and Stone & Webster.[4] This result is so because "Tennessee law does not impose vicarious liability when the agent is not subject to individual liability." Queen v. Tennessee Valley Authority, 508 F. Supp. 532, 535-36 (E.D.Tenn.1980), citing Walters, 503 F.Supp. at 116.
QTC's Constitutional Claim
With regard to QTC's assertion that the defendants' actions also deprived it of its Fifth Amendment right to due process because there was no due process hearing before termination of its services under the TVA contracts, the defendants assert that they are shielded by the protection of qualified immunity. Qualified immunity standards are clearly set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). "In Harlow, the Supreme Court held that federal officials performing discretionary functions are shielded from liability for civil damages if `their conduct does not violate clearly established constitutional rights of which a reasonable person would have known.'" Newhouse v. Probert, 608 F. Supp. 978, 982 (W.D.Mich. 1985). As previously noted, there is ample documentary evidence supporting the conclusion that the decision to terminate or alter in any way the activity of a contractor working within the TVA nuclear power program was within both the general and specific scope of authority granted the Manager, and discretionary.
The Court must now determine whether the defendants' conduct violated the plaintiff's "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. In Harlow, the Court created an objective test for such determination, directing courts to consider "the objective reasonableness of an official's conduct, as measured by reference to clear established law, ..." Id. Further, where the issue arises in the context of a summary judgment motion, the resolution of this issue becomes a question of law for the Court. It is for this Court to determine both the applicable law, and whether it was "clearly established" at the time of the defendants' challenged actions. Id. See also Washington v. Starke, 855 F.2d 346, 348 (6th Cir.1988).
Plaintiff asserted initially only a "property" interest protected by the Fifth Amendment from deprivation absent due process of law. It now seeks to amend its complaint to allege the deprivation of a protected "liberty" interest as well. The Court will consider the validity of both claims under these facts.
Initially, QTC's assertion of injury to a protected "property" interest requires that it show that it had a property interest in continued employment under its contract with TVA. In opposition to QTC's assertion, the defendants rely upon contract terms which describe the parties' agreement as a "personal services" contract, under which QTC agreed to render services to TVA "when and as requested" by TVA. *1344 See Exhibits 11 and 30, Court File No. 92. In order for QTC to have a "property" interest in the TVA contract, it must have "a legitimate claim of entitlement" to performance under it. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972). In this case, QTC's property interest in the TVA contract is defined by the language of the contract itself. The Court is hard pressed to find a property interest created by the terms of the instant contract.
The nature of a personal services contract is such that the parties' agreement as to the services to be performed defines their obligations under the contract. In this case, contract No. TV-66317A provided that QTC would perform for TVA the specifically described services in ¶ 1.A.(1)-(11) of the contract (Exhibit 30), "when and as requested" by TVA. Clearly, services were requested by TVA and undertaken by QTC, as evidenced by the subsequent amendments to the original contract, and the fact that sums were expended by TVA in payment therefor. See Exhibits 31-33, Court File No. 92. However, any "property" interest QTC may have would certainly be limited to only those personal services actually requested by TVA, but not extending to the performance of services not requested. This much QTC admits in its response. See Plaintiff's Response at 22, n. 6, Court File No. 87.
QTC also (or instead) relies upon an asserted "liberty" interest that it claims was deprived by the defendants' alleged interference with the TVA contract and alleged defamatory statements. QTC asserts that it has a protected "liberty" interest in its reputation, which was injured by the defendants' actions. As QTC has pointed out, the leading case on this point is Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), in which the Supreme Court found:
While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that the reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause.
424 U.S. at 701, 96 S.Ct. at 1160, 47 L.Ed.2d at 414. Mere defamation, without a resulting actual injury is insufficient to state a claim under the Fifth Amendment. Id. at 702, 96 S.Ct. at 1161.
The Supreme Court has considered, under various factual circumstances, what actual injury is necessary when paired with a defamation to create a constitutionally recognized injury. In United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946), the Court found that government action labeling three government employees as "subversive" and "unfit for Government service" so severely stigmatized their reputation and future livelihood that their discharge amounted to a "proscription of these employees prohibiting their ever holding a government job." Paul, 424 U.S. at 702, 96 S.Ct. at 1161 (quoting Lovett, 328 U.S. at 314, 66 S.Ct. at 1078). Likewise, in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S. Ct. 624, 95 L. Ed. 817 (1951), the Court held, without a majority in agreement, that merely being designated as "subversive" or "communist" is alone not actionable, but when coupled with the deprivation of employment can state a cognizable claim. "To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employment so dominates the field of opportunity." McGrath, 341 U.S. at 184-85, 71 S.Ct. at 655-56. Subsequent to McGrath, the Court held that a government contractor's employee discharged by the commanding Navy officer was not entitled to a Fifth Amendment due process hearing where the private interest asserted by the employee was the right to a particular employment. In Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), the Court held no liberty interest was implicated when government *1345 action merely denied the plaintiff "the opportunity to work at one isolated and specific military installation," but did not affect her "chosen trade or profession ... [and she] remained entirely free to obtain employment as a short-order cook or to get any other job,...." Id., 367 U.S. at 895, 81 S.Ct. at 1748, 6 L.Ed.2d at 1236. Clearly, it is the "attendant foreclosure from other employment opportunity" resulting from an injury to one's reputation which gives rise to protections of the Fifth Amendment. McElroy, 367 U.S. at 898, 81 S.Ct. at 1750, 6 L.Ed.2d at 1238. See Roth, 408 U.S. at 572-74, 92 S.Ct. at 2706-08, 33 L.Ed.2d at 558-59.
QTC asserts that this case is the "different case" referred to by the Roth Court which would present facts establishing a violation of Fifth Amendment protected liberty interest. In distinguishing the facts in Roth from facts supporting a liberty interest, the Court found that Roth's treatment by the Board of Regents did not "foreclose his freedom to take advantage of other employment opportunities," where the defamation alleged "did not ... seriously damage his standing and associations in his community." Nor did the published reasons for his not being rehired involve allegations of "dishonesty, or of immorality." Roth, 408 U.S. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 558. In contrast, QTC asserts that the allegedly defamatory remarks of the defendants caused an actual injury to its reputation that satisfies the Supreme Court's test for creating an injury compensable under the Fifth Amendment. In support of this claim, QTC has submitted an affidavit purporting to show that QTC was denied specific employment subsequent to and because of the allegedly defamatory remarks of the defendants. See Court File No. 90.
The Court has reviewed this affidavit and is not convinced that the factual assertions contained therein establish that QTC was foreclosed from obtaining subsequent employment as a result of the challenged statements. Specifically, ¶¶ 7 and 8 of the affidavit indicate that although QTC was apparently not considered for the potential contract with Houston Lighting & Power due to "the reputation of their company and their work for TVA," the affidavit concludes by stating in ¶ 8 that no company was hired to perform the work that QTC asserts it was denied. It appears that at most, QTC may have been denied the opportunity of serious consideration for the Houston work; however, since no work was ever performed under that specific, potential contract by any contractor, it is difficult to conclude that QTC was actually denied this employment opportunity. Nevertheless, the Court must determine whether QTC has produced sufficient material evidence of a protected liberty interest to withstand the challenge of the defendants' motion.
"To establish a liberty interest, an employee must demonstrate that his governmental employer has brought false charges against him that `might seriously damage his standing and associations in his community,' or that impose a `stigma or other disability' that forecloses `freedom to take advantage of other employment opportunities.'" Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 (5th Cir.1984), cert. dismissed, 473 U.S. 901, 106 S. Ct. 11, 87 L. Ed. 2d 672 (1985). It is clear that the "stigma" resulting from the damage to QTC's reputation must be serious in order to implicate a protected constitutional liberty interest. Just how serious the stigma must be is sometimes thought to be a mystery. See Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir.1987). In the Seventh Circuit, the standard announced in Colaizzi to identify a protected "occupational liberty" interest holds "that to fire a worker to the accompaniment of public charges that make it unlikely that anyone will hire him for a comparable job infringes his liberty of occupation." Id. Apparently, under this line of cases the mere threat or likelihood that the dismissal and damage to reputation will adversely affect future employment is sufficient to create a liberty interest.
Other courts have defined the standard a bit more narrowly by requiring that public accusations of "dishonesty", "immorality", *1346 or "moral turpitude" form the basis for dismissal before a protected liberty interest can be asserted in one's reputation. See Bollow v. Federal Res. Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir.), cert. denied, 455 U.S. 948, 102 S. Ct. 1449, 71 L. Ed. 2d 662 (1981) (citations omitted). In several cases cited by the Bollow court, it was held that dismissal based on incompetence, unsatisfactory performance or personnel problems was insufficient to infringe a liberty interest. Id. See also Loehr v. Ventura County Comm. College Dist., 743 F.2d 1310, 1317 (9th Cir.1984); Hadley v. Du Page County, 715 F.2d 1238, 1245 (7th Cir.1983), cert. denied, 465 U.S. 1006, 104 S. Ct. 1000, 79 L. Ed. 2d 232 (1984); Robertson v. Rogers, 679 F.2d 1090, 1091 (4th Cir.1982); Gray v. Union County v. Inter. Ed. Dist., 520 F.2d 803, 806 (9th Cir.1975); Lake Michigan College Fed. of Teachers v. Lake Michigan Comm. College, 518 F.2d 1091, 1097 (6th Cir.), cert. denied, 427 U.S. 904, 96 S. Ct. 3189, 49 L. Ed. 2d 1197 (1975); Abeyta v. Town of Taos, 499 F.2d 323, 332 (10th Cir.1974); Schwartz v. Thompson, 497 F.2d 430, 432 (2d Cir.1974).
In this Circuit, the applicable cases require that the challenged dismissal and resultant "stigma" on a plaintiff's reputation must involve "the voluntary, public dissemination of false information in the course of a decision to terminate ... employment." Burkhart v. Randles, 764 F.2d 1196, 1201 (6th Cir.1985). See also Kendall v. Board of Ed. of Memphis City Sch., 627 F.2d 1, 5 (6th Cir.1980). For authority requiring that the allegations forming the basis for dismissal from employment and the resulting "stigma" to one's reputation be challenged as "substantially false" in order to state a due process claim, see Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977). As the Supreme Court explained, the due process denied a dismissed and stigmatized employee is the opportunity to refute the charges of improper conduct and clear his or her name. If the truth of the charges is not challenged, then "no hearing would afford a promise of achieving that result...." Id.
In this case, QTC's claim arising from the alleged deprivation of its "liberty" interest centers on the injury to its business reputation perceived to be the result of statements made by defendant White and defendant BETA's officer, Mr. Wegner, subsequently published by the media. Specifically, it was reported in various newspaper articles (Exhibits 8 and 9, Court File No. 92) that White caused the reduction of QTC's role at the Watts Bar Nuclear plant because QTC "cost too much; was too slow; and didn't meet White's standards of quality." White is further quoted as telling a congressman that QTC was "lazy, slow, and their reports are the worst I have ever read." The wire service also carried the following statement and quote:
"But White said the process [QTC's investigation of TVA employee concerns] was moving too slow, and TVA was not getting a good return on its money.
....
"My standards are very high," White said. "So it is, perhaps, not unheard of that I might find a contractor who isn't meeting my standards in terms of the work itself."
Mr. Wegner is asserted to have told a Department of Labor investigator that "QTC was a cancer to be dealt with." QTC asserts that these allegedly defamatory statements caused a recognized injury to its professional reputation. QTC asserts that the statements were sufficiently stigmatizing to be compensable as an injury to its constitutionally protected liberty interest. The Court disagrees.
"[A]llegations of improper or inadequate performance do not constitute a deprivation of liberty within the meaning of the fourteenth amendment." Lake Michigan College Fed. of Teachers, 518 F.2d at 1097 (citations omitted). Courts interpreting the Supreme Court's holding in Roth have held that charges of "incompetence, neglect of duty and malfeasance in office" are insufficient to support a claim of liberty interest deprivation. Id. See also Adams v. Walker, 492 F.2d 1003, 1006-09 (7th Cir.1974). The Roth Court noted that the type of due process guaranteed to protect one's liberty *1347 interest in his good name and reputation comes in the form of "notice and hearing" regarding the charges giving rise to the termination. Roth, 408 U.S. at 573, 92 S.Ct. at 2707. The Roth Court's elaboration on this point is important to the instant case in that the examples offered by the Court involved charges of "dishonesty and immorality." Id. See also cases cited herein at 27-29. As noted by the parties, a pre-termination hearing may also be required under Roth where the charges resulted in "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Roth, 408 U.S. at 573, 92 S.Ct. at 2707. The Court finds that the public statements made by White as justification for phasing out QTC, and of which QTC here complains, are not sufficient to infringe upon a protected liberty interest.
The statements made by White are clearly not of the kind generally considered to stigmatize one's reputation and good name. The statements merely reflected White's opinion of the competence and job performance of QTC and are not actionable under the numerous cases previously cited. See Loehr, 743 F.2d at 1317; Hadley, 715 F.2d at 1245; Robertson, 679 F.2d at 1091; Gray, 520 F.2d at 806; Lake Michigan College Fed., 518 F.2d at 1097; Abeyta, 499 F.2d at 332; Schwartz, 497 F.2d at 432; Blair v. Board of Regents, 496 F.2d 322 (6th Cir.1974).
Because the Court finds that the facts of this case do not support the plaintiff's claim that the defendant Steven White's actions deprived it of a protected "liberty" or "property" interest, the Court finds as a matter of law that Steven White is entitled to summary judgment. Therefore, the Court is not required to reach the question of the defendant's entitlement to qualified immunity.
However, even if the remarks were legally actionable, the Court believes Steven White is entitled to qualified immunity from liability for his actions. See Smith v. White, 666 F. Supp. 1085, 1090-91 (E.D. Tenn.1987).
Under the standard for qualified immunity enunciated in Harlow and recently applied in Anderson v. Creighton, the question of personal liability for otherwise unlawful official acts revolves around "the objective legal reasonableness" of the challenged actions, "assessed in light of the legal rules that were `clearly established' at the time it was taken," by the official. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523, 530, citing Harlow, 457 U.S. at 819, 102 S.Ct. at 2738. See also Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). Under the objective standard, an official is immune from liability for civil damages if his or her actions could be reasonably considered "consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. at 3038, 97 L.Ed.2d at 530. Stated another way, the law existing at the time of the challenged action must "clearly proscribe the actions" of the official in order for the protection of qualified immunity to be denied. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411, 426 (1985).
[C]ases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, (citations omitted) but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531.
As noted in this circuit, courts "should focus on whether, at the time defendants acted, the rights asserted were clearly established by decisions of the Supreme Court or the courts of this federal circuit." Garvie, 845 F.2d at 649 (citations omitted). See also Ohio Civil Ser. Empl. Assoc. v. Seiter, 858 F.2d 1171 (6th Cir.1988). Defendants "have qualified immunity unless plaintiff's `rights were so clearly established *1348 when the acts were committed that any officer in the defendant's position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct.'" Ramirez v. Webb, 835 F.2d 1153, 1156 (6th Cir.1987), quoting Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987). See also Garvie, 845 F.2d at 649-50; Seiter, 858 F.2d at 1173.
This Court does not believe that QTC's asserted legal rights were sufficiently "clearly established" at the time of the alleged defamation (or now) so that the defendant Steven White should, objectively, have "clearly understood" that his statements violated those rights. Clearly, a substantial portion of the relevant caselaw regarding the defamatory nature of published comments referring to an employee's incompetence, unsatisfactory performance or personnel difficulties holds that such criticisms, even if made publicly, do not amount to a violation of a protected liberty interest. See Loehr, 743 F.2d at 1317; Hadley, 715 F.2d at 1245; Robertson, 679 F.2d at 1091; Gray, 520 F.2d at 806; Lake Michigan College, 518 F.2d at 1097; Abeyta, 499 F.2d at 332; Schwartz, 497 F.2d at 432. The Court has found no cases that support the plaintiff's claim that such a criticism infringes a constitutionally protected interest, therefore, the defendant could not have objectively believed his conduct violated a right or interest of QTC's.
The Court, therefore, concludes that QTC's constitutional rights asserted to have been violated by defendant Steven White's conduct were not so clearly established when the alleged defamatory remarks were made that White, objectively, could be said to have clearly understood that his conduct violated those rights. Steven White would, therefore, be entitled to the protection of qualified immunity under the facts of this case. For the reasons previously noted, defendants Stone & Webster and STEMAR cannot be held vicariously liable under these facts and Tennessee law. See Queen, 508 F.Supp. at 535-36; Walters, 503 F.Supp. at 116.
QTC's Claim Against Defendant Beta, Inc.
QTC asserts that a statement made by the principal of defendant Beta, Inc., William Wegner, to a Department of Labor investigator and subsequently published in the media tortiously disparaged the trade and business reputation of QTC. The statement cited by QTC was given by Wegner during a May 30, 1986 interview conducted by a Department of Labor ("DOL") investigator in which Wegner allegedly stated that "QTC was a cancer to be dealt with." See Plaintiff's Answers to Defendants' First Set of Interrogatories, Question and Answer 1, Court File No. 11. In addition, QTC asserts that defendant Beta, Inc., through William Wegner, interfered with its ongoing contractual relationship with TVA by specifically insisting that TVA terminate its relationship with QTC during contract negotiations between Beta, Inc. and TVA. See Id., Question and Answer 4.
In their motion for summary judgment, defendants assert that the challenged statement given by Wegner is absolutely privileged as a result of the circumstances under which it was given by Wegner. The defendants assert that because the Wegner statement was given in the context of an official investigation conducted by a federal agency, see 42 U.S.C. § 5851, investigating the employment discrimination claims of certain previously dismissed TVA employees, the statement is not actionable. The Court agrees.
Wegner made the challenged statement while being interviewed by DOL investigators. The investigation was conducted pursuant to federal statute and the relevant federal regulations enacted thereunder. See 42 U.S.C. § 5851(b)(2)(A) and 29 C.F.R. 24.4(b) and (c). The regulation cited in fact provides for the confidentiality of information obtained. 29 C.F.R. 24.4(c). In this instance, there is no evidence to indicate that the statement given was intended for public dissemination. See Wegner Deposition at 125-26. The allegedly defamatory statement was taken down on an official "Employee Personal Interview Statement" *1349 form, in the ordinary course of a fact-finding interview for use by the DOL in its labor complaint investigation. The inquiry was instigated by complaints filed by former TVA employees over their dismissal from TVA employment. See Marquand Affidavit, Court File No. 32. It does not appear to the Court that the statement was given in response to questions regarding QTC, but merely as "background information" or a description of the complaints received about TVA conditions in the course of Wegner's employment through Beta, Inc. with TVA. See Wegner Deposition at 138. Wegner in fact stated that he was merely repeating what he had been told by one of three possible other persons associated with TVA. Id. at 134.
In order for QTC's claim that its liberty interest was deprived by Wegner's remarks to be actionable, QTC must show that the charges were made public by the employer. See Burkhart v. Randles, 764 F.2d 1196, 1201 (6th Cir.1985); Bollow, 650 F.2d at 1101 (citations omitted). The Court finds that this element has not been satisfied by QTC. Wegner's deposition testimony clearly establishes that the statement was made under circumstances that led him to rely on its confidentiality (Wegner Deposition at 125) and that media access to the statement originated outside the TVA nuclear power program. Specifically, Wegner asserts that his first notice that the statement was recorded in writing and public came when a member of Congress "was waiving it in the air at a hearing." See Wagner Deposition at 125. The Court is unaware of any evidence offered by QTC to rebut this assertion by Wegner that he did not publicly disseminate the challenged remark.
Additionally, as to the liability of Beta, Inc., the Court finds that since the challenged statements of Wegner are not actionable under QTC's constitutional theory, Beta, Inc. cannot be liable. Because all the acts performed and statements made that form the basis of QTC's claims were done by Wegner, and the Court has determined that he cannot be liable for damages, Beta, Inc. cannot therefore be held vicariously liable. See Queen v. Tennessee Valley Authority, 508 F. Supp. 532, 535-36 (E.D.Tenn.1980); Walters v. Tennessee Valley Authority, 503 F. Supp. 111, 116 (E.D.Tenn.1980), aff'd, 698 F.2d 1225 (6th Cir.1982) (Table, No. 80-5430), cert. denied, 459 U.S. 823, 103 S. Ct. 54, 74 L. Ed. 2d 59 (1982).
An appropriate order will enter.
ORDER
For the reasons stated in the accompanying memorandum opinion filed herewith and passed this day to the Clerk for filing, the motion of the defendants Stone & Webster Engineering Company, Inc., STEMAR Corporation, Beta, Inc., and Steven A. White for summary judgment (Court File No. 31) as to the claims of the plaintiff Quality Technology Company is GRANTED. This civil action is, therefore, DISMISSED.
SO ORDERED.
MEMORANDUM
ON MOTION TO ALTER OR AMEND
Plaintiff, Quality Technology Company (hereinafter "QTC"), has filed a motion to alter or amend the judgment pursuant to Rule 59(e), Fed.R.Civ.P. (Court File No. 177), seeking reconsideration of this Court's previous order (Court File No. 176) granting the defendants' motion for summary judgment and dismissing this suit. See also Court's Memorandum, Court File No. 175. The defendants have responded in opposition to the motion (Court File No. 193). QTC asserts that the Court's memorandum contains various legal errors in its analysis and disposition of the issues raised in this case. The Court will now consider the plaintiff's arguments.
Absolute Official Immunity
QTC once again argues that the Court incorrectly ignored Steven White's "employment status" in applying the "functional analysis" clearly mandated by the Supreme Court in Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959), and Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988). QTC argues *1350 that the unique contractual arrangement between the Tennessee Valley Authority ("TVA"), Stone & Webster Engineering Company ("SWEC"), STEMAR and White is relevant to whether these defendants are entitled to the protection of absolute official immunity. Specifically, QTC argues that White was not "lawfully entrusted" with governmental authority, the very exercise of which is the basis for the plaintiff's complaint. QTC relies upon the Comptroller General's opinion offered in response to an inquiry by a member of Congress, which determined that the contract between the defendants providing for White's services "constitutes the improper use of a personal services contract and represents a circumvention of the statutory ceiling on salary payments to TVA employees." See Court File No. 185, Appendix B, "Untitled" Opinion ¶ 86 FPBR 1087 (June 2, 1986) at X1-492.[1]
This Court remains convinced that under the proper legal analysis, the "functional" approach to immunity questions focuses on the "particular official functions" performed by the defendant not on the individual's "particular office[]" or "the status of the defendant." Westfall, 484 U.S. at 296 n. 3, 108 S.Ct. at 583 n. 3, 98 L.Ed.2d at 625 n. 3; Briscoe v. LaHue, 460 U.S. 325, 342, 103 S. Ct. 1108, 1119, 75 L. Ed. 2d 96 (1983). As quoted in Cleavinger v. Saxner, "`[O]ur cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant.' Absolute immunity flows not from rank or title or `location within the Government,' but from the nature of the responsibilities of the individual official." 474 U.S. 193, 201, 106 S. Ct. 496, 500, 88 L. Ed. 2d 507 (1985) (citations omitted).
QTC challenges the status of White's contractual relationship with TVA and the other defendants as "illegal," arguing that because the agreement was viewed by at least one entity as constituting an "improper use of a personal services contract," White was not "lawfully entrusted" with the requisite discretionary authority necessary to assert the protection of official immunity. For the reasons that follow, the Court disagrees. Clearly, the mandated "functional analysis" determinative of an official's entitlement to immunity does not depend on the actor's employment status. See Memorandum, Court File No. 175 at 12-14. Furthermore, it would appear that White was in fact "lawfully entrusted" with the authority to perform the discretionary functions relating to QTC and its personal services contract and supplements with TVA at all times relevant to the actions challenged by the plaintiff. Even assuming, without conceding, that the contractual agreement between TVA and White was somehow improper, there is ample evidence that White performed his responsibilities pursuant to the "Memorandum of Understanding" executed by the parties, and that the parties recognized its terms as the basis for his relationship to TVA and its nuclear power program. It would appear from the record that, despite any claim that the contract between White and TVA should be void, White continued to perform his discretionary duties under the contract, and shared with TVA "the same interest in getting the Government's work done." Boyle v. United Technologies Corp., 487 U.S. 500, 505, 108 S. Ct. 2510, 2514, 101 L. Ed. 2d 442, 453 (1988).[2] In any event, as far as this Court is aware, *1351 the record contains no legally binding determination that the contract arrangements between TVA and the defendants were improper or illegal under 18 U.S.C. § 208(a). The Court, therefore, finds that there exists no genuine issue of material fact regarding the validity of the TVA contractual arrangements with White as it may arguably relate to White's entitlement to the protection of official immunity and the "functional" analysis thereunder.
As for the Court's holding that White was also entitled to the protection of qualified immunity from liability for the asserted constitutional tort claim, QTC argues that the Court ignored the fact that QTC was prevented by the defendants from performing services previously requested at the time QTC responsibilities were scaled back. Initially, it is important to reiterate that QTC had no recognized property interest in continued employment under a personal services contract that called for QTC's performance "when and as requested" by TVA. See Memorandum, Court File No. 175 at 26-27. As the defendants point out in response to this argument, the record indicates that QTC was paid the agreed upon contract price for its services under Contract No. TV-66317A and the four supplements negotiated thereto. It appears that this contract expired when the parties failed to reach agreement on a fifth supplement. However, QTC entered into another contract with the TVA to assist the agency in setting up an employee response team ("ERT") program to investigate employee safety complaints. That second contract was known as TV-68705A and, under similar terms as TV-66317A, was a personal services contract for services "when and as requested." See Deposition Exhibit 11, Court File No. 92, Appendix F.
QTC likewise acquired no recognized property interest in continued employment pursuant to the terms of this second contract. QTC has failed to come forward with "significant probative evidence" to support its claim of injury to a recognized property or liberty interest arising under the parties relationship defined by the second contract, TV-68705A. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). QTC's argument that the executed contract and subsequent summary letter (Exhibit 11, Court File No. 102) are sufficient to withstand the defendants' motion and the appropriate legal standard is without merit (see Court File No. 187, QTC's Brief in Support at 7). The Court previously determined (Memorandum, Court File No. 175 at 27-35) that the alleged damage to QTC's reputation resulting from the defendants' remarks critical of its performance did not constitute an injury to QTC's protected "liberty interest" because the Court found that the remarks were not legally actionable. The Court, on reconsideration, remains convinced of the correctness of that determination for the reasons previously stated.
QTC also argues that the Court failed to acknowledge that certain "reasonable inferences" could be drawn from facts alleged by QTC in support of its claim of a conspiracy. QTC has asserted that the alleged conspiracy was formed by the defendants prior to the beginning of their contract arrangements and service for TVA for the purpose of "obtaining control of TVA's nuclear program." See QTC's Brief in Support at 9-13. QTC argues that improper motives can be gleened from the evidence, which, when considered in the light provided by QTC's argument of the facts, challenges the defendants' entitlement to immunity. The Court is convinced that QTC's argument on this issue is too pale to withstand summary judgment. Clearly, the actor's motive in performing a discretionary governmental function will not alone bar the application of official immunity in appropriate cases. See Barr v. Matteo, 360 U.S. at 575, 79 S.Ct. at 1341; Palermo v. Rorex, 806 F.2d 1266, 1272 (5th Cir.1987). Clearly, the specific actions of the defendant on which QTC relies in support of its constitutional claims occurred subsequent to the time the defendants began their contract work for TVA.[3] Any *1352 motives, proper or improper, that some or all of these defendants may have had for seeking out a business relationship with TVA are irrelevant to QTC's claims in this suit and the defendants' entitlement to immunity where the standards for the proper application of official or qualified immunity are otherwise satisfied.
For the reasons herein stated, together with those set forth in the Court's previous memorandum, Court File No. 175, plaintiff's motion to alter or amend the judgment granting the defendants' motion for summary judgment will be DENIED. An appropriate order will enter.
NOTES
[1] T.C.A. § 28-3-103 provides: "Actions for slanderous words spoken shall be commenced within six (6) months after the words are uttered." This statute "sets forth a positive and distinct event that triggers the running of the limitations period the utterance of the alleged defamatory words." Heller v. Smither, 437 F. Supp. 1, 5 (M.D.Tenn.1977). Plaintiff filed the instant suit on January 16, 1987, originally in Hamilton County Circuit Court. It was subsequently removed to this Court on February 23, 1987. QTC argues for the application of section 568, comment (f) of the Restatement (Second) of Torts which provides that defamatory words spoken to a newspaper reporter and later published constitutes libel. QTC argues therefrom that the one-year statute of limitations provided for libel actions (T.C.A. § 28-3-104(a)) should apply to its claim of trade disparagement. The Court is reluctant to apply this rationale in this case where the plaintiff's claim arises under Tennessee law, absent clear authority in the Tennessee courts for such a construction. Pursuant to T.C.A. § 28-3-103 and Heller, application of the six months limitations period would appear to bar QTC's claim of trade disparagement slander.
[2] Initially, plaintiff's constitutional claim asserted as plaintiff's "fourth cause of action," ¶¶ 48, 49 and 50 of the complaint, asserted only deprivation of a protected property interest as a result of the alleged contract breach. However, plaintiff has pending a motion to amend its complaint to add a claim for deprivation of a protected liberty interest as a result of the same nucleus of events (Court File No. 84). Defendants oppose this attempt to amend plaintiff's complaint (Court File No. 101).
[3] Unless otherwise noted, all contract documents cited as defining the relevant agreements between the parties appear to have been duly executed and authentic. The Court assumes the exhibit documents are correct copies of the parties' valid and duly executed agreements.
[4] Defendant STEMAR is a closely held corporation, the principals of which are Steven White and his wife, that contracted with Stone & Webster Engineering Company to provide consulting services. Defendant Stone & Webster is a large engineering concern that contracted with TVA to provide the services of Steven White, through STEMAR, as a "loaned employee" to TVA's nuclear power program.
[1] QTC argues, in conjunction with its reliance on the Comptroller General's report, that "there is no question that the contractual arrangements insisted on by the defendants were directly prohibited by the provisions of 18 U.S.C. § 208(a), the federal conflict of interest statute, ...." Plaintiff's Brief in Support, Court File No. 187 at 15. The Court notes, however, that the Comptroller General's opinion makes no reference to 18 U.S.C. § 208(a). In fact, the inquiry that resulted in the Comptroller General's opinion arose as an interpretation of TVA's statutory salary limitation, 16 U.S.C. § 831h.
[2] The analysis of "discretionary function" by the Court in Boyle, at 511, 108 S.Ct. at 2517, 101 L.Ed.2d at 457, would similarly support this Court's conclusion that White performed a "discretionary function" on behalf of TVA. Certainly White was called upon to exercise considerable judgment in the management and operation of the TVA nuclear program, balancing many technical, managerial and employment considerations, very similar to those described and relied upon in Boyle.
[3] The record establishes that QTC's participation in the ERT program was reduced after White took over TVA's nuclear power program. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612498/ | 282 So. 2d 566 (1973)
Edgar Allan AIME, Jr.
v.
Charles W. HEBERT, New Orleans Public Service, Inc. and any undisclosed insurance companies.
No. 5590.
Court of Appeal of Louisiana, Fourth Circuit.
August 7, 1973.
Rehearing Denied September 26, 1973.
*567 J. Terrell Heath and Sanford Krasnoff, New Orleans, for plaintiff-appellant.
A. R. Christovich, Jr. and C. B. Ogden, II, New Orleans, for defendants-appellees.
Before SAMUEL, BAILES and FLEMING, JJ.
SAMUEL, Judge.
Plaintiff filed this suit for injuries received while he was a fare-paying passenger on a New Orleans Public Service bus. Named in the petition as defendants are Charles W. Hebert, the bus driver, and his employer, New Orleans Public Service, Inc., a public carrier. Following trial on the merits there was judgment in favor of the defendants, dismissing plaintiff's suit. Plaintiff has appealed.
From the record before us, which includes the testimony of the plaintiff, four other passengers and the bus driver, we find the following facts:
A group of black teen-agers[1] boarded the bus at London Avenue and Broad Street in New Orleans. They were loud and boisterous, chatting and skylarking among themselves. The bus was not crowded and they went to the extreme rear, some seating themselves on either side of a white youth on a back seat and some in the seat directly in front of the others. While in the bus they continued their loud and boisterous conduct, cursing among themselves, and beating on the *568 seats; some were smoking. The group remained on the bus for approximately twenty minutes during which time the vehicle traveled a distance of from three to five miles.
All of the other passengers of the bus were aware of the disturbance consisting of the loud and sometimes obscene voices of the black youths. The bus driver occasionally observed the group in his rear view mirror. He too knew the youths were noisy and boisterous but he saw they were keeping to themselves in the rear. He did not see any weapons nor did he see the youths disturbing any other passengers. None of the passengers made any complaint to the driver. Two girls did move from the long seat next to the front bus door to sit directly behind the driver after one of the black youths had spoken to one of these girls indicating he knew where she lived. The girls intended to get off at the Lonely Oaks Drive stop but elected to remain until the following stop as they were afraid of being followed by the youths after getting off.
The only person who knew the black youths were armed was the white boy seated in their midst on the back seat. He did not inform the bus driver or any of the passengers of that fact. He saw one of them with what he described as a "meat cleaver" and he also saw another black youth cut a seat with a "butcher knife". It was this witness's opinion that to have moved from his seat or to have complained to the driver should have precipitated a racial incident. He felt the best way to handle the situation was to do nothing.
For about two minutes before the bus reached the stop at Lonely Oaks Drive and Chef Menteur Highway the group continually activated the buzzer, signifying their intention to get off at that stop. When the bus stopped at Lonely Oaks Drive the group proceeded to disembark.
Plaintiff, a 33 year old man, was seated directly in front of the back door through which the group left the bus. He testified he had noticed the white boy in the black group and was afraid of an incident but did not want to get involved. He did not leave his seat nor did he make any attempt to notify the bus driver. As the group was leaving one of the black youths in the front of the group punched plaintiff in the back of the head. Remaining seated, plaintiff turned in the direction of the departing black youths and made some remark about "cutting it out" and using a curse word or words. The last of the group then stabbed the plaintiff in the back four times. All of the group immediately ran away.
It is plaintiff's position that his injuries were due to negligence of the bus driver in failing to taken any action when he knew, or should have known, that the black youths were dangerous to the other passengers on the bus.
While not in the position of an insurer, a public carrier of passengers for hire is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.[2] The mere showing of injury to a fare-paying passenger, and his failure to reach his destination safely, establishes a prima facie case of negligence.[3] Such a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent *569 the assault from being committed or to interfere with its execution.[4]
We agree with the trial court's conclusion that there was no negligence on the part of the bus driver. The driver was not aware that the black youths were armed nor could he reasonably have anticipated that they or anyone of them would assault one of the other passengers. The stabbing incident did not occur until the group was leaving the bus and that incident came as a complete surprise not only to the driver but also to all of the other passengers.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
NOTES
[1] Testimony relative to the number of persons in the group varied from as low as four to as high as "from ten to fifteen".
[2] Gross v. Teche Lines, Inc., 207 La. 354, 21 So. 2d 378; Mire v. LaFourche Parish School Board, La., 62 So. 2d 541.
[3] Wise v. Prescott, 244 La. 157, 151 So. 2d 356; Gross v. Teche Lines, Inc., supra; Fontenot v. Fidelity General Insurance Company, La.App., 185 So. 2d 896.
[4] Patin v. New Orleans Union Passenger Terminal, La.App., 210 So. 2d 408; Alphonse v. New Orleans Public Service, Inc., La.App., 138 So. 2d 610; Bynum v. Wiggins, La.App., 107 So. 2d 476. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613109/ | CITY OF BOSSIER CITY D/B/A BOSSIER MEDICAL CENTER
v.
LOUISIANA WORKERS' COMPENSATION SECOND INJURY BOARD
No. 2008 CA 2084.
Court of Appeals of Louisiana, First Circuit
June 19, 2009.
Not Designated for Publication
JOHN E. GALLOWAY, KIMBERLY G. ANDERSON, Attorneys for Plaintiff-Appellee, City of Bossier City D/B/A, Bossier Medical Center.
KARL L. SCOTT Attorney for Defendant-Appellant, Louisiana Workforce Commission Second Injury Board
Before: PETTIGREW, McDONALD, AND HUGHES, JJ.
PETTIGREW, J.
In June 2006, plaintiff, the City of Bossier City d/b/a Bossier Medical Center ("Bossier Medical Center"), filed a Petition For Second Injury Fund Relief against defendant, the Louisiana Workers' Compensation Second Injury Board ("the Board"), seeking reimbursement for indemnity payments and medical expenses paid to or on behalf of Nancy Hammons, a Bossier Medical Center employee, who sustained a work-related injury in 1998 while an employee of Bossier Medical Center. Bossier Medical Center alleged that the Board's denial of reimbursement for indemnity and medical expenses incurred by Hammons prior to August 26, 2004, gave rise to a statutory claim for reimbursement pursuant to La. R.S. 23.-1378.[1]
Thereafter, in October 2007, Bossier Medical Center filed a motion for summary judgment, arguing that although the Board had approved Bossier Medical Center's claim in August 1999, it had subsequently refused to completely reimburse Bossier Medical Center for amounts due pursuant to La. R.S. 23:1378. The matter proceeded to hearing in June 2008, at which time the trial court noted that because the Board's opposition to the motion for summary judgment was filed late, counsel for the Board would not be allowed to argue the motion. After hearing from counsel from Bossier Medical Center and considering the evidence in the record, the trial court granted summary judgment in favor of Bossier Medical Center and ordered the Board to pay reimbursement in the amount of $86,891.75 plus interest and costs. This appeal by the Board followed. The sole issue for our review in this case is the application of La. R.S. 23:1378; i.e., does the 2004 amendment setting forth a prescriptive period for submitting proof of payment to the Board apply retroactively.
The first circuit addressed this very issue in American Home Assur. Co. v. LA Worker's Compensation Second Injury Bd. (Landry), 2007-2105, pp. 5-8 (La. App. 1 Cir. 5/2/08), 991 So. 2d 500, 503-505, and concluded that La. R.S. 23:1378, as amended by La. Acts 2004, No. 293, §1, applies retroactively to bar a reimbursement claim for payments not submitted to the Board within one year of the date of the payments. After a thorough review of the record and relevant jurisprudence, we find that our case, American Home Assur. Co., is controlling precedent, and thus, the trial court's judgment in this case was in error and must be reversed. Summary judgment was not appropriate. Therefore, we reverse the trial court's judgment in accordance with Uniform Rules-Courts of Appeal, Rule 2-16. IB and assess all appeal costs against Bossier Medical Center.
REVERSED.
NOTES
[1] As amended by La. Acts 2004, No. 293, §1, La. R.S. 23:1378 provides, in pertinent part, as follows:
A. An employer operating under the provisions of this Chapter who knowingly employs or knowingly retains in his employment an employee who has a permanent partial disability, as defined in Subsection F of this Section, shall be reimbursed from the second injury fund as follows:
(1)(a) For injuries occurring before July 1, 2004, and on or after July 1, 2007, if an employee who has a permanent partial disability incurs a subsequent injury arising out of and in the course of his employment resulting in liability for disability due to the merger of the subsequent injury with the preexisting permanent partial disability, the employer or, if insured, his insurer, in the first instance, shall pay all compensation provided in this Chapter, but the employer or, if insured, his insurer thereafter shall be reimbursed from the Second Injury Fund for all weekly compensation payments payable after the first one hundred four weeks of payments. Such payments shall be reimbursed provided they are submitted to the board within one hundred eighty days of the approval for reimbursement or within one year of the payment of such weekly compensation payments, whichever occurs later.
....
(3)(a) For injuries occurring before July 1, 2004, and on or after July 1, 2007, if an employee who has a permanent partial disability incurs a subsequent injury arising out of and in the course of his employment resulting in liability for disability due to the merger of the subsequent injury with the preexisting permanent partial disability, the employer or, if insured, the insurer, shall be reimbursed from the Second Injury Fund for medical expenses actually paid and payable in accordance with R.S. 23:1203 as follows:
(i) Fifty percent of all reasonable and necessary medical expenses actually paid, which exceed five thousand dollars but are less than ten thousand dollars.
(ii) One hundred percent of all reasonable and necessary medical expenses actually paid and payable, which exceed ten thousand dollars.
(iii) Such payments shall be reimbursed provided they are submitted to the board within one hundred eighty days of the approval for reimbursement or within one year of the payment of such medical payments, whichever occurs later.
The statute was amended further in 2006 by Act 453, effective June 15, 2006, and in 2007 by Act 332, effective July 9, 2007, to substitute "one year" for "one hundred eighty days" and "July 1, 2009" for July 1, 2007." For purposes of this appeal, the 2006 and 2007 amendments do not change the analysis or result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1745153/ | 998 So. 2d 621 (2008)
ARNOLD
v.
STATE.
No. 5D08-1351.
District Court of Appeal of Florida, Fifth District.
December 30, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612529/ | 745 F.Supp. 338 (1990)
SCHWARTZ BROTHERS, INC., Plaintiff,
v.
STRIPED HORSE RECORDS, et al., Defendants.
Civ. A. No. R-90-1511.
United States District Court, D. Maryland.
August 30, 1990.
Leonard S. Goodman, Arent, Fox, Kintner, Plotkin and Kahn, Bethesda, Md., for plaintiff.
Morris Topf, Bethesda, Md., for defendant Carlo Nasi.
MEMORANDUM AND ORDER
RAMSEY, District Judge.
*339 Pending before the Court in the abovecaptioned case are two motions: Defendant Carlo Nasi's motion to quash service of process and dismiss complaint for lack of in personam jurisdiction and for defective service of process; and Plaintiff's motion to remand the action to state court. Both motions have been responded to and the Court is now prepared to rule without need for a hearing pursuant to Local Rule 105.6 (D.Md.1989). For the reasons set forth below, the Court will grant plaintiff's motion to remand and will not reach defendant Nasi's motion to quash and dismiss.
Briefly stated, this is an action for breach of contract brought by Schwartz Brothers against Striped Horse Records, Inc., and one of its officers, Carlo Nasi.[1] Initially, Schwartz Brothers filed suit in the Circuit Court for Prince George's County on June 7, 1989. Schwartz Brothers attempted to serve Nasi a citizen and resident of Italy by leaving a summons and a copy of the complaint with a receptionist in Milan, Italy. The receptionist ultimately turned the papers over to Nasi. On November 24, 1989, Nasi moved to quash service of process, to dismiss for lack of personal jurisdiction, and to dismiss for failure to state a claim.[2] By Order dated March 14, 1990, Judge Graydon S. McKee, III, granted Nasi's motion to quash but permitted Schwartz Brothers an additional 30 days to perfect service in accordance with the Hague Convention on Service Abroad. Without discussion, Judge McKee also denied Nasi's motion to dismiss for lack of personal jurisdiction and for failure to state a claim.[3] After an additional extension of time to serve Nasi, Schwartz Brothers again attempted to serve him on May 11, 1990, by leaving a copy of the summons and complaint with an individual at Nasi's business.[4] On June 5, 1990, asserting federal jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332, Nasi removed this action from state court to this Court.
The issue presented by Schwartz Brothers' motion to remand is straightforward. Pursuant to 28 U.S.C. § 1446(b), "[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based...." Schwartz Brothers contends that the thirty day period began to run when Nasi first received a copy of the complaint, sometime prior to filing his initial motion to quash in state court last November. Nasi contends, in contrast, that the thirty day period begins to run only upon proper service being effectuated. Conceding only for the purposes of Schwartz Brothers' motion to remand that perfected service occurred on May 11, 1990, Nasi contends that his notice of removal on June 5, 1990, was timely.
This precise issue is the subject of a number of district court opinions. Two lines of cases have developed. One line, best exemplified by Love v. State Farm Mutual Automobile Insurance Company, 542 F.Supp. 65 (N.D.Ga.1982), holds that the thirty day period allowed in § 1446(b) commences upon proper service. Mere receipt of the complaint, if it does not comply with the applicable state rules of service of process, does not start the clock ticking. See Marion Corp. v. Lloyds Bank, PLC, 738 F.Supp. 1377 (S.D.Ala.1990); Goodyear Tire & Rubber Co. v. Fuji Photo Co., Ltd., 645 F.Supp. 37 (S.D.Fla.1986); Hunter v. American Express Travel Related Services, 643 F.Supp. 168 (S.D.Miss.1986); Thomason v. Republic Ins. Co., 630 F.Supp. 331 (E.D.Cal.1986); Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351 (E.D.Mo.1981); Gibbs v. Paley, 354 F.Supp. 270 (D.P.R.1973); Moore v. Firedoor Corp. of America, 250 F.Supp. 683 (D.Md.1966); Potter v. McCauley, 186 F.Supp. 146 (D.Md.1960).
*340 Another line of cases, exemplified by Conticommodity Services, Inc. v. Perl, 663 F.Supp. 27 (N.D.Ill.1987), hold that so long as the defendant receives actual notice of the substance of the litigation, proper service need not be effectuated for the thirty day clock of § 1446(b) to start. See Pic-Mount Corp. v. Stoffel Seals Corp., 708 F.Supp. 1113 (D.Nev.1989); Beckley, Singleton, DeLanoy, Jemison & List, Chartered v. Spademan, 694 F.Supp. 769 (D.Nev.1988); Dial-In, Inc. v. ARO Corp., 620 F.Supp 27, (N.D.Ill.1985); General Beverage Sales Co. v. Zonin S.p.A., 589 F.Supp. 846 (W.D.Wisc.1984); Maglio v. F.W. Woolworth, 542 F.Supp. 39 (E.D.Pa. 1982); Tyler v. Prudential Ins. Co., 524 F.Supp. 1211 (W.D.Pa.1981); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978); International Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kulbeth v. Woolnought, 324 F.Supp. 908 (S.D.Tex. 1971); In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y.1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Advertising Corp. v. Central Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y. 1954); Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952).
Upon review of the two competing approaches, the Court is persuaded that the better view is that the thirty day period under § 1446(b) begins to run when the defendant receives the complaint, through proper service or otherwise.[5] Three considerations compel this conclusion. First, the plain language of § 1446(b) indicates that proper service is not required; all that is required is that the defendant receive the complaint "through service or otherwise." (emphasis added). Where a statute is clear on its face, of course, the Court need not delve into the legislative history or rely on any other extrinsic aid to settle a question regarding the meaning of that statute. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984).
Second, construing § 1446(b) in the manner adopted by this Court fulfills the purpose of Congress in enacting the provision. The purpose, as is amply discussed in Conticommodity and Potter, was to establish a uniform federal system for removal of cases to federal court. In order to accommodate state systems that permit suit to be commenced simply by serving the defendant with a summons but not a copy of the complaint, § 1446(b) was drafted to require receipt of the complaint to start the thirty day clock running. The reason is straightforward: Until the defendant receives the complaint, he has no way of knowing whether he has grounds to remove the action to federal court; he has no way of knowing if he wants to remove the action to federal court; and he cannot satisfy the requirement of setting forth a "short and plain statement of the grounds for removal" as is demanded by 28 U.S.C. § 1446(a). Once the defendant receives the complaint, all these problems are cured. Proper service in accordance with state procedural rules, however, adds nothing. So long as the defendant has the complaint in hand, he has sufficient information to determine whether he can and should remove.
Finally, construing the statute as not requiring perfected service is consistent with the well-established principle that the removal statute is to be construed narrowly and against removal. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). To quote Judge Getzendanner in the Conticommodity case, "[t]his principle[], when considered in light of the straightforward, unambiguous language of the statute, ... persuades this court that the plain meaning of the statute should be accepted as its legal meaning." Conticommodity, 663 F.Supp. at 31. This position, the Court notes, is also advocated by Professors Wright, Miller, and Cooper in their text. They write that "[t]he fundamental principle of the general removal statute is that the time limitation on seeking removal begins to run when the defendant receives notice of the action, not when the action is commenced. ... Technicalities of state law as to the completion of service of process are *341 ignored ... when removal is considered." 14A Wright, Miller, & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3732 at 513, 516 (2d ed. 1985) (citations omitted).
Since it is admitted by Nasi that he received the complaint in November 1989, his removal petition filed on June 5, 1990, is clearly untimely. Thus, pursuant to § 1447(c), the Court will remand this case to the Circuit Court for Prince George's County.[6] Finding, however, that the removal petition was made in utmost goodfaith and upon a well-founded belief in its propriety, the Court declines to impose costs on Nasi pursuant to § 1447(c).
Accordingly, it is this 30th day of August, 1990, by the United States District Court for the District of Maryland,
ORDERED:
1. That Plaintiff's motion to remand the action to state court is GRANTED;
2. That this action is REMANDED to the Circuit Court for Prince George's County;
3. That Plaintiff's motion to impose costs on the defendant is DENIED.
NOTES
[1] Prior to this suit being removed to federal court, another officer of Striped Horse, Barney Ales, settled with Schwartz Brothers. He is no longer a party to this litigation.
[2] Memorandum in Opposition to Motion to Quash Service of Process and Dismiss Complaint for Lack of In Personam Jurisdiction and For Defective Service, Exhibit 1.
[3] Id., Exhibit 3.
[4] Id., Exhibit 6. Nasi challenges the sufficiency of this service as well.
[5] The Court recognizes that Judge Chesnut's decision in Potter, supra, and Chief Judge Thomsen's decision in Moore, supra, fall within the "Love" line of cases. Nevertheless, the modern trend of the cases and the preferable understanding of statute compels the Court to depart from these two holdings.
[6] In doing so, of course, the Court does not reach Nasi's motion to quash and to dismiss. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612933/ | 32 Wis.2d 320 (1966)
CHEESE, Appellant,
v.
AFRAM BROTHERS COMPANY and another, Respondents.
Supreme Court of Wisconsin.
October 3, 1966.
November 1, 1966.
*323 For the appellant there was a brief and oral argument by Harvey L. McCormick of Milwaukee.
For the respondent Afram Brothers Company there was a brief by Shinken & Shinken of Milwaukee, and oral argument by Milton Shinken.
For the respondent Local 364 of the International Union, Allied Industrial Workers of America, AFL-CIO, there was a brief by Goldberg, Previant & Uelmen, and oral argument by John Williamson, all of Milwaukee.
*324 GORDON, J.
The trial court sustained the demurrers of both defendants to Mr. Cheese's amended complaint, and we must determine whether either or both of such demurrers should have been sustained. This court must also determine the effect of the trial court's order which sustained the demurrers "without leave to plaintiff to replead" but also dismissed the action "without prejudice."
In his amended complaint, the plaintiff claims damages and also asks the court to declare his rights under the collective-bargaining agreement. The request for declaratory relief would appear to be out of place in this complaint, since the gravamen of the pleading is Mr. Cheese's demand for damages grounded on his interpretation of the collective-bargaining contract. As stated in F. Rosenberg Elevator Co. v. Goll (1963), 18 Wis. (2d) 355, 118 N. W. (2d) 858, a declaratory judgment is not designed to take the place of an action for damages. Calvary Independent Baptist Church v. Rome (1951), 208 Ga. 312, 315, 66 S. E. (2d) 726. The demurrers of the defendants were not based on the inappropriateness of the remedy of a declaratory judgment; in our opinion, that portion of the amended complaint which seeks declaratory relief may be regarded as harmless surplusage.
The Cause of Action Against Afram Brothers.
The plaintiff contends that his discharge was "wrongful and unlawful" and points to section 9.01 of the collective-bargaining agreement. This clause provides that an employee shall lose his seniority if he is discharged for cause but, in our opinion, does not provide support for Mr. Cheese's claim that he was improperly discharged. In the absence of affirmative allegations indicating in what manner Afram Brothers failed to comply with the collective-bargaining contract in discharging the plaintiff, the amended complaint asserts only a legal conclusion and, since there was first an order to make the complaint more definite and certain, is demurrable. Cf. Simpson v. *325 Cornish (1928), 196 Wis. 125, 132, 133, 218 N. W. 193; Doolittle v. Laycock (1899), 103 Wis. 334, 79 N. W. 408.
In Cheese v. Industrial Comm. (1963), 21 Wis. (2d) 8, 123 N. W. (2d) 553, this court held that the plaintiff had not engaged in "misconduct" for purposes of the Unemployment Compensation Act. However, it does not follow from such holding that the discharge necessarily subjects the employer to liability for breach of contract. Under the enlightened social and economic objectives of unemployment compensation, an employee may be entitled to benefits even though his employer had the contractual right to discharge him from his job. Milwaukee Transformer Co. v. Industrial Comm. (1964), 22 Wis. (2d) 502, 512, 126 N. W. (2d) 6. Thus, the prior ruling of this court that Mr. Cheese's actions were not "misconduct" for purposes of the Unemployment Compensation Act does not alone support an allegation in a damage action that he was wrongfully discharged.
Although the employer also urges that the complaint against it is defective because of the failure to allege an exhaustion of remedies, we note that the case in which this court held that there was an obligation to allege and prove exhaustion of remedies in an action against an employer was one in which the employee sought reinstatement. Widuk v. John Oster Mfg. Co. (1962), 17 Wis. (2d) 367, 374, 117 N. W. (2d) 245. However, in McDonald v. Chicago, M., St. P. & P. R. Co. (1964), 25 Wis. (2d) 205, 217, 130 N. W. (2d) 794, this court distinguished between an action for damages against an employer and one for reinstatement. In the same case, the court also distinguished between a damage suit for wrongful expulsion against the employer as opposed to such an action against the union. In this suit for damages, under our ruling in the McDonald Case, Afram Brothers is not entitled to rely on Mr. Cheese's failure to allege an exhaustion of remedies. Instead, the employer must plead such failure as an affirmative defense.
*326 The Cause of Action Against Local 364.
The complaint also fails to state a cause of action against the union. The contractual provisions asserted in the complaint do not obligate the union to contest the discharge even if the union had the right to do so. Section 9.03 gives the union the right to question and investigate any dismissal for cause. Section 9.04 provides that the union shall not attempt to have the employee reinstated where the dismissal is for just cause. Finally, section 9.05 asserts that the employer shall submit a card stating the cause of dismissal not later than a day after such dismissal. There is nothing in these provisions which obligates the union to contest every discharge. In the absence of other allegations (for example, showing an employer-union conspiracy or an arbitrary violation of the union's duty of fair representation), we are persuaded that the amended complaint does not now state a cause of action.
A union has a fiduciary duty of fair representation under its collective-bargaining contract. Humphrey v. Moore (1964), 375 U. S. 335, 84 Sup. Ct. 363, 11 L. Ed. (2d) 370; Clark v. Hein-Werner Corp. (1959), 8 Wis. (2d) 264, 99 N. W. (2d) 132, 100 N. W. (2d) 317; Fleming, The Labor Arbitration Process (1965), 107-133; Aaron, Some Aspects of the Union's Duty of Fair Representation, 22 Ohio State Law Journal (1961), 39. However, the mere allegation that the union has failed to contest the discharge is insufficient to support a claim for damages. In Fray v. Amalgamated, etc., Local Union No. 248 (1960), 9 Wis. (2d) 631, 641, 101 N. W. (2d) 782, we commented upon a union's discretion in determining whether to present an employee's grievance:
"The union has great discretion in processing the claims of its members, and only in extreme cases of abuse of discretion will courts interfere with the union's decision not to present an employee's grievance. . . . In certain cases for the greater good of the members as a whole, some individual rights may have to be compromised."
*327 In our view, the complaint does not allege conduct showing a breach of the union's duty of fair representation. Cf. Pattenge v. Wagner Iron Works (1957), 275 Wis. 495, 500, 82 N. W. (2d) 172.
We also are of the opinion that the amended complaint is demurrable on the part of the union because of the plaintiff's failure to aver that he has exhausted his remedies within the union before starting his court action. In the McDonald Case, cited above, a complaint against a union for its alleged failure to represent the plaintiff in connection with his discharge was held to be insufficient when the complaint did not allege facts which showed an exhaustion of remedies within the union. Kopke v. Ranney (1962), 16 Wis. (2d) 369, 114 N. W. (2d) 485. Although the original complaint stated that the grievance was "made known" to the union, that allegation is insufficient under the McDonald Case.
The Right to Replead.
The trial judge gave a number of reasons for sustaining the defendants' demurrers. One of these was his belief that the action was barred by the two-year statute of limitations contained in sec. 330.21 (5), Stats. 1963 (now renumbered sec. 893.21 (5)). In our opinion, the learned trial judge erred in applying the statute of limitations governing unpaid wages rather than applying sec. 330.19 (3), Stats. 1963 (now renumbered sec. 893.19 (3) ), which is a six-year statute of limitations for actions on a contract. We believe that the latter statute providing a sixyear statute of limitations governs this dispute over the effect of the collective-bargaining contract under the recent ruling of this court in Tully v. Fred Olson Motor Service Co. (1965), 27 Wis. (2d) 476, 134 N. W. (2d) 393. The latter case does not appear to have been brought to the attention of the trial judge.
As noted at the outset of this opinion, the trial court dismissed the action "without prejudice" and also ordered *328 the demurrers sustained "without leave to plaintiff to replead." The quoted clauses would seem to be somewhat inconsistent; at least, there is an ambiguity whether the plaintiff is free to commence another action. Normally he would be free to do this when his action is dismissed "without prejudice." However, insofar as the order forecloses him from the right to replead, it is arguable that the trial court meant not only to snuff out the candle but also to bar the plaintiff from ever relighting it.
We recognize that the plaintiff was previously given an opportunity to reframe his complaint and that it is discretionary with the trial court whether the plaintiff should be permitted to plead over. Pedrick v. First Nat. Bank of Ripon (1954), 267 Wis. 436, 441, 66 N. W. (2d) 154; Chris Schroeder & Sons Co. v. Lincoln County (1943), 244 Wis. 178, 182, 11 N. W. (2d) 665. However, the trial court may have been influenced in its denial to the plaintiff of leave to replead by a mistaken conception regarding the statute of limitations.
We affirm that portion of the trial court's order which sustained the demurrers, but we remand this matter to the circuit court with directions to clarify its order insofar as there appears to be a conflict between the denial of the right to replead and the direction that the dismissal is "without prejudice."
The trial court is directed to reexamine the question of permitting the plaintiff to replead in light of our comments regarding the applicable statute of limitations. Upon such reexamination, the trial court shall exercise its discretion to determine whether the plaintiff shall be given an opportunity to plead over or whether further pleadings on his part shall be barred. Both of the respondents shall be chargeable with costs upon this appeal, but we hold that the plaintiff shall be limited to taxing only one half of his appeal costs.
By the Court.Order affirmed in part and reversed in part. Cause remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/583173/ | 963 F.2d 381
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Ervin T. VALANDINGHAM, Jr., Plaintiff-Appellee,v.Randy MOEN, Defendant-Appellant.
No. 91-15714.
United States Court of Appeals, Ninth Circuit.
Submitted May 12, 1992.*Decided May 14, 1992.
Before CHOY, HUG and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Randy Moen appeals the district court's denial of post-trial motions following a jury verdict in favor of Ervin T. Valandingham, Jr., on his 42 U.S.C. § 1983 claim that Moen violated his Eighth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
3
* Moen was a guard in the prison library. Valandingham alleged that Moen called him a "snitch," intending to subject him to harm by fellow inmates, in retaliation for attempts to seek legal redress for grievances. In Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir.1989), we held that Valandingham's allegations stated a claim for relief under § 1983. At trial, Valandingham testified that as a result of Moen's conduct, he was assaulted twice, once in 1986 in the "chow hall," and again in 1988. He could not say who was involved in the chow hall assault, and would not say who was involved in the 1988 incident. The district court accordingly struck evidence of the 1988 assault. The jury awarded Valandingham $1 in nominal damages and $4,000 in punitive damages.
4
Moen's motions for judgment notwithstanding the verdict, for a new trial, and to amend the judgment were denied.1 We review for abuse of discretion the denial of the motion for a new trial and the motion to amend the judgment. Hard v. Burlington N.R.R., 812 F.2d 482, 483 (9th Cir.1987) (motion for new trial); Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.) (motion for relief from judgment), cert. denied, 479 U.S. 829 (1986).
II
5
Moen argues that Valandingham failed to prove that he suffered actual injury as a result of Moen's conduct because the district court excluded the only evidence of harm--the two alleged assaults--after Valandingham refused to name his assailants. The trial judge, however, only struck evidence of the 1988 assault. Evidence of the 1986 assault was properly before the jury, and supports its finding that Valandingham suffered harm on account of Moen's depriving him of the constitutional right to be free from cruel and unusual punishment.
6
Moen's argument that the evidence was insufficient to go to the jury likewise fails. Valandingham testified that on several occasions Moen obstructed his attempts to seek legal redress, called him a "snitch" in the prison law library, and told other inmates in the library that he was a "snitch." Valandingham testified that Moen played a leading role in labeling him a "snitch." William Hood, a fellow inmate, testified that he heard Moen call Valandingham a "snitch"; Hood also testified that when he filed a suit against Moen, Moen had threatened Hood by saying, "I'm going to put the word out on the yard that you're a snitch and have you killed." Valandingham further testified that he was threatened with harm in the prison chow hall in 1986 because of the rumors Moen had started by labeling him a "snitch."
7
Nor does Valandingham's failure to utilize protective custody require reversal. Valandingham and Hood testified that entering protective custody would only heighten inmates' suspicions about an alleged "snitch" and would ultimately lead to greater danger. Because the evidence was sufficient to support the jury's verdict, the district court did err in failing to grant a directed verdict, or abuse its discretion in denying Moen's motion for a new trial or to amend the judgment.
III
8
Moen also argues that the instructions (1) "improperly create[d] a presumption of prisoner retaliation and danger" for those who are labelled snitches, (2) obviated the need for proof of "pervasive, assaultive or life-threatening prison conditions," and (3) prejudiced him by "lessening the scienter of a wanton and obdurate state of mind ... required to establish an Eighth Amendment violation."
9
Moen relies on Gullatte v. Potts, 654 F.2d 1007 (5th Cir.1981), and Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985). In Gullatte and Riley the plaintiffs alleged a failure to protect. As the district court in this case recognized, Valandingham's was not a failure to protect claim, but "essentially a claim that in retaliation for the exercise of the plaintiff's protected rights, the defendants subjected the plaintiff to cruel and unusual punishment ... in that they each wantonly and in reckless disregard of the plaintiff's safety labeled him a snitch and disclosed that to the population generally." The district court was therefore obligated to instruct that Valandingham must show injury caused by Moen's intentional, willful conduct.
10
It did just that. The court instructed that "[m]ere verbal harassment or verbal abuse by prison defendants against the plaintiff is not sufficient without actual harm arising therefrom to permit a finding of a constitutional violation of the plaintiff's right to ... freedom from cruel and unusual punishment." It also told the jury that the burden was on Valandingham to prove that Moen "acted maliciously with the intent to inflict harm or pain upon [him]." The instructions further said that in considering whether Moen infringed upon Valandingham's constitutional rights, the jury should consider "whether [Moen's] conduct was done in a good faith effort to maintain or restore discipline or instead was done maliciously and sadistically for the very purpose of causing harm." Finally, the court instructed that "[a] mere mistake or negligent act on the part of a state official cannot be [a] constitutional violation under ... plaintiff's ... cruel and unusual punishment claim because ... cruel and unusual punishment must rise from an intentional act." Viewing the instructions "as a whole," Floyd v. Laws, 929 F.2d 1390, 1394 (9th Cir.1991), we conclude that the instructions "fairly and adequately covered the issues presented, correctly stated the law, and were not misleading." Id.
11
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Although Moen's brief mentions that this case presents an issue of whether punitive damages were properly awarded where only nominal damages were awarded, he does not pursue the point. Because it is not argued, we shall not review that issue. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988) ("Issues raised in a brief which are not supported by argument are deemed abandoned."). Moen has also withdrawn the argument that he may not be personally liable for damages because he was acting in an official capacity | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1615914/ | 215 S.W.3d 668 (2005)
Carl Allen JOHNSON, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 05-45.
Supreme Court of Arkansas.
October 13, 2005.
*669 Cullen & Co., PLLC, by: Tim Cullen, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.
TOM GLAZE, Justice.
Appellant Carl Johnson was convicted of second-degree murder in the killing of Mark "Calvin" Cahoon on March 15, 2002. Johnson's co-defendant, Rebecca Woolbright, was convicted of first-degree murder. On appeal, this court affirmed Woolbright's conviction and sentence, but reversed Johnson's conviction on the grounds that his constitutional rights had been violated when officers failed to inform Johnson that he had the right to refuse to consent to the officers' request to search the hotel room in which Johnson resided at the time. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004).
In the Woolbright opinion, this court noted that, after the officers' illegal entry, the following transpired:
Detective Reese searched the room and seized a pair of jeans. . . . With Mr. Johnson's consent, Detective Sutton seized a pocket knife. . . .
At the police station, Mr. Johnson was taken to a work cubicle for questioning. Detective Reese noticed that his wristwatch appeared to have a red stain on it and [he] seized it. Another officer later seized Mr. Johnson's boots [and other items of clothing]. Thereafter, Ms. Woolbright came to the police station and gave a statement implicating Mr. Johnson in the murder. At this point, Mr. Johnson was taken into custody and placed under arrest. Officer Daniel Grubbs secured Mr. Johnson while the other officers went . . . to search for the victim's body. During a routine pat-down search, the officer seized a set of keys.
Id. at 79, 160 S.W.3d 315. The Woolbright court continued as follows:
We have recently addressed the propriety of the "knock-and-talk" procedure under the protections of the Arkansas Constitution. See State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). In that case, we held that a home dweller must be advised of his or her right to refuse consent in order to validate a consensual *670 search under the Arkansas Constitution. Id. It is undisputed that none of the officers informed Mr. Johnson that he had the right to refuse consent to the entry and subsequent search of his home. Accordingly, we must reverse and remand for the suppression of all evidence that flowed from this unconstitutional search.
Id. at 80, 160 S.W.3d 315 (emphasis added).
Upon remand, Johnson again filed a motion to suppress the evidence. In his motion, Johnson cited portions of Justice Thornton's dissenting opinion in Woolbright, in which Justice Thornton referred to "the items that were seized" as being "a pair of jeans, a pocket knife, Johnson's statement to the police, a wristwatch with a blood stain, boots, and a set of keys." Id. at 86, 160 S.W.3d 315. Relying on this dissent, Johnson asked the trial court to suppress the tangible items listed in the dissenting opinion, along with a ball cap and shirt he had been wearing.
The trial court held a hearing on Johnson's motion. Johnson argued that the law-of-the-case doctrine prevented the trial court from hearing additional evidence on his motion to suppress. The trial court agreed that the jeans and the knife that had been seized from the hotel room had to be excluded; however, the court noted that it had to determine whether the watch, keys, boots, and clothes flowed from the search at the hotel. After hearing testimony from the officers who conducted the search and investigation of Johnson the night of the Cahoon murder, the court ruled that the watch and keys should be suppressed, but the boots and other items of clothing that Johnson had been wearing would be admitted.
Following the trial court's denial of his suppression motion, Johnson entered a conditional plea of guilty to second-degree murder pursuant to Ark. R.Crim. P. 24.3(b), and the trial court sentenced him to twenty years' imprisonment. Johnson has pursued an interlocutory appeal from the trial court's ruling; on appeal, he argues that the law-of-the-case doctrine should have precluded the trial court from holding a hearing on his motion to suppress, and that the trial court erred in denying his motion.
On appeal, Johnson first contends that the law-of-the-case doctrine barred the trial court from holding an evidentiary hearing on remand. He asserts that the trial court "was under instruction from the supreme court to suppress all of the evidence obtained pursuant to the search." Because this court had previously determined the illegality of the search, he claims, the trial court was without jurisdiction to reconsider the suppression issue.
The doctrine of law of the case ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003); Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Thus, the doctrine dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). However, matters that have not been decided, explicitly or implicitly, do not become law of the case merely because they could have been decided. Camargo, supra.
In his appeal, Johnson argues that, because this court held that the search of his home was illegal and that the trial court erred in not suppressing all the evidence, the lower court was without authority to hold a second evidentiary hearing and reconsider the arguments of the State regarding the suppression of evidence resulting from the illegal search. He asserts *671 that this court unequivocally held that the police officers' actions were unconstitutional and ordered the trial court to suppress the evidence as a result; this was not an issue left open for the trial court to revisit.
Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997) (Foreman II), is instructive on this question. There, this court considered a law-of-the-case issue in conjunction with a motion to suppress. Foreman had been convicted of first-degree murder; on appeal, this court reversed his conviction and remanded the case, holding that the trial court had erred in admitting Foreman's statement to police because the State failed to produce a material witness at the Denno hearing held before the first trial, and thereby failed to sustain its burden of proof as to the voluntariness of the statement. See Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995) (Foreman I). This court reversed and remanded, and its mandate provided that the case was to be returned to the trial court "for further proceedings to be had therein according to law, and not inconsistent with the opinion herein delivered." Foreman II, 328 Ark. at 590, 945 S.W.2d 926.
Upon remand, the trial court held an additional Denno hearing prior to the second trial and permitted the State to present the testimony of the material witness who had not testified prior to the first trial. Following that hearing, the trial court ruled that Foreman's statement was voluntary and admitted it into evidence. Id. On appeal in Foreman II, Foreman argued that the statement was admitted in the second trial in violation of the law-of-the-case doctrine. Id. at 591, 945 S.W.2d 926.
This court disagreed, rejecting Foreman's argument because it was "clear that we did not determine in Foreman I that his custodial statement was involuntary or inadmissible." Id. at 592, 945 S.W.2d 926. The court continued as follows:
We made no pronouncement in Foreman I with respect to the voluntariness of the statement. Rather, we held only that the State failed to carry its burden of proving the statement was voluntarily given, and that the statement therefore should not have been admitted at trial. Our mandate permitted the trial court to conduct further proceedings consistent with our opinion in Foreman I, and the decision to hold a second Denno hearing was in accordance with our mandate.
Id.
Similarly, in the present case, our earlier opinion and mandate left open the question of what items flowed from the illegal search. The mandate in the instant case provided that Johnson's conviction was "reversed and remanded in part for the reasons set out in the attached opinion." In turn, as discussed above, the "attached opinion" remanded the case for suppression of "all evidence that flowed from [the] unconstitutional search." This court did not, contrary to Johnson's argument, hold that every item of evidence had to be suppressed, nor did the court specify which items were to be suppressed.[1] Rather, the clear implication of this court's *672 remand was for the trial court to determine for itself which items of evidence flowed from the illegal search. Clearly, the trial court's decision to conduct a second hearing regarding the admissibility of the evidence seized from Johnson's hotel room was in accordance with our mandate. As such, Johnson's argument that the trial court had no jurisdiction to hold another suppression hearing is without merit.[2]
In his second point on appeal, Johnson argues that the trial court erroneously failed to suppress all evidence obtained as a result of the knock-and-talk search. Specifically, he maintains that the trial court erred in refusing to suppress his boots, clothing, and the testimony of State criminologists regarding the results of tests run on these items.
In an appeal from the denial of a motion to suppress, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
At the outset of the suppression hearing, the trial court agreed that the items seized from Johnson's hotel roomthe jeans and the pocket knifewould be excluded, as they clearly flowed from the illegal search. However, as to the other items of evidence enumerated in Johnson's motion to suppressspecifically, the watch, keys, and bootsthe court noted that it would have to determine whether there had been some intervening event that broke the causal connection between the Fourth Amendment violation and the obtaining of the watch, boots, and keys.
The court heard testimony from Detective David Joplin of the Fort Smith Police Department. Joplin testified that he and other officers had received word that somebody named "Carl," who was staying at the Inn Towne Lodge, may have been involved in a murder. When the officers arrived at the motel, they went to Johnson's room and asked if they could come in and speak to him. While inside the room, the officers discovered a pair of jeans with a stain on them; in addition, the officers retrieved a pocket knife from the pocket of the pants Johnson was wearing. The officers then asked Johnson if he would come down to the police station to talk with them. Johnson agreed, but because he did not have a car, he accepted the officers' offer to ride with them in an unmarked detective's car.
When they arrived at the police station, Joplin and Johnson sat in Joplin's cubicle on the second floor. At that time, Joplin testified, Johnson was not in custody, stating that the officers "really didn't know what we had, and we just asked him to come to the police station and talk to us to see if we could get it figured out." Joplin also stated that, at the time they were talking to Johnson, the officers were unaware that an actual murder had taken *673 place. After arriving at the police station, Johnson was allowed to go outside and smoke a cigarette. When Johnson came back in, Detective Lannie Reese sat down to talk with him and noticed that Johnson's watch appeared to have dried blood on it. Reese asked Johnson for the watch, and Johnson handed it over.
Shortly thereafter, Woolbright came to the police station and told officers that she had witnessed Johnson kill Cahoon and that she knew where the body was. At that point, Joplin stated, Johnson was in custody. As Joplin and the other detectives left the police station to find the body, Patrol Officer Daniel Grubbs was called in to keep an eye on Johnson. Because Grubbs was going to be left alone with a murder suspect, he asked if the other officers could wait until he patted Johnson down in a search for any type of weapons. During the course of his pat-down search, Grubbs discovered a set of keys in Johnson's jacket pocket. The boots, according to Joplin's uncontradicted testimony, were seized at the time Johnson was arrested and booked at the jail; at the same time, police also seized Johnson's cap and other clothing he had on.
At the conclusion of the hearing, the trial court ruled it was "obvious" that the jeans and the knife that had been seized at the motel room would have to be suppressed. In addition, the court noted that the watch and keys had been seized at the police station before Woolbright came to the station and told the officers about the murder. Prior to that time, the court ruled, there had been no other independent information about the murder; as such, the court also suppressed the watch and the keys. However, after Woolbright made her statement and the officers found Cahoon's body, Johnson was placed under arrest. The court therefore determined that the boots and clothing had not been seized until that time, and therefore, they would be admissible.
On appeal, Johnson argues that the trial court incorrectly determined that Woolbright's statement to the police that she had witnessed the murder constituted an intervening event sufficient to dissipate the taint of the illegal search.[3] We disagree. This court has held that, once it determines that an unlawful seizure has taken place, it must then consider whether contraband seized from the execution of that search should be suppressed. See Keenom v. State, 349 Ark. 381, 80 S.W.3d 743 (2002) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). In Keenom, this court quoted Wong Sun as follows:
We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."
Keenom, 349 Ark. at 390-91, 80 S.W.3d 743 (quoting Wong Sun) (internal citations omitted).
In Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002), this court considered the question of whether and by what means, given an illegal entry by police, a defect in the search can be cured. The court there was confronted with a situation *674 in which the suspect consented to a search by police, after he had spoken with his attorney. In analyzing the issue, the court had to determine whether Stone's consent to search was "sufficiently an act of free will to purge the primary taint." Stone, 348 Ark. at 673, 74 S.W.3d 591 (citing United States v. Ramos, 42 F.3d 1160 (8th Cir.1994)). The court continued, observing the following:
[T]he attenuation must be determined by weighing the seriousness of the police misconduct. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). This court has . . . held that an intervening event can be an attenuating circumstance. See, e.g., Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981) (taint of pretextual arrest attenuated when defendant's girlfriend told defendant that she had already implicated him in the criminal activity).
Stone, 348 Ark. at 674, 74 S.W.3d 591.
Thus, the question is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." See Wong Sun, supra. In the present case, Johnson argues that the objectionable evidence consists of his boots and clothing, and the testimony of a criminologist regarding evidence gleaned from the boots. We must determine whether this evidence was gotten by exploitation of the illegal search at the hotel room, or whether there was some intervening event that purged that taint. Here, the trial court concluded that the appearance of Rebecca Woolbright at the police station, and her statement that she had witnessed Johnson kill Cahoon and that she knew where the body was, was a sufficient intervening event.
The Brewer case, cited above in Stone, is instructive on this point. There, appellant Brewer was arrested on a charge of burglary and was later charged with murder. Brewer argued that his arrest on burglary charges was merely a pretext, and the statement he gave following that arrest implicating himself in the murder was the product of the illegal arrest. This court first held that the arrest was not pretextual or illegal. Brewer, 271 Ark. at 813, 611 S.W.2d 179. However, even assuming that it had been illegal, the court held that there was a sufficient intervening circumstance that attenuated any taint from the arrest: Brewer's first statement to police was not incriminating, but after he gave that statement, his girlfriend told him that she had already spoken to the police and told them that he had been involved in the murder. Shortly thereafter, Brewer gave an incriminating statement. This court held that the intervening act of the girlfriend's comments, and Brewer's subsequent decision to confess, removed the taint of the allegedly illegal arrest. Id. at 814, 611 S.W.2d 179.
Here, likewise, Woolbright's telling the police that Johnson killed Cahoon was a sufficient intervening event. At this point, Johnson was in custody for his participation in the murder, and the officers' conduct following that point, including the seizure of his boots and clothing, was premised on his being under arrest, not on the illegal search at the hotel room. The uncontradicted evidence before the trial court at the suppression hearing was that Johnson's boots and clothing were not seized until after this intervening event. As such, the trial court did not err in deeming the boots and clothing admissible.
Affirmed.
NOTES
[1] Johnson relies heavily on the dissenting opinion filed by Justice Thornton in Woolbright. However, this was not the majority opinion of the court. Further, Justice Thornton was not discussing the merits of this court's decision on the suppression issue in Johnson's case; rather, he was discussing the manner in which the introduction of this evidence prejudiced Johnson's co-defendant, Rebecca Woolbright. As such, it is of no moment that Justice Thornton listed certain specific items of evidence, and it certainly does not compel a conclusion that this listing of items was conclusive and exhaustive for purposes of retrial.
[2] In his reply brief, Johnson argues that this court held in Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998), that "[n]either new proof [n]or new defenses can[ ] be raised after remand when they are inconsistent with this court's first opinion and mandate." Dolphin, 335 Ark. at 120, 983 S.W.2d 113. However, the Dolphin case is inapposite. There, upon remand, the parties interjected an entirely new legal theory into the matter, and the trial court considered and decided the case on the basis of that new theory. On appeal, this court held that the trial court's actions were erroneous, because the lower court had disregarded this court's mandate to enter an order "consistent with our opinion" from the first trial. Here, however, the trial court's holding of an additional hearing to determine what evidence flowed from the search was entirely consistent with this court's opinion.
[3] Johnson also reiterates his argument that the trial court was not authorized to consider "new" testimony at the suppression hearing; however, we have already rejected this argument, and will not consider or discuss it again here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612606/ | 145 N.W.2d 48 (1966)
Tony SCHROEDL and Catherine Schroedl, Appellants,
v.
Leo V. McTAGUE and Frances McTague, Appellees.
No. 52214.
Supreme Court of Iowa.
September 20, 1966.
Rehearing Denied October 18, 1966.
*50 James Furey, Carroll, for appellants.
Page & Nash, Denison, for appellees.
LARSON, Justice.
This is the second appeal in this matter. The first trial resulted in a directed verdict for defendants. We reversed and remanded the case when it appeared certain material evidence of admissions on the question of revival of an otherwise barred debt, due to limitations, was rejected by the court. See Schroedl v. McTague, 256 Iowa 772, 129 N.W.2d 19, filed June 9, 1964. We tried in that opinion to give some helpful directions to the trial court on probable issues in the next trial.
In any event on July 22, 1964, plaintiffs filed a motion for summary judgment. This motion was overruled and the cause again proceeded to trial before a jury. On September 2, 1965, a verdict for plaintiffs was returned in the sum of $16,730.11. Thereafter defendants' motion for judgment notwithstanding the verdict was overruled. However, their motion for a new trial was granted, and plaintiffs appeal.
Plaintiffs urge three principal grounds for reversal: (1) that the court erred in overruling their motion for directed verdict, for judgment on the pleadings, and for summary judgment; (2) that it erred in sustaining defendants' motion for a new trial; and (3) that it erred in permitting defendant Leo V. McTague to testify that certain tax return entries referred to "dividends." Appellees seek to sustain the grant of a new *51 trial on the grounds (1) that they were unduly restricted in their effort to offer testimony which would show certain income tax return entries did not relate to the note being sued on, and (2) that on the whole they did not have a fair trial.
This action was commenced against defendants on October 5, 1961, seeking judgment on a promissory note alleged to have been signed and delivered to plaintiffs on January 25, 1947. This one-year note was in the principal sum of $10,000 with several years accrued interest. The defendants' answer, among other things, raised the statute of limitations, section 614.1(6), Code 1962. In their petition as amended, the plaintiffs seek to avoid the statute by allegations that defendants had, within ten years prior to the commencement of this action, admitted in writing the indebtedness upon which the claim was based, that these admissions were by federal and state income tax returns, depositions, and other writings. Section 614.11, Code 1962.
Plaintiffs' motion for summary judgment and attached affidavit, duly verified, set forth copies of the defendants' federal and state income tax returns for the years 1952-1955, excerpts from a deposition of April 12, 1962, given by Mr. McTague allegedly containing admissions, and a statement that no defense exists to their claim on the note.
On August 3, 1964, defendants filed an application for additional time within which to file resistance to plaintiffs' motion for summary judgment, which was granted over the objections of plaintiffs that its filing was not timely. Later that day defendants filed their resistance and attached an affidavit of one of the defendants in this action. It alleged, in substance, this court had already determined that this cause involved fact questions. It stated defendants had a good defense to the action as set out in the pleadings, i. e., that the action was barred by the statute, that they had a good counterclaim, and that the parties were engaged in a theater joint enterprise and plaintiffs' contribution of $10,000 was acknowledged substantially in the form of the note sued upon by plaintiffs. In other words, the interest payments set out in the income tax returns were not acknowledgments of the debt sued upon so as to revive the note otherwise barred by the statute, but were for another obligation. The trial court denied the motion for summary judgment and, pursuant to some other applications and rulings not material to this appeal, the cause proceeded to trial on August 31, 1965.
Before the jury was selected, plaintiffs presented and the trial court granted their Motion in Limine, which precluded defendants and their counsel from using any "pleading, testimony, questions, opening statement or arguments which might inform the jury" that "the promissory note sued upon is anything other than what it purports to be," and of "the existence of an alleged joint venture between the parties." Later the court relented and permitted Mr. McTague to answer one question relative to the entries on the income tax returns, a vital issue presented in this appeal.
We shall first consider appellants' contention that the court erred in overruling their motion for summary judgment.
I. Appellants contend a resistance to a motion for summary judgment not filed within ten days from the date of filing the motion is entitled to no consideration. They cite Rule 238, R.C.P.; Kriv v. Northwestern Securities Co., 237 Iowa 1189, 24 N.W.2d 751; and Mack v. Linge, 254 Iowa 963, 119 N.W.2d 897. These cases do not support that broad proposition.
Rule 238 in part provides: "Plaintiff making a claim described in rule 237 may file a motion for summary judgment thereon at any time after defendant appears * * *. The clerk shall mail or deliver the copy of the motion as required in rule 82. Judgment shall be entered as prayed in the motion unless within ten days after it is filed, or such other time as the court may, for good cause, allow, the defendant resists it with affidavits showing facts which the *52 court deems sufficient to permit him to defend. * * *" (Emphasis supplied.)
While the rule uses the mandatory word "shall", it also uses the word "unless" and the discretionary word "may", in allowing further time to file resistance if good cause has been shown.
In Kriv v. Northwestern Securities Co., supra, defendant filed a motion for summary judgment on a cross-petition, which motion was heard 23 days after filing. No resistance had been filed until the day after the hearing, but apparently the applicant sought no relief in the trial court because of the delay in filing a resistance. No extension of time for filing appeared and, since the trial court in sustaining the motion did not decide it upon the lateness issue, we declined to consider the question. It is true, however, we said, "Perhaps the court might have entered judgment as prayed in the motion because plaintiff failed to file resistance within ten days," but we did not say it was compelled to do so or that it could not then for good cause shown extend the time to file a resistance. We do not consider this rule a default provision which would give the resistor no rights after the ten days had expired. Until the motion for summary judgment is heard or the affidavit of the resistor is stricken, we think the court, for good cause shown, can extend the time to file a proper resistance. This must be so, for even if judgment was entered, the court for a reasonable time has the power to set it aside on a proper showing. For example, see Rule 236, Iowa Rules of Civil Procedure, Vol. 2, by Cook, and citations on pages 667, 668.
In Mack v. Linge, supra, 254 Iowa 963, 966, 119 N.W.2d 897, 899, the only other Iowa case we have found touching on this problem, there were two affidavits filed in support of a resistance to a motion for summary judgment. The second one, executed by the litigant, was clearly beyond the ten-day period found in rule 238, but the one executed by her attorney within that period was held sufficient to reveal a factual situation justifying the denial of the motion, clearly avoiding the question of timely filing by the litigant. In fact, we said, "We have not heretofore been called upon to determine the force and effect of the clause in Rule 238 to the effect that `unless within ten days * * * defendant resists it with affidavits'. We do not think we are so confronted now." Perhaps, then, this is a case of first impression on that question, but from those cases it is clear we have been and are reluctant to hold a trial court, prior to granting a summary judgment, cannot permit a resistance by affidavit even after the ten days provided in the rule pass if good cause for the delay is shown. We hold it may do so. As bearing upon this question, see Hartford Fire Ins. Co. v. Lefler, 257 Iowa 796, 135 N.W.2d 88, 94, and citations, pertaining to rule 177, Iowa Rules of Civil Procedure, on failure to make timely demand for a jury.
Here the good cause alleged was that the courthouse in Denison was closed on Saturday, the tenth day after filing, and that defendants believed they had until the following Monday to file their resistance. They point to rule 366, R.C.P., and to section 4.1 (23) of the code as a basis for their claim that Saturday was a holiday in Denison, Iowa, and that when the last day for an appearance falls on a holiday, one has until the end of the next succeeding day that is not a Sunday or a holiday to appear and file a resistance to the motion.
Without deciding which of these time computation provisions applies here, we are satisfied the trial court did not abuse its discretion when it extended the time for defendants' filing of their resistance until August 3, 1964. It was aware that on August 1, 1964, the office of the clerk of court in the courthouse in Denison was closed. No hardship or disadvantage to plaintiffs was claimed by that ruling and none appears in this record. We are satisfied under the rule the court had authority to grant this very reasonable time extension, and hold it *53 did not err in providing a hearing on the motion for summary judgment and in giving consideration to defendants' resistance thereto.
II. Rule 237, Rules of Civil Procedure, provides under what conditions a summary judgment might be entered in an action upon a claim such as we have before us. The purpose of this rule, we have often said, is to screen out cases in which there is no defense, or only a sham defense. It is not to penalize any litigant who has a meritorious defense. Eaton v. Downey, 254 Iowa 573, 577, 118 N.W.2d 583, and citations. Also see article by Alan Loth, Trial and Judgment, 29 Iowa Law Review 35-45; 41 Am.Jur., Pleading, § 340, pages 523, 524.
The sufficiency of a resistance to motion for summary judgment has often been considered by us. It is well settled that there must be some showing, either by evidentiary facts or permissible conclusions, that there is a factual issue which, if decided in favor of the defendant, would be a good defense. International Milling Co. v. Gisch, 256 Iowa 949, 129 N.W.2d 646; Bjornsen Construction Co. v. J. A. Whitmer & Sons, 254 Iowa 888, 119 N.W.2d 801; Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 277, 106 N.W.2d 579, and citations; Eaton v. Downey, supra; Mack v. Linge, supra.
The trial court found defendants had complied with that rule and had shown the existence of a material fact dispute. "It revolves around plaintiffs' counterdefense to the Statute of Limitations." References made to our previous opinion in this controversy indicated the trial court felt we also had found a material factual dispute was shown to exist, reasoning that otherwise we would not have remanded the matter for a new trial. It is true in the prior appeal we found one of the issues presented was whether plaintiffs' evidence as to the income tax returns was sufficient to sustain an admission finding under section 614.11, Code 1962. We definitely held that and other extrinsic evidence presented did generate a jury question on whether they had overcome the statute bar; at least it was sufficient to require submission of that issue to the jury.
Section 614.11, supra, provides: "Causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same." This statute is an old one and it has received consideration by us many times. Koht v. Dean, 220 Iowa 86, 89, 92, 261 N.W. 491, 494; Barton v. Boland, 224 Iowa 1215, 1218, 1219, 279 N.W. 87, 88; McClure v. Smeltzer, 222 Iowa 732, 736, 269 N.W. 888, 890. They hold it is sufficient if the writing upon which an admission is based, by the natural and necessary inference, admits an indebtedness is unpaid, and the fact that the writing relates to the indebtedness sued on may be established by extrinsic evidence. True, in our previous decision in Schroedl, we said the income tax returns which showed under interest paid "Tony Schroedl $400", established an admission which with reasonable certainty related to the debt in issue. We then held it was for the jury to say finally whether they did so relate. It seems that issue alone would require a decision by a fact-finder.
Nevertheless, plaintiffs contend it is defendants' obligation to show facts in their resistance and affidavit which, if decided in their favor, would constitute a good defense, that they cannot win on the weakness of plaintiffs' case, but must survive only upon the strength of their own showing. Regardless of the soundness of that proposition, we believe they have done so. By their pleadings and resistance defendants purport to show a joint venture, a payment of dividends to plaintiffs during the years 1952-1955 which appear in the income tax returns as interest. If proven, the inference that those payments were interest on the note sued upon would be overcome, and plaintiffs' claim of an admission which would revive the note barred by the statute *54 of limitations would be contradicted. If permitted, this would generate a factual issue which, if decided in defendants' favor, would be a good defense to the action.
The situation then, prior to trial, appears to be somewhat like that in Doran v. Doran, 145 Iowa 122, 124, 123 N.W. 996, 25 L.R.A., N.S., 805, where we said: "It is only necessary that the admission appear with reasonable certainty to relate to the debt in question, and, if such relation does reasonably appear, it is for the debtor insisting that the admission relates to some other indebtedness to show its existence." (Emphasis supplied.)
In the former Schroedl case, supra, at page 778 of 256 Iowa, at page 23 of 129 N.W.2d, we said these tax returns "sufficiently acknowledged an existing indebtedness which could be identified by extrinsic evidence, * * *. They should have been admitted in evidence, and it was then for the defendants to deny their relation to the note sued upon, if such denial was available to them." This defendants attempted to do and we are satisfied under the pleadings as amended and their affidavits, their showing was sufficient to raise a jury question as to whether defendants had in writing admitted the debt now sued upon.
Plaintiffs have confined their argument in the first assignment to the motion for summary judgment, which basically covers the other two motions. We have carefully reviewed plaintiffs' first assignment in full and find no error in the court's rulings upon those motions.
III. Plaintiffs' motion for directed verdict at the close of all evidence also involves questions relating to the sufficiency of their evidence and the adequacy of defendants' testimony under the pleadings. The principal issue raised in this division is whether the items listed on defendants' 1952-1955 income tax returns were interest on the note in suit or some other or different obligation. Plaintiffs produced testimony that it was on the note. The $400 recited on the returns in Exhibits 2 to 9 would appear to match the interest due each year on $10,000 at 4%. It is urged the defendant McTague admitted in a pretrial deposition that the deductions set out on income tax returns were interest on this note in suit. It did appear therein that McTague admitted the entries on defendants' income tax returns were interest paid the various parties mentioned, including Tony Schroedl, and that they represented interest for money borrowed on notes.
Defendants, aware of their burden to show the items listed were for another obligation, attempted to do so by Mr. McTague's testimony. Although the jury apparently found against them on that issue, defendants maintain that is understandable due to the fact that they were improperly denied the opportunity to explain or show fully the nature of this obligation to plaintiffs. McTague does not deny paying Schroedl interest on the note, but maintains paying interest on a note barred by the statute does not revive it. On the other hand, he contends he never admitted the items listed as deductions in the signed income tax returns were all interest, and claims the item listed "Tony Schroedl $400" was a dividend obligation.
It is true payment of interest does not of itself amount to an admission under section 614.11, supra. It is also true, due to the sustaining of plaintiffs' motion in limine, it was difficult for defendants to show the items listed as interest were not interest on this note but payments on some other obligation. The court seemed to recognize this dilemma and permitted defense counsel to ask McTague one question about those entries. To the question, "Will you tell us exactly what that $400 was", McTague answered, "That was dividends."
Appellants contend it was error to permit defendant McTague to so testify. They assert his admissions in the pretrial deposition introduced, amounted to a judicial admission which precluded his contrary *55 testimony at the trial. While it is true his deposition statements were made under oath, we cannot agree they amounted to judicial admissions. It is well established that a witness has the right to explain equivocal statements and entries previously made by him. Snittjer Grain Co. v. Koch, 246 Iowa 1118, 1127, 71 N.W.2d 29; Stearns v. Chicago, R. I. & P. R. Co., 166 Iowa 566, 148 N.W. 128; Wright v. Mahaffa, 222 Iowa 872, 270 N.W. 402. In Snittjer Grain Co. v. Koch, supra, we pointed out that ordinarily a "judicial admission" is one made in court by a person or his attorney for the purpose of being used as a substitute for the regular legal evidence of the fact at trial. It seems to be applicable where a witness unequivocally concedes a fact for trial purposes. The correct test we approved appears in Kanopka v. Kanopka, 113 Conn. 30, 154 A. 144, 80 A.L.R. 619, i. e., that "Unless it amounts to such a stipulation or waiver as to have the force of a judicial admission, the testimony of a party to a fact is ordinarily no more conclusive upon him than the evidence given by any other witness; and it is the duty of the court or jury to determine the fact, not alone from the testimony given by the party, but from all the evidence in the case." Also see Black's Law Dictionary (Third Ed.) 61.
The above-mentioned cases make it clear a witness has the right to explain entries appearing on papers executed by him, to explain evidence previously given by him, and especially so if the act or statements are not unequivocal. We said in Silvia v. Pennock, 253 Iowa 779, 786, 113 N.W.2d 749, that unless the testimony does have the force of a judicial admission, it is ordinarily no more conclusive upon him than the evidence of any other witness, and that it is the duty of the jury to determine the fact, not alone from the litigant's testimony, but from all the evidence. Also see 20 Am. Jur., Evidence, § 558; 31A C.J.S. Evidence § 216; Streblow v. Sylvester, 195 Iowa 168, 191 N.W. 788; Schoenbaechler v. Louisville Taxicab & Transfer Co., 328 S.W.2d 514 (Ky.). In the latter case, cited by appellants, the plaintiff in a pretrial deposition gave testimony as to facts which were peculiarly within his knowledge and which clearly established contributory negligence on his part, and then on trial of the action for injuries he attempted to refute his previously-sworn testimony without any excuse or explanation, although stipulating that he gave such testimony and that questions on the deposition were clear and answers were unequivocal. There the circumstances and conditions did not give rise to any probability of error in answers given in the deposition and plaintiff was chargeable with a "judicial admission." We have no particular quarrel with that decision, but factually these cases are quite different. In his deposition, after some examination as to the income tax return entries, defendant McTague was asked, "This schedule, or this heading `interest paid' and the information thereunder, does that reflect interest that you paid to these various persons for the year indicated, for money that you borrowed from them", and he answered, "Well, yes, I guess that is what you would call it." After careful examination of the entire deposition submitted, and taking it as a whole, we fail to find in it the necessary elements of a judicial admission. Clearly the conclusion given above was not unequivocal. It was subject to explanation.
A denial of one's alleged deposition statement is not hearsay. While it might be self-serving, it is usually admissible. The jury then determines the fact as in the case of all conflicting testimony. Snittjer Grain Co. v. Koch, supra, 246 Iowa 1118, 1127, 71 N.W.2d 29; Stearns v. Chicago, R. I. & P. R. Co., supra, 166 Iowa 566, 148 N.W. 128; Wright v. Mahaffa, supra, 222 Iowa 872, 270 N.W. 402. Space will not permit further discussion of this point, but see thereon Jones on Evidence, 5th Ed., § 268.
IV. It is appellants' contention that defendants were not unduly restricted in the introduction of evidence by the ruling on their motion in limine, that if they were restricted *56 in their proof, it was by their pleadings, cited Snater v. Walters, 250 Iowa 1189, 98 N.W.2d 302, which only holds a party may not plead one contract and recover on another. They maintain the only joint venture involved was the one represented by the note in suit, that this avenue was eliminated by this court's prior decision. True, we said the allegations of paragraph 3 of defendants' answer could not stand as an attempt to alter the terms of the note introduced. Paragraph 2, however, did not so allege and was not stricken from the pleadings. It alleged a joint venture, a contribution by plaintiffs and a receipt to plaintiffs for their contribution toward a motion picture theater enterprise in Denison, Iowa, in the same form as the note in question. Obviously, then, it was toward this evidence, this explanation, that the motion in limine and the court order were directed.
Plaintiffs' motion in limine asked the court to instruct defendants and their counsel that it would not be permissible (1) to refer to plaintiffs' wealth or property, (2) to attempt to show that the promissory note sued upon is anything other than what it purports to be, (3) to attempt to show the existence of an alleged joint venture between the parties, and (4) to refer to or to show the operation of a theater or losses incurred therein. After hearing, the trial court precluded reference to these matters, except as to (1) which it reserved the right to reconsider should that item become clearly material.
In effect, then, all defendants' evidence in regard to those matters was suppressed. They could not explain the joint venture alleged or the obligation, if any, for the money they claimed was given plaintiffs. While the court permitted defendants' counsel to ask Mr. McTague about those income tax entries appearing under "interest paid" as "Tony Schroedl $400", the answer amounted to little more than a denial that the items were interest. Although his single declaration was permitted to stand over the objections of plaintiffs that it would permit the witness to contradict testimony given in an April 1962 deposition, that the answer of the witness would contradict the income tax returns, Exhibits 2 through 9, that no foundation had been laid for such testimony, that it was not the best evidence and was self-serving and immaterial, the bar to further explanation made it most ineffective.
The nub of this appeal, then, seems to be whether the court was right or wrong in sustaining plaintiffs' motion in limine. Since we have held Mr. McTague's deposition testimony, read into the record by their counsel, did not amount to a judicial admission which precluded contradictory or explanatory testimony by the witness at the trial, there seems to be no reasonable basis for this blanket exclusion, and as to paragraph 3 it should not have been given.
Obviously, by the court's ruling and its tight restrictions, defendants could not show and explain the basis of their claim that those items found on the income tax returns were dividends. They should be permitted to explain this indebtedness fully, as long as they did not try to show the note in suit was something other than it purported to be. Schroedl v. McTague, supra, 256 Iowa 772, 776, 129 N.W.2d 19, 22, 23; Doran v. Doran, supra, 145 Iowa 122, 124, 123 N.W. 996, 997.
For the purpose of this appeal, then, we must assume, had Mr. McTague been given a full opportunity to do so, he would have explained what he meant by "dividends", by his statements in the deposition, and by those entries in the returns. Clearly, our former decision did not bar a showing in this proceeding that the entries on the income tax returns were payments of obligations which resulted from a joint venture.
While the word "dividend" itself does not import a creditor-debtor relationship or the existence of a debt, which seemed to be admitted in the tax returns, we cannot assume the evidence would not show a defendant guaranteed dividend such as appeared in Miller v. Geerlings, 256 Iowa *57 569, 128 N.W.2d 207. Thus there is no merit in the plaintiff's contention that dividends could not be proven as alleged because to do so would impeach the note sued on. If it should appear that there was more than one obligation, an admission that McTague had paid interest on one of them would not be sufficient to revive the debt under section 614.11, supra. It is only when it appears interest is paid on a contract sued upon and its payment is acknowledged in writing signed by the alleged debtor, that the debt otherwise barred by statute is revived. See Leland v. Johnson, 227 Iowa 520, 288 N.W. 595.
While we think plaintiffs have made a case for the jury, we think the court erred in sustaining paragraph 3 of plaintiffs' motion in limine and unduly restricted defendants' opportunity to show that the items claimed as admissions related to some other indebtedness or obligation. We think it amply justifies the trial court's order granting them a new trial. Hartford Fire Ins. Co. v. Lefler, supra.
V. Finally, appellants contend the trial court erred in granting defendants' motion for a new trial. They cite Fordyce v. Cappel, 257 Iowa 763, 133 N.W.2d 664, for the proposition that there can be no new trial on grounds which have no support in the record. We have no quarrel with that or other cases where there is nothing of substance which will support such a grant, but such is not the case at bar. As has been indicated, we think, as the trial court itself did when ruling on the motion, that it had unduly restricted the defendants in their task to show the so-called admissions did not relate to interest on the note in suit. In connection with that ruling it also appears that counsel for plaintiffs had tread close to the line of fairness when in final argument to the jury he said, "So don't be misled by statements about dividends, and I would like to say this about dividends: Mr. Page says they are dividends. Here, again, there is no evidence. Dividends of what? It is easy to say it is dividends. Where is the evidence? Where is the substantiation? Where is the footing under this thing?" Defendants' counsel objected and the matter was discussed outside the jury's presence. Mr. Page asked that the jury be "admonished to pay no attention to that, because that is calling for things which I could not do under the Court order." The court at first refused, but later in the day just before final instructions, the jury was told to disregard those statements. Nevertheless, it would appear at that late hour the damage had been done. It is true defendants did not request a mistrial, but that failure does not remove all the poison. The court properly considered it along with undue evidentiary restrictions in concluding that an injustice had been done defendants and that they had not received a fair trial.
It is well settled in this jurisdiction that the Supreme Court will not interfere with a trial court's order granting a new trial unless it appears the discretion of that court has been abused. Wilson v. Iowa State Highway Comm., 249 Iowa 994, 90 N.W.2d 161; Jacobson v. Leap, 249 Iowa 1036, 88 N.W.2d 919; Greiner v. Hicks, 231 Iowa 141, 300 N.W. 727. We have interfered reluctantly and infrequently with an order granting a new trial. Hall v. City of West Des Moines, 245 Iowa 458, 62 N.W.2d 734; Larew v. Iowa State Highway Comm., 254 Iowa 1089, 120 N.W.2d 462. And we are more reluctant to interfere with the granting of a new trial than with an order denying a new trial. R.C.P. 344(f)4. For application, see Mohr v. Iowa State Highway Commission, 255 Iowa 711, 124 N.W.2d 141; Farmers Insurance Exchange v. Moores, 247 Iowa 1181, 78 N.W.2d 518; Burke v. Reiter, 241 Iowa 807, 42 N.W.2d 907; Hartford Fire Ins. Co. v. Lefler, supra, Iowa, 135 N.W.2d 88, 91, and many citations.
We have also said the discretion of a trial court to enter an order for a new trial in the interest of justice is greater than that possessed by us. Hall v. City of West Des Moines, supra. And we will not *58 usually interfere with a trial court's order in passing on the propriety of argument to the jury except in a clear case of abuse of discretion. Tilghman v. Chicago & N. W. Ry. Co., 253 Iowa 1339, 115 N.W.2d 165; Corkery v. Greenberg, 253 Iowa 846, 114 N.W.2d 327. Also bearing upon this problem, see Thompson v. Butler, 223 Iowa 1085, 274 N.W. 110; Heisdorffer v. Hammes, 241 Iowa 984, 42 N.W.2d 379. Finally, we have also said, if the trial court erroneously sustains grounds set out in a motion for a new trial, but there are other grounds upon which the motion should be sustained, the new trial will be allowed and the error is overlooked. Thompson v. Butler, supra.
Appellants here contend the grounds upon which the court granted a new trial will not support the order. The motion filed by defendants was predicated upon four grounds. The trial court, and we agree, found no merit in the first ground, i. e., that the verdict was not sustained by sufficient evidence. The second seems good to us and it was sustained by the trial court, i. e., that defendants were unduly restricted in offering evidence. Understandably, the trial court did not directly sustain the third ground of misconduct of plaintiffs' counsel. Included in the fourth ground, that the defendants on the whole record did not have a fair trial, was the possible effect on the jury of the objected-to statements made in argument by plaintiffs' counsel. We do not say counsel was guilty of misconduct in referring to what he considered proper argument, i. e., that because of a legal barrier defendants could not explain what counsel believes was "a mirage." It does seem a bit unfair, especially when the barrier was raised at his instance, and its validity, to say the least, was doubtful on that point. There are certainly matters occasionally put before a jury which are so prejudicial that no admonition can erase them. Floy v. Hibbard, 227 Iowa 154, 289 N.W. 905; Cvitanovich v. Bromberg, 169 Iowa 736, 151 N.W. 1073. Usually, if the matter is too bad, a motion for mistrial is granted if asked. The court here at first thought the references were not improper. Later it changed its mind and in the ruling granting a new trial concluded: "However, the damage had been done, and defendants have not had a fair trial in this cause."
This trial had its perplexing aspects, unusual problems, and unexpected events. On the whole we are inclined to agree with the trial court's ruling and feel as least there was no abuse of its discretion in granting a new trial.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612727/ | 282 So.2d 852 (1973)
C. C. MOREAU, Plaintiff and Appellee,
v.
MARLER FORD COMPANY, INC., Defendant and Appellant.
No. 4284.
Court of Appeal of Louisiana, Third Circuit.
September 18, 1973.
*853 Gravel, Roy & Burnes, by Robert L. Royer, Alexandria, for defendant-appellant.
Kramer & Kennedy, by Ralph Kennedy, Alexandria, for plaintiff-appellee.
Before FRUGE, SAVOY and DOMENGEAUX, JJ.
DOMENGEAUX, Judge.
On December 31, 1971, plaintiff and a salesman for defendant, Dwane Murray, concluded their negotiations leading up to the purchase of a new pick-up truck by plaintiff from defendant. On that date plaintiff gave defendant, through Murray, his check in the amount of $1,253.73, the precise cash balance shown to be due for the new truck, after deducting the amount allowed plaintiff for the truck that he traded in, on an invoice prepared by defendant. Plaintiff did not then take possession of his new truck, however, because it had suffered minor damage in transport and defendant was to repair that damage.
On January 10, 1972, plaintiff returned to defendant's premises and attempted to take possession of the new truck, but defendant refused to deliver the truck until plaintiff paid an additional $578.09. That sum represented the estimated cost of repairing the truck that plaintiff had agreed to trade in, as it had been involved in an accident prior to the December 31, 1971, transaction, and was in need of repairs. Plaintiff refused to pay the additional sum and successfully sued for specific performance, i. e. delivery of the new truck, plus damages for humiliation, inconvenience, etc., and for the diminution in value of the truck while he was deprived of its use. Defendant appealed to this court and plaintiff answered the appeal seeking an increase in the damages awarded.
The evidence shows that on December 16, 1971, plaintiff went to defendant's premises for the purpose of obtaining an estimate of what it would cost to repair his 1971 Ford pick-up truck. While there he engaged in negotiations with Dwane Murray to the end of trading in his 1971 truck for a 1972 model. The bargaining continued and on December 31, 1971, an agreement was reached. The precise terms of that agreement constitute the question before this court.
Plaintiff's version is that the full price and method of payment agreed upon are as represented by the invoice which defendant prepared on December 31, 1971, and gave to plaintiff. Thereon it states that the price of the new truck was $4,925.00 from which excise tax in the amount of $330.09 was deducted, as well as the sum of $3,391.77, representing the trade-in value of the 1971 truck. Sales tax in the amount of $36.09 and license and title fees amounting to $14.50 were added, for a stated cash balance of $1,253.73. A draft in that amount bearing the date December 31, 1971, was prepared by Murray and signed by plaintiff. Defendant negotiated the draft and mailed plaintiff his owner's manual and other documents pertaining to the 1972 truck.
Plaintiff stated that the reason the sale was made on December 31 was the desire of defendant to make all possible sales during the year 1971 in order that it might win a contest sponsored by Ford Motor Company. He explained that the trucks did not trade hands on that date only because *854 certain minor repairs were to be made on the new truck prior to delivery.
Defendant, while not denying any of the foregoing facts, disputes plaintiff's testimony that the entire bargain was as represented by the invoice given to him. Its version is that plaintiff had agreed on December 31, 1971, to pay for the repair of his old truck, and that when he returned on January 10, 1972, to pick up the new truck, he refused to comply with his prior agreement. Accordingly defendant refused delivery of the new truck and tendered its check in the amount of $1,253.73 to plaintiff in an effort to cancel the sale.
That there was in fact a sale of the 1972 truck is a conclusion that we have no difficulty in reaching. Both parties testified that there was a sale, that the specific truck to be sold was identified, and that the price was agreed to. This is in full compliance with Louisiana C.C. Art. 2456 which provides as follows:
"The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid."
The question of who was to finance the repairs to the trade-in truck was resolved by the trial judge in favor of plaintiff, and we opine that the evidence supports his determination. Besides that which has hereinabove been set out we consider other evidence to be indicative of the correctness of plaintiff's position.
At the trial of the case, on October 26, 1972, Mr. Murray testified that the then value of plaintiff's 1971 truck was approximately $3,400.00. That figure was derived from the N.A.D.A. book commonly used by automobile dealers in determining used car values for vehicles in average condition.
Obviously the same truck would have been worth considerably more on December 31, 1971, some ten months earlier, yet the trade-in value was set out in the invoice at $3,391.77. This seems to us to indicate that defendant considered the cost of the needed repairs in setting the trade-in allowance. In addition we note the testimony of one David Roberts, a salesman for defendant, which, although rather vague, was to the effect that defendant had prepared a draft in the amount of $1,253.73 to give to plaintiff, prior to his arrival at defendant's premises on January 10, 1972. If defendant expected plaintiff to pay an additional sum prior to taking possession of the 1972 truck as testified to by its witnesses, we are at a loss to understand why it would prepare the draft prior to his refusal to do so. If the refusal was expected by defendant, it would certainly indicate that plaintiff had not agreed to pay any additional sums. (In all fairness we note here that Mr. Roberts also testified that Mr. Murray and plaintiff had discussed the matter by telephone during the interval between December 31 and January 10, but such was in conflict with the testimony of plaintiff and not corroborated by Murray or anyone else.) Finally it occurs to us that since defendant's agent prepared the original draft which plaintiff signed and gave in payment of the cash balance due, and the cost of the repairs was known at the time of that transaction, it is highly unlikely that the amount needed for the repairs was intended by the parties to be paid by plaintiff, as if such were the case the logical thing would have been to add it into the draft. We therefore conclude that the intention of the parties was that the 1971 truck should be traded in as it was, and plaintiff owed no further payment to defendant.
The trial court awarded plaintiff the sum of $1,000.00 as damages for the diminution in value of the truck while he was deprived of its use. The evidence is clear that plaintiff was deprived of his vehicle *855 while defendant held it in storage, where presumably it remains to this day. There is ample evidence for this allowance. LSA-C.C. Art. 1934.
Plaintiff was awarded the sum of $250.00 for humiliation, inconvenience, and anxiety in connection with the deprivation of the use of the vehicle. As previously stated, this is a suit for specific performance, and involved the breach of a sales contract. We feel that the contract is not of the type which allows for damages of this nature. Since the contract does not fall within the exception of Art. 1934, only items translated into a calculable pecuniary loss may be recovered. LSA-C.C. Art. 1934(3). Aiken v. Moran Motor Company, La.App., 165 So.2d 662; DiGiovanni v. April, La.App., 261 So.2d 360; Tauzin v. Sam Broussard, Inc., La.App., 283 So.2d 266. Accordingly, the judgment of the trial court allowing the sum of $250.00 for these items will be amended so as to delete that sum therefrom.
Defendant raises a valid complaint about the trial court's judgment in pointing out that while it orders defendant to deliver the 1972 truck to plaintiff, it does not order plaintiff to deliver the 1971 trade-in truck to defendant. That the older truck should be traded in as part of the purchase price of the new truck was clearly part of the bargain and therefore such should be required of plaintiff.
For the above and foregoing reasons the judgment of the District Court is amended so as delete therefrom the sum of $250.00 awarded plaintiff for humiliation, inconvenience, and anxiety, and is further amended so as to order plaintiff, C. C. Moreau, to deliver to defendant, Marler Ford, Inc., that certain 1971 Ford pick-up truck bearing serial number F10YLL46242 contemporaneously with his receipt of the 1972 Ford truck described in the judgment, and as so amended it is affirmed. Defendant is to pay all costs of this appeal.
Amended and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612720/ | 745 F.Supp. 79 (1990)
In re SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.
No. MDL-721.
United States District Court, D. Puerto Rico.
August 6, 1990.
*80 Plaintiffs' Steering Committee, Ana Luisa Navarro, Liaison, Hato Rey, Puerto Rico for plaintiffs.
Carlos Padin, Hato Rey, Puerto Rico, Liaison Counsel, for defendants.
ORDER NO. 254
ACOSTA, District Judge.
IN THE MATTER OF PUNITIVE DAMAGES
In the Motions for Directed Verdict submitted pursuant to Rule 50 F.R.C.P.,[1] defendants reasserted their contention that under pertinent choice of law principles punitive damages are not allowable in these proceedings and incorporated by reference motions previously submitted on this issue.[2] This Order analyses the grounds for disallowing plaintiffs' demands for punitive damages as stated in Amended Order No. 242 filed on May 11, 1990 docket No. 14575.[3]
I. THE ISSUE
PUNITIVE DAMAGES: YES OR NO
Plaintiffs claim that under choice of law analysis they are entitled to recover punitive *81 damages in the actions consolidated in these complex multidistrict proceedings which were originally instituted in four (4) different fora.
II. APPLICABLE LAW
Jurisdiction was premised on diversity of citizenship between the parties and courts sitting in diversity are bound to apply the substantive law of the forum where the action is filed, Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) including its conflicts of law principles. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076 (1st Cir.1989); Quaker State Oil Refining Corp. v. Garrity Oil Co., Inc., 884 F.2d 1510 (1st Cir. 1989). In cases transferred from one federal judicial district to another pursuant to 28 U.S.C. § 1404 (federal change of venue statute) the transferee court shall "apply the law of the transferor court, regardless of who initiates the transfer." Ferens v. John Deere Co., ___ U.S. ___, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990), see also, Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). This same principle has been traditionally followed without much explanation in cases consolidated by the Multidistrict Panel pursuant to the provisions of 28 U.S.C. § 1407. See, In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979, 644 F.2d 594 (7th Cir.1981); In re Air Crash Disaster at Washington, D.C. on January 13, 1982, 559 F.Supp. 333 (D.D.C.1983); Atwood, The Choice-of-Law Dilemma in Mass Tort Litigation, Kicking Around Erie, Klaxon and Van Dusen, 19 Conn.L.Rev. 9, 12 (1986); 19 Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction § 4506 (1982).
The simplicity of this general principle is deceptive, to say the least, in "mass tort" cases which involve large numbers of victims and defendants from multiple fora as well as a myriad of claims based on conduct which may have touched upon several states. In this type of litigation, the application of choice of law standards turns into a colossal struggle for the transferee court in attempting to ascertain relevant contacts between the parties and the multiple states and in struggling to understand, evaluate and weigh the particular policies behind the different statutes allowing or disallowing claims and/or remedies. In suits arising from product liability claims against manufacturers or distributors, the problem is further compounded by the very nature of corporations which are not "domiciled" in a particular forum but instead have contacts with numerous jurisdictions since they may be "incorporated in one state, headquartered in another, have their principal place of business in a third, manufacture products in several others, and do business in many more states." Note, Interest Analysis Applied to Corporations: The Unprincipled Use of A Choice of Law Method, 98 Yale L.J. 597, 603 (1989).
Choice of law rules have been designed and developed with the two-party case in mind, where the relevant contacts or interest at stake between the parties and the statutes in conflict are more easily ascertainable and not so difficult in application.
Cases arising from the San Juan Dupont Plaza Hotel fire were instituted in district courts located in Puerto Rico, California, Connecticut and New York. Pursuant to the aforementioned rules, we must look at the choice of law principles from each one of those jurisdictions to determine whether or not provisions pertaining to punitive damages exist there which are in conflict with each other. Should we find at the conclusion of our inquiry that, indeed, a statute allowing punitive damages is the applicable one, we must then take our analysis one step further and determine whether or not all plaintiffs will benefit from this provision and which defendants will be liable for them.[4]
*82 A. CHOICE OF LAW TESTS
(1) Puerto Rico
The Supreme Court of Puerto Rico has adopted the "dominant or significant contacts" test for both actions sounding in tort or contract. In Widow of Fornaris v. American Surety Co. of N.Y., 98 P.R.R. 28 (1966) the Supreme Court, after extensively criticizing the lex loci delicti, explicitly rejected its application in this forum and ruled that instead the laws of the jurisdiction with the most significant contacts with respect to the disputed issue should apply.
Fornaris involved a private airplane that disappeared on its way back to Puerto Rico from the nearby island of St. Thomas. In deciding that Puerto Rico's unlimited compensation would apply rather than the cap provided by the Virgin Islands law, the court found that Puerto Rico had the most dominant contacts since the corporation which owned the plane as well as the passengers were from Puerto Rico. It further reasoned that since the place of the accident had been "fortuitous", application of Puerto Rico's law would be more realistic and fair. The court also took into account policy considerations in its decision. It found that the passengers were entitled to the protection of Puerto Rico's laws and to benefit from its public policy. Lastly, it reasoned that even though considerations of foreseeability and fairness were paramount, these had to allow sufficient flexibility to respond to changing times and circumstances.
Green Giant Co. v. Superior Court, 104 D.P.R. 489 (1975) applied this same standard in a contract suit and added that it was not the number of the contacts but their quality with respect to the issue in controversy that was relevant. It mentioned that the principles stated in the Restatement (Second) Conflict of Laws, §§ 6 and 188 (1971) could be used "in the absence of appropriate legislative rules ... to guide the exercise of judicial discretion in each case." 4 Official Translations of the Opinions of the Supreme Court of Puerto Rico, 682, 696; see also, Federal Insurance Company v. Dresser Industries, Inc., 111 D.P.R. 96 (1981) (application of dominant contacts rule to contract litigation).
The federal judicial system in Puerto Rico has also used these standards in actions filed under diversity provisions. In Bonn v. Puerto Rico International Airlines, Inc., 518 F.2d 89 (1st. Cir.1975), a case arising from an airline crash in Puerto Rico where the plaintiffs and decedents were domiciled in the Virgin Islands and the defendant airline was engaged in business in both jurisdictions, the court opted to apply the Puerto Rico law of unlimited recovery. The court noted that both fora had contacts with the parties; the tickets were bought in St. Thomas but the accident and the conduct giving rise to the litigation took place in Puerto Rico "which would seem determinative" Id. at 92. However, it was a balancing of the policy considerations in applying the laws in conflict and the interest at stake for each jurisdiction that finally lead the court to conclude Puerto Rico's laws should apply. The court analyzed the interest in the Virgin Islands in limiting recovery as protecting defendant, i.e., the airline, which was also doing business in Puerto Rico with the deterrent policy embodied in Puerto Rico's statute.
In Jimenez v. American Airlines, Inc., 579 F.Supp. 631 (D.P.R.1983) (airline crash near Chicago, Illinois on May 25, 1979) the court analyzed the dominant contacts involved and then weighed the policies at stake by the statutes in conflict. It concluded that Puerto Rico law should apply since that is where plaintiffs were domiciled and the forum had a greater interest in deterring wrongful conduct as well as ensuring plaintiffs due redress. The court held that the place of the accident had been "fortuitous" and hence, not conclusive. In Fojo v. American Express Co., 554 F.Supp. 1199 (D.P.R.1983), after applying the dominant contacts principles to a breach of contract claim arising from an incident which took place in Hong Kong, the court found Puerto Rico's law applicable. Plaintiffs were all residents of Puerto Rico, the contract was executed there and the defendant was a Delaware and Mexico corporation doing business in Puerto Rico. The court took into account the need for *83 "certainty, predictability, uniformity and ease in the determination of what law is to be applied and of its application." Id. at 1202. In the end, a balancing of policies between the fora involved bolstered protection under Puerto Rico statutes since safeguarding the interests of residents is a paramount concern of this jurisdiction. The opinion, citing Fornaris, stated that courts have a "clear mandate ... in giving, whenever possible, the full protection of Puerto Rican law to its citizens". Id. at 1203.
(2) California
California has adopted a "governmental interest" analysis that is commonly referred to as the "comparative impairment" approach for choice of law rules. Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157, 148 Cal.Rptr. 867, 583 P.2d 721 (1978); Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719, cert. den. 429 U.S. 859, 97 S.Ct. 159, 50 L.Ed.2d 136 (1976). In its application, the court must follow a three step process.
1. Determine whether or not the laws of the states involved differ;
2. If they differ, determine whether or not the jurisdictions have an interest in having their laws applied;[5]
3. If a "true conflict" situation exists, the court must determine which jurisdiction's interests would be more impaired if its policy were subordinated to the policy of the other.
The conflict should be resolved by applying the law of the jurisdiction whose interest would be most impaired if its law were not applied. In other words, the law with the lower comparable pertinence of concern to the immediate issue would be the least comparatively impaired.
The comparative impairment approach to the resolution of true conflicts attempts to determine the relative commitment of the respective states to the laws involved. The approach incorporates several factors for consideration: the history and current status of the states' laws; the function and purpose of those laws.
Offshore, 148 Cal.Rptr. at 873, 583 P.2d at 727.
In analyzing the policies behind the conflicting statutes, the court is not to make a value judgment as to "which conflicting law manifests the better or worthier social policy on the specific issue", id. but rather in "allocating respective spheres of law-making influence." Offshore, 148 Cal. Rptr. at 872, 583 P.2d at 726 citing Baxter, Choice of Law and the Federal System 16 Stan.L.Rev. 1, 11-12 (1963). In order to carry out this allocation process, the courts may examine whether or not the motivating force behind the statute is still in tune with modern needs and whether or not those policies can be achieved by alternate means. Offshore, 148 Cal.Rptr. at 872, 583 P.2d at 726; Nicolet, Inc. v. Superior Court (Insurance Co. of North America), 188 Cal.App.3d 28, 224 Cal.Rptr. 408 (1986).
Accordingly, we must determine whether or not California and Puerto Rico have legitimate governmental interests in applying their respective provisions pertaining to punitive damages and the need to further those policies in this particular litigation.
(3) Connecticut
Connecticut will apply the doctrine of "lex loci" unless its application "would produce an arbitrary, irrational result" in which case it will apply the guidelines of the Restatement (Second) of Conflicts of Law. See O'Connor v. O'Connor, 201 Conn. 632, 650, 519 A.2d 13, 22 (1986); Katz v. Gladstone, 673 F.Supp. 76, 79 n. 2 (D.Conn.1987); Emhart Industries, Inc. v. Duracell Intern. Inc., 665 F.Supp. 549, 567-568 (M.D.Tenn.1987).[6]
(4) New York
New York has adopted the "interest analysis" in choice of law principles for *84 cases sounding in tort. The court will apply the law of the jurisdiction with greater interest in the litigation. This is done by examining the policies behind the conflicting laws. Calla v. Shulsky, 148 A.D.2d 60, 543 N.Y.S.2d 666 (1989); Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). "Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort." Schultz, 65 N.Y.2d at 197, 491 N.Y.S.2d 90, 480 N.E.2d 679.
B. DUE PROCESS LIMITATIONS
In analyzing the pertinent choice of law rules, courts are limited by due process considerations. Parties cannot be bound by the laws of states which have no interest in the controversy or to which they have no contacts. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). See, R. Leflar, L. McDougall and R. Felix, American Conflicts Law § 59 (4th ed. 1986). These requirements have been summarized as follows.
[T]he decision of a state court to apply its own law will not be found unconstitutional, as a matter of due process ... when (1) that state has an interest in applying its law on the point in issue in order to implement the policy reflected in that law and the application of its law is not fundamentally unfair to the other party, or (2) that state has sufficient factual contacts with the underlying factual transaction so that it is reasonable for it to apply its law to the transaction on the basis of those contacts despite its lack of a substantive interest in doing so.
Sedler, Across State Lines; Applying the Conflict of Laws to Your Practice, ABA Sec.Gen.Practice 108-109 (1989) (footnote omitted). See also, Am.Law Prod.Liab.3d § 46:6 (Supp.1987); Richman and Reynolds, Understanding Conflict of Laws § 85 (1984).
C. THE CONFLICT â PUNITIVE DAMAGES
(1) Puerto Rico
The law in Puerto Rico does not provide for awards of punitive damages in this type of litigation. Marina Ind., Inc. v. Brown Boveri Corp., 114 D.P.R. 64 (1983); Diaz v. San Juan Light & Transit Co., 17 P.R.R. 64, 17 D.P.R. 69 (1911). See also, Pretrial Order No. 39 filed on February 1, 1988, docket No. 1089.
(2) California
Punitive damages are allowable under California law "for the breach of an obligation not arising from contract, when it is proven ... that the defendant has been guilty of oppression, fraud, or malice ..." Cal.Civ.Code § 3294(a) (West 1989). In products liability suits, punitive damages may be recovered when a defendant places a product in the market in conscious disregard of the safety of consumers and others; that is, knowing of its dangerous condition, chooses to sell it without concern for its consequences. Ehrhardt v. Brunswick, Inc., 186 Cal.App.3d 734, 231 Cal.Rptr. 60 (1986); Magallanes v. Superior Court (E.R. Squibb & Sons, Inc.), 167 Cal.App.3d 878, 213 Cal.Rptr. 547 (1985); Hasson v. Ford Motor Co., 32 Cal.3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 (1982); Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 174 Cal.Rptr. 348 (1981). Punitive damages, however, are not available in wrongful death actions. See, Georgie Boy Mfg. Inc. v. Superior Court for Los Angeles County, 115 Cal.App.3d 217, 171 Cal.Rptr. 382 (1981); Cal.Civ.Code § 3294(d) and Cal. Code Civ.Proc. § 377 (West 1989).
(3) Connecticut
Punitive damages may be awarded in Connecticut in product liability actions as follows.
Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. If the trier of fact determines that punitive damages *85 should be awarded, the court shall determine the amount of such damages not to exceed an amount equal to twice the damages awarded to the plaintiff.
Conn.Gen.Stat.Ann. § 52-240b (West 1989).
(4) New York
In New York, punitive damages may be claimed in actions sounding in tort, Kinnarney v. Natale Auto Body, 550 N.Y. S.2d 194 (App.Div.1990) and in products liability cases, Home Ins. Co. v. American Home Products Corp., 75 N.Y.2d 196, 551 N.Y.S.2d 481, 550 N.E.2d 930 (1990); Moran v. International Playtex, Inc., 103 A.D.2d 375, 480 N.Y.S.2d 6; Baleno v. Jacuzzi Research, Inc., 93 A.D.2d 982, 461 N.Y.S.2d 659 (1983).
D. THE CONTACTS
(1) Plaintiffs
For purposes of illustration only,[7] we shall merely indicate the domicile of the "representative plaintiffs" who are presently trying their liability and damages claims against the "products" and "services defendants".[8] These are: Canada, Connecticut, Missouri, New Jersey and New York.
(2) Defendants
As previously mentioned, when dealing with corporate entities, ascertaining the jurisdictions with which they had relevant contacts presents no easy task. At the conclusion of plaintiffs' presentation of evidence there were 23 defendants remaining in this second phase trial. Even though some of them are incorporated or authorized to do business in Puerto Rico, the remaining are incorporated or conducting business activities in numerous other states.[9]
(3) Place of Injuries
It is undisputed that the injuries/damages claimed in these proceedings arose from the fire at the San Juan Dupont Hotel in Puerto Rico on December 31, 1986.
(4) Place of Conduct
The claims asserted in these proceedings are based essentially on negligence and product liability theories arising from acts or omissions which, although in some instances originated outside of this forum, consistently had its detrimental effect in Puerto Rico on December 31, 1986.
(5) Conclusion: Dominant/Significant Contacts
Since the parties are both local and non-domiciled, this factor cannot be conclusive to our choice of law analysis. As to the conduct at issue, even that which took place elsewhere had its definite impact in this forum. In addition, the accident occurred here and the damages flowing therefrom were felt here. Thus, we find that Puerto Rico is the forum where the dominant or most significant contacts coverage. As to the interest this jurisdiction has in the application of its laws to this litigation, we shall balance its policies with the competing ones to determine which one shall yield to the other.
E. THE POLICIES AT STAKE
(1) Puerto Rico
Punitive damages is a foreign concept to Puerto Rico's civil law tradition. As explained in Pretrial Order No. 39 filed on February 1, 1988, docket No. 1089, punitive damages are allowed in this jurisdiction only in exceptional cases pursuant to special legislation. In disallowing punitive damages Puerto Rico has established a policy favoring defendants on this particular matter by shielding them from the onus of this additional liability.
In Puerto Rico, the policy in the area of recovery in litigation has always been to compensate plaintiffs to the fullest extent possible. In this regard, it is important to *86 note that theories of liability as well as elements of damages are extremely liberal and are plaintiff oriented.[10] Also of significance is the fact that the Hotel tragedy also affected the local tourism industry which is vital to the economic interests of the Island. In summary, the impact of defendants' conduct in this forum was of a profound nature.
(2) California
Rather than seeking to compensate, punitive damages are designed to restrain defendants from engaging in a particular type of conduct as well as to deter similar behavior in others. Adams v. Murakami, 219 Cal.App.3d 1151G, 219 Cal. App.3d 647, 268 Cal.Rptr. 467 (1990); Dyna-Med, Inc. v. Fair Employment and Housing Com., 43 Cal.3d 1379, 241 Cal. Rptr. 67, 743 P.2d 1323 (1987); Magallanes, supra. The Code itself provides that the purpose for allowing these damages is "for the sake of example and by way of punishing the defendant." Cal.Civ.Code § 3294(a) (West 1989).
Given the very nature of punitive damages in that it is directed specifically to defendants, California's interest in applying punitive damages in this litigation would be limited to those particular defendants who incurred in the proscribed conduct within its borders. It has no interest in reaching defendants who have no connection with that State.
Under these circumstances, we find that California's policy behind the punitive damages mandate must give way to that of Puerto Rico.
(3) Connecticut
Perhaps the easiest approach on choice of law analysis has been taken by Connecticut with the "lex loci" principles, provided it does not produce arbitrary or irrational results. We find that indeed, after all relevant factors have been considered, the circumstances of this particular litigation compel the application of the law of this forum, disallowing punitive damages for the claims asserted in the complaint.
(4) New York
Applying the "interest analysis" approach utilized in New York, again we reach the conclusion that Puerto Rico law on punitive damages should be applied. Only a handful of parties are domiciled in New York. On the other hand, Puerto Rico is the "locus" of the accident and has also revealed a strong policy concerning the application of punitive damages.
(5) Conclusion â Comparative Impairment
Allowing punitive damages in this litigation would seriously impair Puerto Rico's comprehensive legal system designed to compensate victims rather than punish wrongdoers. In addition, application of Puerto Rico's law comports with due process requirements given the contacts this forum has with the parties, it was the locus of the accident, and the interest it has in the compensation of victims or injured parties.
F. DEPECAGE
Plaintiffs suggest that we apply the California punitive damages provisions selectively i.e., only in favor of certain plaintiffs vis ā vis certain defendants. Under choice of law principles, the courts have the discretion of applying laws from diverse states to different issues arising in a single litigation. This procedure is known as "dépecage". "[D]ifferent substantive issues [can] properly be decided under the laws of different states when choice-influencing considerations differ as they apply to the different issues." Leflar, American Conflicts Law, § 96 at 280 (4th ed. 1986). See also, Sedler, supra, at 16-18; Am.Law Prod.Liab.3d, § 46:5 (Suppl. 1987); Shattuck, The Revolution in Choice of Law: Another Insight, (Book Review), 99 Harv.L.Rev. 1101 (1986); Weintraub, A Defense of Interest Analysis in the Conflict of Laws and the Use of that Analysis in Products Liability Cases, 46 Ohio St. *87 L.J. 493, 502-503 (1985); Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U.Pa.L.Rev. 381, 392-393 (1985).
Policy and fairness considerations, however, play a key role in its application. We find that the plaintiffs' suggestion would prove to be too difficult to implement and not necessarily responsive to policy considerations.[11]
III. CONCLUSION
It is important to bear in mind that traditional choice of law principles are better suited to deal with cases involving a limited number of parties. In the context of multidistrict mass disasters the number of varying state choice of law rules and potential substantive laws to be applied are limitless and represent a taxing exercise for the courts. This occurs because competing policy considerations such as "deterrence and retribution, of allocation of risk, the equality of treatment of expectation and reliance, of compensation and grief, and of the meaning, or at least the valuation, of a life" must also be weighed. Lowenfeld, Mass Torts and the Conflict of Laws: The Airline Disaster, 1989:1 University of Illinois Law Review 157, 158.
Products liability litigation adds still another dimension to the problem. See, Sedler, supra, at 58-60. The courts are faced with too many variables which foster fragmentation of issues. See, Juenger, Mass Disasters and the Conflict of Laws, 1989:1 University of Illinois Law Review 105; Weintraub, Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation, 1989:1 University of Illinois Law Review 129; Bird, Note, Mass Tort Litigation: A Statutory Solution to the Choice of Law Impasse, 96 Yale L.J. 1077 (1987); Rowe and Sibley, Beyond Diversity: Federal Multiparty, Multiforum Jurisdiction, 135 U.Pa.L.Rev. 7 (1986).[12]
The process of deciding which state's law on punitive damages applies is a complex one because it involves examining the domicile of the plaintiff, the domicile of the defendant, the place where the wrongful conduct occurred, the place where the plaintiff was injured, and the place where the action was filed. Where a transferee judge in multidistrict litigation is making the decision for 110 different cases, it becomes a textbook example of the complicated process and of the types of issues which must be resolved.
Schwartz, Lee and Kelly, Guide to Multistate Litigation § 10.14 at 211 (1985).
Airline disasters, although different because there are relatively few defendants and is usually in a "fortuitous" accident location, do provide some insight and guidelines in dealing with the choice of law dilemmas faced by transferee courts with multistate parties in deciding whether or not punitive damages will be allowed. After a detailed discussion of the pertinent choice of law principles and policies fostered by the different conflicting statutes, both courts deciding In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594 (7th. Cir.1981) and In re Air Crash Disaster at Washington, D.C. on January 13, 1982, 559 F.Supp. 333 (D.D.C.1983) concluded by applying the law of the locus of the accident which denied the punitive damages.[13]
Based on the foregoing, and having carefully considered all possible alternatives on the punitive damages issue, we find that given the circumstances of this particular multidistrict mass disaster litigation we must abide by Puerto Rico's stand on punitive *88 damages and deny plaintiffs' request. We find this result comports with due process requirements in that Puerto Rico has an unequivocal interest in the litigation and all parties have the necessary contacts with this forum.[14]
IT IS SO ORDERED.
NOTES
[1] See Defendants' Trial Liaison Committee's Motions for Directed Verdict ... Re: Damages (Category III Motions) docket No. 14321, filed on April 16, 1990 and the PSC's Opposition ... docket No. 14453, filed on April 25, 1990.
[2] See docket Nos. 1159, 1436, 1596, 4522, 6324, 8085, 8090, 8561, 8795, 12185, 12186, 12339, 12340, 12343-67, 12377, 12383, 12406, 12425, 12460, 12463, 12479, 12490, 12498 and 12541. See also, Pretrial Order No. 39 (docket No. 1089, filed on February 1, 1988), Pretrial Order No. 187 (docket No. 10438, filed on May 31, 1989), and Court Margin Order No. 508 (docket No. 12289, filed on August 17, 1989).
[3] In Amended Order No. 242 the Court struck all claims for punitive damages and advised the parties it would subsequently issue a separate Order discussing the relevant legal and factual grounds for its ruling.
[4] Plaintiffs have indicated in their motions that they are seeking punitive damages exclusively against the non-Puerto Rico defendants.
[5] If only one jurisdiction has such an interest, a "false conflict" results and the law of that state will be applied.
[6] As further discussed below, in applying Puerto Rico law victims are to be adequately compensated for which reason the outcome of this analysis does not entail an arbitrary result.
[7] According to our calculations, there are approximately 2,100 plaintiffs to these proceedings.
[8] See Pretrial Order No. 187 filed on May 31, 1989, docket No. 10438.
[9] According to the pleadings, some of these are: California, New York, Delaware, Illinois, Ohio, Virginia, New Hampshire, Massachusetts, Pennsylvania, North Carolina.
[10] Puerto Rico utilizes the non-impact rule; all persons who can establish a causal relationship can recover for mental suffering or economic loss without need of kinship; decedent's injuries are inherited by the estate; a comparative negligence standard is applied and defendants are jointly liable to plaintiffs.
[11] It is interesting to note that In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, 500 F.Supp. 1044 (N.D.Ill.1980), the only mass disaster case that we found where the district court utilized this approach, was reversed on appeal allegedly based on different considerations. See, In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594 (7th Cir.1981).
[12] The authors recommend legislation to establish uniform and functional strategies in dealing with these intricate factual and policy riddles.
[13] The Court of Appeals specifically reversed the determination made by the district court in the litigation entitled In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 500 F.Supp. 1044 (N.D.Ill.1980) which applied punitive damages against one defendant and not another.
[14] See, Amended order No. 242 filed on May 11, 1990 docket No. 14575. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460576/ | 255 P.3d 1228 (2011)
STATE
v.
MAY.
No. 104169.
Court of Appeals of Kansas.
July 22, 2011.
Decision Without Published Opinion
Affirmed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2510075/ | 396 S.C. 525 (2012)
722 S.E.2d 805
In the Matter of Glenn Oliver GRAY, Respondent.
No. 27097.
Supreme Court of South Carolina.
Heard January 24, 2012.
Decided February 29, 2012.
*526 Lesley M. Coggiola, Disciplinary Counsel, and C. Tex Davis, Jr., Senior Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Jason B. Buffkin, of West Columbia, for Respondent.
PER CURIAM:
In this attorney discipline matter, Respondent Glenn Oliver Gray was accused of misconduct, including the unauthorized practice of law, failure to communicate with a client, and failure to provide competent and diligent representation. A hearing was held before a panel of the Commission on Lawyer Conduct (the Panel) regarding the formal charges filed by the Office of Disciplinary Counsel (ODC). The Panel majority recommended that Respondent be publicly reprimanded. Respondent *527 requests that the Court accept the Panel recommendation. We concur with the Panel majority recommendation that Respondent be publicly reprimanded.
I.
This Court placed Respondent on suspension for nine months in February of 2009. In re Gray, 381 S.C. 406, 673 S.E.2d 442 (2009) (imposing a nine month suspension for multiple rule violations for a pattern of excessive and fictitious client billing, including fictitious travel invoices and airline tickets).
II.
A.
Client Matter
There is only one client complaint at issue in the current proceeding. Respondent negotiated a settlement on the client's behalf in connection with a dispute with an automobile dealership. In September 2008, the dealership forwarded a check payable to the client to Respondent with the request that he hold the check in trust. The dealership also informed Respondent that the check carried a payment hold which would be lifted when the client executed a general release agreement. Respondent drafted a general release agreement, and his client thereafter signed it. Respondent then forwarded the agreement to the dealership in late October of 2008.
For reasons that are disputed, the client's claim against the dealership lingered and was not promptly resolved. The evidence shows that Respondent was not diligent in concluding the client's claim against the dealership. Following Respondent's suspension from the practice of law in February 2009, he continued representing the client, merely for the purpose of concluding the matter. Respondent failed to inform his client or the dealership of his suspension from the practice of law. In September of 2009, upon learning that the client had not received the settlement funds. Respondent located the check and realized it was stale. Respondent contacted the dealership, as the client's attorney, and requested a new check. *528 Upon his receipt of the new check, Respondent forwarded it to the client. The matter was thus concluded.
According to Respondent, he failed to promptly conclude his client's claim and failed to notify his client of the suspension because he was distracted by his myriad of health issues. We find Respondent's testimony credible.
B.
Affidavit Matter
In connection with his 2009 suspension, Respondent was ordered to file an Affidavit of Compliance with this Court stating that he had complied with Rule 30, RLDE, Rule 413, SCACR.[1] Respondent filed an initial affidavit, dated March 4, 2009, and stating "I have not practiced law for three (3) years. I had no cases at the time of my definite suspension, so I have not notified any clients, courts, or opposing counsel of my suspension."
Respondent admitted this initial affidavit contained a false statement, but that he did not intend to mislead this Court or ODC. Respondent filed a corrected affidavit when the error was brought to his attention. ODC brought charges that the false affidavit constituted a violation of Rule 3.3 (candor towards the tribunal), but the Panel majority disagreed and recommended a dismissal of this charge. In this regard, ODC takes exception to the Panel report.
III.
In recommending a public reprimand, the Panel majority found Respondent violated the following Rules of Professional Conduct: Rule 1.1 (competence), Rule 1.3 (diligence), Rule 1.4 (communication), Rule 5.5(a) (unauthorized practice of law), Rule 7(a)(1) (violations of the Rules of Professional Conduct), and Rule 7(a)(5) (conduct tending to pollute the administration of justice). One Panel member recommends a letter of caution. In addition, the Panel recommends Respondent be ordered to pay the costs of this disciplinary action.
*529 The Panel considered only one aggravating factor: Respondent's disciplinary history, the nine month suspension noted above.
In mitigation, the Panel considered three factors: Respondent's serious health problems, his timely good faith effort to rectify the consequences of his inaccurate affidavit, and his cooperative attitude throughout the disciplinary proceedings. Regarding Respondent's health problems, the Panel considered Respondent's serious cardiac-related health issues, including several heart attacks and surgeries, and his testimony that during the relevant time period, he was depressed and receiving counseling.
Respondent takes no exception to the Panel report and recommendation. ODC takes exception to the Panel's finding regarding Rule 3.3 and Respondent's affidavit, and the Panel's recommended sanction. ODC seeks the imposition of a definite suspension.
IV.
"The authority to discipline attorneys and the manner in which the discipline is given rests entirely with this Court." In re Boney, 390 S.C. 407, 414, 702 S.E.2d 241, 244 (2010). This Court "may accept, reject, or modify in whole or in part the findings, conclusions and recommendations of the Commission." Rule 27(e)(2), RLDE, Rule 413, SCACR. A disciplinary violation by a lawyer must be proven by clear and convincing evidence. In re Longtin, 393 S.C. 368, 376-77, 713 S.E.2d 297, 302 (2011).
V.
We find Respondent has committed misconduct in the respects identified by the Panel. Thus, we would find Respondent violated the following Rules of Professional Conduct: Rule 1.1 (competence), Rule 1.3 (diligence), Rule 1.4 (communication), and Rule 5.5 (unauthorized practice of law). Because of these underlying violations, we also agree with the Panel's findings that Respondent violated Rule 7(a)(1) (violations of the Rules of Professional Conduct) and Rule 7(a)(5) (conduct tending to pollute the administration of justice) of the Rules for Lawyer Disciplinary Enforcement.
*530 We reject ODC's challenge to the Panel's rejection of the claim that Respondent violated Rule 3.3. We are simply not persuaded by clear and convincing evidence that Respondent intentionally misrepresented the status of his law practice in the affidavit. Moreover, we note that Respondent, upon realizing the inaccuracy in the statement, filed a corrected affidavit with this Court. Additionally, we commend Respondent for his proactive and continued treatment for his serious health issues. We are persuaded that Respondent's attention to his many health problems explains his delay in not concluding his client's claim prior to the February 2009 suspension. We further note that Respondent, while suspended for nine months, has not begun the process to seek readmission although almost three years has passed. This too, in our judgment, is largely explained by Respondent's focused efforts on his health problems. And finally, we find it to Respondent's credit that he has maintained a forthright and cooperative attitude with ODC throughout the proceedings.
We find the Panel's recommendation of a public reprimand is appropriate in this case. See, e.g., In re Powell, 380 S.C. 115, 669 S.E.2d 89 (2008) (publicly reprimanding attorney where attorney admitted violating several Rules of Professional conduct, including the unauthorized practice of law, in connection with a real estate closing in which no one suffered any harm as a result of attorney's misconduct); In re Calhoun, 371 S.C. 403, 639 S.E.2d 679 (2007) (publicly reprimanding attorney where attorney reviewed closing documents for accuracy, but did not record the mortgage or take any steps to ensure that anyone else had); In re Boulware, 366 S.C. 561, 623 S.E.2d 652 (2005) (publicly reprimanding attorney where attorney admitted failing to provide competent representation, inadequate explanations, lack of safekeeping of client funds, and the assistance of the unauthorized practice of law in connection with real estate transactions).
VI.
We find Respondent has engaged in misconduct warranting a public reprimand. Accordingly, we hereby accept the Panel majority's recommendation and publicly reprimand Respondent *531 for his misconduct. Further, Respondent is ordered to pay the costs of the Panel proceedings.
PUBLIC REPRIMAND.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
NOTES
[1] Specifically, Rule 30 requires notification to clients and opposing parties and the return of any client properties to the client. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919970/ | 660 So. 2d 1059 (1995)
LATIN EXPRESS SERVICE, INC., Appellant,
v.
STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
No. 95-510.
District Court of Appeal of Florida, First District.
May 18, 1995.
Rehearing Denied October 16, 1995.
Richard B. Austin, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., and Mark T. Aliff, Asst. Atty. Gen., Tallahassee, for appellee.
ON MOTION TO DISMISS
PER CURIAM.
The Department of Revenue moves to dismiss this appeal, asserting that the notice of appeal did not timely invoke the jurisdiction of this court. We deny the motion, and relinquish jurisdiction to the Department for the purpose of entry of a final order complying with the requirements of section 120.59(4), Florida Statutes.
Pursuant to the applicable rules of the agency, appellant protested and sought reconsideration of the assessment of a use tax in the amount of $175,000. In its order, styled as a "notice of reconsideration," the Department rejected appellant's protest and sustained the tax as assessed. The Department further recited, in the portion of the notice entitled "Taxpayer Appeal Rights," that the notice constituted its final position prior to court action or administrative proceeding, and informed appellant of its right to contest the determination either in circuit court or an administrative forum pursuant to sections 72.011 and 120.575, Florida Statutes. The notice went on to advise appellant that its "complaint must be received by the Clerk of the Court or your petition must be received by the Department of Revenue within *1060 60 days from the date of this Notice of Reconsideration." After more than 30 days had passed since issuance of the notice, but before the expiration of the 60-day period, appellant filed its notice of appeal with both the Department and this court.
In its motion to dismiss, the Department essentially acknowledges that in addition to the rights of judicial and administrative review outlined in the notice, its order is subject to direct review by this court in accordance with section 120.68, Florida Statutes. See Yes Dear, Inc. v. Department of Revenue, 523 So. 2d 1235 (Fla. 1st DCA 1988); United Engines, Inc. v. Department of Revenue, 508 So. 2d 459 (Fla. 1st DCA 1987). The Department argues, however, that because appellant did not file its notice of appeal within thirty days of rendition of the order, the appeal must be dismissed for lack of jurisdiction. In response, appellant asserts that the order did not become final by its own terms until 60 days after its issuance, and that the notice of appeal was therefore timely. Appellant further notes that unlike the situation in Rivers v. Department of Revenue, 508 So. 2d 360 (Fla. 2d DCA 1987), relied upon by appellee in its motion, this order did not specifically inform it that judicial review in the district court of appeal could be instituted by filing a notice of appeal within 30 days.
Section 120.59(4), Florida Statutes, provides that parties shall be notified of any final agency order, and that the "notice shall inform the recipient of any administrative hearing or judicial review that is available under s. 120.57 or s. 120.68, shall indicate the procedure which must be followed to obtain the hearing or judicial review, and shall state the time limits which apply." This court has repeatedly recognized that a notice of agency action that fails to inform a party of its right to seek administrative review and the relevant time limits associated therewith is inadequate to trigger commencement of the administrative process. Florida League of Cities, Inc. v. Administration Comm'n, 586 So. 2d 397 (Fla. 1st DCA 1991); Henry v. Department of Admin., 431 So. 2d 677 (Fla. 1st DCA 1983); Wahlquist v. School Bd. of Liberty County, 423 So. 2d 471 (Fla. 1st DCA 1982); Sterman v. Florida State Univ. Bd. of Regents, 414 So. 2d 1102 (Fla. 1st DCA 1982). Likewise, we have recognized that where an agency's order fails to comply with the statutory requirement that a party be advised of its rights to judicial review and the time limits associated with invoking that right, the order departs from the essential requirements of law. In that circumstance, we quashed the defective order, and remanded to the agency with directions to enter a new final order complying with the statute. Denson v. Sang, 491 So. 2d 288 (Fla. 1st DCA 1986).
Although the order in this case adequately apprised appellant of its right to institute an action in circuit court or an administrative forum, it did not, as required by section 120.59(4), apprise appellant of its alternative right to seek review in this court pursuant to section 120.68, and the time limit associated with seeking such review. On this basis, we conclude that rather than being untimely, appellant's notice of appeal is in fact premature, in that the agency has not yet entered a final order in compliance with the requirements of the Administrative Procedure Act. In the case of premature appeals, Florida Rule of Appellate Procedure 9.110(m) allows this court, in its discretion, to either dismiss the appeal or to relinquish jurisdiction to the lower tribunal for the purpose of entry of a final order. We elect in this case to deny the motion to dismiss, and to relinquish jurisdiction to the agency for a period of 20 days for the purpose of entry of an amended final order complying with the requirements of law. Upon entry of such an order, jurisdiction shall automatically revest in this court.
By this opinion, we do not suggest that this court has now created or revived a right to seek belated review of a long dormant, albeit technically defective, "final" agency order. Such a circumstance is clearly distinguishable from this case, because appellant promptly pursued its appellate remedies but as a consequence of the defect in the agency's order was misled as to the precise time limit for seeking such review. Cf. Machules v. Department of Admin., 523 So. 2d 1132 (Fla. 1988) (application of the doctrine of equitable tolling to allow the prosecution of an *1061 untimely administrative proceeding is dependent, in part, upon a showing that the litigant has not "slept on its rights").
MOTION TO DISMISS DENIED; JURISDICTION RELINQUISHED.
ZEHMER, C.J., and ALLEN and KAHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612495/ | 282 So. 2d 783 (1973)
Joseph THOMAS, as Administrator of the Estate of his minor son, Donald Thomas, Plaintiff-Appellant,
v.
Isaiah CHATMAN, Jr., et al., Defendants-Appellees.
No. 4296.
Court of Appeal of Louisiana, Third Circuit.
September 18, 1973.
*784 Reuvan Rougeau, Lake Charles, for plaintiff-appellant.
Plauche, Smith & Hebert by A. Lane Plauche, Jr., Lake Charles, for defendantappellee.
Kenneth E. Badon, Lake Charles, for defendant-appellee.
Scotty's Brick Co., thru Arthur Burch, Liquidator, Lake Charles, for defendantappellee.
Before FRUGE, SAVOY and DOMENGEAUX, JJ.
FRUGE, Judge.
Plaintiff, Joseph Thomas, brought this tort action as administrator of the estate of his minor son, Donald Thomas. This action was precipitated by an injury received by Donald Thomas while operating a fork-lift truck owned by Scotty's Brick Company, Inc. (Scotty's) and previously repaired by Dave's Truck Lift Service (Dave's). Defendants were Scotty's and Isaiah Chatman, Jr., for workmen's compensation and wages, and Dave's for damages resulting from the injury sustained. Judgment in the lower court was rendered against Scotty's as principal, and against Chatman as employer for workmen's compensation and wages. However, judgment was rendered against plaintiff on his claim against Dave's because of failure of the plaintiff to prove negligence on the part of Dave's.
The plaintiff appealed in forma pauperis, and the appeal itself involved only the question of the negligence vel non of Dave's. This court, after a most comprehensive review of the record of some 929 pages and with a full appreciation of the *785 facts of this case and the plight of the unfortunate plaintiff, affirms the decision of the trial court, albeit with some reluctance. A most careful consideration was given by this court to the entire record, due to the considerable proven injuries sustained and because of the asserted cause thereof.
This case involved perplexing circumstances as derived from the testimony presented in the trial court. The picture which evolves from the circumstances, as testified to, is substantially as follows. On the day, January 15, 1971, Dave's Lift Truck Service did extensive repair work upon the fork-lift belonging to Scotty's. The machine was then brought back to Scotty's on the 23rd of the same month. Subsequent to this date, and prior to the 1st day of March, 1971, other work was done on the machine at the brick yard situs. This included starting the engine, cleaning the spark plugs, and replacement of a steering sector on the machine.
Testimony of the employees of Dave's (who were accepted as experts by the court) indicated that the machine was functioning properly (as regards its steering mechanism) subsequent to the completion of the repair work. However, substantial conflicts arise when testimony of the witnesses for the plaintiff is taken collectively. From this latter testimony, it would seem that within a very short period of time prior to the date of the accident this machine was not functioning properly. Such was stated to be the fact by three of plaintiff's witnesses who were seemingly disinterested in the outcome of this case.
As aforestated, this court was most observant in respect to the record and deduced therefrom that the facts did not, in and of themselves, appear to present a clear, one-sided result. The testimony revealed essentially the following. First, this particular fork-lift had a history of mechanical malfunction; secondly, that the defendant, Dave's, was compensated for a complete overhaul of this particular machine; third, that the machine seemed to operate in an erratic fashion subsequent to the overhaul and prior to the accident (as testified to by witnesses for the plaintiff); fourth, that the plaintiff's minor son, Donald, was experienced in the operation of a fork-lift truck; and fifth, that the machine did not give problems subsequent to the overhaul (as testified to by the employees for the defendant).
Crucial to a determination of negligence on the part of Dave's and, thereby, consequential liability, was a proof of fault. Because the accident happened in a fashion and at a time during which no witnesses were in positions to observe, the burden of proof imposed upon the plaintiff was very large indeed. While the doctrine of "res ipsa loquitur" was not asserted by the plaintiff as a grounds for establishing defendant's liability in the trial court, it was seemingly attempted in theory, though not by name, in the appellate court. Plaintiff's endeavor to establish a basis for this doctrine was not ultimately successful. This determination was reached after considerable attention was focused by this court on the applicability vel non of the doctrine to the instant facts.
The doctrine of res ipsa loquitur (the thing speaks for itself) is one which is utilized when there is no direct evidence and, therefore, is a rule of circumstantial evidence which should not be confused with substantive law.
The renowned Professor William L. Prosser stated the conditions necessary for application of this doctrine as follows:
"1. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence;
2. It must be caused by an agency or instrumentality within the exclusive control of the defendant;
3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. Some courts have at least suggested a *786 fourth condition, that evidence as to the true explanation of the event must be more readily accessible to the defendant than to the plaintiff." W. Prosser, The Law of Torts, p. 218 (3rd edition, 1964).
Louisiana tort law has accepted and applied the doctrine in numerous cases which have been followed throughout the years. It was stated in the case of National Surety Corp. v. Travelers Insurance Co., 149 So. 2d 438, 440 (La.App. 3rd Cir. 1963):
"Cases involving injuries inflicted on the plaintiff by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur."
In the case of Haymark & Sons, Inc. v. Prendergast, 268 So. 2d 110, 113 (La.App. 3rd Cir. 1972), three requirements of res ipsa loquitur were enunciated:
"1. The accident which damaged plaintiff was caused by an agency or instrumentality within the actual or constructive control of the defendant;
2. The accident is of a kind which ordinarily does not occur in the absence of negligence;
3. The evidence as to the true explanation of the accident is more readily accessible to the defendant than to the plaintiff."
In the earlier case, A. & J., Inc. v. Southern Cities Distributing Co., 173 La. 1051, 1053, 139 So. 477, 478 (1932), decided by the Supreme Court of Louisiana, the following was stated in regard to the doctrine of res ipsa loquitur:
"This is a rule of evidence peculiar to the law of a limited class of negligence cases; but where, as stated, the defendant has no control over the premises, or where there is a divided responsibility and the damage may have resulted from a cause over which the defendant had no control, all of the authorities hold, or at least the great weight of authority is, that the rule cannot be successfully invoked."
The doctrine as aforestated utilizes or requires the above elements in its general method of application. However, the doctrine itself is subject to an exception as stated in the Louisiana Supreme Court case of Plunkett v. United Electric Service, 214 La. 145, 159, 36 So. 2d 704, 709 (1948), where the following was stated:
"But the fact of possession and control by the defendant is not always an essential element. The doctrine has been held to be applicable in numerous actions where the offending articles were not possessed and controlled by the defendants on the occurrence of the accidents, such as those for damages resulting from exploding bottles of carbonated beverages, from leakage of drums of acid, and from the blowout of a plug in a cylinder of acetylene gas. Important though in actions of this class is that the plaintiff prove freedom of fault on the part of all through whose hands the instrumentality passed after it left the defendant."
This particular case involved the installation of a heater and the subsequent burning down' of the house in which it had been installed. The Court in Plunkett, on rehearing, at 36 So. 2d 704, 711, stated:
"Plaintiff is required to establish with certainty that the instrumentality installed by defendant is the source of the damage; that he was without fault, and that the time elapsing between the installation and the damage was such as to make it reasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed."
Pertinent to this discussion is the case of West v. Hydro-Test, Inc., 196 So. 2d 598, *787 604 (La.App. 1st Cir. 1967), wherein it was stated:
"Even though defendant is not in actual or constructive control of the instrumentality at the time of the accident, defendant may nevertheless be held liable where it is shown the device or product is defective, if it can be shown the instrumentality or device was not tampered with by anyone through whose hands it passed from the time of its manufacture until the injury."
The case of Hargis v. Travelers Indemnity Co., 248 So. 2d 613, 615 (La.App. 3rd Cir. 1971), stated:
"Both the Plunkett case and the jurisprudence following it required that where exclusive possession and control by the defendant of the offending instrumentality are not present, the plaintiff must show freedom from fault on the part of all through whose hands it passed after it left the defendant."
In the recent case of Speight v. Southern Farm Bureau Insurance Co., 254 So. 2d 485, 487, in which the Third Circuit Court of Appeal allowed recovery by the plaintiff under the doctrine of res ipsa loquitur, the following was stated:
"Generally, the defendant must have the exclusive possession and control of the offending instrumentality, and if such is not the case the plaintiff must show freedom from fault on the part of all through whose hands it passed after leaving the defendant."
The doctrine of res ipsa loquitur was applied in Speight, supra, to allow recovery where the defendant's truck crashed into the home of the plaintiff, causing extensive damage. The truck was not under the control of any driver at the time, the defendant having left it parked on top of a nearby hill. The truck rolled down the hill subsequently and into plaintiff's house. It is supremely important to the plaintiff's case in this suit to note that in the Speight case, supra, the plaintiff was in no way connected with or in control of the instrumentality which caused the harm.
The last case presented by this court in its discussion and determination of the applicability of the doctrine of res ipsa loquitur to the factual circumstances of the instant case, is Boudreaux v. American Insurance Co., 262 La. 721, 264 So. 2d 621. On original hearing by the Louisiana Supreme Court, Justice Tate dissented, his dissent later becoming the opinion of the Court upon rehearing. In his opinion, he brought the doctrine of res ipsa loquitur up-to-date in its manner of application. In his dissenting opinion, as well as the Court's final opinion on rehearing, Justice Tate pointed out the meaning of the phrase "preponderance of the evidence." His reliance was upon the case of Jordan v. Travelers Insurance Co., 257 La. 995, 245 So. 2d 151, 155 (1971), which stated:
"In describing this burden of proof, the courts sometime speak of proof to a `reasonable certainty' or to a `legal certainty'; or of proof by evidence which is of `greater weight' or `more convincing' than that offered to the contrary; or (in the case of circumstantial evidence) of proof which excludes other reasonable hypotheses than the defendant's tort with `a fair amount of certainty.' Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not."
Justice Tate's reliance was also placed upon the case of Naquin v. Marquette Casualty Co., 244 La. 569, 153 So. 2d 395 (1963), which held that circumstantial evidence required in civil negligence cases need not negate all other possible causes of injury. He concluded that the res ipsa loquitur inference of negligence on the part *788 of the defendant would occur because the facts indicated this to be the more probable cause of injury in the absence of other "as-plausible" explanation by witnesses found credible.
From the aforestated jurisprudence, it can be readily observed that res ipsa loquitur, even if applied in its exceptional form, would not afford the plaintiff his desired relief. This is so, because of the following reasons. First, the time period (from the release of control by defendant and the assumption of control by plaintiff) which is required to be of a minimal nature to prevent acts of intervening negligence, was not present here. The doctrine is also rendered insupportable by the finding that the test of what is "more plausible" has not been met. Even if the doctrine was given attempted application, it can be seen that from the time at which the fork-lift truck was returned, being the date of January 23, 1971, until the date of the accident, being March 1, 1971, there was an interim of more than a month during which time other causes could have intervened which may have affected the performance of this lift truck. The Boudreaux test, supra, of plausibility would not be met because, in the instant case, the plaintiff was the operator of the vehicle and it cannot be said by this court that it is more plausible that the vehicle malfunctioned and turned over than it can be said that the vehicle turned over due to the negligent operation, thereof, by the operator, Donald Thomas. On the basis of the foregoing, it is concluded that res ipsa loquitur is not applicable in its general or exceptional form of application.
It is not forgotten or overlooked by this court that testimony was given which could be accepted as determinative of a history marked by malfunction, substandard performance, or faulty performance of the fork-lift in question. It is also noted that testimony by the plaintiff's witnesses was seemingly of an uninterested and credible nature. The expert of the plaintiff's was the only expert who testified that was given compensation by the court for his expert testimony. The witnesses of the plaintiff (other than his one expert) were all sequestered, while those of the defendant, being his employees who were also allowed to testify as experts by the court, were not. It is also noteworthy that the plaintiff evidently had operated fork-lifts for a period of two years prior to this accident, and there was no affirmative evidence presented of his negligent operation of this vehicle or of any other one, nor was there evidence presented of any prior accidents on his part.
A reading of this entire record revealed many contradictions on both sides, and an impression was left that the full truth was not being advanced at all times. This court, as aforestated, affirms the trial court with some reluctance. This affirmation is required because there did not exist positive testimony of the plaintiff's freedom from fault which would suffice to allow the reasonable application of the doctrine of res ipsa loquitur. This doctrine not being applicable, the plaintiff is without remedy.
It is also of much importance that though there were numerous and apparent conflicts in testimony, this court is unable in its exercise of factual review to try this case over again on the facts, as it is not best situated to determine the demeanor and veracity of the witnesses as was the trial court. Credibility of witnesses is to be determined by the trial court, as stated in the recent case of Thomas v. Grain Dealers Mutual Insurance Co., 270 So. 2d 582, 583 (La.App. 2nd Cir. 1972):
"Where the testimony of opposing sides is in conflict, and credibility of witnesses is at issue, great weight must be granted the decision of the lower court."
*789 It was also stated:
"The reviewing court should not reverse where there is evidence in the record which supports the lower court judgment."
Also, in the case of Knighten v. American Automobile Insurance Co., 121 So. 2d 344, 349 (La.App. 1st Cir. 1960), it was stated:
"Where the facts are in dispute, as here, especially so as in the instant case, where the resolution of conflicting factual accounts depends upon an evaluation of the credibility of witnessesit is very appropriate to give great weight to the findings of facts reached by the trial judge or jury."
The lower court in its written reasons stated the following:
"In view of the speculative nature of the plaintiff's proof on the subject, this court concludes he had failed to establish by a preponderance of the evidence that this accident was proximately caused by any defect resulting from neglect or improper workmanship on the part of Dave's in repairing the lift-truck."
It also held:
"All things considered, this court is not convinced that the plaintiff has proved his case against Dave's Lift Truck Service to the degree of certainty required by law."
This court, therefore, is unwilling in a case of this nature, dealing with highly technical facts and the operation of intricate machinery, to overrule by declaration of manifest error the findings of a trial court which sat with firsthand insight into these matters.
For the reasons assigned, the judgment of the trial court is affirmed in whole; costs of this appeal to be assessed against appellant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612501/ | 745 F. Supp. 509 (1990)
Jacob J. FINK and Peterson Corp., Inc., f/k/a Brighton Products, Inc., an Illinois Corporation, Plaintiffs and Counterdefendants,
v.
Ronald DeCLASSIS and L.T. Laboratories, Inc., a/k/a L.T. Corporation, a Massachusetts Corporation, Defendants and Counterplaintiffs.
No. 90 C 401.
United States District Court, N.D. Illinois, E.D.
August 20, 1990.
*510 *511 Michael J. Rovell, Joel J. Africk, Lisa I. Fair, Jenner & Block, Chicago, Ill., for plaintiffs and counterdefendants.
Bradley C. Pinta, Michael J. Griffin, Sullivan, Sullivan & Pinta, Boston, Mass., James Ossyra, Hopkins & Sutter, Chicago, Ill., for defendants and counterplaintiffs.
MEMORANDUM ORDER
BUA, District Judge.
Plaintiffs Jacob J. Fink and Peterson Corporation have moved to dismiss several counts of defendants' counterclaim pursuant to Fed.R.Civ.P. 12(b)(6). Specifically, plaintiffs contend that Counts I, III, IV, V, IX, X, and XI should be dismissed as to both Fink and Peterson, while Counts VI and VIII should be dismissed as to Fink only. Pursuant Fed.R.Civ.P. 12(f), plaintiffs have also moved to strike Counts IV and VIII. For the reasons stated herein, plaintiffs' motion to dismiss is granted with respect to Counts I, III, IV, V, IX, X, and XI, and denied with respect to Counts VI and VIII; plaintiffs' motion to strike is denied.
FACTS
Peterson Corporation ("Peterson") is an Illinois corporation which manufactures and distributes health and beauty aid products. From the time it first introduced its products into the marketplace, Peterson enjoyed tremendous commercial success. Peterson's rapid success drew the attention of L.T. Corporation ("LT"), a Massachusetts corporation which also distributes health and beauty aid products. LT eventually became interested in acquiring the assets of Peterson. In 1989, LT approached Jacob J. Fink, the president of Peterson, to discuss the possibility of an acquisition. In particular, LT was interested in purchasing the assets associated with Peterson's two eye care product lines known as "Eyegel" and "Eyepac."
After several months of negotiations, Peterson agreed to sell the Eyegel and Eyepac product lines to LT. The parties executed an asset purchase agreement dated April 26, 1989, and the sale was closed on June 21, 1989. One month later, the Food and Drug Administration detected bacteria in large quantities of the Eyegel product. This discovery prompted a nationwide recall of Eyegel.
Due to the contamination of the Eyegel product, LT's sales decreased dramatically. Having suffered a financial loss from its newly acquired product lines, LT filed a lawsuit against Fink and Peterson in the United States District Court for the District of Massachusetts. LT's complaint asserts a variety of state law claims, including breach of contract and breach of warranty.
On January 23, 1990, plaintiffs filed the instant case against LT and its president, Ronald DeClassis. According to plaintiffs, LT and DeClassis mismanaged the Eyegel and Eyepac product lines, and failed to fully satisfy their contractual obligations. In addition, plaintiffs accuse LT and DeClassis of defamation.
Shortly after plaintiffs commenced this action, defendants filed a counterclaim. Defendants also moved to transfer the case to the District of Massachusetts. This court subsequently denied the motion to transfer. See Fink v. DeClassis, 738 F. Supp. 1195 (N.D.Ill.1990). Fink and Peterson now move to dismiss most of the counts contained in defendants' counterclaim.[1]
*512 DISCUSSION
Count I Fraud
In Count I, LT asserts a claim for common law fraud. Peterson has moved to dismiss that claim, arguing that LT has failed to plead the necessary elements of fraud under Illinois law. In response, LT contends that Massachusetts law governs the fraud claim and that the allegations are sufficient under Massachusetts law.
As a preliminary matter, the court must determine whether Illinois law or Massachusetts law applies to LT's fraud claim. Pursuant to Klaxon Corp. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), this question must be resolved according to Illinois choice-of-law principles. When addressing choice-of-law issues in tort actions, Illinois courts apply the "most significant contacts" test. Palmer v. Beverly Enters., 823 F.2d 1105, 1112 (7th Cir.1987); Ingersoll v. Klein, 46 Ill. 2d 42, 48, 262 N.E.2d 593, 596 (1970). Under the most significant contacts test, the court should apply the law of the state that has the most significant relationship with the occurrence and with the parties. Ingersoll, 46 Ill.2d at 47, 262 N.E.2d at 596. Several factors are relevant to this determination, including: (1) the place where the injury occurred; (2) the place where the conduct occurred; (3) the domicile, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship of the parties is centered. Id. at 47-48, 262 N.E.2d at 596.
After weighing the factors articulated in Ingersoll, supra, this court finds that Illinois has the most significant relationship to the cause of action. LT's fraud claim is predicated on several misrepresentations allegedly made by Peterson during the course of the contract negotiations. All of the negotiations regarding the asset purchase agreement were conducted at Peterson's offices in Chicago, Illinois. Thus, any alleged fraudulent misrepresentations made by Fink (or any other representative of Peterson) necessarily occurred in Illinois. Illinois is also the place where the injury occurred. LT took possession of Peterson's assets in Illinois and continued to manufacture, package, and ship Eyegel from that location. Moreover, the relationship between the parties was centered in Illinois, the place where the asset purchase agreement was negotiated, executed, closed, and performed. None of Peterson's representatives went to Massachusetts in connection with the negotiation or performance of the asset purchase agreement. Although the remaining factor i.e., the domicile, place of incorporation, and place of business of the parties does not appear to conclusively favor one state over the other, the weight of the contacts dictates that Illinois law is to govern LT's fraud claim.[2]
Under Illinois law, a party cannot maintain a fraud claim without alleging the following five elements:
(1) a false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance.
Derson Group, Ltd. v. Right Management Consultants, Inc., 683 F. Supp. 1224, 1228 (N.D.Ill.1988) (quoting Soules v. General *513 Motors Corp., 79 Ill. 2d 282, 286, 37 Ill. Dec. 597, 599, 402 N.E.2d 599, 601 (1980)). LT alleges in Count I that Peterson made knowing misrepresentations concerning the quality of the Eyegel product. But LT's counterclaim contains no allegations that the misrepresentations were made with the intent to induce LT to take some affirmative action such as entering into the asset purchase agreement. This deficiency is fatal to LT's fraud claim. See id. at 1231. LT urges the court to infer from the allegations that the misrepresentations were made to induce LT to enter into the asset purchase agreement. This court, however, is not willing to infer a necessary element of fraud from LT's skeletal allegations especially since fraud must be pled with particularity. See Fed.R.Civ.P. 9(b). Because LT has failed to allege that the misrepresentations were made with the intent to induce LT to act, Count I is dismissed.
Count III Negligent Misrepresentation
In Count III, LT claims that it sustained a loss of profits and goodwill due to Peterson's alleged negligent misrepresentations. In order to recover for purely economic loss under a theory of negligent misrepresentation, LT must demonstrate that Peterson supplied the information in the course of its business "for the guidance of others in their business relations with third parties." Black, Jackson and Simmons Ins. Brokerage, Inc. v. IBM Corp., 109 Ill.App.3d 132, 135, 64 Ill. Dec. 730, 732, 440 N.E.2d 282, 284 (1982) (emphasis in original); see also Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 89, 61 Ill. Dec. 746, 755, 435 N.E.2d 443, 452 (1982).
LT argues that "nonprofessional sellers are in the business of providing information for the purpose of a sale of their property," and that Peterson was in the business of providing information about its products when it sold the company to LT. LT's Memorandum in Response to Plaintiffs' Motion to Dismiss, at 5. This argument is indefensible. To a certain extent, information will always be exchanged during the course of a business transaction. Nevertheless, a manufacturer such as Peterson is not "in the business of supplying information" merely because it provides information regarding its products. See Knox College v. Celotex Corp., 117 Ill. App. 3d 304, 308, 72 Ill. Dec. 703, 453 N.E.2d 8, 11 (1983) (manufacturer of roofing materials was not in the business of supplying information); Black, Jackson and Simmons, 109 Ill.App.3d at 136, 64 Ill.Dec. at 732, 440 N.E.2d at 284 (sellers of computer and software were not in the business of supplying information); cf. Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 164, 109 Ill. Dec. 541, 547, 510 N.E.2d 409, 415 (1987) (sellers of real estate, unlike real estate brokers, are not in the business of supplying information). The information must be provided to guide others in their business transactions with third parties a crucial factor which LT has overlooked.
The information furnished by Peterson in connection with the sale of its assets only facilitated business between Peterson and LT. Such information related strictly to the acquisition of Peterson and was not provided to LT for guidance in its business relations with third parties. Quite simply, Peterson is a manufacturer of health and beauty aid products; it is not in the business of supplying information. For this reason, the court dismisses LT's negligent misrepresentation claim.
Count IV Intentional Misrepresentation
Peterson contends that the intentional misrepresentation claim set forth in Count IV should be dismissed because LT has failed to allege all of the elements of intentional misrepresentation. To state a claim for intentional misrepresentation, a party must allege:
(1) a statement of material past or present fact; (2) that the statement was false; (3) that the party making the statement knew or believed it to be false; (4) that the party to whom the statement was made believed and relied on the statement and had a right to do so; (5) that the statement was made for the purpose of inducing the other party to act or refrain from acting; and (6) that the reliance of the person to whom the statement was made led to his injury. *514 Modern Track Mach., Inc. v. Bry-Lon, Ltd., 197 Ill.App.3d 560, 564, 144 Ill. Dec. 65, 68, 554 N.E.2d 1104, 1107 (1990). Similar to the deficiency in LT's fraud claim, LT's intentional misrepresentation claim is devoid of any allegations that Peterson or Fink made a misrepresentation for the purpose of inducing LT to act. Having failed to plead a necessary element of intentional misrepresentation, LT's claim cannot withstand Peterson's motion to dismiss.[3]
Count V Negligence
Count V purports to state a claim for negligence. LT's negligence claim rests on a single conclusory allegation that the contamination of Eyegel was caused by the "negligent failures and omissions" of Fink and Peterson. Counterclaim, ¶ 30. By failing to affirmatively allege the existence of a duty and a breach thereof, LT's negligence claim has not satisfied even the most basic of pleading requirements. Moreover, LT's claim is flawed in another substantial respect: LT seeks to recover "lost profits, returned product merchandise, and damages to its reputation and goodwill." Id. ¶ 31. As Peterson correctly points out, a party cannot recover under a negligence theory when the loss is purely economic in nature. See Moorman Mfg. Co., 91 Ill.2d at 86-88, 61 Ill.Dec. at 753-55, 435 N.E.2d at 450-52.
While tort law is particularly suited to redress personal injuries or damage to property, the remedies of contract law are more appropriate for the type of commercial loss allegedly sustained by LT. When a defect prevents a product from functioning as intended, contract and warranty law serve to protect the purchaser's expectation interests. Id. at 81, 86-88, 61 Ill.Dec. at 753-54, 435 N.E.2d at 448, 450-51. LT seeks redress for qualitative defects in the Eyegel product which rendered the product inferior and unfit for its intended use. To recover for such economic loss, LT cannot proceed on a negligence theory. Count V is dismissed.
Count VI Breach of the Asset Purchase Agreement
LT contends that both Peterson and Fink are liable for breach of the asset purchase agreement. Peterson moves to dismiss this claim as to Fink only. According to Peterson, Fink is not a party to the asset purchase agreement. The very terms of the agreement, however, refute Peterson's argument.
Several provisions of the asset purchase agreement explicitly and unambiguously state that Fink and Peterson are jointly and severally liable for the obligations under the contract. The asset purchase agreement provides in part:
Brighton[4] and Jacob J. Fink, jointly and severally, hereby make to LT the following representations, warranties, agreements and covenants....
....
In the event there is a breach of any one or more of the aforementioned representations, warranties, agreements and covenants which gives rise to damages, costs or a loss to LT, then Brighton and Jacob J. Fink, jointly and severally, agree to reimburse LT for such damages, costs or loss (including attorneys fees, if any)....
....
Brighton and Jacob J. Fink shall each be notified in writing by LT of any claims or suits to which the preceeding [sic] paragraph relates and be given a reasonable opportunity to settle, contest, or defend against same, and, if after having been so notified, Brighton or Jacob J. Fink shall fail to so defend, settle, and ultimately satisfy or defeat such claim within a reasonable time, Brighton and LT [sic] shall reimburse LT, on demand, for any payment made by LT including its reasonable attorneys fees or expenses.
Asset Purchase Agreement, ¶ 8 (emphasis added). Aside from the fact that Fink assumed *515 liability under the contract, he signed the document twice in his representative and individual capacities. Fink is clearly a party to this agreement and, therefore, the motion to dismiss Count VI is denied.
Count VIII Breach of Express Warranty
LT asserts a breach of express warranty claim in Count VIII. Peterson insists that LT's breach of contract claim in Count VI and the breach of express warranty claim in Count VIII are redundant. Pursuant to Fed.R.Civ.P. 12(f), Peterson moves to strike the breach of warranty claim.[5]
To a large extent, LT is seeking the same relief in its breach of contract and breach of warranty claims. But nothing in the Federal Rules of Civil Procedure precludes a party from setting forth alternative theories of recovery based on the same set of facts. To the contrary, Federal Rule 8(e)(2) states that "[a] party may set forth two or more statements of a claim ... alternately or hypothetically, either in one count ... or in separate counts...." Fed.R.Civ.P. 8(e)(2).
Of course, Peterson may not obtain a duplicative recovery. However, at this stage of the litigation, the court will not compel LT to elect one remedy over another. See Miller v. Affiliated Fin. Corp., 600 F. Supp. 987, 996-97 (N.D.Ill.1984); Weft, Inc. v. G.C. Inv. Assocs., 630 F. Supp. 1138, 1143-44 (E.D.N.C.1986), aff'd, 822 F.2d 56 (4th Cir.1987). In the absence of any readily apparent prejudice to Peterson, this court sees no reason why LT cannot assert breach of contract and breach of warranty claims in the same complaint. Therefore, Peterson's motion to dismiss is denied with respect to Count VIII.
Counts IX and X Breach of Implied Warranties
In addition to its breach of express warranty claim, LT seeks relief for breach of the implied warranties of merchantability and fitness for a particular purpose pursuant to Article 2 of the Uniform Commercial Code ("UCC"). See Ill.Rev.Stat. ch. 26, pars. 2-314, 2-315 (1989). Article 2, however, applies only to "transactions in goods." Ill.Rev.Stat. ch. 26, par. 2-102 (1989). The UCC defines "goods" as "all things ... which are movable at the time of identification to the contract." Ill.Rev. Stat. ch. 26, para. 2-105(1) (1989).
In support of its motion to dismiss, Peterson argues that it "did not sell `goods' to LT but rather sold the bulk of its assets." Memorandum in Support of Peterson's Motion to Dismiss, at 7. Contrary to Peterson's assertion, corporate assets may be characterized as "goods" under certain circumstances. See Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 13-14 (1st Cir.1987) (contract for the sale of the assets of a construction company, consisting mainly of equipment and inventory, was a "sale of goods" as defined in Article 2 of the UCC); DeFilippo v. Ford Motor Co., 516 F.2d 1313, 1323 (3d Cir.), cert. denied, 423 U.S. 912, 96 S. Ct. 216, 46 L. Ed. 2d 141 (1975) (sale of an automobile dealership was a transaction in goods under Article 2). The question, then, is whether the assets sold by Peterson qualify as goods within the meaning of the UCC. To determine whether a particular transaction involves the sale of goods or non-goods, Illinois courts apply the "dominant purpose" test. See Yorke v. B.F. Goodrich Co., 130 Ill.App.3d 220, 223, 85 Ill. Dec. 606, 608, 474 N.E.2d 20, 22 (1985); Wico Corp. v. Willis Indus., 567 F. Supp. 352, 355 (N.D.Ill.1983). A contract which predominantly involves the sale of goods is subject to the UCC in its entirety.
LT acquired Peterson's inventory, machinery, and other equipment, as well as its so-called "intangible assets." See Asset Purchase Agreement, ¶ 1. The machinery, equipment and inventory sold by Peterson may be classified as goods; such physical *516 assets were "movable at the time of identification to the contract." Ill.Rev.Stat. ch. 26 par. 2-105(1) (1989). The remaining assets which are of an intangible nature include Peterson's tradenames, trademarks, logos, advertising, artwork, customer lists, sales records, unfulfilled sales orders, goodwill, and licensing agreements. Asset Purchase Agreement, ¶ 1A. These assets cannot be legitimately characterized as goods, and LT has not identified any authority which suggests that such assets fall within the scope of Article 2.
Having concluded that Peterson's tangible assets are goods, and that its intangible assets are non-goods, the court must next determine whether the transaction predominantly involved the sale of goods or nongoods. LT purchased the assets of Peterson for $1,200,000. Affidavit of Ronald DeClassis, ¶ 2. The intangible assets, or non-goods, accounted for $1,000,000 of the total purchase price. See Asset Purchase Agreement, ¶ 3A. The tangible assets were sold for $200,000, approximately 17% of the total purchase price. In light of the fact that only a relatively small percentage of the total purchase price consisted of goods, the court concludes that the transaction at issue cannot be characterized as a sale of goods. Compare Cianbro, 814 F.2d at 13-14 (the agreement was predominantly for the sale of goods as 98% of the total purchase price represented equipment and inventory) with Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 423 & n. 9, 305 A.2d 689, 696 & n. 9 (1973), cert. denied, 414 U.S. 1158, 94 S. Ct. 916, 39 L. Ed. 2d 110 (1974) (contract for the sale of two radio stations was not a sale of goods; the physical assets represented only 4.6% of the total purchase price) and Dravo Corp. v. White Consol. Indus., Inc., 602 F. Supp. 1136, 1140-41 (W.D.Pa.1985) (Article 2 did not apply to a corporate acquisition because goods represented less than one-half of the purchase price). Since the sale of Peterson's assets was not a sale of goods, the UCC does not provide an avenue of relief for LT's implied warranty claims.
LT argues that even if the warranties were not made in connection with the sale of goods, it may nonetheless recover under a common law warranty theory. Illinois courts have recognized certain implied warranties at common law. See, e.g., Naiditch v. Shaf Home Builders, Inc., 160 Ill.App.3d 245, 264, 111 Ill. Dec. 486, 497, 512 N.E.2d 1027, 1038 (1987) (implied warranty of habitability accompanying the sale of a home); Harmon v. Dawson, 175 Ill. App. 3d 846, 849, 125 Ill. Dec. 406, 409, 530 N.E.2d 564, 567 (1988) ("one who contracts to perform construction work impliedly warrants to do the work in a reasonably workmanlike manner"). LT, however, has not cited a single Illinois case recognizing a common law implied warranty which would extend to the type of transaction involved in this case i.e., the sale of a corporation's assets. Supplying no authority for its position, LT cannot pursue a claim for breach of a common law implied warranty. Peterson's motion to dismiss with respect to Counts IX and X is granted.
Count XI Massachusetts Unfair Trade Practices Statute
In Count XI, LT asserts a claim under the Massachusetts unfair trade practices statute, which prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Mass.Ann.Laws ch. 93A, § 2(a) (Law. Co-op 1985). The statute applies only to conduct that occurs "primarily and substantially within [Massachusetts]." Mass.Ann.Laws ch. 93A, § 11 (Law. Co-op Supp.1990).[6]
LT claims that Peterson violated the unfair trade practices statute by "expressing material misrepresentations concerning the quality of the goods sold to LT." Counterclaim, ¶ 51. Yet, LT does not allege that any misrepresentation was made in Massachusetts, much less than an unfair or deceptive act occurred primarily and substantially within Massachusetts. Peterson conducted little, if any, business activity in Massachusetts. In fact, the transaction giving rise to LT's cause of action occurred primarily in Illinois. LT initiated the contract *517 negotiations in Illinois, and all negotiations regarding the purchase of Peterson's assets were conducted in Illinois. As noted previously, the alleged misrepresentations occurred in Illinois. Because the alleged unfair trade practice did not occur in Massachusetts, the Massachusetts statute is inapplicable. See Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 638, 473 N.E.2d 662, 672 (1985); Goldstein Oil Co. v. C.K. Smith Co., 20 Mass.App.Ct. 243, 479 N.E.2d 728, 732 (1985). Therefore, Peterson's motion to dismiss Count XI of LT's counterclaim is granted.
CONCLUSION
For the foregoing reasons, plaintiffs' motion to dismiss is granted with respect to Counts I, III, IV, V, IX, X, and XI of defendants' counterclaim, and denied with respect to Counts VI and VIII. Plaintiffs' motion to strike is denied.
IT IS SO ORDERED.
NOTES
[1] To avoid confusion, the court will refer to defendants/counterplaintiffs DeClassis and LT as "LT." Plaintiffs/counterdefendants Fink and Peterson will be referred to as "Peterson," except where inappropriate.
[2] Similar to the fraud claim, LT's other tort claims have very little connection with Massachusetts. For the most part, these claims stem from the same alleged misrepresentations giving rise to the fraud claim. Therefore, based on the same choice-of-law analysis set forth above, the court finds that Illinois law is applicable to all of LT's tort claims.
LT's contract claims will also be evaluated according to Illinois law. Under the most significant contacts test the approach commonly employed by Illinois courts in contract disputes the following factors must be considered: (1) the place of contracting; (2) the place of negotiation; (3) the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, residence, place of incorporation, and place of business of the parties. Palmer, 823 F.2d at 1108-09; Champagnie v. W.E. O'Neil Constr. Co., 77 Ill. App. 3d 136, 145, 32 Ill. Dec. 609, 615, 395 N.E.2d 990, 996 (1979). Although the fifth factor is inconclusive because the parties reside and conduct business in separate states, the first four factors clearly favor Illinois. Illinois is the place of contracting, negotiation, performance, and the location of the subject matter of the asset purchase agreement.
[3] Peterson has also moved to strike Count IV, claiming that LT's fraud and intentional misrepresentation claims are redundant. Since the court has granted Peterson's motion to dismiss with respect to Counts I and IV, Peterson's motion to strike Count IV is denied as moot.
[4] Peterson was formerly known as Brighton Products, Inc. ("Brighton").
[5] In the alternative, Peterson argues that the warranty claim should be dismissed as to Fink because Fink is not a party to the asset purchase agreement. That argument will not provide a basis for dismissal. This court has already ruled that there are sufficient facts which indicate that Fink is a party to the asset purchase agreement.
[6] Section 11 of the statute provides that "[n]o action shall be brought or maintained under this section unless the actions and transactions constituting the alleged unfair method of competition or the unfair or deceptive act or practice occurred primarily and substantially within the commonwealth." Mass.Ann.Laws ch. 93A, § 11 (Law. Co-op Supp.1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614558/ | 331 N.W.2d 231 (1983)
STATE of Minnesota, Respondent,
v.
Robert FOLSTROM, Appellant.
No. C7-82-663.
Supreme Court of Minnesota.
March 11, 1983.
Tupper, Smith, Mattson & Finn and Harold R. Finn, Walker, for appellant.
Hubert H. Humphrey III, Atty. Gen., St. Paul, James R. Wilson, County Atty., Bagley, for respondent.
Hubert H. Humphrey III, Atty. Gen., Richard B. Allyn, Deputy Atty. Gen., James M. Schoessler and Stephen B. Masten, Sp. Asst. Attys. Gen., St. Paul, for amicus Minnesota Atty. Gen.
Heard, considered and decided by the court en banc.
TODD, Justice.
Robert Folstrom, a Chippewa Indian, was convicted of possession of a pistol without a permit in violation of Minn.Stat. § 624.714 (1982), a Minnesota criminal statute. At the time of the arrest, Folstrom was on Indian trust property adjacent to reservation property. Folstrom claims he was using the pistol for deer hunting. He further claims that the State of Minnesota has no subject matter jurisdiction under the facts of this case. We affirm.
*232 The facts are stipulated and provide as follows:
1. Robert Folstrom, the Defendant, is an enrolled member of the White Earth Band of Chippewa Indians of the Minnesota Chippewa Tribe.
2. The Defendant was arrested for possessing a pistol without a permit from the State of Minnesota.
3. The Defendant did, in fact, possess a pistol and did not have a permit required by the State of Minnesota at the time the offense was charged.
4. At the time of the arrest, Defendant indicated to the arresting officer, Deputy Sheriff Marcell Goodwin, that he was carrying the pistol for the purpose of hunting deer if he should encounter any on his way to and from work.
5. The site of the arrest and the incident involved was on a roadway and within the easement of a roadway held in trust by the United States of America for the Minnesota Chippewa Tribe and maintained by the Bureau of Indian Affairs on behalf of the Minnesota Chippewa Tribe.
6. The Indian trust property involved in this incident lies within the four disputed townships which was the subject of decision by the Eighth Circuit Court of Appeals in the case of White Earth Band of Chippewa Indians, et al. v. Alexander, et al., Slip Opinion filed May 14, 1982, Circuit Judge McMillian writing for the Court. [683 F.2d 1129 (8th Cir.1982)].
7. The activity involved in this matter occurred a short distance outside the boundaries of the territory covered by the decision State v. Clark, 282 N.W.2d 902 (Minn.1979). It involves a road and right-of-way held in trust by the Bureau of Indian Affairs for the Minnesota Chippewa Tribe running from the area covered by Clark to another parcel of Tribal trust property lying within the four disputed townships.
8. The State of Minnesota does not have any direct evidence to contradict the Defendant's assertion that he was carrying the pistol for the purpose of hunting deer at the time of his arrest.
9. A White Earth Conservation Officer would testify that there was no open season for deer within the White Earth Reservation on November 28, 1979, the date of Defendant's alleged offense.
10. The White Earth Bank Conservation Officer would further testify that in 1979 it was an offense under the Conservation Code of the Tribe to take a deer with a pistol in the Reservation even during an open season.
11. A State Conservation Officer would testify that there was no open season for taking deer in the State of Minnesota on November 28, 1979 and that it was illegal to take a deer with a pistol even in an open season.
12. The arresting officer, Marcell Goodwin, would testify that he found no guns and no cutting instruments in the automobile or upon the occupants thereof, including Defendant, except the pistol, which was found under the front seat of the vehicle.
Based on these facts, the trial court found Folstrom guilty of illegal possession of a pistol. The trial court held that Minnesota had jurisdiction to enforce its criminal code. The trial court further made a factual determination that Folstrom was not engaged in deer hunting at the time of his arrest. We affirm.
The issues presented are:
1. Does Minnesota's criminal statute apply under the facts of this case?
2. Was the defendant Folstrom engaged in the act of deer hunting at the time of his arrest?
1. Folstrom was arrested for possessing a pistol without a permit under the provisions of Minn.Stat. § 624.714, subd. 1 (1982), which provides in part:
624.714 Carrying of weapons without permit; penalties.
Subdivision 1. Penalty. A person, other than a law enforcement officer who has authority to make arrests other than citizens arrests, who carries, holds or possesses a pistol in a motor vehicle, snowmobile or boat, or on or about his clothes or *233 person, or otherwise in his possession or control in a public place or public area without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor.
Folstrom argues that his conviction is invalid because the statute under which he was convicted is not a criminal statute. He claims that it is a civil or regulatory statute, similar to a statute requiring a permit to hunt or fish. State civil regulatory statutes, appellant contends, cannot be enforced in Indian country, following Bryan v. Itasca County, Minnesota, 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976). He argues that the district court, therefore, had no jurisdiction to decide this case.
We decline to accept the argument of the defendant. The statute in question is part of the Criminal Code of 1963, Part V, entitled "Crimes, Criminals"; the title of Chapter 624 is "Crimes, other provisions." The act for which the defendant was arrested is defined as a gross misdemeanor, which is punishable by imprisonment for not more than one year or a fine of not more than $1,000, or both. Minn.Stat. § 609.03(2) (1982). The permit requirement does not convert the statute into a civil licensing statute. This court recognized that the purpose of Minn.Stat. § 624.714, subd. 1 (1982), is to prohibit criminal behavior when it stated in State v. Paige, 256 N.W.2d 298, 303 (Minn.1977):
[T]he statute is intended to prevent the possession of firearms in places where they are most likely to cause harm in the wrong hands, i.e., in public places where their discharge may injure or kill intended or unintended victims. The only exception to this rule is for persons who have demonstrated a need or purpose for carrying firearms and have shown their responsibility to the police in obtaining a permit. The statute is therefore properly characterized as a "general prohibition": Anyone having a firearm in a public place may be prosecuted if he has no permit. "Without a permit" is not an element of the crime, but only indicates that some persons cannot commit the offense by reason of having a valid permit.
In Blore v. Mossey, 311 Minn. 288, 290, 249 N.W.2d 447, 448 (1976), this court noted that the permit requirement operates "to restrict the class of persons" who are allowed to carry pistols. The state can reasonably restrict the class. This court so held in In re Atkinson, 291 N.W.2d 396, 399 (Minn.1980), where the restriction is "in the interest of public safety."
The defendant invites us to adopt the criteria established by the federal court in the case of Seminole Tribe of Florida v. Butterworth, 658 F.2d 310, (5th Cir.1981). In that case the court classified statutes by determining whether they were "civil/regulatory" or "criminal/prohibitory". We decline to adopt this approach.[1] Rather, we prefer a direct approach. Minn.Stat. § 624.714 (1982), is part of our criminal code. It defines possession of a pistol without a permit as a crime and provides criminal punishment. It is a criminal statute.
This classification is of importance since Congress has granted Minnesota the power to enforce its criminal statutes in Indian country. 18 U.S.C. § 1151 (1976), provides that "Indian country" means * * * "(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." The road on which appellant was arrested was part of trust land, Indian title to which had not been extinguished. By federal statute, the road is part of Indian country.
Ordinarily, state law does not apply to offenses committed by Indians in Indian country. 18 U.S.C. § 1152 (1976). But Congress has provided[2] that states can extend *234 their criminal jurisdiction over offenses committed by or against Indians in certain areas.
18 U.S.C. § 1162 (1976), provides:
§ 1162 State jurisdiction over offenses committed by or against Indians in the Indian country
(a) Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory:
State or Indian country affected
Territory of
... ...
Minnesota ........... All Indian country
within the State, except
the Red Lake
Reservation.
...
Thus, we conclude that Minnesota had jurisdiction to arrest, prosecute and convict the defendant Folstrom.
2. Folstrom further contends that a treaty conferred hunting rights upon him at the place of his arrest. The trial court made a factual determination that he was not hunting. This finding of fact is not clearly erroneous. Minn.R.Civ.P. 52.01. Having concluded that Folstrom was not in fact hunting deer at the time of his arrest, we need not discuss what hunting rights he possessed at the time of his arrest.[3]
The arrest, prosecution and conviction of the defendant Folstrom violated none of his rights as a member of White Earth Band of Chippewa Indians of the Minnesota Chippewa Tribe.
Affirmed.
NOTES
[1] We do note that under the Butterworth test this particular statute should be classified as criminal/prohibitory.
[2] Act of Aug. 15, 1953, Pub.L. No. 280, § 2, 67 Stat. 588, 588-89 (1953) (codified as amended at 18 U.S.C. § 1162 (1976)). See Bryan v. Itasca County, Minnesota, 426 U.S. 373, 383, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976) (legislative history of Pub.L. No. 280 indicates legislative intent to supplement inadequate law enforcement resources in Indian country by extending state jurisdiction).
[3] The defendant has cited a recent Wisconsin decision, State v. Lemieux, 110 Wis. 2d 158, 327 N.W.2d 669 (1983). In that case, the Wisconsin court held that the particular statute involved was primarily a hunting regulation and its enforcement would infringe upon the hunting rights of the defendant. Thus, the Wisconsin case is distinguishable and inapplicable to the facts of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614556/ | 331 N.W.2d 398 (1983)
Alex STONE and Martha Stone, Appellants,
v.
CITY OF WILTON, Iowa; Wilbert H. Stoelk, Mayor; and Christian L. Graber, Jerry L. Smith, Robert Gust, Max L. Lauser, and Richard L. Garrison, City Councilmen, Appellees.
No. 67243.
Supreme Court of Iowa.
March 16, 1983.
*400 Edward N. Wehr of Wehr & DeLange, Davenport, and John C. Fishburn of Fishburn & Fishburn, Muscatine, for appellants.
Rand S. Wonio of Lane & Waterman, Davenport, and Mark R. Gillett, Wilton, for appellees.
Considered by LeGRAND, P.J.,[*] and HARRIS, McCORMICK, McGIVERIN and CARTER, JJ.
McGIVERIN, Justice.
Plaintiffs Alex and Martha Stone appeal from the dismissal of their petition for declaratory judgment, injunctive relief and damages in an action regarding defendant City of Wilton's rezoning from multi-family to single-family residential of certain real estate owned by plaintiffs. The issues raised by plaintiffs focus on the validity of the rezoning ordinance and the trial court's striking of plaintiffs' claim for lost profits. We find no error in trial court's rulings and affirm its decision.
This appeal is a zoning dispute involving approximately six acres of land in the city of Wilton, Iowa. Plaintiffs purchased the undeveloped land in June 1979 with the intent of developing a low income, federally subsidized housing project. The project was to consist of several multi-family units; therefore, feasibility of the project depended upon multi-family zoning of the tract. At the time of purchase approximately one-fourth of plaintiffs' land was zoned R-1, single-family residential, and the remainder was zoned R-2, multi-family residential.
After the land was purchased, plaintiffs incurred expenses for architectural fees and engineering services in the preparation of plans and plats to be submitted to the city *401 council and its planning and zoning commission. In addition, plaintiffs secured a Farmers' Home Administration (FHA) loan commitment for construction of the project.
This suit is based primarily on actions of city officials between December 1979 and June 1980. We will discuss only the most pertinent events now and will relate other facts later when we consider the issues raised by plaintiffs.
In December 1979 plaintiffs filed a preliminary plat for the project with the city clerk. In March 1980, following a public meeting, the planning and zoning commission recommended to the city council that land in the northern part of the city be rezoned to single-family residential due to alleged inadequacies of sewer, water and electrical services. The rezoning recommendation affected all of plaintiffs' property plus tracts owned by two other developers. Plaintiffs' application on May 21, 1980, for a building permit to construct multi-family dwellings was denied due to the pending rezoning recommendation.
In May 1980, plaintiffs filed a petition against the city seeking a declaratory judgment invalidating any rezoning of their property, temporary and permanent injunctions to prohibit passage of any rezoning ordinance, and in the event of rezoning, $570,000 damages for monies expended on the project, anticipated lost profits and alleged reduction in the value of plaintiffs' land. The temporary injunction was denied.
In accordance with the recommendation of the planning and zoning commission, the city council passed an ordinance rezoning the land from R-2 to R-1 in June 1980. Following the council's rezoning decision, the planning and zoning commission approved plaintiffs' preliminary plat.
This action proceeded to trial in November 1980.
I. Scope of Review. Normally, zoning disputes reach us on appeal from a trial court's judgment on a writ of certiorari to the appropriate board of adjustment or the board making the zoning decision. In such cases our review is the same as from judgment following a special verdict by a jury. Grandview Baptist Church v. Zoning Board of Adjustment of the City of Davenport, 301 N.W.2d 704, 707 (Iowa 1981). The uniqueness of the procedural background of this case, however, necessitates a different standard of review.
This case was comprised of three distinct elements: a petition for a declaratory judgment as to validity of the zoning ordinance, a request for temporary and permanent injunctions, and a request for money damagesan action ostensibly combining law and equity. The fact that a declaratory judgment and injunctive relief were sought is not dispositive of whether this action is at law or in equity. Green v. Advance Homes, Inc., 293 N.W.2d 204, 208 (Iowa 1980) (nature of action seeking injunctive relief determined in light of relief sought and nature of error claimed on appeal); Freese Leasing, Inc. v. Union Trust and Savings Bank, 253 N.W.2d 921, 925 (Iowa 1977) (nature of action for declaratory judgment determined by examination of the pleadings, the relief sought and the nature of the case).
The present case was denominated and tried as a matter in equity throughout the proceedings and the trial court's ruling resembles a ruling in equity. The main thrust of plaintiffs' case, both in the trial court and on appeal, is that the rezoning of their land is constitutionally and statutorily invalid. Monetary damages were sought as an alternative to injunctive relief, but on appeal the only issue concerning damages is whether the trial court erred in striking plaintiffs' claims for lost profits. In light of these facts we conclude that this case is best treated as one in equity. Our review, therefore, is de novo. Iowa R.App.P. 4.
II. Validity of the rezoning ordinance. Plaintiffs raise several constitutional and statutory challenges to the validity of the rezoning ordinance. We have reviewed all of plaintiffs' contentions, but for the sake of clarity our discussion departs substantially from the manner in which the issues were briefed by the parties.
*402 Land use restrictions (such as at issue here) reasonably related to the promotion of the health, safety, morals, or general welfare repeatedly have been upheld even though the challenged regulations destroyed or adversely affected recognized real property interests or flatly prohibited the most beneficial use of the property. See Agins v. City of Tiburon, 447 U.S. 255, 262, 100 S. Ct. 2138, 2142, 65 L. Ed. 2d 106, 113 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 125, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 649, rehearing denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978). Hence, such laws, when justifiable under the police power, validly enacted and not arbitrary or unreasonable, generally are held not to be invalid as taking of property for public use without compensation. However, some instances of government regulation are "so onerous as to constitute a taking which constitutionally requires compensation." Goldblatt v. Town of Hemptstead, 369 U.S. 590, 594, 82 S. Ct. 987, 990, 8 L. Ed. 2d 130, 133 (1962); see e.g. Kasparek v. Johnson County Board of Health, 288 N.W.2d 511 (Iowa 1980) (new regulations relating to private sewage disposal system permits constituted a taking because property owners would be deprived of any reasonable use of their land, not merely the most beneficial use).
A. We focus initially on the general claims which plaintiffs make concerning the validity of the rezoning. Controlling our review of the enactment's validity is the principle that the validity of a police power enactment, such as zoning, depends on its reasonableness; however, "[the Supreme Court] has often said that `debatable questions as to reasonableness are not for the courts but for the legislature....'" Goldblatt, 369 U.S. at 595, 82 S.Ct. at 990, 8 L.Ed.2d at 134.
The zoning ordinance at issue was passed as a general welfare measure. It affected not only Stones' proposed housing project, but also land owned by Land, Ltd. and Wilton Sunset Housing Corporation, which intended to erect multi-family housing for the elderly. The city council's stated reasons for rezoning this section of the city from R-2 to R-1 were as follows: (1) The existing zoning was no longer appropriate to the current and anticipated growth and development of the area; (2) the existing zoning would create a greater density than now appropriate; (3) the existing zoning would create a traffic and pedestrian flow too great for the existing street and sidewalk systems in the area; and (4) the city's electrical, water and sewer systems were inadequate for a concentration of multi-family dwellings in that area of town.
Plaintiffs, however, claim the above were mere pretext. They contend that the council disregarded its comprehensive plan. They further argue that the council was prompted by a desire to advance the private economic interests of a member of the planning and zoning commission and by racial discrimination against the "type" of persons who might live in plaintiffs' housing project. The trial court disagreed and so do we. "If the [city council] gave full consideration to the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area, then it has zoned in accordance with a comprehensive plan." Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687, 695 (Iowa 1980). On the record in this case, we cannot conclude that the council's stated reasons, which are recognized as valid reasons for zoning, Iowa Code §§ 414.2, .3 (1981), were mere pretext.
The apartment-owner member of the planning and zoning commission, whose interests, plaintiffs claim, were a basis for the rezoning, did not participate in the commission's resolution recommending rezoning. Thus the ordinance passed by the city council cannot be declared invalid due to an alleged conflict of interest. See Iowa Code § 362.6 (1981) ("A measure voted upon is not invalid by reason of conflict of interest in an officer of the city, unless the vote of the officer was decisive to passage of the measure.").
Plaintiffs also suggested that questions concerning the "types" of tenants in the housing project were racially motivated and *403 affected the council's decision to rezone. The evidence is clear that the Wilton city council was faced with a number of competing concerns in regard to the proper zoning of the area of the city in which plaintiffs' land was situated. It is precisely because legislative bodies, like this city council, are faced with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions if at least a debatable question exists as to the reasonableness of their action.
"But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450, 465 (1977). We are unable to find sufficient evidence in the record to conclude that plaintiffs carried their burden of proof. We find that discriminatory purpose was not a motivating factor in the council's decision to rezone.
In sum, zoning is not static. Anderson v. City of Cedar Rapids, 168 N.W.2d 739, 743 (Iowa 1969). A city's comprehensive plan is always subject to reasonable revisions designed to meet the ever-changing needs and conditions of a community. We conclude that the council rationally decided to rezone this section of the city to further the public welfare in accordance with a comprehensive plan.
Plaintiffs raise one additional claim to the validity of the ordinance; they say that the planning and zoning commission failed to approve their preliminary plat in the 30-day period required by the city ordinance. While this is true, plaintiffs themselves had a hand in the many delays. They acquiesed to the original meeting being held more than 30 days after filing of the plat and then failed to attend the meeting. At no time did plaintiffs seek to invoke the city ordinance which allowed the city council to act on the plat if the planning and zoning commission failed to take timely action. We infer that plaintiffs let the delays work to their benefit while they were engaged in dealing with the FHA's request for a bi-state review of their project. This review was prompted by plaintiffs increasing from 24 to 28 the number of apartment units in their proposal to the FHA for financing. The plat which eventually was approved by the planning and zoning commission had been platted in conformance with R-1 zoning and thus remains available for plaintiffs' use under the current zoning scheme.
The delay in the approval of their plat did not prejudice Stones.
B. As stated earlier, the inevitable restrictions on individual uses of property which accompany zoning normally do not constitute a taking. Plaintiffs, however, claim to have had a vested right in developing their property as subsidized, multi-family housing and, therefore, the rezoning allegedly amounted to a taking of this right. Consequently, they contend the zoning ordinance should be inapplicable to their project. We disagree.
The record shows that a factor in the Stones' choice of property was zoning which permitted multi-family residences. Immediately after purchasing the property in Wilton, plaintiffs made certain expenditures in preparation for obtaining the necessary government financing and in order to comply with city ordinances for platting and building permits. These expenditures totaled approximately $7,900, plus the time and effort expended personally by the plaintiffs.
The standard for determining if a property owner has vested rights in a zoning classification was set forth in Board of Supervisors of Scott County v. Paaske, 250 Iowa 1293, 1300, 98 N.W.2d 827, 831 (1959):
It is impossible to fix a definite percentage of the total cost which establishes vested rights and applies to all cases. It depends on the type of the project, its location, ultimate cost, and principally the amount accomplished under conformity. Each case must be decided on its own merits, taking these elements into consideration. *404 (Emphasis added.) Prior to rezoning, Paaske purchased a parcel of land onto which he planned to move five houses. The county granted him a permit to move the houses. Paaske excavated the basements for four houses; placed a septic tank underground for the fifth house; laid concrete footings for the basement of two houses; entered into a contract for the building of the foundations under all five houses, and placed a substantial amount of building materials on the property before the land was rezoned. We concluded that Paaske's endeavors prior to rezoning were so substantial that he had a vested right in completing his project. See also Crow v. Board of Adjustment of Iowa City, 227 Iowa 324, 288 N.W. 145 (1939) (contract for construction of new building, purchase of material and partial completion of excavation and foundation work prior to revocation of building permit created vested rights); c.f., Brackett v. City of Des Moines, 246 Iowa 249, 261-62, 67 N.W.2d 542, 548 (1954) (while owned by plaintiff, land zoned commercial and approximately twenty-five years later rezoned residential; just prior to rezoning plaintiff obtained a building permit for a commercial building, had plans drawn up and took bids for construction but no work done prior to revocation of permit; "in the absence of any actual construction by plaintiff under his building permit its revocation was not in violation of his vested rights").
In the present case, one of the factors leading to the purchase of this land in Wilton was the fact that it was zoned for multi-family residences. Plaintiffs secured funding from the FHA and engaged the services of an architect and engineer who drew up plans and plats. But these were only the most preliminary steps towards construction. The architect's plans were not the working blueprints of a contractor. The trial court stated they were "the kind [of plans] that one could find in Better Homes and Gardens [magazine]." No construction bids were sought and no construction contracts were let. No materials were placed on the site and no construction or earth work was started. We agree with the trial court that plaintiffs' efforts and expenditures prior to rezoning were not so substantial as to create vested rights in the completion of the housing project on that particular tract of land in Wilton.
Under the facts of this case, plaintiffs had to prove they had a vested right to complete their intended project in order to argue that the rezoning constituted a taking. All that the rezoning did was to deprive plaintiffs of what they considered to be the land's most beneficial use. If, as we have found, the ordinance is a valid exercise of police power, the fact that it deprives the property of its most beneficial use does not render it an unconstitutional taking. Goldblatt, 369 U.S. at 592, 82 S.Ct. at 989, 8 L.Ed.2d at 133.
"In determining where a zoning regulation ends and a taking of property begins, the test is essentially one of reasonableness." C. Rhyne, The Law of Local Government Operations, § 26.16 at 745 (1980). See Kasparek, 288 N.W.2d at 517-20; Keller v. City of Council Bluffs, 246 Iowa 202, 209-12, 66 N.W.2d 113, 117-19 (1954). We do not believe that rezoning a portion of plaintiffs' property from R-2 to R-1 exceeded the bounds of reasonableness. The city council clearly could have reasonably believed that the general welfare interests of the community outweighed the Stones' investment interest in constructing subsidized, multi-family housing.
Even if the testimony of Stones' expert is accepted, the change in zoning resulted in, at most, a 42% decrease in value of their property. Such economic impact does not constitute a taking in light of the council's reasonable belief that the public welfare required a change in zoning. See Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926) (75% dimunition in value caused by zoning law did not constitute a taking). Other evidence, however, showed the rezoning to R-1 only slightly affected the fair market value of plaintiffs' land.
Plaintiffs' claim to a right to realize their investment expectations overlooks *405 the fact that "rights granted by legislative action under police power can be taken away when in the valid exercise of its discretion the legislative body sees fit." Keller, 246 Iowa at 212, 66 N.W.2d at 119. At most, the decision of the council "took" from plaintiffs a sizeable tax shelter. Because the reasonableness of the council's decision to rezone plaintiffs' property clearly is at least a fairly debatable question, we cannot substitute our view of reasonableness for that of the council.
We hold that the ordinance which rezoned an area of the city of Wilton that included a portion of plaintiffs' land is valid and applicable to plaintiffs' land and proposed project.
III. Lost Profits. The last contention of Stones, which we will discuss, is the trial court's striking of their claim for lost profits. We hold that in order to claim lost profits, plaintiffs would have to prove that they had a vested right in completing the project and that the rezoning constituted a taking. Plaintiffs have failed to prove either. Consequently, on this appeal, we do not reach the issue of the propriety of the trial court striking plaintiffs' claim for lost profits.
IV. Appellate rules violation. Unfortunately, we must again comment on a matter which does not concern the merits of the appeal. In State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983), we drew attention to the recurring practice in criminal appeals of printing virtually the entire transcript in the appendix. This practice is also prevalent in many civil appeals and is not made tolerable merely because the printing costs are borne by the client rather than the county.
Iowa R.App.P. 15(a) requires that the appendix contain only the relevant portions of the record. This requirement envisions that the parties' attorneys will carefully edit the record so that only the most pertinent portions are included in the appendix. Such was not the case with the appendix submitted with this appeal.
Just as rule 15(a) is intended to ease the reading burden on the court in order to facilitate the appellate process, Iowa R.App.P. 14(e) is also intended to facilitate the appellate process in another way. Rule 14(e) requires that parallel citations be given for all case cites, both in the list of authorities and throughout the body of the brief. Not only is this the citation form acknowledged throughout the legal community, but it is a necessary timesaver for judges and attorneys who do not have ready access to each and every reporter system. Again, compliance with this rule is necessary for the efficient operation of our legal system.
This case is just an example of the too frequent failure to observe our appellate rules. This comment is directed to all appellate counsel who violate these and other appellate rules. In the future, in appropriate cases we will consider rejecting briefs and appendices which flagrantly violate the rules, and we will further consider ordering that the cost of the resubmitted, complying briefs and appendices be borne by the errant counsel.
AFFIRMED.
NOTES
[*] Senior Judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618005/ | 685 S.W.2d 557 (1985)
COMMONWEALTH of Kentucky, Movant,
v.
Mark Anthony SANDERS, Respondent.
Supreme Court of Kentucky.
February 28, 1985.
*558 David L. Armstrong, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for movant.
Julie Namkin, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for respondent.
STEPHENSON, Justice.
Mark Anthony Sanders was convicted of second-degree burglary (KRS 511.030) and sentenced to five years' imprisonment. The Court of Appeals reversed for a new trial based on the refusal of the trial court to instruct on criminal trespass, KRS 511.060. We granted discretionary review and reverse the decision of the Court of Appeals.
We discern a conflict between panels of the Court of Appeals in this Court of Appeals opinion and Polk v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978), rendered by a different panel.
The facts adduced at trial are as follows:
Three witnesses testified for the Commonwealth that Sanders, who was known in the neighborhood, was the man seen fleeing from the Thomas Green residence. Two of the witnesses saw Sanders, with a towel around his hand, break out the glass of a back window and jump out of the house. The third witness heard the glass break and saw Sanders jump a fence and run down an alley.
Green, the owner of the home, testified that a rifle, army jacket, and $200 to $300 worth of jewelry were missing. None of the items were recovered.
Sanders presented an alibi defense. The jury found him guilty of second-degree burglary. The Court of Appeals reversed the conviction on the ground that a "criminal trespass" instruction should have been given by the trial court.
First-degree criminal trespass, KRS 511.060, differs from second-degree burglary, KRS 511.030, only to the extent that the burglary statute requires "with intent to commit a crime." This phrase is not included in the criminal trespass statute.
In Martin v. Commonwealth, Ky., 571 S.W.2d 613 (1978), involving conviction for a burglary, we reversed for the failure of the trial court to give a criminal trespass instruction. There the defendants admitted entering the dwelling but denied committing a crime in the house or intending to do so. They testified to entering the house to investigate an apparent break-in, also that they were too drunk to form culpable intent. The Court of Appeals equated this case with Martin in requiring a criminal trespass instruction.
A different Court of Appeals panel considered this question in Polk. There the defendant denied the charge of burglary and presented an alibi defense. The house had been ransacked, and there was testimony that the defendant was seen entering and leaving the house. This panel of the Court of Appeals held that in the circumstances *559 of the case it was not error to refuse to give a criminal trespass instruction. Polk distinguished Martin on the basis of the alibi defense.
The factual situations here are markedly similar, and we are of the opinion Polk correctly construed our holding in Martin. In Martin we held in effect that the trial court is required to instruct on the defendant's theory of the case. This is another way of saying the trial court must instruct the jury according to the evidence. Here, Sanders' defense was alibi. We do not have testimony or circumstances that the jury could infer that there was presence in the house with no intent to commit a crime. There was testimony that articles of value were taken. Ordinarily, the Commonwealth need only show that the defendant entered or remained in the dwelling unlawfully. This showing permits the jury to infer intent to commit a crime in the absence of other facts which would justify the lesser degree instruction. Cf. Patterson v. Commonwealth, 251 Ky. 395, 65 S.W.2d 75 (1933), which illustrates the long-standing rule in burglary cases that proof of the act of entering creates the inference of criminal intent. We are not saying that in some circumstances a criminal trespass instruction would not be required even when the defense is alibi.
We are of the opinion the trial court properly refused to give a criminal trespass instruction.
The other assertions of error are not preserved for appellate review.
The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612523/ | 282 So.2d 453 (1973)
Anthony BELLARD, Plaintiff-Appellant-Relator,
v.
TRI-STATE INSURANCE COMPANY et al., Defendants-Appellees-Respondents.
No. 52847.
Supreme Court of Louisiana.
August 20, 1973.
Rehearing Denied September 24, 1973.
*454 Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-appellant.
Guillory, McGee & Mayeux, Aaran Frank McGee, Eunice, for defendant-appellee.
TATE, Justice.
The plaintiff Bellard sues for workmen's compensation benefits. Made defendants are the Acadian Pulpwood Corporation and its insurer, Tri-State Insurance Company. The court of appeal, one judge dissenting, affirmed the trial court's dismissal of the suit on the ground that no employer-employee relationship existed between Bellard and Acadian. 265 So.2d 808 (La. App.3d Cir.1972).
We granted certiorari, 263 La. 9, 266 So.2d 713 (1972), primarily because the intermediate court had failed to consider Acadian's liability for compensation benefits as a principal which employed Bellard's immediate employer (Semien). A principal is liable in compensation to an employee of a contractor engaged to perform work which is part of the principal's trade, business, or occupation. La.R.S. 23:1061.
The plaintiff Bellard was injured while cutting pulpwood for Adam Semien, his immediate employer. Semien was cutting wood, with his own equipment and crew (including Bellard), on the Deo Guidry tract. He was cutting it to deliver it to Acadian's pulpwood yard.
The defendant Acadian Pulpwood Corporation is engaged in the business of securing pulpwood to ship off to large purchasers. It ran a pulpwood yard in Eunice.
Acadian's sole stockholder testified as follows: The company never bought timber itself for processing into pulpwood. It merely purchased pulpwood brought in by "producers" or "haulers", such as Semien (the plaintiff Bellard's immediate employer). They themselves allegedly made arrangements to secure their own timber to cut into pulpwood and to haul for sale to pulpwood yards, such as that operated by Acadian.
However, this stockholder took no part himself in the management of the company.
*455 He was only generally familiar with its operations.
The yard employee of the company testified, from recollection, that the timber from the Deo Guidry tract had been purchased by Waltrip and that "Acadian Pulpwood was cutting and hauling it." Semien had been directed to the Guidry tract by Raymond Heinen, the general manager of Acadian, who was the sole person who gave him permission to enter the tract and cut the timber off it.
Semien had been cutting and hauling wood for Acadian for four or five years. He always went to cut on tracts as pointed out by Heinen, and he always brought all wood produced to Acadian. He testified that he purchased his truck and saw on credit from Acadian and would pay for them by deductions from the proceeds of the pulpwood delivered to Acadian.
As the dissenting judge in the court of appeal correctly stated:
"The plaintiff, Anthony Bellard, was a laborer working for a one-truck producer named Adam Semien. Semien is uneducated and inarticulate, but his testimony shows clearly that he was an independent contractor under an agreement with Acadian. He did not own this timber and did not even know who did. All he knew was what he was told by Mr. Heinen, Acadian's General Manager. Mr. Heinen told him where to cut the wood, to haul it to Acadian's yard and he would be paid by the cord. Semien did exactly this. * * *
"Mr. Heinen, Acadian's manager, must have known who owned this timber. Yet defendant did not call him as a witness. * * *
"Plaintiff proved a principal-contractor relationship between Acadian and Semien. The evidence is uncontradicted that Heinen, Acadian's manager, showed Semien the timber and told him to cut and haul it to Acadian's yard at an agreed sum per cord for his services. Semien did exactly that. * * *"
We have consistently held that where, as here, a principal engaged in procuring timber products is actually paying for services in their processing, the person rendering the services is a contractor performing work which is part of the principal's business; so that employees of the contractor are entitled to compensation benefits from the principal, if injured as here while performing work in the principal's business. Hart v. Richardson, 272 So.2d 316 (La.Sup.Ct.1973); Stevens v. Mitchell, 234 La. 977, 102 So.2d 237 (1957); Jones v. Hennessy, 232 La. 786, 95 So.2d 312 (1957); Kline v. Dawson, 230 La. 901, 89 So.2d 385 (1956).
In this regard, compensation liability is not defeated because the transaction between the principal and the contractor includes incidents of a buyer-seller relationship. Hart v. Richardson, cited above. Further, in the absence of evidence clearly showing that the contractor was producing for the open market rather than primarily for the principal, a long-continuing relationship whereby the contractor primarily processes timber products for the principal, or one involving the furnishing by the principal to the contractor of the equipment to perform the work (albeit in the form of a credit sale), are indicia tending to prove that the contractor is employed in the principal's business while processing timber products. Vinzant v. L. L. Brewton Pulpwood Co., 239 La. 95, 118 So.2d 117 (1960); Jones v. Hennessy, cited above.
We conclude, therefore, that Acadian and its insurer Tri-State are responsible to Bellard for compensation benefits due because of the present accidental injury sustained while performing Acadian's work. The previous courts were in error in concluding to the contrary.
For the foregoing reasons, the judgments of the previous courts are reversed, *456 and this case is remanded to the Court of Appeal, Third Circuit, for it to determine the compensation benefits due, if any, by reason of the accidental injury sustained by the plaintiff. The costs of this application to this court are assessed against the defendants-appellees; all other costs are to be assessed upon final termination of these proceedings.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/18026/ | 180 F.3d 234
Myron BASS, Plaintiff-Appellant,v.PARKWOOD HOSPITAL, Parkwood Hospital/Staff; Desoto County,MS; Subbulaxmi Rayudu, Dr.; Victoria Sheets,Defendants-Appellees.
No. 97-60446.
United States Court of Appeals,Fifth Circuit.
July 1, 1999.
Myron Bass, West Memphis, AR, pro se.
James Talleyrand McColgan, III, Smith, Sabbatini & McLeary, PLLC, Memphis, TN, for Parkwood Hosp., Rayudu and Sheets.
Gary K. Smith, Smith, Sabbatini & McLeary, Memphis, TN, for Parkwood Hosp. and Rayudu.
Robert Porter Chamberlin, Hernando, MS, for Desoto Cty., MS.
Appeal from the United States District Court for the Northern District of Mississippi.
Before GARWOOD, DUHE and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
1
Plaintiff-appellant Myron Bass (Bass) appeals the district court's order revoking his in forma pauperis status and dismissing with prejudice his complaint, which asserted purported claims related to his involuntary civil commitment at Parkwood Hospital (Parkwood or the hospital) in Mississippi. We affirm in part, vacate in part, and remand.
BACKGROUND
2
The Mississippi Code regulates the involuntary commitment of persons to mental health institutions within Mississippi. See Miss.Code Ann. §§ 41-21-61 to -107 (1993 & Supp.1998). The comprehensive regulatory scheme safeguards the rights of persons subjected to involuntary commitment procedures. See Chill v. Mississippi Hosp. Reimbursement Comm'n, 429 So.2d 574, 578 (Miss.1983) ("Without doubt the State of Mississippi ... has vested rights in the mentally ill substantially in excess of those minimum protections required by the federal constitution."). The regulations govern commitment to private as well as public institutions operating within the State. See Lee v. Alexander, 607 So.2d 30 (Miss.1992).
3
To initiate civil commitment proceedings, any "interested person" may file an affidavit with the clerk of the state chancery court. Section 41-21-65. This affidavit must contain specific factual descriptions of the behavior of the proposed patient (or proposed respondent), and must be supported by observations of named witnesses. "Affidavits shall be stated in behavioral terms and shall not contain judgmental or conclusory statements." Id. Section 41-21-79 provides that if the respondent is found by the court not to be in need of medical treatment, the costs of the proceedings, including prehearing hospitalization costs, shall be taxed to the affiant. Section 41-21-79.
4
If the affidavit is sufficient,1 the clerk, upon the chancellor's direction, will issue a writ directing the county sheriff to bring the respondent before "said clerk or chancellor, who shall order pre-evaluation screening and treatment by the appropriate community mental health center ... and for examination as set forth in Section 41-21-69." Section 41-21-67(1). "Upon issuance of the writ" the chancellor is directed to appoint two reputable physicians (or one physician and one psychologist) to examine the respondent. Section 41-21-67(2). The clerk is directed to ascertain whether the respondent has an attorney, and if not, the chancellor is directed to "appoint an attorney for the respondent at the time the examiners are appointed." Section 41-21-67(3). If the chancellor finds probable cause to believe that the defendant is mentally ill and no reasonable alternative exists to detention, then the chancellor may order that the respondent be detained as an emergency patient pending an admission hearing. Section 41-21-67(4).
5
Within twenty-four hours after the order for examination, the respondent must be given an examination. Within the same twenty-four-hour period, the physicians must have completed the examination and filed reports and certificates with the court, reporting on their findings as to the respondent's mental and physical health and opining whether the respondent should be committed. Section 41-21-69(2).2 At the beginning of the examination, the respondent is entitled to be told of the purpose of the examination, his right to refuse to answer any questions, and his right to have an attorney present. Section 41-21-69(3).
6
If the examiners certify that the respondent is not in need of treatment, the chancellor or clerk "shall" dismiss the affidavit. Section 41-21-71. This language arguably removes any discretion from the chancery court to continue commitment procedures or otherwise detain the respondent without the recommendation of the appointed physicians.
7
Allegations of Bass which are either uncontroverted or are supported by summary judgment-type evidence indicate that several of these procedural safeguards were not followed with respect to his eight-day confinement at Parkwood, as outlined below.3 On Monday, April 22, 1996, Bass decided to seek mental health counseling for "job related stress." Bass, a resident of West Memphis, Arkansas, discovered Parkwood through his telephone directory. Parkwood, located in DeSoto County, Mississippi, is a private hospital and is not associated with either the County or the State.
8
Bass contacted Parkwood and spoke briefly with defendant-appellee Case Management Associate Victoria Sheets (Sheets), who invited Bass to come to Parkwood for counseling. Satisfied that Parkwood would be both confidential and affordable to him, Bass agreed, and drove approximately thirty miles from his home to Parkwood. Bass intended to receive outpatient treatment and return home that evening.
9
Bass arrived at approximately 1:00 p.m. Sheets interviewed Bass upon his arrival. Sheets reported that during the interview, Bass claimed to have been hearing voices and that he planned to poison his co-workers at a pot-luck dinner. Sheets arranged for a psychologist, Russel Reynolds, Ph.D. (Dr. Reynolds), not a defendant herein, to evaluate Bass. Dr. Reynolds also reported that Bass revealed hallucinations and plans to kill his co-workers. Bass denies having made any of these statements, and states that he answered "NO!" when asked if he were carrying a weapon.
10
Parkwood thereafter determined that Bass should be detained, and proceeded to the chancery court to initiate commitment procedures. Sheets signed an affidavit stating "Pt [patient] is very psychotic and paranoid. He is hearing voices telling him to harm people and is thinking about killing coworkers with cyanide at a pot luck supper. Thinks government is out to get him."4
11
Meanwhile, two plainclothes DeSoto County sheriff's deputies (not named as defendants) approached Bass and identified themselves as officers from the DeSoto County Sheriff's Office. The officers told Bass that he would be staying in the hospital overnight. When Bass protested that he wanted to leave, the officers told Bass that he was not free to do so. At some time before 2:15 p.m., Bass was taken to "the quiet room," where he stayed overnight. Bass alleges that the doors were locked behind him.
12
At 3:00 p.m., a special master of the chancery court of Mississippi's Third Judicial Court District issued a Writ to Take Custody [of Bass] for Mental Examination or Retention (Writ). The Writ commanded the Sheriff of DeSoto County to "immediately take RESPONDENT into your custody and transport him/her to be assessed for pre-evaluation screening at the Region II Mental Health Center and if recommended, for examination for commitment according to law by those appointed and named on the attached Appointment of Physician/Psychologist." A notation at the top of the Writ states: "ATTENTION DEPUTY SHERIFF: Please serve the attached copy on Myron Bass who is presently located at Parkwood Hospital. You should then leave him/her at Parkwood."
13
No document appointing a physician appears to have been attached to the Writ. No attorney was ever appointed for Bass, despite Bass's request for an attorney during his first day at Parkwood.
14
Bass asked to speak to a doctor, but was not permitted to do so until the next day when a doctor prescribed Bass eight milligrams of the anti-psychotic drug Trilafon. Bass objected to taking the medication, but was informed that he could not refuse the medication, and that if he did not swallow the pill, the nurse would inject him with medication. Bass states that he only pretended to swallow the pill. The doctor did not conduct any examination of Bass at this time.
15
Bass waited three days before receiving a medical examination on Thursday, April 25, 1996. The examining physician found that Bass was not in need of mental treatment. Despite the examining physician's determination, Bass was held at Parkwood for five more days until Tuesday, April 30, 1996, when the chancery court vacated the writ and ordered Bass's release.
16
Parkwood has since billed Bass over $7,000 for the cost of his hospitalization.
17
In July 1996, Bass, proceeding pro se, filed this suit in the court below against Parkwood, DeSoto County, and Sheets.5 Bass's in forma pauperis complaint alleges that Parkwood and Sheets maliciously and in bad faith falsified the affidavit, that Bass was denied due process throughout his detention, that Parkwood failed to accommodate his religious dietary preferences, that Parkwood failed to accommodate his disability (involving a leg injury), and that Parkwood discriminated against him on the basis of race. Bass requested $100,000 in damages in addition to costs, and an order that defendants "discontinue bad faith commitments." We interpret Bass's complaint to attempt to assert claims under 42 U.S.C. § 1983 (1999), 42 U.S.C. § 2000a (1999), and Mississippi tort law.
18
The district court referred the case to a magistrate judge for a Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir.1985); 28 U.S.C. § 636(b)(1)(A) (1999). At the hearing, the magistrate judge revoked Bass's in forma pauperis status. The magistrate judge recognized that the general procedure in such a situation has been to dismiss a complaint without prejudice, granting the plaintiff leave to amend. Nonetheless, the magistrate judge determined that Bass's claims should be dismissed on the merits. The district court in June 1997 adopted the magistrate judge's report and recommendations and dismissed Bass's complaint. See 28 U.S.C. § 1915(e)(2)(B)(ii) (1999) (directing court to dismiss in forma pauperis action if case "fails to state a claim on which relief may be granted.").
19
We affirm the revocation of Bass's in forma pauperis status. We also affirm the dismissal of Bass's claims under 42 U.S.C. § 1983, and 42 U.S.C. § 2000a against all defendants, as well as all claims against DeSoto County. We vacate the dismissal of Bass's state law claims against Parkwood and Victoria Sheets and remand those claims to the district court.
DISCUSSION
I. Standard of Review
20
We review the dismissal of a complaint under subsection 1915(e)(2)(B)(ii) de novo. The district court's dismissal of a complaint under this subsection may be upheld only if, taking the plaintiff's allegations as true, it appears that no relief could be granted based on the plaintiff's alleged facts. See Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). See also United States v. Robinson, 78 F.3d 172, 174 (5th Cir.1996) ("[Plaintiff's] pro se pleading must be treated liberally as seeking the proper remedy.") (citation omitted).
II. In Forma Pauperis
21
The determination whether to allow a plaintiff to proceed in forma pauperis is committed to the discretion of the district court. Finding no abuse of discretion, we affirm the court's revocation of Bass's in forma pauperis status.
III. The Proper Defendant
22
The magistrate determined that Parkwood could not be sued because Parkwood is not a legal entity, but is instead merely the name of the hospital in question, which is owned by Magellan, Inc. (Magellan), and Magellan is not named as a defendant in the suit.6 In timely objections to the magistrate judge's report, Bass, inter alia, noted this aspect of the magistrate judge's ruling and also requested that the district court "[a]llow plaintiff ... leave to amend his complaint."
23
While the grant or denial of leave to amend pleadings is committed to the sound discretion of the district court, that discretion is tempered by the rule's requirement that "leave shall be freely given when justice so requires." See Fed.R.Civ.P. 15(a); Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998). The suit was dismissed before any defendants answered or were served, so no party would have been prejudiced by allowing amendment to name Parkwood's owner.7 Further considering the pro se nature of Bass's complaint, the district court abused its discretion by dismissing with prejudice Bass's claims on this basis without affording him an opportunity to amend to name Parkwood's owner as a defendant.8
IV. Bass's Federal Claims
24
Bass's complaint cannot support a cause of action under section 1983. To state a claim under section 1983, a plaintiff must allege facts tending to show (1) that he has been "deprived of a right 'secured by the Constitution and the laws' of the United States," and (2) that the deprivation was caused by a person or persons acting "under color of" state law. Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Because the Fourteenth Amendment protects liberty and property interests only against invasion by the state, a section 1983 plaintiff alleging the deprivation of Due Process under the Fourteenth Amendment must also show that state action caused his injury. See Landry v. A-Able Bonding, Inc., 75 F.3d 200, 203 (5th Cir.1996). In such cases, the "under color of law" and state action inquiries merge into one. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482 (1982) (where state action caused deprivation, actors were necessarily acting "under color of" law.).
25
Having been confined to a psychiatric ward against his will, Bass was unquestionably deprived of liberty. See Dahl v. Akin, 630 F.2d 277, 279 (5th Cir.1980); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). The issue, therefore, is whether the deprivation of Bass's liberty was caused by state action sufficient to come within section 1983 as to any of these defendants.
26
Neither the actions of Parkwood nor Sheets may be considered state action. Private action may be deemed state action, for purposes of section 1983, only where the challenged conduct may be "fairly attributable to the State." Lugar, 102 S.Ct. at 2753. The fair attribution test has two parts:
27
"First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state." Lugar, 102 S.Ct. at 2753-54.
28
The Supreme Court has applied several different formulas to determine whether seemingly private conduct may be charged to the state. See Lugar, 102 S.Ct. at 2754-55 (recognizing public function test, state compulsion test, nexus test, and joint action tests). Under the public function test, a "private entity may be deemed a state actor when that entity performs a function which is traditionally the exclusive province of the state." See Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). However, "[w]hile many functions have been traditionally performed by governments, very few have been 'exclusively reserved to the State.' " Flagg Bros, 98 S.Ct. at 1734 (finding that "resolution of private disputes," was not a traditionally exclusive function of government).
29
The state compulsion (or coercion) test holds that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (citations omitted). The state's mere acquiescence in private conduct, even where authorized by statute, will not transform that conduct into state action. See Flagg Bros., 98 S.Ct. at 1737-38 (holding warehouseman's sale of goods pursuant to statutory self-help measures was not state action).
30
Under the nexus or joint action test, state action may be found where the government has "so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 457, 42 L.Ed.2d 477 (1974) (citation omitted). For example, in Lugar, the Court found state action based on a statute unconstitutionally authorizing the sheriff to attach a debtor's property on the basis of an ex-parte writ. See Lugar, 102 S.Ct. at 2744. "[A] private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a 'state actor' for purposes of the Fourteenth Amendment." Id. at 2756. Under any formula, however, the inquiry into whether private conduct is fairly attributable to the state must be determined based on the circumstances of each case. Id. at 2755.
31
A private citizen does not become a state actor by initiating civil commitment procedures against another person. Dahl v. Akin, 630 F.2d 277, 281 (5th Cir.1980). Mr. Dahl was an elderly widower who intended to remarry. Fearing the loss of her inheritance, Dahl's daughter and her husband convinced a state court to commit Dahl to a mental institution. After his release, Dahl sued his daughter and her husband for the deprivation of his civil rights under section 1983. This Court noted that Dahl's confinement, consummated under the order of a state court, seemed "at first blush" to result from state action. See id. at 277. However, upon closer inspection, we concluded that the defendants' alleged acts were more akin to the filing of a private lawsuit which, at least in that case, did not implicate state action. See id. at 281-82. A private citizen does not become a state actor merely by filing a private civil action, even where authorized by state statutes. See Dahl, 630 F.2d at 281. "It is not enough, where the state in no way compelled appellees' actions [citation], that they acted 'with knowledge of and pursuant to' [state] statutes." Id., (quoting Flagg Bros., 98 S.Ct. at 1733) (internal citations omitted). We accordingly affirmed dismissal of Dahl's complaint for failure to state a section 1983 claim. Id. at 278 n. 1.
32
Similarly, a private hospital is not transformed into a state actor merely by statutory regulation. See, e.g., Blum, 102 S.Ct. at 2786; Wong, 881 F.2d at 202 (finding no state action in hospital's disciplinary action against doctor, even though statutes regulated hospital and provided limited judicial review of disciplinary action); Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348-49 (5th Cir.1985) (finding no state involvement to support section 1983 action against private nursing home despite state regulation and public funding).
33
On facts similar to these, several circuit courts have held that a private citizen or hospital does not become a state actor by participating in the civil commitment of a mentally ill individual. See, e.g., Pino v. Higgs, 75 F.3d 1461 (10th Cir.1996); Ellison v. Garbarino, 48 F.3d 192 (6th Cir.1995); Rockwell v. Cape Cod Hospital, 26 F.3d 254 (1st Cir.1994); Harvey v. Harvey, 949 F.2d 1127 (11th Cir.1992); Spencer v. Lee, 864 F.2d 1376 (7th Cir.1989). See also Jarrell v. Chemical Dependency Unit of Acadiana, 791 F.2d 373, 374 (5th Cir.1986) (per curiam) (assuming arguendo involuntary commitment might be state action but holding treatment inside hospital was not connected to state).
34
In Spencer, the Seventh Circuit found no state action based on Illinois statutes regulating involuntary commitment procedures. See Spencer, 864 F.2d at 1378-79. The statutes in that case permitted the private initiation of commitment procedures. However, the statutes neither encouraged nor required the commitment of mentally ill individuals. See id. at 1379. Nor did the case fall under the "public function" theory of state action. See id. at 1379. After thorough review of civil commitment procedures, the court determined that private citizens had traditionally been permitted to initiate commitment proceedings. The private commitment of the mentally ill was common practice in eighteenth century England. See id. at 1381 (noting that "Bedlam" was originally a private institution). Thus, the commitment and treatment of the mentally ill could not be deemed a function traditionally within the exclusive province of the state. See id. Finally, the court compared civil commitment to a citizen's arrest, which has been held not subject to section 1983 challenges. Id. at 1380. See also White v. Scrivner Corp., 594 F.2d 140, 142-143 (5th Cir.1979) (finding no state action in store employees' detention of suspected shoplifters). As in the case of a citizen's arrest or a warehouseman's sale, the statutory authorization of private acts does not transform such conduct into state action: "The statutes authorizing or constraining these private activities may or may not be constitutional [citation]; the activities themselves remain private [citations]." Spencer, 864 F.2d at 1381 (citations omitted).
35
Similarly, Mississippi's civil commitment statutes neither compel nor encourage the private initiation of commitment proceedings. Instead, they merely authorize and regulate the commission of such acts. The fact that the defendants in this case invoked the assistance of the courts and police officers is not sufficient to show a nexus or joint effort between the defendants and the state. See Spencer, 864 F.2d at 1381 ("[P]olice assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help.") (citing Lugar, 102 S.Ct. at 2755 n. 21).
36
Finally, the civil commitment process traditionally has not been not a function exclusively reserved to the State of Mississippi. The Mississippi Constitution of 1890 charged the State with the duty to care for the mentally ill. See Chill, 429 So.2d at 579. However, in 1899 the Mississippi Supreme Court upheld a civil suit against two physicians who filed certificates attesting to a woman's insanity and leading to her commitment, even though those physicians were not the parties legally charged with making commitment decisions. See Bacon v. Bacon, 24 So. 968 (Miss.1899). This reflects that private citizens in Mississippi have been participating in the civil commitment process for over one hundred years. Mississippi civil commitment cannot be considered a traditionally exclusive public function for purposes of the state action analysis.
37
Neither Parkwood nor Sheets can be held liable under section 1983.
38
Bass's section 1983 claims against DeSoto County also fail. Bass first alleges that the officers illegally detained him before the writ was signed, thereby violating his Fourth Amendment rights as applied to the states by the Fourteenth Amendment. The officers are indisputably state actors. However, they are not official policy makers for DeSoto County, and therefore their conduct, even if tortious, cannot bind the County under section 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611, (1978). "Under 42 U.S.C. § 1983, a county cannot be held liable on a theory of respondeat superior merely because it employs a tortfeasor." Esteves v. Brock, 106 F.3d 674, 677 (1997). To hold a local government liable for the acts of its agents or officers, the plaintiff must prove that his injury was caused by an official policy or custom of the municipality. See id. Bass has alleged no facts indicating that he was illegally detained pursuant to any official policy or custom of the County. Therefore, the County cannot be held liable for the allegedly illegal detention.
39
Bass's second complaint against the county--that he was humiliated by being transported in shackles--simply does not present a constitutional violation.
40
Similarly, the County cannot be held liable based on the acts or omissions of the chancery court or the special master, because neither's actions represent any policy or custom of DeSoto County. "We have repeatedly held ... that a municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker." Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992). This principle extends to Bass's claims against the special master, who performed duties functionally equivalent to those of a judge. See Boston v. Lafayette County, Mississippi, 743 F.Supp. 462, 471 (N.D.Miss.1990); cf. Hulsey v. Owens, 63 F.3d 354 (5th Cir.1995) (holding, under section 1983, that absolute immunity for judicial officers applies to other officers performing judicial functions). Because there is no allegation suggesting that the allegedly improper judicial acts represent the official policy or custom of DeSoto County, the acts cannot subject the County to liability under section 1983. See Johnson, 958 F.2d at 94.9 See also Clark v. Tarrant County, 798 F.2d 736, 744 (5th Cir.1986) (Texas district judges are state officers).
41
Neither Parkwood nor Sheets was a state actor. Furthermore, no facts are alleged indicating that the acts of the peace officers or of the judicial officers represent any official policy or custom of DeSoto County. Therefore, we affirm the dismissal of Bass's claims under 42 U.S.C. § 1983 against all defendants.
42
In addition to challenging the lawfulness of his confinement, Bass alleges that, while at Parkwood, he was discriminated against on the basis of his race and his religion. 42 U.S.C. § 2000a (1999) prohibits even private discrimination on the grounds of race, color, or religion in places of public accommodations.10 Unlike many other civil rights statutes, however, 42 U.S.C. § 2000a allows only for prospective relief and does not authorize damage awards. See 42 U.S.C. § 2000a-3 (1999); Newman v. Piggie Park Ents., 390 U.S. 400, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).
43
Thus, even accepting as true Bass's allegations that he was discriminated against by Parkwood personnel on the basis of his race or religion, this statute does not provide a cause of action for damages against Parkwood. Bass did request injunctive relief under this statute by requesting that the district court order Parkwood to "cease all discrimination." However, Bass does not have standing to assert a claim for injunctive relief against the hospital because there is no allegation suggesting that he is likely to again suffer from Parkwood's discriminatory actions. See Armstrong v. Turner Indus., 141 F.3d 554, 563 (5th Cir.1998).
44
We also note Bass's arguments on appeal that Parkwood failed to accommodate his disability. However, we can find no facts in Bass's complaint related to any claim on this basis.
V. Bass's State Law Claims
45
Bass's complaint contains allegations tending to support state law claims of false imprisonment and malicious prosecution arising out of the allegedly false affidavit and his assertedly unlawful detention. However, Bass has not alleged that DeSoto County or any of the sheriff's deputies were even aware of the falsity of the affidavit, nor do any of the facts alleged suggest such knowledge. Therefore, the County cannot be held liable under any tort theory present here. However, Bass has made a colorable showing of tort law claims against Parkwood and Sheets. The district court erred in summarily dismissing these claims against Parkwood and Sheets with prejudice.
46
Mississippi courts have long recognized that actions for false imprisonment may arise out an unlawful civil commitment. See Bacon v. Bacon, 24 So. 968 (Miss.1899); Lee v. Alexander, 607 So.2d 30, 34 (Miss.1992). Under Mississippi law, false imprisonment requires proof only that the plaintiff was detained and that the detention was unlawful. Lee, supra. On the record as it now stands, Bass has made a colorable showing of both elements of false imprisonment, and his claims should be allowed to proceed against Parkwood and Sheets.
47
The district court similarly erred in its summary merits dismissal of Bass's claims for malicious prosecution. Malicious prosecution under Mississippi law has six elements:
48
"(1.) The institution or continuation of original judicial proceedings, either criminal or civil;
49
(2.) by, or at the insistence of the defendants;
50
(3.) the termination of such proceeding in plaintiff's favor;
51
(4.) malice in instituting the proceedings;
52
(5.) want of probable cause for the proceedings; and
53
(6.) the suffering of damages as a result of the action or prosecution complained of." Van v. Grand Casinos of Mississippi, Inc., 724 So.2d 889, 891 (Miss.1998) (citations omitted).
54
The magistrate judge found that Bass could not prove that the proceedings terminated in his favor, because the special master issued the writ. However, we have been shown no law supporting this position. At least one Florida court has explicitly rejected this argument. See Pellegrini v. Winter, 476 So.2d 1363 (Fla.Dist.Ct.App.1985). In that case, the court concluded that the initial ex parte order allowing a preliminary detention was the initiation, rather than the termination, of commitment procedures. Id. at 1365. Analogously, in a civil suit arising from the wrongful commitment of the elderly Mr. Dahl, the Texas Supreme Court ruled that the guardianship court's initial commitment action of Dahl was not evidence of probable cause to initiate civil commitment procedures against him. See Akin v. Dahl, 661 S.W.2d 917, 919 (Tex.1983).
55
We think the Mississippi courts would likely agree that the examination determining Bass was not in need of treatment and the subsequent order for Bass's release constituted a termination in Bass's favor. The examination more closely resembles a determination on the merits than the special master's ex parte writ. Moreover, it is difficult to classify the writ as a termination when it truly only authorizes the commencement of commitment proceedings.
56
Finally, a recent decision of the Mississippi Supreme Court arguably lends some support to this view. See Van, 724 So.2d at 893 (holding that a dismissal of criminal charges for failure to prosecute results in the favorable termination of criminal charges.). In Van, the court refused an interpretation of "favorable termination" which would "inevitably [leave] some criminal defendants [ ] with no remedy for a maliciously instituted suit. We believe this result should be avoided." Id. Similarly, to hold that the issuance of an ex parte writ solely on the basis of an alleged knowingly false affidavit constitutes an unfavorable termination of commitment proceedings would undoubtedly leave some maliciously committed individuals without a civil remedy.
57
Therefore, we hold that the physician's determination on April 25 that Bass was not in need of medical treatment and the chancery court's subsequent vacation of the writ constituted a termination in Bass's favor for purposes of a malicious prosecution action. Because Bass has made a colorable showing of state tort law claims against Sheets and Parkwood, the district court erred in summarily dismissing his complaint with prejudice.11
58
The lower court erred in determining that Sheets is immune from civil prosecution for her role in procuring Bass's commitment. Section 41-21-105 grants immunity to persons who initiate commitment proceedings in good faith. See Carrington v. Methodist Medical Center, Inc., 1999 WL 275154, ---- So.2d ---- (Miss.1999) (recognizing good faith requirement). However, Bass has alleged that he made none of the statements which the Sheets commitment affidavit says he made in her presence and he has specifically alleged that Sheets acted in bad faith, and on this record that allegation must be taken as true for purposes of the district court's summary dismissal. Section 41-21-105 does not prevent Bass from stating a claim against Sheets.
VI. Jurisdiction
59
Bass filed his complaint in federal court pursuant to the general federal question jurisdiction statute, 28 U.S.C. § 1331. As we affirm the dismissal of all of Bass's federal claims, no federal question remains before the district court. However, this fact does not divest the court of jurisdiction: instead, the court must exercise its discretion whether to exercise supplemental jurisdiction over Bass's state law claims. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection(a) if ... (3) the district court has dismissed all claims over which it has original jurisdiction"). When a court dismisses all federal claims before trial, the general rule is to dismiss any pendent claims. See Wong, 881 F.2d at 204. However, the dismissal of the pendent claims should expressly be without prejudice so that the plaintiff may refile his claims in the appropriate state court.12
CONCLUSION
60
We find no abuse of discretion in the district court's revocation of Bass's in forma pauperis status. Bass's federal civil rights claims were properly dismissed as there was no state action in either Sheets' or Parkwood's actions, and DeSoto County cannot be held liable based on the actions of the peace officers or the chancery court. However, Bass has asserted Mississippi law causes of action in tort against Sheets and Parkwood, and Bass should have been permitted to amend his complaint to name the appropriate legal entity as the proper party defendant in lieu of Parkwood. On remand, the district court should exercise its discretion under 28 U.S.C. § 1367 to either hear Bass's state law claims or, more likely, to dismiss those claims without prejudice.13
61
The dismissal of all of Bass's federal claims, and of all of his claims against Dr. Rayudu and DeSoto County, is affirmed; the dismissal of the balance of the case is vacated and as to the balance of the case the cause is remanded for further proceedings consistent herewith.
62
AFFIRMED in part, VACATED in part, and REMANDED14
1
See section 41-21-67(1) ("Provided, however, that when such affidavit fails to set forth factual allegations and witnesses sufficient to support the need for treatment, the chancellor shall refuse to direct issuance of the writ.")
2
If the period would end in nonbusiness hours, it is extended to the commencement of the next business day. Id. The code also authorizes the court, upon request, to extend this time frame by no more than eight hours. See section 41-21-69(2). The timely filing of the physicians' certificates is also a predicate to the continuation of commitment procedures and the order for a commitment hearing. See section 41-21-71
3
We do not determine whether on a more fully and appropriately developed record these factual assertions of Bass will be either established or adequately supported
4
The affidavit erroneously lists Bass as a resident of DeSoto County, Mississippi. It also attests that after diligent inquiry, Bass's next of kin remained unknown. Bass resided in Arkansas with his wife and children
5
Bass also named Dr. Subblaxami Rayudu as a defendant. The district court dismissed the claims against Dr. Rayudu and Bass has voluntarily abandoned them on appeal
6
At the time of the events in question, Parkwood was owned by Community Health Systems, Inc., a Tennessee corporation. Community Health Systems, Inc. is not a named party to the suit. In February 1997, Parkwood became "Charter Parkwood," owned by Magellan, Inc
7
Because Bass had already filed an amended complaint (twelve days after his original complaint and well prior to the Spears hearing), he did not technically come within the first sentence of Fed.R.Civ.P. 15(a)
8
For clarity's sake, we will continue to refer to the hospital as Parkwood (or the hospital) throughout this opinion
9
We note that the chancery court, under Mississippi law, is not an entity of DeSoto County, but is instead a district court of the State, established pursuant to Miss.Code Ann. § 9-5-11 (1991 & Supp.1998). The county courts are authorized by Miss.Code Ann. § 9-9-1 (1991) et seq
10
"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin." 42 U.S.C. § 2000a(a) (1999)
11
Bass's pleadings also allege harm to his reputation and the forced administration of medication against his will. These facts might, upon further development, support additional tort claims under Mississippi law. Moreover, Bass argues that he has been charged over $7,000 for his treatment at Parkwood, and that he fears continued collection of bills which he does not owe. The Mississippi Code allows costs relating to a patient's confinement and treatment to be charged to the patient. Section 41-21-79. However, "if the respondent is found by the court to not be in need of mental treatment then all such costs shall be taxed to the affiant initiating the hearing." Section 41-21-79
12
While Bass has never asserted or pled facts sufficient to support diversity jurisdiction, if on remand he timely and properly seeks to do so, the district court should consider whether the interests of justice, including consideration of Bass's pro se status, militates in favor of allowing Bass to do so
13
Assuming the case does not proceed on the basis of diversity (see note 12 above)
14
Bass's motions to file a supplemental reply brief and a revised supplemental reply brief have been carried with the case. Those motions are hereby granted | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1612533/ | 282 So.2d 119 (1973)
Bernard L. MALONE, Jr.
v.
Martha Blasco MALONE.
Martha Blasco MALONE
v.
Bernard L. MALONE, Jr.
No. 52790.
Supreme Court of Louisiana.
August 20, 1973.
McKinnis, McGehee & Schroeder, E. Drew McKinnis, Baton Rouge, for plaintiff-applicant.
Anthony J. Graphia, Baton Rouge, for defendant-respondent.
DIXON, Justice.
The issue before this court is whether the delay for perfecting an appeal from a judgment denying a motion for the termination of alimony is thirty days as provided by C.C.P. 3943 or ninety days as provided by C.C.P. 2087.
On March 3, 1970 Martha Blasco Malone was granted a divorce from Bernard L. Malone, Jr. The judgment also awarded her custody of the three surviving children born of the marriage and ordered Bernard L. Malone, Jr. to pay her $325 per month for child support and $125 per month as alimony.
On April 12, 1971 the ex-husband petitioned the trial court for a judgment terminating the alimony payments to his *120 former wife. The ex-wife then petitioned the court for a judgment for alimony payments which were in arrears. The two suits were consolidated for the purposes of trial.
On November 10, 1971 the court rendered separate judgments dismissing the ex-husband's petition for the termination of alimony and granting the ex-wife $750 in past due alimony. The ex-husband petitioned the court for a new trial, which motion was denied November 17, 1971. On November 19, 1971 the ex-husband was granted devolutive appeals from the judgments of the family court. On December 23, 1971 the appeal bond was filed in the trial court.
The Court of Appeal, acting on its own motion, found that appellant's bond had not been timely filed and dismissed his appeal. 265 So.2d 255 and 265 So.2d 258. We issued a writ of certiorari to review the dismissal of the ex-husband's appeal from the judgment refusing to terminate alimony. 262 La. 1168, 266 So.2d 447 (1972).
Jurisdiction vests in the appellate court only when the appellant both has obtained an order of appeal and has filed the appeal bond in the trial court within the time allotted by law. Louisiana Constitution of 1921, Art. VII, § 24; Code of Civil Procedure Arts. 2088 and 2121; Southern Construction Co. v. Housing Authority of City of Opelousas, 250 La. 569, 197 So.2d 628 (1967); Arnold v. Arnold, 217 La. 362, 46 So.2d 298 (1950).
This appellant-relator timely obtained an order of appeal, but did not timely file his appeal bond in the trial court. Therefore, the Court of Appeal correctly dismissed the appeal for lack of jurisdiction.
Relator's motion for a new trial was filed on November 16, 1971. The trial court did not take the motion under advisement, but rather denied it in open court on November 17, 1971. Thus, the delay for perfecting an appeal from the judgment refusing to terminate alimony commenced to run on November 18, 1971. C.C.P. 1914 and 2087. The appeal bond, which was filed on December 23, 1971, was filed on the thirty-sixth day following the commencement of the delay for perfecting the appeal.
The delay in which devolutive appeals from most judgments may be perfected is specified in C.C.P. 2087. That article provides, in pertinent part:
"Except as otherwise provided in this article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within ninety days of:
"(2) The court's refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914;"
Thus, under the generally applicable delay period, relator's appeal was timely filed.
However, the delay period of C.C.P. 2087 is not applicable to devolutive appeals from certain judgments. C.C.P. 3943 provides:
"An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony."
The delay provided in C.C.P. 3942 is thirty days from the date the delay commenced to run as provided by C.C.P. 2087.
Relator contends that C.C.P. 3943 does not govern his appeal because the judgment he appealed is one refusing to terminate alimony, not a "judgment awarding" alimony. The Court of Appeal, relying on Castille v. Castille, 221 So.2d 834 (La. App. 1st Cir. 1969), reasoned that "(t)he judgment herein appealed from refused to terminate the wife's alimony and was, therefore, synonymous to a judgment awarding alimony or continuing the alimony *121 in effect." 265 So.2d at 257. Thus, the Court of Appeal concluded that the appeal was governed by the provisions of C.C.P. 3943.
The main purpose of Article 3943, which has no counterpart in the Code of Practice, is to codify the jurisprudential rule denying a suspensive appeal in custody cases and to provide a wife necessary support pending appeal, by legislatively overruling jurisprudence which held that suspensive appeals could be taken from judgments awarding alimony. C.C.P. 3943, Official Revision Comments. However, the wording of the article is unfortunate: "judgment awarding," which appears in the first sentence of the article, appears to demand a restricted application of Article 3943, but "judgment relates to," which appears in the second sentence of the article, seems to indicate a broader application of the article.
The courts have had no trouble applying C.C.P. 3943 to appeals from judgments establishing the obligation of paying alimony or granting custody. See, e. g., Wood v. Beard, 268 So.2d 152 (La.App. 3d Cir. 1972), Kinnaird v. Kinnaird, 260 So.2d 802 (La.App. 2d Cir. 1972), writ refused 261 La. 1065, 262 So.2d 44 (1972), Benoit v. Blassingame, 249 So.2d 302 (La.App. 1st Cir. 1971), writ refused 259 La. 760, 252 So.2d 456 (1971), Lenard v. Johnson, 248 So.2d 841 (La.App. 2d Cir. 1971), Kleinpeter v. Kleinpeter, 246 So.2d 240 (La.App. 1st Cir. 1971), Cookmeyer v. Cookmeyer, 244 So.2d 78 (La.App. 4th Cir. 1970), Bowden v. Bowden, 203 So.2d 879 (La.App. 1st Cir. 1967).
Confusion has arisen when the judgment being appealed was rendered pursuant to a rule or a petition for the modification or termination of alimony or custody. Usually, the appellate courts have either construed the judgments to be analogous to "judgments awarding" alimony or custody or have merely applied C.C.P. 3943 to the appeal without articulating their rationale. Picinich v. Picinich, 271 So.2d 670 (La. App. 1st Cir. 1972), Crum v. Crum, 261 So.2d 358 (La.App. 1st Cir. 1972), McNeill v. McNeill, 257 So.2d 767 (La.App. 4th Cir. 1972), Cilano v. Cilano, 255 So.2d 634 (La.App. 1st Cir. 1971), Castille v. Castille, supra. However, some courts have found that judgments which either terminate or deny alimony or custody are not governed by C.C.P. 3943. King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971), writ refused 260 La. 128, 255 So.2d 353 (1971),[1] Derussy v. Derussy, 173 So.2d 544 (La.App. 4th Cir. 1965).
Such confusion could not have been intended by our legislature. The uniform treatment of judgments relating to alimony or custody seems to have been intended. Such treatment would not subvert the purpose of C.C.P. 3943, but would eliminate the unnecessary confusion caused by that article. Strong reason supports the policy of expediting appeals in alimony and custody matters.
Therefore, we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. 3943.
The judgment of the Court of Appeal is affirmed at appellant-relator's cost.
NOTES
[1] This court denied the writ application with the following comment: "There is no error of law in the judgment under the assignment of errors." The appellate court's interpretation of C.C.P. 3943 was not assigned as an error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612538/ | 282 So.2d 322 (1973)
John Thomas BROWN
v.
STATE.
6 Div. 398.
Court of Criminal Appeals of Alabama.
August 21, 1973.
*323 John D. Prince, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
*324 WILLIAM C. BIBB, Circuit Judge.
Appellant was convicted of burglary in the first degree and sentenced to imprisonment in the State penitentiary for a term of thirty years. From the judgment of conviction he appeals in forma pauperis, through assigned counsel.
There was evidence that the felony intended or committed was carnal knowledge of a girl in the house, aged 13 years. We are not required to determine whether or not the defendant intended or accomplished the Common Law crime of rape. Carnal knowledge of a girl of the age of 13 is a felony. Code of Alabama 1940, Title 14, § 399.
There are 33 so-called assignments of error in appellant's brief. The first 32 deal separately and serially with the refusal of all written charges offered by appellant. The last "assignment of error" complains that the trial court erred in allowing the District Attorney to question defendant as to details of prior offenses.
There was no objection, motion, or other effort by defendant to invoke any ruling by the trial court in that regard. (R. 74-76) The judge admonished the State, ex mero motu.
Each of the proffered written charges was separately marked "refused" and initialed by the judge. In addition to this, on the fact of Charge 1, the judge wrote, above the word "refused" and the initials "J. J. J.," the words "Charges stapled together."
In the transcript of the testimony, R. 13-90, there were 14 objections to questions, and the ruling was against the defendant 11 times. (R. 42, 43, 55, 56, 57, 74, 87, and 88) No ruling or testimony was claimed as error, but no assignment of error is required in an appellant court. Code of Alabama 1940, Title 15, § 389.
The first three of these unfavorable rulings were merely admonitions against leading the defendant's own witnesses. The next two rulings were as to the form of the question or answer.
The complaining witness was never asked whether or not she had made any contrary statements prior to testifying as to the occurrence involving her. Objections were sustained to questions seeking to elicit testimony from other witnesses that the complaining witness had stated on other occasions that no rape occurred or that nothing at all had happened on the night of the alleged crime. (R. 56, 87, 88.) Objection was also sustained to the question: "Did she say that anyone had asked her to say anything in particular about that night?" (R. 57) Here, too, no predicate had been laid. Objection was also sustained to defense attorney's question to defendant whether defendant had spent the time from his arrest to his trial in jail. However, defendant had already answered, "No, sir."
We find no harmful error in the rulings as to testimony. The oral charge was adequate, correct, and unexceptionable. No exception was taken.
"Assignment of error" Number 33 is without merit for the reason that the power of the trial court to cut off or limit inquiry of defendant concerning prior offenses or details thereof was never invoked.
True, we are bound to search the record for harmful error. Code, Title 15, § 389; but where no ruling was invoked or made, there is nothing for us to review. Lockwood v. State, 33 Ala.App. 337, 33 So.2d 401.
Written, requested charges offered in bulk may be refused in bulk if any one of such charges may properly be refused if standing alone. Ragsdale v. State, 12 Ala. App. 1, 67 So. 783 (h.n. 26 in official report).
We do not decide here that the record sufficiently shows that all charges were stapled together when tendered; or, if so, that such was an offer in bulk. We will *325 proceed as if each charge were offered separately.
Charges 1, 2, 15, 17, and 32 are elliptical. Furthermore, the first proposition in Charge 32 is not based upon a consideration of the evidence.
Charges 6, 8, 9, 18 are what have been called "single juror" charges. Charge 6 is not predicated upon a consideration of the evidence, and neither is Charge 9.
Charge 8 appears to be a correct statement of the law and, besides expressing the "single juror" conception, it requires each juror to be convinced from the evidence beyond a reasonable doubt before there could be a verdict of guilty. The latter conception is expressed in the oral charge (R. 91, 92), as is the former (R. 99). Certain "single juror" charges have been condemned as giving a juror the idea that he might entertain a reasonable doubt without consultation with the other jurors. Wilson v. State, 243 Ala. 1, 8 So.2d 422.
Charge 18 contains the foregoing two conceptions, and also states the presumption of innocence and its effect. This is fully and correctly covered in the oral charge. (R. 91, 92)
Charge 3 is that if the jurors are not convinced from the evidence of guilt, they must acquit. This is similar to Charge 31 and to the first proposition of Charge 8. Charge 31 is substantially the same as the first proposition of Charge 8. This proposition was adequately and correctly stated by the learned trial judge in his oral charge. (R. 91, 92.) Again, on Page 99 of the transcript, in his able charge the trial judge stated:
"* * * if after a full and fair consideration of all the evidence in this case, if (sic) you are not convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty and if (sic) you should so find him not guilty, the form of your verdict would be: `We, the jury, find the defendant not guilty * * *."
"* * * you have * * * heard * * that if any juror is not satisfied of the defendant's guilt and to a moral certainty you cannot convict him, and that is true because it must be a unanimous verdict * * *."
Charge 11 is also substantially the same as the first proposition in Charge 8 and is adequately covered in the oral charge.
Charge 4 states the proposition that, upon a consideration of all the evidence, if a reasonable doubt founded on any of the evidence exists, the proper verdict is not guilty. Charge 7 is substantially the same. The learned trial judge stated:
"The whole evidence should be weighed, and if, after considering all the evidence, the jury has a reasonable doubt of the defendant's guilt arising out of any part of the evidence, you should acquit the defendant." (R. 96)
Charge 5 is that defendant is entitled to the presumption of innocence as a fact that must be considered and not disregarded. Charges 21 and 22 state the same proposition and the additional proposition that the indictment is not evidence but a method of putting defendant on trial.
The learned trial judge charged:
"* * * this defendant enters into this trial with the presumption he is * * * innocent. This is a presumption not only of law but of evidence; it is such that it can be overcome only by evidence of defendant's guilt beyond a reasonable doubt and to a moral certainty, and the burden is on the State * * *." (R. 91)
Then on Page 92:
"* * * this indictment I read to you is not evidence in this case. * * * It is merely the vehicle by which a charge against a defendant is brought into court for your consideration * * *."
*326 Charges 10, 14, 23, 25, and 29 are peculiarly appropriate to a case resting wholly or partly on circumstantial evidence. The breaking and entering, vel non, by defendant rested upon circumstantial evidence as did, of course, his intent. Two witnesses swore they saw and recognized him in the house, and one of them, the girl, swore he copulated with her or attempted to do so.
Charges 10 and 29 are identical. This group of charges, some with appropriate reminders of the necessity of a belief in guilt from the evidence beyond a reasonable doubt and to a moral certainty, state or attempt to state the requirement that the circumstances that point to guilt must also exclude every reasonable hypothesis but that of guilt, and, if any of such circumstances are equivocal, they are an insufficient basis of a verdict of guilty or as proof of an element of the crime. Wilson v. State, supra.
The learned trial judge charged on the subject of circumstantial evidence (R. 95), and fully covered the same principles as these five charges.
There being no given written charges, Charge 12 became inappropriate to this case.
Charge 13 was adequately covered in the oral charge. (R. 93)
Charge 16 is not based upon a consideration of the evidence, and if it states anything not otherwise stated it is that reasonable doubt may exist without a probability of innocence. Charges 19, 24, and 30 point out that the burden is never on the defendant to prove or disprove anything, and even if his proof fails or is lacking, the burden is still upon the State to prove him guilty from believable evidence and beyond a reasonable doubt; and if the State fails, the verdict must be "Not guilty."
There is no direct statement that the burden of proof remains on the State where defendant's proof fails or his evidence is false. However, the insistence and reiteration throughout the oral charge that the defendant is entitled to the presumption of innocence as a matter of law and of fact; that the burden is on the State; that if, after considering all the evidence, there does not remain an abiding conviction of guilt, defendant should be acquitted; that the testimony of defendant should be considered along with all the other testimony; that (defendant) should not be convicted unless the evidence excludes to a moral certainty every reasonable hypothesis but that of the defendant's guilt; that the circumstantial evidence in the case did not come up to the full measure of proof required by the law if such circumstances could be reconciled with the theory that defendant was innocent; that the burden was on the State to convince the jury from the evidence beyond a reasonable doubt and to a moral certainty; that (alibi evidence would be sufficient when considered with all the evidence if it) generated in the minds of the jury a reasonable doubt of the defendant's guilt; that, on the whole evidence, if the jury had a reasonable doubt growing out of any part of the evidence, the defendant should be acquitted; should have convinced the jury that they could not convict for the lack of a probability of innocence and must acquit upon a reasonable doubt.
Charges 19, 24, and 30 were fully and adequately covered, as has just been demonstrated.
Charge 20 was adequately covered in the oral charge. (R. 93)
Charge 26 was also fully and adequately covered. (R. 91, 93)
Charges 27 and 28 state the same proposition and are fully and adequately covered. (R. 91, 92, 95, 96, 97)
Charge 30 contains the same proposition as Charge 4 by stating that a reasonable doubt may arise out of "any or all the evidence." Charge 4 predicates such a doubt upon "any part of the evidence." Additionally, Charge 30 states that the burden is *327 never on the defendant to establish innocence or disprove facts. In this, Charge 30 is similar to Charges 16, 27, and 28.
The principle is fully and correctly dealt with in the oral charge. (R. 91, 92, 95, 96, and 99)
Refusal of defendant's proper requested charges was not error, where requested charges were covered by the oral charge. Wilson v. State, supra; Code of Alabama 1940, Title 7, § 273.
Under the mandate of Code 1940, Title 15, § 389, we have searched the entire record for error and find none.
Prepared by Hon. William C. Bibb, Circuit Judge, temporarily on duty on the Court pursuant to Subsection (4) of § 38, Title 13, Code 1940, as amended; and adopted as its own by the Court.
The judgment below is hereby
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612546/ | NORA AGUIRRE
v.
XIOMARA AGUIRRE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, JOHN DOE AND ABC INSURANCE COMPANY.
No. 2008 CA 0225
Court of Appeals of Louisiana, First Circuit.
June 24, 2009.
Not Designated for Publication
IVAN A. ORIHUELA, Counsel for Plaintiff/Appellant Nora Aguirre.
CARLA S. COURTNEY, HAROLD J. ADKINS, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company.
BEFORE: KUHN, GUIDRY, AND GAIDRY, JJ.
KUHN, J.
The plaintiff appeals from the trial court judgment, which granted the defense's peremptory exception raising the objection of prescription and dismissed her action with prejudice. For the reasons that follow, we vacate and remand.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Nora Aguirre, alleged in her Petition for Damages that, on September 6, 2005, she was a guest passenger in a car driven by the defendant, Xiomara Aguirre, when the car was involved in a collision with a vehicle operated by an unidentified driver. The plaintiff named as a defendant, State Farm Mutual Automobile Insurance Company (State Farm), which had issued a policy of liability insurance providing coverage to Xiomara Aguirre, and the car she was driving, at the time of the collision.
On September 6, 2006, the plaintiffs counsel filed the Petition for Damages by facsimile transmission. At approximately 2:00 p.m. on the same day, the Clerk of Court for the 19th Judicial District Court sent an acknowledgement of the filing to the plaintiffs counsel. Thereafter, the Clerk of Court did not receive the original Petition for Damages until September 14, 2006, according to an affidavit by an official representative of the Clerk of Court, which was filed in the record. The Clerk's Office stamped the original petition: "fax copy filed 9/6/06" and "original filed 9/14/06."
On November 21, 2006, State Farm filed a peremptory exception of prescription, asserting that the plaintiffs action had prescribed because suit was not filed until September 14, 2006, more than one year after the date of the accident.[1] State Farm asserted in support of its exception that, pursuant to La. R.S. 13:850, the plaintiffs counsel had five days, exclusive of legal holidays, from the date the petition was filed by facsimile transmission, in which to file the original petition with the Clerk of Court. Thus, according to State Farm, the original petition was required to be filed no later than September 13,2006.[2]
After hearing the arguments of counsel on February 5, 2007, the trial court signed a judgment on June 6, 2007, granting State Farm's peremptory exception of prescription and dismissing the matter with prejudice. The plaintiff appeals from this judgment.
LAW AND DISCUSSION
La. R.S. 13:850 provides, in pertinent part, the following:
§ 850. Facsimile transmission; filings in civil actions; fees; equipment and supplies
A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission. ***
[Emphasis added.]
On appeal, the plaintiff asserts that on September 12, 2007, she forwarded via Federal Express overnight courier to the Clerk of Court the original signed petition, the applicable filing fee and a transmission fee of five dollars, in full compliance with the requirements of La. R.S. 13:850. The plaintiff contends that the fact that the original petition, inexplicably, did not actually arrive to the Clerk of Court the following day as contracted for on September 12, 2007, but rather arrived on September 14, 2007, is of no consequence. The plaintiff urges that La. R.S. 13:850 requires only that the original signed document, filing fee and transmission fee be forwarded to the Clerk of Court by the party filing the document, not that it be actually received by the Clerk of Court, within the five-day delay period.
State Farm counters that the original petition must be actually received by the office of the Clerk of Court within the five-day delay period of La. R.S. 13:850 B. Thus, State Farm argues that the original petition had to have been received by the Clerk of Court on or before September 13, 2007. According to State Farm, since the original petition was received on September 14, 2007, the plaintiffs action had prescribed before the filing was completed. State Farm relies upon the case of Bryant v. Milligan, 2000-2524 (La. App. 1st Cir. 6/6/01), 808 So.2d 660, overruled, Hunter v. Morton's Seafood Restaurant & Catering, XXXX-XXXX (La. 3/17/09), 6 So.3d 152, in which the plaintiffs filed a petition by facsimile transmission, pursuant to La. R.S. 13:850, but the original signed petition was not received by the clerk's office until more than five days, exclusive of legal holidays, after the facsimile transmission was received. This court held that the plaintiffs' claims had prescribed. This court rejected the plaintiffs' argument that La. R.S. 13:850 B required only that they forward the original petition to the clerk, not that the clerk receive the petition within the five-day delay period.
In an en banc decision in the case of Hunter v. Morton's Seafood Restaurant & Catering, 2007-2396 (La. App. 1st Cir. 7/3/08), 992 So.2d 1078, cert. granted, XXXX-XXXX (La. 10/31/08), 993 So.2d 221, and affirmed, XXXX-XXXX (La. 3/17/09), 6 So.3d 152, this court, after careful consideration, concluded that our interpretation and application of La. R.S. 13:850 in the Bryant case were incorrect. This court held that the language of La. R.S. 13:850 B states unambiguously that the original petition need only be forwarded to the clerk's office, not received by the clerk's office within the five-day delay period. In the Hunter case, the plaintiff filed her petition by facsimile transmission to the clerk of court's office on Thursday, March 8, 2007. Thereafter, the original petition was received and stamped as "filed" with the clerk's office on March 16, 2007, one day past the five-day delay period. This court reversed the trial court's judgment granting the defendant's peremptory exception raising the objection of prescription and held that the plaintiffs action had not prescribed. Accordingly, this court explicitly overruled all First Circuit Court of Appeal jurisprudence not consistent with our ruling in Hunter, id.
Upon appeal of the Hunter decision, the Supreme Court agreed with this court that to forward a document as required by La. R.S. 13:850 B, a litigant must only send the document; the sending of the document towards the place of destination is all that is required, pursuant to the unambiguous language of La. R.S. 13:850. Hunter, XXXX-XXXX (La. 3/17/09), 6 So.3d 152. The Supreme Court further stated that the sender must establish, by a preponderance of the evidence, that the original document and required fees have been forwarded to the clerk's office in the time set forth in the statute. Hunter, XXXX-XXXX (La. 3/17/09), 6 So.3d 152. The Supreme Court noted in the Hunter case that although the record reflected that the original document and fees were received by the clerk's office on the sixth legal day after the facsimile transmission of the petition, the trial court had made no factual finding of whether the plaintiff had forwarded the document and fees within the five-day delay period of the statute. Because the record did not contain sufficient information for the Supreme Court to determine whether the document and fees were timely forwarded to the clerk's office, the Supreme Court remanded the matter to the trial court with instructions that the plaintiff be given the opportunity to present proof, in the form of affidavits or other documents, such as proof of mailing, of the date on which the original document and required fees were forwarded to the clerk's office. Hunter, XXXX-XXXX (La. 3/17/09), 6 So.3d 152.
In the instant case, the record does not contain proof of the date on which the plaintiff forwarded the original signed petition, along with required fees, to the clerk's office or the means by which the items were forwarded. Therefore, in accordance with the Supreme Court's ruling in Hunter, we vacate the trial court's judgment and remand to the trial court with instructions that the plaintiff be given the opportunity to prove by a preponderance of the evidence that she forwarded the original signed petition and required fees to the office of the clerk of court within the fiveday delay period of La. R.S. 13:850.
CONCLUSION
For all of the foregoing reasons, the judgment of the trial court is vacated and the matter is remanded for proceedings consistent with this opinion. Costs of appeal are assessed equally to the parties.
VACATED AND REMANDED.
NOTES
[1] According to La. Civ. Code art. 3492, delictual actions are subject to a liberative prescription of one year, commencing to run from the day injury or damage is sustained.
[2] State Farm acknowledges that Saturdays and Sundays are counted as days of public rest and legal holidays, pursuant to La. R.S. 1:55 A (1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612624/ | 282 So.2d 741 (1973)
FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, Louisiana
v.
J. R. EAVES.
No. 5411.
Court of Appeal of Louisiana, Fourth Circuit.
August 21, 1973.
Rehearing Denied September 26, 1973.
Writ Refused November 16, 1973.
*742 James Foley, III (Foley, Judell, Beck, Bewley & Landwehr), New Orleans, for plaintiff-appellee.
Aubrey E. Pate, New Orleans, for defendant-appellant.
Before REDMANN, LEMMON and BAILES, JJ.
REDMANN, Judge.
In this suit by a national bank to collect defendant's "BankAmericard" credit card account balance plus attorney's fees, defendant appeals from a judgment dismissing, on exceptions of no right and no cause of action, his reconventional demand based on interest overcharges. We reverse.
The reconventional demand refers to failure to credit certain payments and to charging interest upon interest despite "numerous" requests to correct the billing, and seeks, citing La.Acts 1968, Ex. Sess., No. 24 (now repealed and replaced in R.S. 9:3510 et seq. by La.Acts 1972, No. 454), double the interest charges plus attorney's fees.
Plaintiff's computer-card accounting made part of its petition indicates both that interest beyond the statutory maximum was regularly charged by charging interest on maximum interest (whether already paid or not, despite an accountingcard space for deducting "Unpaid finance charge") and that payments were made by defendant which, since attributable first to (agreed non-usurious) interest and then to principal, La.C.C. art. 2164, may have constituted payment by defendant of most of the apparently usurious interest (to the non-usurious extent agreed upon).[1]
Plaintiff's argument on the exception was that the state statute penalizes usury and is therefore inapplicable because the federal law, 12 U.S.C. § 86, provides the exclusive penalty for usury by national banks; and that under federal law even usurious interest actually paid cannot be the basis of set-off or counterclaim in a national bank's suit for the principal of the debt.
Defendant argues that his complaint is not one of usury within Louisiana's historical interest and usury law, C.C. art. 2924, fixing maximum contractual interest (with some exceptions) at 8% per annum and allowing simple recovery of interest paid at a higher rate, nor within La.Acts 1855, No. 291 § 2 (the source of today's La.R.S. 9:3501[2]), which declared forfeited the entire interest contracted in excess of the Civil Code's 8% maximum.
Just as Louisiana's 1855 and earlier interest and usury laws plainly do not provide the exclusive remedy for abuse of the 1968 legislative creature called a "revolving loan plan" allowing more than double ordinary interest, defendant argues, the cited federal statute, derived from Act of June 3, 1864, c. 106, § 30, equally never intended to and does not apply to such then unheard-of credit utilizations to the exclusion of the state Act which created them.
The basic question presented is whether defendant's petition in reconvention states *743 a cause of action, i.e., some entitlement to relief. Defendant's recital of a state statute (or other source of law) is not a factor in deciding this question. Louisiana's tradition as a fact-pleading state is maintained and strengthened in its present law, La.C.C.P. arts. 854, 862, 865, and 2164. If state law or federal law (on usury, 12 U.S.C. § 86, or on "Truth in Lending", 15 U.S.C. § 1640(a) ) entitles defendant to relief on the facts presented, his reconventional demand states a cause of action.
STATE LAW
Applicability
Unless 12 U.S.C. § 86 excludes the applicability of state law, defendant does state a cause of action under La.Acts 1968, Ex.Sess., No. 24, or at least for return of interest paid under La.C.C. art. 2924.
In our opinion, the federal law penalizing national banks for usurious interest, in its historical context, does not make ineffective against such banks special state statutory provision against exceeding interest rates specially authorized in the same statute. Overcharging beyond the special rates does constitute usury but an aggravated kind of usury.[3]
We agree with defendant's argument that, in a historical sense in which even the 18% simple interest authorized by the 1968 state law would be gross usury on an ordinary loan, our problem is not a simple one of interest and usury.
Indeed it is far from a case of simple loan between borrower and lender when a Louisianian visiting Hawaii, or Mexico, or France, makes a purchase from some small shopkeeper using a BankAmericard. Nor is it as simple as a three-party transaction, such as use of a letter of credit issued by a local bank and directed to a foreign bank. There are evidently at least four parties involved, the fourth being the Bank Americard corporation of which plaintiff national bank describes itself as a licensee.
The role of the licensor and its interest are not disclosed. It is not alleged to be a national bank and any pre-emption of state law by federal law for national banks seems inapplicable to it.
We are unable to conclude, with plaintiff bank, that 12 U.S.C. § 86 is exclusively applicable.[4]
1968 Act Invalidity
Nevertheless, the state statute on which both plaintiff and defendant rely cannot be given effect. What is reported in La.Acts 1968, Ex. Sess., as Act No. 24 is not law because it does not contain the enacting clause which La.Const, art. 3, § 7 [5]*744 requires to distinguish legislative action as law rather than mere resolution or some other act. Complete absence of the enacting clause renders the statute invalid; see O'Rourke v. O'Rourke, 69 So.2d 567 (La. App. 1954) (rev'd in part on other grounds, 1955, 227 La. 262, 79 So.2d 87).
La.Acts 1968, Ex. Sess., No. 24 is null.
Other State Law
Another possible source of a cause of action, but only if 12 U.S.C. § 86 does not afford a cause of action (e.g., because a BankAmericard transaction is not a "note, bill, or other evidence of debt", or because the BankAmericard corporation retains some interest, under its licensing agreement, not governed by 12 U.S.C. § 86), is La.C.C. art. 2924, allowing recovery of paid usurious interest.
FEDERAL LAW
We agree with the bank that 12 U.S.C. § 86[6] provides double usurious interest actually paid as the exclusive penalty for properly disclosed (and therefore known) ordinary interest overcharges collected by a national bank. While making unpaid usurious interest uncollectible, this statute has been interpreted to make set-off of paid usurious interest unavailable against the principal debt to the bank; Barnet v. Muncie Nat. Bank, 98 U.S. 555, 25 L.Ed. 212 (1879) (but compare John R. Alley & Co. v. Federal Nat. Bank, 10 Cir. 1942, 124 F.2d 995).
We add that interest charges (whether or not usurious and whether or not paid) required by federal law to be but not fully disclosed may give rise to a separate cause of action under 15 U.S.C. § 1640(a) [7] for twice the finance charge plus costs and reasonable attorney's fees.
State courts have jurisdiction under either cited federal statute; 12 U.S.C. § 94 and 15 U.S.C. § 1640(e).
But the bank argues that an action under 12 U.S.C. § 86 for double interest paid cannot be brought by way of counterclaim, citing Barnet, supra, and several other Supreme Court decisions.
These decisions, antedating the Federal Rules of Civil Procedure, declared a procedural rule which is not controlling today; John R. Alley & Co. v. Federal Nat. Bank, supra. Fed.R.Civ.P. 13(a) now makes a claim for penalty under 12 U.S.C. § 86 a compulsory counterclaim in an action *745 by a national bank on the debt on which the usurious interest was paid.
Thus under 12 U.S.C. § 86 double usurious interest actually paid is recoverable by this counterclaim and, additionally, under 15 U.S.C. § 1640(a) "twice the amount of the [not properly disclosed] finance charge in connection with the transaction" (even if unpaid) is recoverable. Conceivaly, if usurious interest was both paid and not properly disclosed, the payer might recover four times the paid amount (twice from each statute) plus attorney's fees.
We conclude that defendant's demand as plaintiff in reconvention, though perhaps subject to an exception of vagueness, has at least stated a cause of action.
Finally we mention that the exception of no right of action, "or no interest in the plaintiff to institute the suit", La.C. C.P. art. 927(5), is without merit. It is precisely and exclusively the person charged interest who has the right and interest to sue for the penalties provided for overcharge, usury or nondisclosure.
The judgment is reversed and the exceptions overruled. Plaintiff is to bear the costs of this appeal.
BAILES, J., dissents.
PER CURIAM.
Plaintiff complains that we have prejudged, on exceptions, the merits of defendant's claim relative to usury. We did not so intend. Our hedge-words ("indicates", "may have", "apparently") were intended to leave open, to both parties, all questions on plaintiff's accounting. Our reference to plaintiffs accounting allegations, where defendant's reconventional demand's sufficiency was alone at issue, was to show the context in which defendant's somewhat vague allegations become more understandable as assertive of a cause of action.
Plaintiff also complains of our holding void La.Acts.1968, Ex.Sess., No. 24 when neither party attacked it. Whatever the merits of the theory that the constitution is inoperative against an unconstitutional law unless the unconstitutionality has been specially pleaded in the trial court, this theory is not applicable here. This Act is not an unconstitutional law. It is no law, not because its provisions contravene constitutional provisions, but because the Legislature never enacted it into law.[1]
Rehearing is denied.
NOTES
[1] In our opinion, as a matter of law, the law (La.C.C. art. 2164) which ascribes an unspecified payment first to interest can only be construed to mean lawful interest. Not even an unenforceable natural obligation, La.C.C. art. 1757(2), arises from a promise to pay usury; Rosenda v. Zabriskie, 4 Rob. 493 (La. 1843). Accordingly, even if one had agreed to usurious interest, C.C. art. 2164 would not attribute his payments to usurious interest because another law (La.R.S. 9:3501, ordinarily) forfeits all interest and therefore no interest would be due and the entire payment should be attributed to principal.
[2] " § 3501. Forfeiture of interest
"Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted."
[3] E. g., Louisiana's Small Loan Law, La. R.S. 6:571-593 (also repealed and replaced in 9:3510 et seq. by La.Acts 1972, No. 454), allowed a rate which exceeded 42% per annum on loans up to $150, but deprived the overcharging lender of all right to collect interest and principal, § 583. If a national bank (by whatever device) uses a state small loan law (or the credit card law here involved) in order to exempt itself from ordinary usury law, it should not, in justice, be heard to claim sanctuary in ordinary usury law when it exceeds even multiplemaximum rates such as 42%.
[4] Assuming that 12 U.S.C. § 86 were exclusively controlling, its double-interestpaid would be the exclusive penalty. We leave open the question whether a state law provision for attorney's fees is a provision for a penalty and therefore also pre-empted, or merely a provision enabling this cost of litigation to be recovered from the losing party like other costs. First Nat. Bank v. Howard, 59 Okl. 134, 138 P. 438 (1916), which refused attorney's fees as unprovided by 12 U.S.C. § 86 (then R.S. 5198), does not address the question (yet awarded other costs, which are equally unprovided by 12 U.S.C. § 86).
[5] "The style of the laws of this State shall be: `Be it enacted by the Legislature of of Louisiana.' It shall not be necessary to repeat said enacting clause after the first section of an act."
The usual practice of labeling intended law as "An Act" (in addition to using the enacting clause), while resolutions may be labeled "A Concurrent Resolution", might logically distinguish law. So might "A Bill" or "Law". Louisiana's constitution, however, has specified another formula, and thus "An Act" (or other label) is constitutionally insufficient to enact law.
[6] "§ 86. Usurious interest; penalty for taking; limitations.
"The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries wit it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred."
[7] "§ 1640. Civil liabilityFailure to disclose
"(a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
"(1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
"(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney's fee as determined by the court."
[1] Questioning whether a bill became law "in the manner prescribed by the Constitution of the state" [Colorado], Portland Gold Mining Co. v. Duke, 191 F. 692, 696 (8 Cir. 1911) declares "Whether it did or not is a judicial question, to be determined by the court, and arises whenever the act is drawn in question, whether made an issue by pleading or not." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612513/ | 282 So. 2d 730 (1973)
Delos C. DANCER, III
v.
State of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
No. 9440.
Court of Appeal of Louisiana, First Circuit.
June 29, 1973.
Standford O. Bardwell, Jr., Asst. Atty. Gen., and William J. Guste, Jr., Atty. Gen., Baton Rouge, for appellant.
Garic K. Barranger, Covington, and Joseph S. Russo, New Orleans, for appellee.
Before SARTAIN, BLANCHE and WATSON, JJ.
BLANCHE, Judge.
Plaintiff, Delos C. Dancer, III, was authorized to file this suit against the defendant, State of Louisiana, through the Department of Corrections, by House Concurrent Resolution No. 55 of the 1969 Regular Session of the Louisiana Legislature. While plaintiff was an inmate of Louisiana State Penitentiary at Angola, Louisiana, he suffered an injury to his right leg and ankle when playing in a game of football organized by prison authorities. The specific injuries were the severance of the deltoid ligament and a break of the right fibula or ankle bone. After plaintiff was injured, he was taken to the Angola General Hospital where he received medical treatment. It is alleged that while plaintiff was in the hospital at Angola the defendant did not provide plaintiff with reasonable medical services and as a result thereof the injury to his right ankle was aggravated, with the occurrence of residual disability.
*731 The trial judge held that the evidence supported a finding that the defendant failed to provide plaintiff with reasonable medical services and awarded plaintiff damages in the sum of $16,000. Whether that finding is supported by a preponderance of the evidence and whether the award of $16,000 to plaintiff as compensation for damages suffered by him is excessive are the issues on appeal. We affirm.
The trial judge has favored us with a written opinion wherein he has made certain factual findings and the conclusions to be drawn therefrom. His assistance in this regard makes our disposition of the matter on appeal an easy task, and we take the liberty of quoting from his opinion with approval as follows:
"The State of Louisiana, through the Department of Corrections, is defendant on the theory that the State has a duty to provide reasonable medical attention to inmates pursuant to La.R.S. 15:760, 15:859 and 15:831.
"Testimony revealed that immediately after sustaining the injury plaintiff was carried by stretcher to the prison hospital. Here, his ankle was x-rayed by inmate-technician, Robert Colley. Colley had no formal education or training as an x-ray technician and learned his trade from Dr. B. T. Hickman, a radiologist, who came to the prison hospital on Sundays. The testimony is vague as to whether or not Dr. Hickman was at the hospital and read plaintiff's x-rays on the day in question. However, Dr. Hickman's report on the x-rays, dated March 10, 1968, is part of plaintiff's hospital record. Plaintiff was admitted to the hospital; his foot and leg were elevated; he was given Darvon 65 mg. for pain and Varidose tabs for four days; his ankle was packed in ice to reduce swelling; a cast was ordered when the swelling subsided. These treatments were ordered by W. D. Martin, a freetechnician. This job specification under Civil Service requires at least one year's work in a hospital or some medical field.
"Plaintiff remained in the hospital from March 10, 1968 through March 21, 1968. During this period, the medical director, Eduardo Rodriguez, supervised plaintiff's care. (See hospital record: Doctor's Order Sheet.) Rodriguez, a Cuban refugee since the early 1960's when Castro came to power, was not licensed to practice medicine in Louisiana nor did he have a Louisiana institutional permit at the time. However, he had been licensed to practice medicine in Cuba; and, subsequently did receive a Louisiana institutional permit. Rodriguez is now deceased. Medicines and drugs, temperature, pulse, respiration and general observations were administered by various inmates. (See hospital record: nurses notes, progress notes.)
"A full leg cast was applied on March 19, 1968 by Odell Causey, an inmate technician, assigned to the hospital emergency room. Odell Causey had no formal training or education in casting, only his experience at the prison hospital acquired from another inmate.
"Plaintiff was discharged on March 21, 1968. Plaintiff returned to the hospital on March 27, 1968, April 15, 1968, and May 13, 1968. On these visits the cast was removed, x-rayed and re-applied. Testimony of Causey who applied each of these casts, revealed that plaintiff's ankle was still swollen and bruised. Plaintiff also made other trips to the hospital on March 25, 1968, April 22, 1968, April 29, 1968, May 14, 1968 and May 15, 1968.
"It was stipulated between counsel that John J. Kelly, prison warehouse supervisor, would testify that plaintiff's ankle remained swollen after the cast was removed the third time on May 13, 1968, and that it was necessary for him to personally petition prison authorities for plaintiff's transfer to Charity Hospital in New Orleans. Plaintiff worked in *732 the warehouse and Kelly was his supervisor.
"On May 27, 1968, plaintiff was re-admitted to the hospital and sent to Charity Hospital in New Orleans. Plaintiff remained at Charity Hospital in New Orleans from May 28, 1968 to June 11, 1968. While there, Dr. David Wisdom performed surgery for open reduction and internal fixation of the right ankle. Postoperative diagnosis revealed fracture of the distal aspect of the right fibula plus rupture of the deltoid ligament.
"Plaintiff was returned to Angola General where he remained at bed rest until July 18, 1968, when he was discharged to light duty. Plaintiff was scheduled to return to Charity on June 26, 1968, then again on July 10, 1968, but was not sent for unexplained reasons. He was returned to Charity Hospital on August 9, 1968 where he underwent surgery for the removal of the screw in his right ankle. He returned to Angola General on August 13, 1968, and was discharged August 14, 1968.
"It was stipulated between counsel that the state has a duty to provide reasonable medical treatment to inmates pursuant to La.R.S. 15:760, 15:859 and 15:831. La.R.S. 15:760 provides for the establishment of the prison hospital with necessary equipment and attendants; La.R.S. 15:859 mandates the superintendent to appoint physicians who shall visit the convicts at least 3 times a week and gives him power to call in local physicians in case of emergency; La.R.S. 15:831 mandates the director of corrections to establish and prescribe standards for health, medical and dental services for each institution; La.R.S. 15:831 also gives authority for the transfer of convicts to medical facilities outside the institution where deemed necessary.
"Testimony revealed that there were no physicians available to inmates at times and that prison authorities merely did the best they could with the personnel available. During the time of plaintiff's confinement, the personnel available were two unlicensed physicians, Rodriguez and Martinez, various free technicians hired through State Civil Service, and numerous inmate technicians. Furthermore there were no established medical health standards or procedures in effect at Angola. It is clear that the state breached its duty to provide reasonable medical treatment to inmates under these circumstances.
"Did the breach of this duty cause harm to the plaintiff? This question must be answered in the affirmative. Especially pertinent is the testimony of Lynn R. Hamilton, M. D. of the Ochsner Clinic. Plaintiff's injury was the fracture of the distal aspect of the right fibula. Dr. Hamilton testified that there were two conceivable methods of treating this fracture, i. e., closed reduction or open reduction with internal fixation. He agreed that perhaps some of his colleagues might try closed reduction first, although he personally would have used open reduction. Testimony crucial to this case is the extent of aggravation caused plaintiff's injury because of the delay of some 12 weeks and the improper casting of the ankle. Dr. Hamilton testified that plaintiff's ankle was cast down at an angle of 150 at Angola General Hospital. He testified that while some fractures are treated with the foot down at a slight angle, ankle fractures are not among them. He concluded that the casting technique used on plaintiff was improper and would be condemned by all Louisiana doctors. Dr. Hamilton concluded that the improper casting over the 12 week period resulted in an increase in the overall partial, permanent disability in plaintiff's foot because it prolonged total immobilization time. He testified that if the cast had been improperly applied but then surgery had been carried out in 4-6 days after the injury, the total immobilization time *733 would not have been significantly prolonged. He concluded that the 12-week prolongation of total time of immobilization combined with improper casting aggravated plaintiff's injury to the extent that it increased his percentage of disability.
"As to standards of accepted practice, Dr. Hamilton testified that a physician must first reduce the fracture and apply the initial cast. The physician is responsible for molding the initial cast, not a plaster technician. He felt that a general practitioner in Louisiana would have recognized within a week that closed reduction was not working in plaintiff's case and would have proceeded with open reduction and internal fixation.
"Based on the medical testimony of Dr. Hamilton, it is clear that plaintiff's injury was improperly treated according to accepted medical standards and that said treatment increased plaintiff's disability." (Written Reasons for Judgment, Record, pp. 35-39)
The foregoing review of the evidence by the trial judge supports his finding that the defendant failed to afford plaintiff with reasonable medical services and as a result thereof caused plaintiff's injuries.
As contemplated by the foregoing statutes[1] referred to in the trial judge's opinion and those which regulate the practice of medicine in the State of Louisiana,[2] as well as from the evidence adduced at trial, reasonable medical services include at least the following:
(1) The establishment of standards for health, medical and dental services, including diagnosis, treatment and care of inmates both while confined to the hospital or as outpatients of the hospital.
(2) The establishment of standards and guidelines as to the types of treatment which may be administered as first aid by inmates assigned as medical personnel.
(3) The establishment of standards and qualifications of personnel, whether inmate or civilian, to administer first aid.
(4) The establishment of standards and guidelines for the treatment of inmates at facilities outside the institution, taking into account the competency and adequacy of the institution's facilities and personnel.
(5) The establishment of standards and guidelines as to the type of medical treatment that may be administered by unlicensed inmates and civilian attendants.
(6) The establishment of standards and guidelines as to the supervision of *734 medical treatment by unlicensed inmates and civilian attendants.
(7) The diagnosis and treatment of inmates by physicians and surgeons duly qualified and licensed in accordance with the laws of the State of Louisiana to practice medicine in the State of Louisiana.
The trial judge's award of $16,000 to plaintiff was not an abuse of his great discretion. LSA-C.C. art. 1934(3); Lomenick v. Schoeffler, 250 La. 959, 200 So. 2d 127 (1967); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So. 2d 64 (1964); Gaspard v. LeMaire, 245 La. 239, 158 So. 2d 149 (1963); Pepper v. Glover, 241 So. 2d 269 (La.App. 1st Cir. 1970). Those matters which he took into consideration in assessing damages for plaintiff's personal injuries are supported by the evidence and are set forth in his opinion as follows:
"In assessing damages, the court considers the 12 weeks of pain plaintiff suffered at Angola General while subjected to improper treatment. Also, as Dr. Hamilton testified, had plaintiff undergone surgery initially the pain of the break and the pain of the surgery would have been concurrent, rather than consecutive. Plaintiff has a permanent partial disability of 20% in his ankle. This disability results in difficulty in locomotion on uneven ground which precludes any active sport or outdoor occupation, inability to climb without danger and difficulty in stooping or squatting because of the ankle motion required. * * *" (Written Reasons for Judgment, Record, p. 39)
For the above and foregoing reasons, the judgment of the trial court is affirmed. Defendant is taxed with all costs of these proceedings as may legally be assessed against the State of Louisiana.
Affirmed.
NOTES
[1] LSA-R.S. 15:760 reads as follows:
"Where large numbers of prisoners are confined the proper authorities in charge shall provide hospital quarters with necessary arrangement, conveniences, attendants, etc."
LSA-R.S. 15:859 reads as follows:
"The superintendent shall appoint physicians who shall visit the convicts at least three times a week. Their compensation shall be determined by the superintendent.
"In cases of emergency the officers in charge of the convicts may call in local physicians whose compensation shall be determined by the superintendent."
LSA-R.S. 15:831 reads as follows:
"The director of corrections shall establish and shall prescribe standards for health, medical, and dental services for each institution, including preventive, diagnostic, and therapeutic measures on both an out-patient and a hospital basis, for all types of patients. An inmate may be taken to a medical facility outside the institution when deemed necessary by the director. Added by Acts 1968, No. 192, Section 1."
[2] LSA-R.S. 37:1261 et seq., provides for the licensing and qualifications of physicians and surgeons and requires the Louisiana State Board of Medical Examiners to examine all applicants for the practice of medicine and for the issuance of certificates to those who pass such examination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612510/ | 282 So. 2d 373 (1973)
Isom FENNELL, Jr.
v.
STATE.
8 Div. 340.
Court of Criminal Appeals of Alabama.
May 29, 1973.
Rehearing Denied June 26, 1973.
*374 Harris & Esdale, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Thomas Sorrells, Asst. Atty. Gen., for the State.
DeCARLO, Judge.
Isom Fennell, Jr. was convicted under an indictment charging possession of drugs and was sentenced by the Circuit Court of Morgan County to four years in the penitentiary. It is from this judgment that he appeals. This case was argued and submitted on May 10, 1973.
Evidence on behalf of the State tended to show that on April 26, 1969, Deputy Merrill Sims and Sgt. E. L. Anders, both of the Morgan County Sheriff's Department, were working the 6:00 P.M. to 4:00 A.M. shift. Deputy Sims testified that prior to going on duty, he was instructed by Sheriff Sandlin to watch for an Oldsmobile with a Kentucky tag, as he had information *375 that a load of whiskey was coming in on the Northwest side of Decatur. At the trial, Sgt. Anders stated they were to be looking for either a Chrysler or Chevrolet having a Kentucky or Madison County tag. Defense counsel asked Sgt. Anders if he didn't testify at the preliminary that the Sheriff told him to be on lookout for a Tennessee tag, and Anders replied, "I don't recall testifying to that."
Around 2:00 or 3:00 A.M., while they had a pick-up stopped checking the operator's license, a 1968 Mercury automobile eased past the deputies bearing a Kentucky tag. The two officers followed and stopped the automobile. As they approached, appellant got out and showed them his license. Standing beside the car with the door open, both officers saw eight or ten empty beer cans and bottles on the floorboard and one full can on the front seat. Also visible were two or three 4" × 10×" boxes between the front and back seat, with the words "Robitussin AC" written on them. Sheriff Anders removed a bottle from one carton and read that it contained codeine.
On direct examination, he testified as follows concerning the subsequent search and arrest:
"Q. Did you speak to the defendant about looking in his trunk because it was loaded down?
"A. Yes, sir, I asked him what was he loaded with, and he said, `Clothes.' And I asked him about opening the trunk and let me see them, and he did, he opened it.
"Q. You said, `What are you loaded with?' He said, `Clothes.' And you said, `Well, can I see them?' And then did he voluntarily open the trunk and let you in?
"A. Yes, sir.
"Q. Did he open the trunk, or did you?
"A. He opened it.
"Q. Tell the jury what you found.
"A. There was thirty cases of this Robitussin cough syrup in the trunk."
* * * * * *
"Q. Well, when exactly did you arrest the defendant, Sergeant? Did you arrest him before you looked in the trunk, or after you looked in the trunk, or do you recall exactly when in time you arrested him, or did you say your time wasdid you say `You are under arrest' at any time?
"A. I arrested him for illegal possession of prohibited liquor after we searched the car.
"Q. After you searched the car, you went back and said `You are under arrest.' Did you say you are the did you say `You are under arrest?'
"A. `Under arrest for illegal possession of prohibited liquor.'"
At the jail, appellant stated he was supposed to have made contact with someone at a Shell Service Station. Officer Sims then drove the Mercury to the appointed location, but after waiting for over an hour, he did not observe anyone try to make contact with the car.
On the same day, Clarence Harris, Investigator for the Morgan County Sheriff's Department, and Sgt. Bryant, State Investigator, interviewed appellant after advising him of his rights. Appellant stated he understood these rights and did not want a lawyer. Outside the jury's presence, testimony was heard concerning appellant's statement, and the court determined it to be voluntary. Harris testified that the following remarks were made by appellant:
"Well, I asked him how he got this stuff, and what he was going to do with it. He said that a guy in Louisville offered *376 him two hundred dollars to make the trip to Decatur, and he was to leave his car parked on Vine Street, which he said he did. He said that he went to a juke joint for a while, and when he came back his car had this cough syrup in it, and from there the instructions was to go to the Shell Service Station on the corner of Church Street and Highway 31, and there someone else would contact him and advise him what further he must do and what he was to do with this stuff."
The State Toxicologist testified that Investigator Harris delivered to him four bottles labeled with commercial label, Robitussin A. C., and that the liquid therein contained codeine.
Evidence was introduced concerning the Robitussin AC cough syrup found in the car, and a motion to suppress was filed. The motion was considered by the court during the course of the trial and overruled.
Counsel for the appellant argued many propositions, both orally and in brief, but the question of probable cause emerged as the fundamental inquiry. Did the deputies have probable cause to stop and search the car Isom Fennell, Jr. was driving? If not, then the lower court was in error in overruling the appellant's motion to suppress. If the deputies acted on reasonable belief and with probable cause, then the judgment is due to be affirmed.
The Supreme Court recognized in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."
The subject of probable cause received further consideration in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612, wherein the court stated:
"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.
* * * * * *
"A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time."
Applying these principles to the present case, we believe the deputies' actions were reasonable and in response to what they had been told and what they personally observed. The information came from the Sheriff of Morgan County and certainly warranted more credence than like information from an unknown informer or a telephone tip.
In reaching this conclusion, we reject counsel's argument that the reasonable cause for stopping could only be predicated on personal knowledge rather than information supplied by another.
Counsel for appellant insists that at the time the officers stopped Fennell's car, an arrest was effected. His authority for this contention is Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134, which involved a theft from an interstate shipment of whiskey at a Chicago terminal. In that case, the Government had received information of an undisclosed nature from, the employer of one, Pierotti. On the day following the interstate theft, agents were investigating in the neighborhood of the theft and saw Henry and Pierotti leave a tavern and drive away. The agents followed them into an alley in a residential area where Henry left the car and entered a gangway. He returned carrying several large cartons which were placed in the car. The agents were unable to follow, but later saw the car parked near the same tavern. Within a short time, Henry and Pierotti *377 left the tavern and returned to the same area and again loaded cartons into their car. From their position, the agents were unable to determine the contents of the cartons, but when the men drove off, the agents waved them to a stop.
Henry, supra, may be interpreted by some courts and writers as establishing the proposition that any restraint of a suspect's freedom of movement constitutes an arrest. We do not believe, however, that this decision announces such a precedent. In the Henry trial, the point at which the arrest occurred was not a contested issue. In fact, the Government expressly conceded that the arrest took place when the car was stopped. The apparent reason for this concession was to permit testimony of the agent's belief that a crime was being committed at that very moment.
In its opinion, the court made these comments on the arrest issue:
"That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete." (Emphasis added) Henry, supra.
We believe, the foregoing remarks are limited to the factual situation in Henry, supra, and do not preclude further consideration of this proposition.
If the appellant's interpretation of Henry, supra is the rule and not peculiar to those facts, then the police would be prevented from stopping and questioning persons suspected of crime unless they have a right to arrest at that instant.
We agree with Judge Tenny's appropriate observation in United States v. Thomas, D.C., 250 F. Supp. 771:
"If Henry can be read as holding that every stopping and consequent restriction of freedom of movement is an arrest, then I must candidly note that the rule of Henry is more `honour'd in the breach than the observance.' (Hamlet, Act. 4, Scene 1.)"
In 1964, some five years after the Henry decision, the Eighth Circuit Court of Appeals held in Schook v. United States, 337 F.2d 563, "that a police officer who is only attempting to routinely question persons under suspicious circumstances to ascertain their identity and actions is executing permissible police procedure to safeguard the community against criminal activity and is not making an `arrest.'" Hayes v. State, 44 Ala.App. 539, 215 So. 2d 604.
The ruling in People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32, has the same import. There the court said:
"The authority of the police to stop defendant and question him in the circumstances shown is perfectly clear. The business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off.
"And the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed."
It should be noted that there exists a distinction between what is required to prove guilt and what is required to show probable cause. There is a difference between the two things to be proved, as well as between the tribunals which determine them, and difference in the quanta and modes of proof required to establish them. To illustrate, guilt in criminal cases must be proved beyond a reasonable doubt and by evidence consistent with the strict evidentiary *378 rules of our court system. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879,
"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved." Brinegar, supra.
In order for a detention to be valid, the officer must reasonably, and in good faith, suspect the individual detained of being involved in some form of criminality.
Reasonable ground for belief of guilt or probable cause means more than a good faith suspicion. Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. The measure of legality of a seizure of an automobile without a warrant is whether that seizing officer has reasonable or probable cause to believe that the auto seized is carrying contraband. In cases where the securing of a warrant is practicable, it should be done, however, where seizure is impossible except without a warrant, the seizing officer acts lawfully when his actions are predicated on probable cause. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543.
Applying this criteria to the facts confronting the Morgan County deputies, we see they had reason to believe that a crime had been or was being committed.
The elements of this case comply with the requisites for stopping and investigating which were enumerated in United States v. Bonanno, B.C., 180 F. Supp. 71:
"(1) belief by the officer involved that a crime might have been committed; (2) reasonable grounds for such a belief and (3) absolute necessity for immediate investigatory activity."
As the deputies approached the Fennell vehicle, they saw empty beer bottles or cans near the front seat and a full can lying on the seat. They also observed boxes of Robitussin A. C. between the front and the back seat. When asked what he had in the trunk, Fennell replied, "Clothes."
The Sheriff's tip, the personal observations of the officers, and the appellant's possession of beer in a dry county collectively, demonstrated factors of a highly suspicious nature and made it imperative for the officers, in the proper performance of their duty, to search the trunk.
In conclusion, we find the actions of the deputies to have been proper and necessary under the circumstances and in no way violated or infringed the Constitutional rights of appellant. Accordingly, the motion to suppress was properly denied.
We have searched the record as directed by the Code of Alabama 1940, Recompiled 1958, and finding no error, we affirm.
Affirmed.
ALMON, TYSON and HARRIS, JJ., concur.
CATES, Presiding Judge (concurring specially):
I would save all the other questions ably discussed by Judge DeCarlo for a better vehicle for judicial expression. In the case sub judice, I should prefer to rest our decision on the appellant's consent to the search. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591955/ | 223 P.3d 941 (2009)
2009-NMCERT-008
STATE
v.
ALBAREZ.
No. 31,854 (COA 29,468).
Supreme Court of New Mexico.
August 18, 2009.
Writ Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591939/ | 223 P.3d 837 (2010)
STATE
v.
HENDERSON-BROWN.
No. 101266.
Court of Appeals of Kansas.
February 19, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612649/ | 282 So. 2d 672 (1973)
PENINSULAR FIRE INSURANCE COMPANY, Appellant,
v.
Junior Paul KING, Appellee.
No. R-178.
District Court of Appeal of Florida, First District.
August 23, 1973.
Rehearing Denied October 3, 1973.
J. Ben Watkins, of Watkins & Hill, Tallahassee, for appellant.
Marion D. Lamb, W.D. Lines, Quincy, Rhodes & Stephens, Tallahassee, for appellee.
SPECTOR, Judge.
On May 14, 1971, appellee was employed by J.O. Smith, Jr., a land clearing contractor, and was injured when he came in contact with power lines operated by Florida Power Company. Appellee's employer had contracted with Florida Power to clear right of way between Quincy and Chattahoochee, Florida. Florida Power's contract *673 with Smith required the latter to maintain workmen's compensation coverage for his employees to be used in the clearing operation and further required Smith to furnish Florida Power with a certificate of coverage from his insurer with a provision in such certificate that Florida Power would receive twenty-days notice of intent to cancel such coverage. Although appellant furnished the requisite certificate, no notice of cancellation was furnished to the power company. Prior to the accident, J.O. Smith had purchased workmen's compensation insurance from appellant, affording compensation coverage from July 30, 1970, to July 31, 1971.
On December 10, 1970, appellant mailed to the Department of Commerce a notice of cancellation stating that J.O. Smith's insurance would be cancelled January 8, 1970. Upon receiving the notice, the supervisor of records took it upon himself to correct what he deemed to be a typographical error and corrected January 8, 1970, to January 8, 1971. The Department of Commerce notified Smith that its records showed the policy cancelled and later a representative of the department, upon inquiry, was told by Smith's son that he did not want the insurance.
After the accident in May, appellant paid part of appellee's medical bills until they belatedly denied coverage August 24, 1971, on the basis that the policy had been cancelled.
The lower court found that the policy had not been cancelled in accordance with statutory and policy provisions and therefore the policy was in effect at the time of the accident. We agree.
Section 440.42(2), Florida Statutes, F.S.A., provides that at least thirty-days notice must be given before the effective date of cancellation. The policy in question contains the following provisions:
"This policy may be cancelled by the company by mailing to the insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of the surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the insured or by the company shall be equivalent to mailing... .
"Terms of this policy which are in conflict with the provisions of the workmen's compensation law are hereby amended to conform to such law."
It therefore appears that the trial court was correct in substituting the thirty-day requirement of the statute for the ten-day policy requirement. By so doing, it is quite evident that the effective date and hour of cancellation stated in the notice did not meet the thirty-day notice required by the statute.
In Silvernail v. American Fire and Casualty Co., 80 So. 2d 707 (Fla. 1955), the court held that four and one-half days notice in light of a five-day notice provision in the policy was not effective cancellation. Likewise, the Supreme Court held in Graves v. Iowa Mutual Insurance Co., 132 So. 2d 393 (Fla. 1961), that cancellation received on June 24, 1958, to be effective July 20, 1958, violated the thirty-day provision of the policy and therefore the policy was in effect at the time of the incident which gave rise to the claim.
Furthermore, appellant contends that even if the notice of cancellation should be considered to be so defective as to render it void and of no effect, nevertheless the employer Smith had actual notice that the policy had been cancelled and, after being so notified, stated his election not to procure new coverage. Upon such facts and circumstances, appellant contends that the employer is estopped to assert a defect in the cancellation of the policy. While it may well be true that those facts may be the basis of an estoppel, that defense *674 would lie only with respect to a claim lodged by the employer against the carrier. In the case at bar, however, the claim under consideration is that of an employee. No facts appear in the record nor are any urged indicating that the appellee-employee is estopped from asserting his claim by virtue of any action or knowledge on his part.
We therefore hold that the policy was in effect at the time of the accident, having not been cancelled in accordance with statutory and policy provisions. Accordingly, the judgment is affirmed.
CARROLL, DONALD K., Acting C.J., and WIGGINTON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612643/ | 745 F. Supp. 150 (1990)
CHRISTIANA GENERAL INSURANCE CORPORATION OF NEW YORK, Plaintiff,
v.
GREAT AMERICAN INSURANCE COMPANY, Defendant.
No. 87 Civ. 8310 (PKL).
United States District Court, S.D. New York.
August 9, 1990.
*151 Walder, Sondak, Berkeley & Brogan, Roseland, N.J., Budd, Larner, Gross, Picillo Rosenbaum, Greenberg & Sade, New York City (James A. Plaisted, Mark L. Alexander and Donald M. Emeigh, Jr., of counsel), for plaintiff.
Bower & Gardner, New York City (Thomas R. Newman, Thomas M. Bower and Barry T. Bassis, of counsel), for defendant.
OPINION AND ORDER
LEISURE, District Judge.
This is a declaratory judgment action, filed pursuant to 28 U.S.C. § 2201. The jurisdiction of this Court is based on diversity of citizenship. Plaintiff seeks a declaration from this Court stating that, inter alia, plaintiff is not obligated to indemnify defendant for losses incurred under certain reinsurance policies between the parties. Extensive discovery has taken place in this action, and the parties have now cross-moved for summary judgment, and plaintiff has moved for attorneys' fees. Additionally, plaintiff has moved to amend its complaint, should its summary judgment motion be denied.
BACKGROUND
The essential facts of this action are not in dispute. The disputed issues will be discussed below in the body of this opinion. This case arises out of reinsurance contracts between the parties. For four policy years stretching from 1980 to 1984[1], plaintiff Christiana General Insurance Company of New York ("Christiana") agreed by contract to reinsure certain risks insured by defendant Great American Insurance Company ("GAIC"). In the instant action, Great American was an excess insurer on a policy issued to American Honda Motor Company, Inc. ("American Honda"), and to various American Honda subsidiaries and affiliates. For the 1980 and 1981 policy years, GAIC's contract with American Honda stated that GAIC would provide $10 million in coverage in excess of $15 million dollars in losses. Thus, should American Honda's insured losses for one of those years exceed $15 million, GAIC would be obligated to cover those losses, up to $10 million. For the 1982 policy year, GAIC provided $10 million in coverage in excess of $17 million, and for the 1983 policy year, GAIC provided $7 million in coverage in excess of $18 million.
In each of the policy years 1980 through 1983, Christiana reinsured a portion of GAIC's liability obligation to American *152 Honda.[2] Reinsurance is a contract between two insurance companies designed to spread the risks associated with insuring large accounts. Under a reinsurance contract, one insurer, known as the ceding insurer, transfers all or a portion of the risk it has underwritten to another insurer, known as the reinsurer, for a portion of the premium paid by the insured to the ceding insurer. See Colonial American Life Ins. Co. v. Commissioner, ___ U.S. ___, 109 S. Ct. 2408, 2411, 105 L. Ed. 2d 199 (1989). As Judge Kevin Duffy of this Court has succinctly put it, "Reinsurance is simply an insurance policy issued to insurers." Employers Ins. of Wausau v. American Centennial Ins. Co., No. 86 Civ. 8576 (KTD), slip op. at 2, 1989 WL 6631 (S.D.N.Y. Jan. 24, 1989).
Reinsurance is a means for insurance companies to spread the risks they assume from insured, and to lessen the impact any individual company will suffer in the event of a catastrophic loss. Reinsurance comes in two basic forms: "treaty" reinsurance, and "facultative" reinsurance. Treaty reinsurance "involves an ongoing agreement between two insurance companies binding one in advance to cede and the other to accept certain reinsurance business pursuant to its provisions." Sumitomo Marine & Fire Ins. Co. v. Cologne Reinsurance Co., 75 N.Y.2d 295, 301, 552 N.Y.S.2d 891, 894, 552 N.E.2d 139, 142 (1990). Facultative reinsurance, on the other hand, "involves the offer of a portion of a particular risk to one or more potential reinsurers, who are then free to accept or reject the risk in whole or in part." Id. (footnote omitted) (citing Thompson, Reinsurance, at 75 (4th ed.1966)). A separate reinsurance certificate is typically issued for each risk assumed by the facultative reinsurer. The reinsurance is often placed through a broker employed by the ceding insurer, and, in the case of facultative reinsurance, a single risk is often placed with a number of reinsurers, each assuming a portion of the ceding insurer's risk. The case at bar involves facultative reinsurance.
In the instant case, GAIC, after entering into its insurance agreement with American Honda, utilized a licensed New York reinsurance intermediary, Willcox, Barringer & Co. ("Willcox"), who brokered GAIC's American Honda liability to a number of reinsurance companies, including Christiana.[3] Provision 7 of each of the facultative reinsurance certificates provides:
Prompt notice shall be given by the Company [GAIC] to the Reinsurer of any occurrence or accident which appears likely to involve this reinsurance and, while the Reinsurer does not undertake to investigate or defend claims or suits, the Reinsurer through its representative and/or counsel, shall nevertheless have the right and be given the opportunity to associate with the Company and its representatives at the Reinsurer's expense in the defense and control of any claim, suit or proceeding which may involve this reinsurance, with the full cooperation of the Company.
It is this provision that underlies much of plaintiff's allegations in this action. Plaintiff asserts that defendant failed to give adequate notice to its reinsurers that defendant's excess insurance layer was likely to be pierced for most or all of the policy years reinsured in part by defendant. Plaintiff further alleges that failure to provide prompt notice to plaintiff and other reinsurers constituted a breach of a fiduciary duty of good faith owed to the reinsurers by GAIC. Finally, plaintiff contends that GAIC misrepresented the products and risks being reinsured, thus misleading plaintiff and other reinsurers into accepting risks they otherwise would have rejected.
*153 American Honda is the wholly-owned United States subsidiary of the well-known Japanese manufacturer of automobiles, motorcycles, power equipment and related products. American Honda is the exclusive distributor of Honda products in the United States. See Cabriolet Porsche Audi, Inc. v. American Honda Motor Co., 773 F.2d 1193, 1198 (11th Cir.1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1641, 90 L. Ed. 2d 186 (1986). Among the Honda products distributed by American Honda are all-terrain vehicles ("ATVs"). ATVs are three- or four-wheeled motorized vehicles capable of operating off-road. They come in a number of models designed for a variety of purposes. Some of the more powerful models, particularly in a four-wheel configuration, can be used as a small tractor. During the late 1970s and early 1980s, however, ATVs were principally marketed as recreational vehicles. Apparently, many users treated ATVs in a manner previously reserved for "dirt bikes" racing them offroad or attempting to traverse difficult terrain at relatively high speeds. Most states did not require a driver's license or any other type of permit to operate an ATV, and only a few states required riders to wear a helmet or other protective gear. Accordingly, it was not uncommon for children under the age of sixteen to operate ATVs with little or no training or protective clothing.
ATVs, it turns out, were not well designed for the activities for which many Americans purchased them. The three-wheeled versions, which look similar to large, motorized tricycles with oversized, deep-tread tires, were particularly popular with off-road enthusiasts. The smaller, less-powerful three-wheel ATVs were popular amongst teenagers and children both as recreational vehicles and, in some cases, as a form of transportation. ATVs, particularly the three-wheeled models, turned out to be unstable and deceptively difficult to operate. In the early 1980s, as the popularity of ATVs began to increase, the number of accidents resulting from ATV use increased dramatically. The injuries suffered in ATV accidents were often severe. By mid-1985, there were 161 ATV-related deaths reported nationwide for the period from 1982 to 1985. Of those victims, 73 were under the age of sixteen, and 39 were under the age of twelve. There were also numerous reports of accident victims with severe brain and spinal cord injuries.
In the spring of 1985 the Federal Consumer Product Safety Commission ("CPSC") released a report, indicating that ATVs might pose an unreasonable risk of injury. Two months after its first announcement, the CPSC issued a proposed rule, designed to reduce the risks associated with ATVs, and initiated judicial action to ban the products as unduly hazardous. The CPSC action spurred journalistic interest in the ATVs. Between the two CPSC announcements in the spring of 1985, the ABC television news show 20/20 aired a segment which focused on the risks associated with ATVs, and on some of the accidents which had resulted from ATV use. Despite this publicity, American Honda continued to market and sell ATVs.[4] Finally, in 1988, with injuries and deaths from ATV use continuing to mount, American Honda and its parent entered into a consent decree with the CPSC to reduce the harm associated with ATVs. Specifically, American Honda agreed to cease selling all three-wheel ATVs, to limit sales of the remaining models to buyers of an appropriate age, and to undertake an extensive program to promote safe ATV use. This consent decree has, apparently, resulted in a significant reduction in ATV-related injuries.
The legacy of the ATVs is obvious in the instant action. As early as 1985, it was clear to at least some of American Honda's primary and excess insurers that the ATVs posed a serious liability problem. The number of lawsuits arising from ATV accidents was rising rapidly, and many of those claims were for substantial injuries which would likely result in large awards or settlements. *154 By the fall of 1987, led by the ATV cases, liability claims against American Honda had pierced, or were on the verge of piercing, GAIC's layer of excess insurance for the 1980 through 1983 policy years. By 1988, ATV losses exceed those for all other Honda products combined. See Plaintiff's Memorandum of Law, Exh. A. These losses have resulted in a significant drain on GAIC's layer of insurance, and thus has resulted in GAIC calling on its reinsurers, including Christiana, for indemnification under the facultative certificates.
Christiana has refused to indemnify GAIC for losses on the American Honda account. Christiana alleges that it was not notified of its potential liability in a timely fashion, and that GAIC misrepresented to Christiana at the time of the reinsurance contracts which products were being insured. Additionally, Christiana alleges that by not giving earlier notice of potential liability to it reinsurers, GAIC breached a duty of good faith to those reinsurers. In order to explore fully Christiana's allegations, it is necessary to review the events leading up to GAIC's notification to its reinsurers that their policies would be affected by the ATV losses.
As noted above, the extent of the potential liability problems arising from ATV use began to surface in 1985, with the action by the CPSC and the resulting media attention. Just as the public awareness of the ATV problem was growing, there apparently was knowledge among American Honda's insurers that the ATV losses, along with the expected losses from other Honda products, could well result in major liability for the insurers. In April 1985, Johnson & Higgins, who acted as American Honda's insurance broker, informed GAIC that, given the current rate of loss for the 1979 and 1980 policy years, it was possible that GAIC's layer of insurance could become involved in covering the claimed losses. Plaintiff's Exh. 2. A month later, Johnson & Higgins notified GAIC that existing claims might also involve the 1982 policy year. Plaintiff's Exh. 53. Within GAIC, some concern was expressed during 1985 about the extent of GAIC's possible exposure on it American Honda policies. See, e.g., Plaintiff's Exh. 105i. Johnson & Higgins forwarded at least some case files to GAIC for their review.
Throughout 1986, there was continuous activity within GAIC regarding the American Honda account. See Plaintiff's Exh. 115a-115m. Officials within GAIC were aware of the company's potential exposure for one or more policy years. However, it is clear that no one at GAIC knew which policy year would definitely be affected, or when GAIC's insurance layer for any one of those policy years would actually be pierced and GAIC would be required to take over management of any claims. GAIC was receiving updates from Johnson & Higgins, as well as computer runs of claims from the Insurance Company of North America ("INA"), which was the carrier for the excess layer directly below that carried by GAIC. Representatives of American Honda offered to assist GAIC in any review or claims management that GAIC felt would be necessary. Plaintiff's Exh. 115p. It appears, however, that because it was not certain which of GAIC's layers and policy years would be penetrated and which claims, if any, of the ones then existing would be involved in this penetration, GAIC declined American Honda' offer of help at that time.
In November 1986, GAIC was informed by INA that it was possible that INA's layer of insurance for the 1983 policy year would be expended during the following 12 months. Plaintiff's Exh. 115t. That same month, American Honda indicated to GAIC that it was likely that GAIC's layer for at least some years would be penetrated within the next six months. Plaintiff's Exh. 1151. This information apparently led Jerry Runnels ("Runnels"), a vice-president of GAIC in the claims department wrote to a colleague, Robert Adams ("Adams"), a vice-president in the accounting department, that it appeared that GAIC's layer would be penetrated soon for at least two policy years. Plaintiff's Exh. 115u. It is clear from this memo that GAIC did not have a complete picture of their potential liability, or the time-frame in which it *155 would arise. Runnels stated that he was going to "get a more accurate assessment as soon as possible [so that GAIC can] begin to plan how we are going to handle these cases when the necessity to do so arises." Id.
From the documentation before the Court, it is clear that in December 1986 and January 1987, GAIC began to pay significant attention to its American Honda account. In late January 1987, Runnels again wrote to Adams, attaching an internal GAIC report which indicated that, on an incurred basis, GAIC's insurance layer had been pierced for at least three policy years. Plaintiff's Exh. 42. Because of this apparent piercing on an incurred basis, Runnels explained that the claims department was taking a number of steps to prepare to handle claims when they became GAIC's responsibility. The first of those tasks was to conduct an audit of the American Honda claim files to "get a better feel for past and current handling, reserve accuracy, etc." Id. Further, Runnels indicated that his department need to "[d]ecide which years we should become actively involved in...." Id.
Plaintiff has made much of the fact that GAIC knew, through Runnels, that by early 1987 GAIC's layer of insurance had been penetrated on an incurred basis. There are two ways of calculating losses on an insurance policy: on an incurred basis, and on a paid basis. Incurred losses are losses actually paid plus reserves put in place to cover what are expected losses based on pending claims. Paid losses are just that: losses actually paid. An excess insurer, and thus its reinsurers, are not actually called upon to participate in claims handling and coverage until the underlying levels of insurance have been exceeded on a paid basis. Thus, the fact that INA's and American Honda's figures in 1986 and early 1987 indicated that GAIC's layer was penetrated on an incurred basis did not mean that GAIC at that point was required to participate in any existing claims. It simply indicated a strong possibility that, should INA's reserve figures prove to be correct, GAIC's layer would eventually be involved. However, it remained at least theoretically possible that GAIC's layer would never actually be called upon to make payments, and it was certainly true that there would be a gap in time between when GAIC's layer was penetrated on an incurred basis and when it would be penetrated on a paid basis.
As 1987 progressed, however, events moved inexorably toward the eventual penetration of GAIC's layer of insurance for at least some policy years. In the spring of 1987, as Runnels had indicated, GAIC undertook an audit of the American Honda account. This review was apparently completed in April 1987, and indicated that GAIC should establish some reserves for at least the 1983 year and notify its reinsurers. Defendant's Memorandum of Law at 19. Soon thereafter, in early May, representatives of GAIC contacted Willcox, the reinsurance intermediary to explain the situation with the American Honda account, and discuss notification of the reinsurers.[5] GAIC's representatives apparently supplied Willcox with the results of the audit, and also discussed the provision of notice to the reinsurers about the imminent exposure for the 1983 policy year. See Deposition of Merrick McCarthy ("McCarthy Dep.") at 61-66; Deposition of Peter Hildebrand ("Hildebrand Dep.") at 28-31.
By the time GAIC met with Willcox, Willcox was in the process of winding down its facultative reinsurance operation.[6] Thus, there was a question whether Willcox would be capable of providing initial and on-going notice to GAIC's reinsurers of the *156 activity in the American Honda account. GAIC apparently agreed to provide the reinsurers with information regarding the American Honda account. It is not clear, however, whether GAIC entirely absolved Willcox of its contractual obligation to provide notice to the reinsurers based on the material before it. It is clear that Willcox did not provide written notice to any of GAIC's reinsurers.
In a letter dated June 19, 1987, GAIC gave written notice to Christiana and other reinsurers that there was "impending loss activity" in the 1983 policy year. Defendant's Exh. 3. This was the first written notice any reinsurer had received regarding GAIC's American Honda account. A second letter, dated July 9, 1987, provided notice to the reinsurers that GAIC's layer of insurance for the 1982 policy year was also about to be pierced. Defendant's Exh. 4. Meanwhile, on June 29, 1987, GAIC's representatives again met with Willcox and provided more information about the status of the American Honda account. Plaintiff's Exh. 116a. At that meeting, GAIC and Willcox agreed that a large scale meeting should be set up with the reinsurers, "clarifying reporting, informational needs, cash flow, and the like...." Id.
Such a meeting was in fact held on August 27, 1987. A representative of Christiana was present at the meeting. The meeting was, the parties agree, extensive, providing the reinsurers with a large volume of material about the American Honda account. The narrative of that meeting indicates its thoroughness. Plaintiff's Exh. 123. Soon after the August 27 meeting, Christiana objected to assuming liability on the American Honda account, based, in part, on an allegation that GAIC did not provide sufficiently timely notice of exposure. GAIC explicitly rejected Christiana's late notice assertion. In a letter dated October 6, 1987, GAIC made a cash call to its reinsurers. That letter indicated that GAIC had been handling cases for American Honda since August 14, 1987. Plaintiff's Exh. 17. On November 23, 1987, Christiana filed the instant action for a declaratory judgment.
Christiana has now moved for summary judgment, asserting that the notice provided to the reinsurers by GAIC was unreasonably late; that the late notice prejudiced Christiana; that GAIC violated a fiduciary responsibility to its reinsurers by not providing earlier notice; and that GAIC materially misrepresented what products, and the risks associated with those products, were covered by the reinsurance contracts. Christiana also moves to amend its complaint should its motion be denied. GAIC cross-moves for summary judgment on the issues of both late notice and misrepresentation.
DISCUSSION
A) Standards
Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "`Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.'" Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 10 (2d Cir.1989), quoting Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S. Ct. 391, 102 L. Ed. 2d 380 (1988).
The substantive law governing the case will identify those facts which are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will probably preclude the entry of summary judgment.... While the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are crucial and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine *157 whether there does indeed exist a genuine issue for trial." Id. at 249, 106 S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107 (2d Cir.), cert. denied sub nom. Thomas J. Lipton, Inc. v. R.C. Bigelow, Inc., ___ U.S. ___, 110 S. Ct. 64, 107 L. Ed. 2d 31 (1989). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion" and identifying which materials it believes "demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); see also Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989). "[T]he burden on the moving party may be discharged by `showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 325, 106 S.Ct. at 2554.
Indeed, once a motion for summary judgment is properly made, the burden then shifts to the nonmoving party, which "must set forth facts showing that there is a genuine issue for trial." Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (citations omitted).
B) Governing Law
The parties agree that New York law applies to this action. Plaintiff's Memorandum of Law at 6, Defendant's Memorandum of Law at 1 n. 1. The reinsurance contracts were negotiated, issued, and made in New York by a New York reinsurance company. Additionally, New York would be the place of performance under the contracts. These are sufficient contacts to justify the application of New York law under the New York choice of law doctrine. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Berman v. Hertz Corp., 127 A.D.2d 809, 511 N.Y.S.2d 938 (2d Dep't 1987); Colonial Penn Insurance Co. v. Minkoff, 40 A.D.2d 819, 338 N.Y.S.2d 444 (1972), aff'd, 33 N.Y.2d 542, 347 N.Y.S.2d 437, 301 N.E.2d 424 (1973).
C) Notice to Reinsurers
New York law strongly supports prompt notice clauses in primary insurance contracts. Travelers Ins. Co. v. Buffalo Reinsurance Co., 735 F. Supp. 492, 498 (S.D.N.Y.1990)[7] (citing, inter alia, Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 906, 293 N.E.2d 76, 79 (1972); Power Authority of New York v. Westinghouse Elec. Corp., 117 A.D.2d 336, 339, 502 N.Y. S.2d 420, 422 (1st Dep't 1986); Jenkins v. Burgos, 99 A.D.2d 217, 219-20, 472 N.Y. S.2d 373, 375 (1st Dep't 1984)). Failure by an insured to meet a contractual notice requirement excuses an insurer's performance, regardless of whether the insurer was prejudiced by the late notice. See, e.g., Security Mutual Ins., supra, 31 N.Y.2d at 440, 340 N.Y.S.2d at 905, 293 N.E.2d at 78. An insured's late notice may be excused in certain limited cases. "The reasonableness of a particular insured's delay in providing notice is ordinarily a question of fact reserved for trial. In the absence of a reasonable excuse or mitigating factor for the delay, however, the timeliness of the insured's notice may be disposed of as a matter of law in advance of trial. It is noteworthy that even relatively short periods of delay repeatedly have been found to be unreasonable as a matter of law in the absence of a reasonable excuse or mitigating factor." Travelers, supra, 735 F.Supp. at 500. Thus, if plaintiff in the instant action were a primary insurer and defendant were an insured, the sole questions before the Court would be whether the notice provided to plaintiff was timely, and whether defendant had put forth a reasonable *158 excuse or mitigating factor justifying and untimeliness.
However, this case is more complex than the normal late notice action. This action involves a contract between an insurer and a reinsurer, where the underlying insurance is an excess, rather than primary, policy, and the liability at issue arose from an unexpected liability crisis. Each of these factors has an impact on the Court's analysis of the "prompt notice" provision in the reinsurance contract and of GAIC's actions in relation to that provision.
There is a remarkable absence of case law in New York on the relationship between reinsurers and reinsured. In particular, it is far from clear how New York courts would apply the law of prompt notice in primary insurance cases to cases involving reinsurance. It is not clear whether "prompt notice" has the same meaning in the reinsurance context as it does in the primary insurance context. It is also not clear whether prejudice must be shown by the reinsurer, even though a primary insurer enforcing a notice provision is not required to show prejudice. It appears that only one court in this state has confronted the issue of notice in the reinsurance context. That court decided that the issues in reinsurance were sufficiently distinguishable from those in primary insurance to justify a different notice rule, which requires a showing of prejudice by the reinsurer before that reinsurer is excused from its obligations. General Ins. Co. of Trieste & Venice v. Nutmeg Ins. Co., No. 6213-85 (Sup.Ct.N.Y.Co., July 24, 1987), slip op. at 6.
At least one court in this District has rejected the holding of General Insurance. In Travelers, supra, Judge John M. Cannella explicitly declined to follow the analysis of the New York court. 735 F.Supp. at 498 n. 4. Though Judge Cannella has since vacated that opinion on a motion for reargument, Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F. Supp. 209 (S.D.N.Y. 1990) ("June 22, 1990 Order"), it is clear from his recent opinion that Judge Cannella has not adjusted his view that a reinsurer need not show prejudice where notice has been provided in an untimely fashion. June 22, 1990 Order, 739 F.Supp. at 213 n. 4.
More recently, another member of the Court, Judge Robert W. Sweet, implicitly disagreed with Judge Cannella's rejection of the General Insurance case. Judge Sweet, in denying a reinsurer's motion for summary judgment based on allegedly late notice, undertook a review of the existing case law and of the differences between primary insurance and reinsurance. Based on that review, Judge Sweet found that "it cannot be predicted with confidence that a New York court would regard the circumstances of reinsurance industry custom and practice as irrelevant to the reasonable notice question presented here, or hold as a matter of law that the legal doctrines enunciated in the primary insurance context in particular the treatment of notice of loss provisions as conditions precedent should apply with equal force to contracts of reinsurance such as this one." Unigard Security Ins. Co., Inc. v. North River Ins. Co., 88 Civ. 0789 (RWS), slip op. at 25, 1990 WL 102879 (S.D.N.Y. July 12, 1990).
Unigard involved a notice provision almost identical to that in the case at bar.[8] Judge Sweet focused on the problem of determining at what point an excess insurer should be required to give notice to its reinsurers. Judge Sweet noted that an excess insurer obtains numerous pieces of information over time which indicate that its layer of insurance may be pierced, up to the point when the underlying layer is actually exhausted and the insurer assumes responsibility for outstanding claims. "[I]t is difficult to state, and the notice provision of the [reinsurance] contract provides no precise yardstick by which to measure, at what single and certain point on that continuum a reasonable reinsured would conclude there was a level of risk of exposure adequate to require notice." Unigard, supra, slip op. at 20.
*159 In the instant case, Christiana asserts that notice should have been given as early as 1985 when the publicity regarding ATVs indicated that a major liability crisis was brewing for all Honda insurers. Christiana points to the 20/20 broadcast, the CPSC reports, and deposition testimony from GAIC employees to show that GAIC was aware by late 1985 that there was a possibility that its layer of insurance would become involved at some point due to the number of serious ATV accidents. If the Court were to find notice unnecessary in 1985, Christiana asserts that notice by late 1986 should be required, when GAIC received information from INA that its layer of insurance had been exhausted on an incurred basis. Finally, Christiana claims that notice at the very latest should have been provided in April 1987 when, after completion of the audit of the American Honda account, it became clear to GAIC that the piercing of its layer on a paid basis was imminent.
In determining when notice should have been given to the reinsurers, both Judge Sweet and Judge Cannella have held that it is appropriate to consider the custom and practice in the reinsurance industry to determine when formal notice is required. While custom and practice evidence is considered extrinsic and thus inadmissable to contradict clear and unambiguous provisions, see Hunt, Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277-78 (2d Cir.1989), where provisions are ambiguous as to their requirements, such extrinsic evidence would be appropriate, and, indeed, necessary to assist the Court in providing a proper interpretation. June 22, 1990 Order, 739 F.Supp. at 212. The notice provision currently before the Court is ambiguous in its requirements for notice. At least two terms within the notice provision are undefined in the contract, and as a matter of law in the reinsurance context. First, it is unclear what is meant by "prompt notice." Second, the phrase "any occurrence or accident which appears likely to involve this reinsurance" is also ambiguous in the reinsurance context. Defendant has focused on the second phrase in examining GAIC's actions. Defendant asserts that "likely to involve this reinsurance" means that the insurer is not required to provide notice to its reinsurers until it is completely clear that the insurer's layer will be pierced.
In Travelers, there was evidence placed before the Court that it is not unusual for a substantial time to pass from notification of the intermediary by the ceding insurer of impending activity and the intermediary's subsequent notification of the reinsurers. June 22, 1990 Order, 739 F.Supp. at 212. In Unigard, there was evidence that, even after a decision to give notice is made, it is not unusual for it to take six months for the insurer to actually notify the reinsurer. Unigard, supra, slip op. at 21. However, in both Travelers and Unigard, while the Court found this evidence of custom and practice to be relevant to the determination of whether the notice given was violative of the "prompt notice" provision, neither Court was willing to rest on such evidence. Both found that such expert testimony required review by a finder of fact in open Court before it could be given full credence. Thus, both Judge Cannella and Judge Sweet denied summary judgment for the reinsurers on the basis that the ceding insurer had raised a significant question of material fact for trial.
After reviewing the existing case law and applying it to the relationship between an excess insurer and its reinsurer, the Court finds that a reinsurer must show prejudice from late notice before it can be excused from its liability under the reinsurance contract. The policy considerations underlying New York's rule that a primary insurer need not demonstrate prejudice when an insured breaches a notice provision are not present in a reinsurance contract. Reinsurers have no duty to defend claims, nor is the potential staleness of a claim as significant a concern to a reinsurer as it is to a primary insurer. Thus, reinsurers must show prejudice from the allegedly late notice in order to avoid liability under a reinsurance contract.
The threshold question for Court remains whether the notice provided by *160 GAIC was sufficient under the notice provision. GAIC admits that actual written notice of imminent activity in GAIC's layer was not given until June 1987.[9] Judge Sweet explained that the expert opinion before him indicated that notice was normally not required to be given to a reinsurer by an excess insurer until the time when the excess insurer sets reserves on the reinsured policy. Unigard, supra, slip op. at 21. Judge Sweet further noted that the evidence before him indicated that notice to the reinsurer was never required until the excess insurer was itself on notice that the underlying limits were about to be exhausted. Id. Based on this analysis, in the instant case, GAIC would not be required to give notice until April 1987, the time when it completed the audit, and informed Willcox of the imminence of liability.
The question remains whether the gap between April 1987 and June 1987, when GAIC gave formal written notice of the piercing of GAIC's layer for the 1983 policy year, was violative of the prompt notice provision. However, as indicated above, both Judge Sweet in Unigard and Judge Cannella in Travelers have found that there is a material question of fact as to what period of time between when notice should be given and the actual notice is acceptable in the reinsurance industry. That same question arises here. The Court cannot find that the notice to Willcox in May 1987 was sufficient notice to the reinsurers, since it appears that Willcox expressed its probable inability to handle the American Honda account. Further, it appears that GAIC agreed with Willcox that GAIC would be the party to inform the reinsurers, not Willcox. Nor can the Court find that the delay from April 1987 to June 1987 was acceptable as a matter of law. GAIC has not provided an adequate explanation for the delay between its notification of Willcox in May 1987 and its subsequent notification in June 1987 of the reinsurers.
Additionally, the Court does not find that notice to the reinsurers was required at any time prior to April 1987. Upon review of the record, the Court agrees with GAIC that, up to the time of the completion of the audit in April 1987, actual penetration of GAIC's layers, while likely, was far from certain, and the timing of such penetration was speculative. The Court believes that Judge Sweet's finding that notice should be required at the time reserves are set is sound. Requiring earlier notice would place an excess insurer in a position of speculation, and require it to expend substantial resources in monitoring the underlying layer of insurance. Only when it is sufficiently certain that the excess insurer's layer will be pierced on a paid basis, so that the excess insurer sets reserves for probable claims, should the excess insurer be required to inform its reinsurers that their liability is likely to be affected.[10]
Even absent this logical standard, the Court does not find that the notice provision in the case at bar would have required notice at a date earlier than May 1987. It is clear from the record before the Court that GAIC knew from at least the second half of 1986 that it was likely that its layer of insurance would be pierced for at least some policy years. However, until completion of the audit, it was uncertain when GAIC's layer would be pierced in which policy years, and which of the hundreds of ATV and other claims were likely to become GAIC's responsibility. Some certainty *161 of the timing and extent of loss should be present before the excess insurer is required to indicate the probability of involvement to the reinsurers.[11]
The Court thus finds that a reinsurer must show prejudice from late notice before the reinsurer may be relieved of liability. Further, the Court finds that the appropriate date for notice to the reinsurers in the instant case was April 1987. Finally, the Court finds there to be a genuine issue of material fact as to whether the actual notice given to the reinsurers in June 1987 was sufficient given the custom and practice in the reinsurance industry.[12] Accordingly, the parties' cross-motions for summary judgment on this issue of late notice is denied.[13]
D) GAIC's Duty to Christiana
Christiana asserts that a reinsured has a fiduciary duty to act with the utmost good faith, and that that duty was breached by GAIC. Specifically, Christiana claims that GAIC took a number of actions prior to 1987 to avoid or prevent notice to its reinsurers, that GAIC failed to investigate adequately the extent of possible liability, despite indications of such liability; and, finally, that GAIC failed to provide sufficient information to its reinsurers at the August 1987 meeting.
The Court must first examine the nature of the relationship between reinsurers and ceding insurers. Plaintiff has not cited a single case that indicates clearly that a ceding insurer owes a fiduciary duty to it facultative reinsurer. There is law, however, that indicates that a ceding insurer owes a non-fiduciary duty of good faith to its reinsurer. Hare & Chase, Inc. v. National Surety Co., 60 F.2d 909, 911 (2d Cir.), cert. denied, 287 U.S. 662, 53 S. Ct. 222, 77 L. Ed. 572 (1932). However, nothing in the cases cited by the parties, or discovered by the Court, indicates that the duty between a ceding insurer and a facultative reinsurer rises to the level of being a fiduciary one.
Plaintiff has made a variety of significant claims against defendant that, if fully supported on the record, could be found to create a ground for recision. However, a review of the record indicates that plaintiff is attempting to create obligations between the parties that were not imposed by the contracts between them, nor by any law governing their relationship. There is nothing in the contracts or in the law involving reinsurance which indicates that GAIC was obligated to do more than it did to inform its reinsurers or to investigate its potential liability. GAIC's admittedly conscious decision not to give earlier notice is not, as plaintiff would have the Court believe, an indication of an intent to deceive. Nothing in the voluminous record before the Court clearly indicates that defendant conspired in any way to deceive its reinsurers, or to explicitly withhold vital information from them. More importantly, Christiana did not contract for some of the obligations that it would now place on GAIC. There is nothing in the contracts to indicate that GAIC was required to provide constant updating of the status of GAIC's excess insurance account. Nor was GAIC required by the contract to identify and monitor individual claims that might become GAIC's responsibility well before *162 GAIC's layer was actually pierced.[14] Finally, the Court cannot find that GAIC withheld information from its reinsurers at the August 1987 meeting, which it was required to provide under its contracts with Christiana. GAIC provided the reinsurers with extensive information regarding the American Honda account, and the outstanding claims which would affect those layers of insurance for which the reinsurers were liable. While Christiana may have desired more information both before August 27, 1987, and at the meeting held on that date, the Court does not find that GAIC had any duty, contractual or otherwise, to provide more information than it did.[15]
E) Misrepresentation
The parties agree that recision may be granted where the reinsured makes a material misrepresentation to the reinsurer. See, e.g., Royal Indemnity Co. v. Preferred Acci. Ins. Co., 268 N.Y. 566, 198 N.E. 407 (1935). The issues before the Court is whether any misrepresentations were made to plaintiff, and, if misrepresentations are found to exist, whether those misrepresentations are material so as to warrant recision. At the time Christiana entered into its reinsurance certificates with GAIC, ATVs were not independently mentioned as among the risks included in the American Honda account. Through 1984, ATVs were placed in sales and loss figures along with power equipment, or with motorcycles, both of which frequently appeared as categories of products covered by GAIC's excess insurance policy with American Honda. It is undisputed that American Honda, GAIC, and Willcox did not begin to list ATVs as a separate category of products until 1985, after Christiana had ceased to assume additional reinsurance responsibilities on the American Honda account.
GAIC does not deny that Christiana was never explicitly informed that ATVs were a part of the risk it was reinsuring. GAIC does claim, however, that recision in this instance would be inappropriate because GAIC did not knowingly withhold any information within its possession from Christiana. GAIC further asserts that the failure to disclose ATVs as a separate risk was not material at the time Christiana entered into the reinsurance contracts at issue.
Upon review of the applicable law and facts, the Court finds that the question of the materiality of the alleged misrepresentations is critical to the determination of whether recision is appropriate in this instance. "To be material, the fact must be `something which would have controlled the underwriter's decision' to accept the risk." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir.1986) (quoting Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866, 870-71 (2d Cir.1985)), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987). This is not a decision to be made in hindsight, but should be based on the position of the parties at the time of contracting. Thus, succinctly put, the question for the Court is whether Christiana would have refused to reinsure GAIC's American Honda risk for the policy years 1980 through 1983 if it had known at the time each of those contracts was signed that ATVs were part of the risk being insured by GAIC, and thus reinsured by Christiana.
The Court has carefully reviewed the record, and finds that Christiana cannot now support its assertion that this information was material. The Court has no doubt that by late 1985, information that ATVs were included in the proposed coverage was material to any risk determination. By 1985, both CPSC and the national media had publicized what was then a growing risk posed by ATVs, and a then-increasing number of ATV-related injuries. The *163 record indicates that while there were some reports of ATV-related injuries in the years 1980 through 1983 when Christiana entered into the reinsurance contracts at issue, those reports did not suggest that ATVs would develop into a substantial liability problem.
At the very least, the affidavit and certification of Christiana's reinsurance underwriter creates a serious question of fact as to whether the listing of ATVs as a covered product would have changed Christiana's decision to enter into the reinsurance contracts with GAIC. Specifically, the certification of Arthur Bingay, Christiana's underwriter, indicates that the inclusion of ATVs might have caused him to ask some questions about the product. Certification of Arthur Bingay, dated July 6, 1989, ¶ 5. However, as his subsequent affidavit makes clear, the simple inclusion of ATVs on the list of covered products would not have necessarily resulted in the rejection by Christiana of the proposed reinsurance contracts. Affidavit of Arthur E. Bingay, sworn to January 10, 1990, ¶¶ 5-7. That decision would depend on the risk associated with that product. The Court cannot find on the current record that the information available on ATV liability in the period from 1980 through 1983 would, if revealed to Christiana at the time of contracting, would have materially affected Christiana's decision to enter into the reinsurance contracts with GAIC. Accordingly, Christiana's motion for summary judgment on the issue of misrepresentation is denied. Similarly, the Court cannot find on the record before it that information regarding the presence of ATVs was definitely immaterial as a matter of law. However, GAIC's motion for summary judgment on this issue can only be finally resolved after examination of the issue of knowledge.
Christiana asserts that the reason for omission of a material fact to an insurer by an insured (and, by analogy, to a reinsurer by a reinsured) is not an appropriate inquiry in deciding whether recision is appropriate. Christiana correctly notes that in 1837 New York's Supreme Court of Judicature stated, "[W]hether the omission was the result of mistake or design, was not an important inquiry." New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Wend. 359, 368 (1837); see also Geer v. Union Mutual Life Ins. Co., 273 N.Y. 261, 271, 7 N.E.2d 125 (1937). Thus, it is clear that if an insured possesses material information which is not passed on to the insurer, that failure to supply the information, whether intentional or innocent, is grounds for recision.
GAIC does not claim, however, that its failure to provide information about ATVs at the time of contracting was an innocent failure to provide information within its knowledge. GAIC insists instead that it simply had no material information regarding ATVs. Christiana has not cited, and the Court cannot find, any case law indicating that the failure to provide material information, unknown to the insured (or reinsured) at the time of contracting is a ground for recision. Thus, GAIC is correct that recision cannot be granted for GAIC's failure to reveal information not in its possession at the time of contracting.
But this legal conclusion does not lead to a grant of summary judgment for GAIC. There is at least some evidence that GAIC was aware during the contracting period that ATVs were among the products its was insuring. Further, there is evidence to indicate that GAIC may have had in its possession during at least some of the contracting years some preliminary information regarding ATV losses. While, as discussed above, the Court does not now decide whether any or all of this information was material at the time of contracting, if it were, it remains unresolved whether GAIC had knowledge of it at that time. Thus, GAIC's cross-motion for summary judgment on the issue of material misrepresentation is denied.
F) Motion to Amend Complaint
In the alternative to its motion for summary judgment, plaintiff has moved to amend further its complaint. Fed.R.Civ.P. 15(a) "sets forth a policy in favor of granting leave to amend, stating that `leave to amend shall be freely given *164 when justice so requires.'" Jaser v. New York Property Insurance Underwriting Ass'n, 815 F.2d 240, 243 (2d Cir.1987). A motion to amend should be denied only for good reason such as "`undue delay, bad faith, futility of amendment, and perhaps, most important, the resulting prejudice to the opposing party.'" Richardson Greenshields Secur., Inc. v. Mui-Hin Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987), quoting State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir.1986), citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). Mere delay alone will not suffice as a basis for the district court to deny the right to amend. Richardson Greenshields, supra, 825 F.2d at 653 n. 6. Parties have been permitted to assert new claims long after they acquired the facts necessary to support such claims, see, e.g., Green v. Wolf Corp., 50 F.R.D. 220, 223 (S.D.N.Y.1970), and have even been permitted to amend a complaint on the eve of trial. See Hanlin v. Mitchelson, 794 F.2d 834 (2d Cir.1986).
Defendant has objected strenuously to plaintiff's motion to amend further its complaint on the grounds that plaintiff failed to provide, at the time of its motion, either a proposed amended complaint, or at least a draft of the proposed amendments. This Court has consistently urged parties seeking to amend their complaints to first provide opposing counsel with a copy of the proposed amendments. On March 19, 1990, after all other papers on these motions had been received, the Court, and presumably defendant, received a proposed amended complaint from plaintiff.[16] The Court agrees with defendant that plaintiff's failure to file a proposed amendment at the time of its motion, or at the latest after defendant indicated it desired a copy of such a proposed amendment, was not within the liberal spirit of Rule 15.
Nonetheless, the Court cannot find that defendant will be so unduly prejudiced by the proposed amendment as to require the Court to deny plaintiff's motion to amend. Thus, plaintiff's motion to further amend its complaint is granted. The Court will refer this action back to United States Magistrate Naomi Reice Buchwald for further pre-trial supervision, should either party require additional discovery due to these amendments to the plaintiff's pleadings.
G) Discovery Dispute
In what appears to be a separate motion, plaintiff has submitted the affidavit of one of its counsel who requests the Court to reconsider a discovery ruling made by Magistrate Buchwald during the course of her pre-trial supervision of this action. See Affidavit of James A. Plaisted, Esq., sworn to on March 19, 1990, ¶ 2. Fed.R.Civ.P. 72 and 28 U.S.C. § 636 provide the mechanism whereby a party may challenge the ruling of a Magistrate. The Court will not entertain a challenge to a Magistrate's ruling which is, like the one now before the Court, brought in a manner other than that prescribed by the Federal Rules and the applicable statute, particularly in an action involving experienced counsel. Accordingly, to the extent plaintiff has moved to have this Court reconsider a ruling of Magistrate Buchwald, that motion is denied.
CONCLUSION
The parties' cross-motions for summary judgment are denied.
Plaintiff's motion to further amend its complaint is granted. Plaintiff's second amended complaint shall be filed within twenty (20) days of this order.
Plaintiff's motion for reconsideration of a discovery ruling of Magistrate Naomi Reice Buchwald is denied.
This action is referred to Magistrate Buchwald for further pre-trial supervision. The parties shall report to the Court and to the Magistrate within twenty (20) days of the filing of the second amended complaint whether further discovery shall be required. *165 Should no such discovery be needed, the Magistrate shall so indicate to this Court, and plaintiff shall contact the Court to arrange a final pre-trial conference in this matter.
SO ORDERED.
NOTES
[1] The policies actually began mid-year, so that the 1980 policy actually ran from mid-1980 to mid-1981. Hereinafter, the Court will refer to the policies by the year in which each individual policy began. Thus, the four policies at issue are the 1980, 1981, 1982 and 1983 policies.
[2] The amounts of GAIC's obligations to Honda reinsured by Christiana were as followed: 1980: $500,000; 1981: $500,000; 1982: $1,000,000; 1983: $1,000,000. In each year, Great American retained $250,000 of the liability risk. The remainder not retained by GAIC, or covered by Christiana, was reinsured by other reinsurers. See Defendant's Rule 3(g) Statement, Figures 1-4.
[3] The reinsurance certificates between GAIC and Christiana for the policy years 1980-1983 are attached as exhibits A-D, respectively, to the Amended Complaint.
[4] In 1988, by American Honda's own estimate, some 7.5 million riders were using approximately 2.5 million ATVs nationwide. See Affidavit of Merrick F. McCarthy, sworn to on October 17, 1989, Exh. G.
[5] The reinsurance certificates at issue for all policy years but 1980 included a provision which required that "All communications (including but not limited to notices, ...) shall be transmitted to the ceding carrier or reinsurer through Intermediary [Willcox]." Amended Complaint, Exh B ¶ 15, Exh. C ¶ 15, Exh. D ¶ 16.
[6] Indeed, Willcox had notified GAIC in 1984 that it was ceasing operations in the property and casualty area of its facultative reinsurance business. Plaintiff's Exh. 23. Willcox did indicate that it would fulfill its obligations under existing contracts, including those on the reinsurance agreements between Christiana and GAIC.
[7] This opinion was vacated upon a motion for reargument. Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F. Supp. 209 (S.D.N.Y.1990). However, this new opinion did not change the Court's analysis of the "reasonable notice" standard.
[8] In Unigard, the notice provision stated in part: "Prompt notice shall be given ... of any occurrence or accident which appears likely to involve this reinsurance."
[9] Christiana claims that it never received the June 19, 1987 letter addressed to it from GAIC, indicating impending activity in GAIC's layer for the 1983 policy year. See Defendant's Exh. 3; Plaintiff's Exh. 17. However, there is included in plaintiff's exhibits an undated post office return receipt indicating acceptance of what appears to be the June 19, 1987 letter by an employee of plaintiff. Plaintiff's Exh. 17. While the Court finds this undated return receipt inconclusive on the present record, the receipt's existence casts doubt on plaintiff's assertion of non-receipt.
[10] Even if an excess insurer's layer is pierced, it is never certain that an individual reinsurer will be called upon to indemnify the insurer. As explained above, facultative reinsurance is usually spread among a number of reinsurers, and the excess insurer usually retains a portion of the risk itself. Thus, the individual reinsurer will often only be called upon when its particular reinsurance level is breached, depending on the language of the reinsurance contract at issue.
[11] The Court finds Christiana's assertion that GAIC should have given notice to its reinsurers in 1985 to be without merit. The fact that the CPSC issued a warning and a proposed rule regarding ATVs does not, in and of itself, indicate potential liability. Further, the broadcast of television news reports on a few accident does not create notice to an excess insurer that its layer will likely become involved at some future date.
[12] The Court does not find that the notice given to Willcox in May 1987 sufficed as notice to the reinsurers, despite the contract provision indicating that communication should be through the intermediary. GAIC's representatives admit that they agreed that GAIC, not Willcox, should actually notify the reinsurers. See McCarthy Dep. at 61. Thus, notice to Willcox could not be said to accomplish notice to the reinsurers.
[13] As the Court finds there to be a genuine issue of material fact as to whether the notice given was sufficient, it need not reach the issue of whether Christiana was prejudiced at this time, as such prejudice need only be demonstrated if the notice was insufficient.
[14] The Court also notes in this regard that Christiana was provided loss data at the time of its annual renewals of its facultative insurance policies during the period of 1980 to 1984. To the limited extent that ATV losses were beginning to build during that period, Christiana received actual notice of increasing losses.
[15] Christiana has also made an application for attorneys' fees. Since this application assumes a finding by the Court that defendant has breached a duty to plaintiff, it must be denied at this time.
[16] The Court notes that an amended complaint was filed in this action in 1988. Thus, any pleading filed by plaintiff after the instant motion would be a second amended complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612692/ | 745 F. Supp. 866 (1990)
Minna SCHONDORF, Plaintiff,
v.
SMA LIFE ASSURANCE COMPANY, Defendant.
No. CV-87-2961 (ADS).
United States District Court, E.D. New York.
September 5, 1990.
Mark Landesman, P.C., New York City (Chana Sklar Israel, of counsel), for plaintiff.
Townley & Updike, New York City (Richard R. Lutz, Matthew C. Mason, of counsel), for defendant.
MEMORANDUM DECISION AND ORDER
SPATT, District Judge.
By way of the defendant's motion for summary judgment, the Court is asked to *867 determine whether certain undisputed misrepresentations made by the insured in his application for life insurance are "material" as a matter of law, thus voiding the resulting contract of insurance. Since at least some of the misrepresentations are "material" as a matter of law in that they induced the insurer to accept an application for a policy of insurance which it might otherwise not have accepted, the Court grants the defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(b).
FACTUAL BACKGROUND
The material facts of this action are undisputed, except where otherwise indicated, and are summarized below as follows.
On March 14, 1985, Laser Schondorf ("Insured"), filed a written application for a life insurance policy in the amount of $100,000 with the defendant SMA Life Assurance Company ("SMA"). On March 18, 1985, Dr. R.S. Salisbury examined the Insured, and asked him to answer the questions contained in Part II of the application. In completing Part II of the application, the Insured stated that all statements were "complete, true and correctly recorded." The Insured made the following responses (indicated in brackets), to the questions contained in Part II concerning the Insured's past medical and family history:
3. a. Name of personal physician: [Dr. Irving Chitman].
b. Address [1225 48th Street, Brooklyn, New York].
c. Date and reason last consulted? [3/84. Cold].
4. When did you last consult any physician?
a. Name
b. Address [# 3 Above].
c. Reason
5. During the past ten years have you ever had, been told you had, or been treated for:
a. Chest pain, angina, heart attack, heart murmur, high blood pressure, rheumatic fever, or any other disorder of the heart or blood vessels? [No].
* * * * * *
e. Peptic ulcer, recurring indigestion, vomiting of blood, bloody stools, colitis, hepatitis, cirrhosis, jaundice, or other disorder of the stomach, intestine, liver, gall bladder or pancreas? [No].
f. Sugar, albumin, blood or pus in urine; nephritis, venereal disease; stone or other disorder of kidney, bladder, prostate, or reproductive organs? [No].
* * * * * *
k. Hernia, varicose veins, hemorrhoids, rectal disorder? [Yes].
* * * * * *
6. During the past five years have you:
a. Had a checkup, illness, injury, or surgery? [Yes].
b. Been a patient or outpatient in a hospital or other medical facility? [Yes].
c. Had electrocardiogram, x-ray, or other diagnostic tests? [Yes].
d. Had a periodic health examination? [No].
7. Are you now under treatment, observation, or taking any medication? [No].
8. During the past ten years have you:
a. Been advised to have a test or surgery which was not done? [No].
b. Been treated or received counselling for alcohol or drug use? [No].
c. Requested or received benefits, or payment because of an injury, sickness, or disability? [No].
d. Changed occupation or residence because of health? [No].
e. Had insurance declined, rated or modified? [No].
* * * * * *
10. Do you engage in a scheduled exercise program? (If `Yes', give detailstype, duration, frequency) [No].
* * * * * *
13. Has any member of your family ever had high blood pressure, heart disease, diabetes, cancer or mental illness? If `Yes', give details. [No].
*868
14. Family Age If State of Health Age at
Record Living or Cause of Death Death
Father [Killed] [61]
Mother [W.W. II] [60]
Brothers [0]
and Sisters [0]
Based upon the statements contained in the application, on March 14, 1985,[1] SMA issued a life insurance policy with a "standard rating" for a 68-year old male with no significant medical history ("the Policy"). The plaintiff, Minna Schondorf, is the named beneficiary under the Policy.
Five months after the issuance of the Policy, the Insured died of a heart attack on August 12, 1985, which is within the two-year contestability period contained in the policy (see N.Y.Ins.Law § 3203[a][3]). After his death, SMA undertook "a standard contestable investigation" of the Insured's past medical history, including interviews with physicians and a review of medical records. Gleaned from this investigation was personal and family medical history concededly not disclosed in the application submitted to SMA.
The investigation disclosed that in 1983 the Insured had in fact been examined and treated by Dr. Bernard Wechsler, a cardiologist. The Insured had complained to Dr. Wechsler of chest pain and pressure lasting for hours (see question 5[a]), and was prescribed Corgard, Nitrobid and Nitroglycerine for the pain (see question 7). He also reported to Dr. Wechsler that he had been prescribed and was taking Corgard and Inderal (see question 7), drugs typically prescribed for persons suffering from angina pectoris and/or high blood pressure. The Insured was also ordered to undergo a "Holter 24-hour electrocardiogram", during which he twice complained of chest pain (see question 5[a]).
Immediately following the Insured's death, Dr. Wechsler provided a statement to SMA on December 5, 1985, which stated that he believed the Insured had angina pectoris when he was first treated by Dr. Wechsler in 1983. Although this was his stated opinion shortly after the Insured's death (see Wechsler statement dated December 5, 1985), it appears, however, that at the time of this motion Dr. Wechsler takes a different view (see Wechsler Aff't dated March 25, 1990).
The Insured was also examined and treated by Dr. Baroukh Kodsi for rectal bleeding on February 13, 1985 (see question 5[e]). Dr. Kodsi's records indicate that the Insured reported to him that he had a history of angina pectoris (see question 5[a]), and took Corgard once daily (see question 7). Dr. Kodsi recommended further testing of the rectal bleeding (see question 5[e]), but the Insured died before any were undertaken.
The Insured's history and/or symptoms of angina was also reported to Dr. Friedman (see question 5[a]), who performed a hernia operation on the Insured in November, 1983. The hernia operation was disclosed in response to question 5(k) of the application.
Additionally, the Insured's family medical history, as reported to Dr. Kodsi, indicated that in fact his mother died of diabetes, and that his father died at age 58 of a heart attack (see questions 13, 14). Apparently, he also had siblings who suffered from high blood pressure (see questions 13, 14).
Based upon the foregoing, SMA concluded that misrepresentations appear in the responses to questions 3, 4, 5(a), 5(e), 5(f), 5(k), 7, 13 and 14. As a result, SMA refused to pay on the policy, which prompted Minna Schondorf to institute this action to recover the proceeds. SMA contends that because the Insured failed to truthfully disclose his past medical and family history, he was required to submit only to a routine medical exam. According to SMA, its underwriting manual provides that any applicants with a possible history or symptoms of angina pectoris or chest pain, must submit to a medical exam, lab analysis of urine, chest X-rays, blood studies, and a possible EKG.
SMA contends that these past visits to Dr. Wechsler, along with the drugs prescribed and statements made to other physicians, *869 all indicate a history of chest pain and possibly angina, which, if revealed in the application, would have at least resulted in additional testing for the Insured. Although SMA concedes that it is not sure of what type of policy, if any, would have been issued had the Insured undergone such additional testing, it alleges that these misrepresentations seriously interfered with its right to accept or reject the application.
Based on the foregoing facts, pursuant to Fed.R.Civ.P. 56(b), SMA moves for summary judgment on the ground that the insured made material misrepresentations in his application for insurance and that had the true facts been disclosed, the application might have been rejected.
DISCUSSION
Summary judgment is appropriate if there are no genuine issues of material fact (Fed.R.Civ.P. 56[c]). Although on a motion for summary judgment the Court is required to view the evidence submitted in the light most favorable to the non-movant (see Burtnieks v. The City of New York, 716 F.2d 982, 985 [2d Cir.1983]), the nonmoving party has the burden to come forward with facts showing that a genuine issue for trial exists (see National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 [2d Cir.1989]). However, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge" (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 [1986]). The Court's function, of course, is "issue finding", not "issue resolution" (see Eye Assocs., P.C. v. IncomRx Sys. Ltd., 912 F.2d 23, 27 [2d Cir.1990] (citations omitted]).
Under New York law, which governs this diversity action, any "material misrepresentation" in an insurance application voids the resulting policy (see N.Y.Ins.Law § 3105[b]). A "misrepresentation" is a false "statement as to past or present fact, made to the insurer ... at or before the making of the insurance contract as an inducement to the making thereof" (N.Y. Ins.Law § 3105[a]), which may take the form of either false affirmative statement or a failure to disclose (see generally B. Ostrager & T. Newman, Handbook on Insurance Coverage Disputes § 3.01[b], at p. 59 [3d ed. 1990] [citing cases]).
A misrepresentation is deemed "material", if "knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract" (N.Y.Ins.Law § 3105[b]). "`[E]ven an innocent misrepresentation ... if material, is sufficient to allow the insurer to avoid the contract of insurance or defeat recovery thereunder'" (Mutual Benefit Life Ins. Co. v. JMR Elecs. Corp., 848 F.2d 30, 32 [2d Cir.1988], quoting Process Plants Corp. v. Beneficial Nat'l Life Ins. Co., 53 A.D.2d 214, 216, 385 N.Y.S.2d 308, 310 [1st Dep't 1976], aff'd mem., 42 N.Y.2d 928, 366 N.E.2d 1361, 397 N.Y.S.2d 1007 [1977]; see also Vella v. Equitable Life Assurance Soc'y, 887 F.2d 388, 391 [2d Cir.1989] ["[s]o long as a misrepresentation is material, it is no defense to an action for rescission that the misrepresentation was innocently made"]). The test, "`is not whether the company might have issued the policy even if the information had been furnished; the question in each case is whether the company has been induced to accept an application which it might otherwise have refused'" (id., quoting Geer v. Union Mutual Life Ins. Co., 273 N.Y. 261, 269, 7 N.E.2d 125, 128 [1937] [emphasis in original in Geer]).
As to whether summary judgment is appropriate under such circumstances, "[t]he materiality determination normally presents an issue of fact for the jury, but `where the evidence concerning the materiality is clear and substantially uncontradicted, the matter is one of law for the court to determine'" (Mutual Benefit v. JMR Elecs., supra, 848 F.2d at p. 32, quoting Process Plants Corp. v. Beneficial, supra, 53 A.D.2d at p. 216, 385 N.Y.S.2d at pp. 310-11; see also Kulka v. William Penn Life Ins. Co., No. 88 Civ. 3377 (RJW), slip op. at n. 3 [S.D.N.Y. Apr. 5, 1990] [LEXIS, Genfed library, Dist file] [citing cases]; accord Zachary Trading Inc. v. *870 Northwestern Mutual Life Ins. Co., 668 F. Supp. 343, 346-47 [S.D.N.Y.1987]). As stated above, the Court, of course, may only grant summary judgment in the absence of any genuine issues of material fact (see Fed.R.Civ.P. 56[c]; see also Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 [2d Cir.1986]).
In Cohen v. Mutual Benefit Life Ins., 638 F. Supp. 695, 697 (E.D.N.Y.1986), which is a case factually similar to this, Judge Bartels noted that,
"[a] determination of materiality as a matter of law may be based on evidence of the insurer's practice with respect to similar risks, as shown by such documents as the insurer's underwriting manuals or rules, and by testimony of a qualified employee of the insurer that the insurer would not have issued the particular contract it did had the facts been disclosed."
If a misrepresentation is "material", summary judgment in favor of the insurer is both available and appropriate, and has been frequently awarded based on a variety of medical history misrepresentations contained in the application for insurance (see, e.g., Mutual Benefit v. JMR Elecs., supra, 848 F.2d at p. 34 [failure to disclose smoking history]; Cohen v. Mutual Benefit, supra, 638 F.Supp. at p. 699 [failure to disclose heart trouble in application where insured died of cardio-respiratory arrest four months after policy issued]; Friedman v. Prudential Life Ins. Co., 589 F. Supp. 1017, 1026 [S.D.N.Y.1984] [citing cases] [history of heart disease]; Shabashev v. New York Life Ins. Co., 150 A.D.2d 673, 673, 541 N.Y.S.2d 545, 546, [2d Dep't 1989] [heart condition and prior hospitalization]; Borchardt v. New York Life Ins. Co., 102 A.D.2d 465, 465-70, 477 N.Y.S.2d 167, 168-70 [1st Dep't] [hypertension, diabetes], aff'd, 63 N.Y.2d 1000, 473 N.E.2d 262, 483 N.Y.S.2d 1012 [1984]; Ehrlich v. Mutual Life Ins. Co., 52 A.D.2d 836, 836, 382 N.Y.S.2d 828, 829 [2d Dep't 1976] [existence of chest pains, as well as blood thinning medication]).
There is no dispute here that there were misrepresentations made in the form of omissions by the Insured in the application submitted to SMA. At oral argument, counsel for the plaintiff conceded that the sole issue presented is whether these misrepresentations are deemed "material" as a matter of law. Although SMA contends that there were misrepresentations as to questions 3, 4, 5(a), 5(e), 5(f), 5(k), 7, 13 and 14, the record indicates, and the Court finds, that genuine issues of material fact exist as to the accuracy or inaccuracy of responses 3, 5(f) and 5(k). Therefore, only the materiality of the misrepresentations contained in the responses to questions 4, 5(a), 5(e), 7, 13 and 14 will be considered by the Court on this motion for summary judgment. In sum, the Court must determine whether the insurer, SMA, was induced to accept an application which it might otherwise have refused had the Insured truthfully and accurately disclosed his personal and family medical history as requested.
In support of its motion, SMA submitted two affidavits from Alan Boyer, Vice President and Senior Underwriter of SMA, as well as relevant portions of SMA's underwriting manual, which set forth the applicable rules or guidelines to consider in insuring applicants with certain medical conditions or symptoms.
In opposition, the plaintiff submitted affidavits from Minna Schondorf, the beneficiary, Murray Rosen, an independent insurance underwriter and former professor of insurance law, and Dr. Bernard Wechsler, cardiologist. Of course, the Court is mindful that "[i]n determining whether an expert opinion is sufficient to withstand a summary judgment motion, courts undertake a detailed inquiry into the admissibility of the proffered testimony" (In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1239 [E.D.N.Y. 1985], aff'd, 818 F.2d 187 [2d Cir.1987], cert. denied sub nom. Lombardi v. Dow Chem. Co., 487 U.S. 1234, 108 S. Ct. 2898, 101 L. Ed. 2d 932 [1988]).
Essentially, the plaintiff claims that SMA could have obtained the information regarding the Insured's visits to Dr. Wechsler had SMA investigated the records of *871 Dr. Friedman and Dr. Chitman, the two doctors that were disclosed in the application. In addition, the plaintiff alleges that there was never any specific determination or finding by any physician that the Insured in fact was suffering from or diagnosed as having angina pectoris. Finally, the plaintiff contends that under SMA's underwriting procedures, the same policy would have been issued even if the questions had been correctly answered. The plaintiff's three contentions, however, are without merit.
As to an alleged duty on the part of SMA to undertake a more extensive investigation prior to issuing the policy, the "duty to disclose" clearly rests with the insured (see 12A J. Appleman & J. Appleman, Insurance Law and Practice § 7292 [1981]), not the insurer. The insured is required to reveal "`every fact bearing on or pertaining in any way to the insurability of [his] life, especially where specific questions are put to the applicant calling for such information'" (Cohen v. Mutual Benefit, supra, 638 F.Supp. at p. 698, quoting Klapholtz v. New York Life Ins. Co., 218 A.D. 695, 699, 219 N.Y.S. 64, 67 [1st Dep't 1926]). "An insured cannot remain silent while cognizant that his insurance application contains misleading or incorrect information" (North Atlantic Life Ins. Co. v. Katz, App.Div., 557 N.Y.S.2d 150, 152 [2d Dep't 1990]).
The plaintiff does not contend that the questions on the SMA application are ambiguous. In any event, it could not be seriously argued that the questions posed to the Insured in the SMA application are ambiguous or confusing. The Court finds as a matter of law that the questions are unambiguous since they request specific information, in some cases merely "yes"/"no" responses, to very straightforward inquiries. Under these circumstances, the duty rests with the insured to furnish truthful, accurate and complete responses in order to allow the insurer to adequately evaluate any risks revealed.
The plaintiff's argument that there was never a specific determination that the Insured suffered from angina pectoris is similarly unavailing. Even though there was never a specific determination that the Insured actually suffered from angina, if the application was truthfully completed, SMA may have rejected the application or perhaps issued a differently rated contract of insurance based on its applicable stated underwriting considerations. In either event, the misrepresentations are deemed "material" as a matter of law (see N.Y. Ins.Law § 3105[b]). It is irrelevant whether or not the Insured was actually suffering from heart disease or angina pectoris (see Ettman v. Equitable Life Assurance Soc'y, 6 A.D.2d 697, 697-98, 174 N.Y.S.2d 553, 554-55 [2d Dep't 1958], aff'd, 5 N.Y.2d 1005, 158 N.E.2d 124, 185 N.Y.S.2d 262 [1959]). Rather, the focus is whether the misrepresentations "seriously interfere[d] with the exercise of the insurance company's right to accept or reject the application" (Process Plants Corp. v. Beneficial National Life Ins., 53 A.D.2d 214, 216, 385 N.Y.S.2d 308, 311 [1st Dep't 1976], aff'd, 42 N.Y.2d 928, 366 N.E.2d 1361, 397 N.Y.S.2d 1007 [1977]). It matters not that the plaintiff now attempts to offer evidence that the Insured perhaps was not suffering from or diagnosed as having angina pectoris. What does matter, however, is the inaccuracy of the responses to the questions, and the fact that had they been truthfully answered, SMA might have rejected the application. Accordingly, to the extent that the plaintiff relies on the argument that no determination of angina was ever made, in this Court's view it is irrelevant to this determination and does not create any genuine issues of material fact.
Finally, with respect to the plaintiff's argument that the same policy would have been issued applying SMA's underwriting policies, this too must be rejected.
In support of its motion, SMA submitted excerpts from its underwriter's manual, which show that had the Insured's application been accurately and truthfully completed, at the very least SMA would have required the Insured to undergo additional testing before issuing a policy. SMA concedes that although it may have issued *872 some policy, it may not have issued the policy that it did.
In particular, as to angina pectoris, the underwriter's manual provides in relevant part:
10.2.1. Underwriting Criteria The Basic Rating.
Risks should not be considered until a minimum of six months has passed since onset of first angina symptoms.
The Basic Rating is applicable after recovery from one or more episodes of stable angina pectoris or coronary insufficiency providing there is no increase in frequency or severity symptoms. Rate from date of last symptoms.
Stable angina pectoris or Apply Basic Rating
coronary insufficiency, no Class I
arteriography. ECG normal
or minimal changes
Arteriography normal, Apply Basic Rating
no significant obstruction Class I and reduce
flat extra by $5
Arteriography abnormal Apply Basic Rating
Class I to III according
to findings
ECG more than minimal Minimal Class II
changes, but stable
Current exercise ECG Apply appropriate
normal Basic Rating and reduce
flat extra by $5
Unstable angina pectoris, Decline
symptoms increasing in severity,
frequency or duration
Pre-infarction syndrome, Decline
crescendo angina, angina
decubitus
Prinzmetal's variant angina Apply Basic Rating
or coronary spasm and reduce flat extra
by $5
Aside from the above guidelines, section 10.2.2 of the underwriter's manual provides certain adjustments to the basic rating, based on the following factors:
10.2.2. Adjustments to Basic Rating.
1. Under age 35 at time Apply Basic Rating
episode Class II and add 100
2. Current ECG reflecting Refer to M.D. Usually
unstable pattern, significant decline
ST elevation or depression,
left ventricular
hypertrophy, multifocal
premature contractions, paroxysmal
tachycardias, a
trial flutter or fibrillation,
3rd degree AV block
3. More than moderate Decline
impairment of left ventricular
function
4. Arteriography indicating Decline
more than 50% reduction
in diameter of left
main coronary artery
5. Extended disability following Add 50 up
episode (more than
6 months)
6. Inadequate or infrequent Apply Basic Rating
follow-up care since next higher Class to
recoverylack of full confirmation decline
of cardiac status
from attending physician
7. Ratable overweight, Add appropriate impairment
hypertension, blood lipids ratings
or adult onset diabetes
8. Current cigarette Apply Basic Rating
smoking minimal Class II
9. Participation in hazardous Usually decline
occupation of [sic] avocation
The Insured's medical records obtained during the course of SMA's contestability investigation disclose that he was in fact evidencing manifestations of angina pectoris. Significantly and concededly these were not disclosed in the application. Accordingly, SMA having no hint of these symptoms, issued a standard rated policy. Had the history of angina been disclosed, SMA undoubtedly would have undertaken an additional investigation in accordance with the underwriting policies in order to ascertain the stage or full extent of angina, if any. Then and only then, could it have properly determined the risk involved in issuing the appropriately rated policy.
Additionally, apart from angina pectoris, according to the underwriting manual if the insured discloses "any other chest pain" not clearly diagnosed as to cause, or lacks definite symptoms, "but sufficiently suspicious to cause concern about possible cardiac involvement, [the manual states that this] requires careful work-up". The "careful work-up," includes the following:
a. Chest Pain Questionnaire should be secured from applicant and attending physician.
b. If an electrocardiogram and x-ray have been made by the attending physician, they should be submitted to the Medical Director for his evaluation.
c. If the diagnostic problem is difficult, a current satisfactory electrocardiogram and chest x-ray will help obtain the best offer.
d. An exercise electrocardiogram will be even more helpful and should be secured if the amount is large.
The frequency and duration of the pain, its location and character, its association *873 with dyspnea or with sighing respiration, the type of medication used, the loss of time from work, the family history, variations from normal in the electrocardiograms, and borderline weight or blood pressure must all be given serious consideration individually and in their interrelated aspects.
No ECG Normal ECG
Within 1 year 100 up 50 up
2nd and 3rd years 75 up 50 to 0
4th year on 50 to 0 0
If, "on careful review," the type of chest pain is deemed "indeterminable as to cause and not suggestive of cardiac origin," then the policy may be issued standard (Underwriting Manual 10.5[B]).
Again, had the Insured disclosed his history of chest pain, additional steps may have been taken by SMA to determine the underwriting risk.
At the very least, had the Insured truthfully disclosed his history of chest pain and symptoms of angina pectoris (question 5[a]), according to SMA's underwriting manual, the Insured would have been required to complete a "Chest Pain Questionnaire", which inquires in detail about the history, circumstances and treatment of the chest pain. In addition, a current electrocardiogram and chest x-ray may have been demanded, as well as an "exercise electrocardiogram". In this regard, the Court notes that there is evidence that the Insured was on heart medication starting at least in 1983 and he was on the same medication in February of 1985, one month prior to this application. This was never reported to SMA (see question 7). In sum, the Insured's non-disclosure of this basic and significant personal medical history in response to unambiguous questions put to him, certainly bears on which underwriting guidelines become applicable and therefore deprived SMA of a meaningful opportunity to properly evaluate a potential and dangerous risk.
The Court also finds that the Insured's misrepresentations as to his family history (see questions 13, 14), are "material" as a matter of law. In this regard, the underwriting manual provides that "[w]here there are deaths in the reported family history due to cerebral or cardiovascular-renal disease under age 60, underwrite cautiously with attention to all risk factors" (Underwriting Manual 7.13). On the application, the Insured represented that his mother and father were killed in World War II at ages 60 and 61, respectively. However, according to Dr. Kodsi's records, the Insured reported to him that both parents died at age 58; his mother of diabetes, father of "heart trouble". The plaintiff has not refuted these facts. Given this family history, at the very least SMA would have proceeded with greater caution and may have even required additional testing.
Based upon the above, the Court finds that the misrepresentations contained in the response to questions 4, 5(a), 5(e), 7, 13 and 14 are "material" as a matter of law. SMA's underwriting manual provides that additional testing and information would have been called for if these questions had been answered truthfully. Perhaps the additional testing may have resulted in the issuance of the same standard rated policy. However, these misrepresentations seriously interfered with and deprived SMA of its absolute right to properly evaluate the true risk involved. Based on this record, with reasonable insurance underwriting certainty, it is entirely possible, if not probable, that the results of the additional testing might have required rating of the policy or a total declination of the application. Since the Insured's misrepresentations here "`seriously interfere[d] with the exercise of the insurance company's right to accept or reject the application'" (Cohen v. Mutual Benefit, supra, 638 F.Supp. at p. 699), they are deemed "material", and the resulting contract is considered void ab initio (see INA Underwriters Ins. Co. v. D.H. Forde & Co., 630 F. Supp. 76, 77 [W.D.N.Y. 1985] [citing New York cases]).
Accordingly, the Court finds that based upon SMA's underwriting policies, had the Insured accurately answered questions 4, 5(a), 5(e), 7, 13 and 14, the application for insurance may have been rejected, or if accepted, a different rated policy may have been issued. In any event, there is no *874 doubt that the nondisclosure interfered with SMA's assessment of the risk.
Since the Court finds that SMA's evidence of materiality as to the answers to the above questions "is clear and substantially uncontradicted", the determination therefore becomes purely a question of law for the Court to decide (see Mutual Benefit v. JMR Elecs., supra, 848 F.2d at p. 32).
Although the Court finds that there were "material misrepresentations" contained in the application as stated above, the Court rejects SMA's contentions that there were also material misrepresentations as a matter of law as to questions 3 ("name of personal physician"), 5(f) ("sugar, albumin, blood or pus in urine ..."), 5(k) ("rectal disorder"), and that portion of question 5(a) calling for a response as to a history of "high blood pressure." The Court finds that SMA has not produced "clear and uncontradicted" evidence with regard to the answers to those questions. Accordingly, the Court grants summary judgment to SMA because of the materiality of the misrepresentations contained in questions 4, 5(a), 5(e), 7, 13 and 14.
CONCLUSION
For the foregoing reasons, pursuant to Fed.R.Civ.P. 56(b), the defendant SMA Life Assurance Company's motion for summary judgment is granted and the complaint is dismissed.
SO ORDERED.
NOTES
[1] The insurance became effective from the date Part I was completed (i.e., March 14, 1985), subject to the terms of a temporary insurance agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612883/ | 11 So. 3d 355 (2009)
ENMUND
v.
McNEIL.
No. SC09-16.
Supreme Court of Florida.
May 18, 2009.
Decision without published opinion. Habeas Corpus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460595/ | 976 S.W.2d 339 (1998)
Irene LAMB, Appellant,
v.
Ruby Gaynell FRANKLIN and Allstate Indemnity Company, Appellees.
No. 07-97-0243-CV.
Court of Appeals of Texas, Amarillo.
August 25, 1998.
*340 G. Ben Bancroft, Bancroft, Mouton & Wolf, Big Spring, for appellant.
John P. Levick, G. Douglas Welch, Jones, Flygare, Brown & Wharton, Lubbock, Jack O. Nelson, Jr., Nelson & Nelson, Lubbock, for appellees.
Before BOYD, C.J., and DODSON and REAVIS, JJ.
DODSON, Justice.
Irene Lamb (Lamb) appeals a judgment rendered on a jury verdict in her favor on her personal injury suit against Ruby Gaynell Franklin (Franklin), and Allstate Indemnity Company (Allstate). Lamb raises two points of error. Franklin raises five cross-points. Allstate raises two cross-points. Because the trial court erred in disregarding material jury findings without a motion, and because there was no evidence supporting the jury's award for lost earnings, we reverse and render in part and reverse and remand in part.
This suit arises out of an automobile collision between Lamb and Franklin on October 31, 1995, in Levelland, Hockley County, Texas. Franklin turned left on a green light in front of Lamb who was approaching from the opposite direction between 35 and 40 miles per hour. Lamb applied her brakes, but the vehicles collided. Franklin was uninjured in the collision. Both vehicles were driven from the scene with minor damage. Lamb was admitted to the hospital that day and ultimately saw several doctors for treatment of back and neck injuries.
Lamb sued Franklin asserting an action for negligence. Lamb also sued her own insurance provider, Allstate, alleging that her injuries exceeded the coverage on the vehicle driven by Franklin ($50,000). Lamb alleged that pursuant to her contract for coverage with Allstate, Allstate was obligated to pay damages to her. The case came to trial on April 28, 1997.
The jury found that the negligence of both Franklin and Lamb proximately caused the collision, and that Franklin was 75% negligent and Lamb was 25% negligent. The jury further found the following amounts would compensate Lamb for her injuries: $0 for physical pain and mental anguish sustained in the past, $0 for physical pain and mental anguish that in reasonable probability she would sustain in the future, $2,000 for loss of past earnings, $0 for loss of earning capacity, $1,000 for physical impairment sustained in the past, $0 for physical impairment in reasonable probability she would sustain in the future, $7,000 for reasonable expenses of medical care in the past, and $1,000 for reasonable expenses of medical care in reasonable probability she would sustain in the future.
Lamb's Points of Error
Lamb raises two points of error. By her first point of error, Lamb contends that the jury's answer to the question regarding Lamb's physical pain and mental anguish *341 sustained in the past is so contrary to the great and overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Through her second point of error, Lamb contends that the jury's answer to the question regarding the amount necessary to compensate Lamb for the physical pain and mental anguish that in reasonable probability she would sustain in the future is so contrary to the great and overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Because Lamb did not present uncontroverted objective evidence of objective injury, we do not agree that the jury's zero answers were so against the great weight of the evidence as to be manifestly unjust.
In reviewing a factual sufficiency point we examine all of the evidence in the record, both for and against the challenged finding, in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986)(on rehearing); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). When we review the evidence, we may not reweigh it and set aside the verdict merely because we feel a different result is more reasonable. Pool v. Ford Motor Co., 715 S.W.2d at 634. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jury may believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). The jury resolves inconsistencies in any witness's testimony. Id. Finally, we are mindful that Lamb, by a preponderance of the evidence, failed to convince the jury of a fact essential to her recovery. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).
To uphold a jury's finding that an injured party incurred no damages for past pain and suffering, the jury must have found by a preponderance of the evidence that no pain and suffering accompanied the injury. Hammett v. Zimmerman, 804 S.W.2d 663, 665 (Tex.App.Fort Worth 1991, no writ). When uncontroverted evidence of an objective injury exists, a jury finding that the plaintiff suffered no past pain and suffering is against the great weight and preponderance of the evidence. Id. at 664. However, a jury may deny an award of damages when the injuries sustained are subjective in nature. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.Dallas 1988, no writ). Moreover, uncontroverted evidence of an objective injury does not always require mental anguish damages. See Elliott v. Dow, 818 S.W.2d 222, 224-25 (Tex. App.Houston [14th Dist.] 1991, no writ).
Courts have upheld the jury's no injury or "zero damages" findings in cases where there is both subjective and objective evidence of the element of damages. In Srite v. Owens-Illinois, Inc., 870 S.W.2d 556 (Tex.App. Houston [1st Dist.] 1993) rev'd on other grounds, 897 S.W.2d 765 (Tex.1995), the court of appeals concluded that where the preponderance of the evidence of injury was subjective, the jury answer of $0 was warranted. Id. at 563. The court noted that the plaintiff's expert testimony was contradicted by the defense's experts, and was thus not uncontroverted. Id. In Pilkington v. Kornell, 822 S.W.2d 223 (Tex.App.Dallas 1991, writ denied), the jury did award some past and future medical expenses, but awarded no damages for, among other things, past and future pain, suffering and mental anguish.[1] The Dallas Court determined that the evidence was conflicting and concluded that the verdict was not so against the great weight of the evidence as to be manifestly unjust. Id. at 230.
*342 In this instance, the record reflects that Lamb testified extensively about the pain caused by the accident and the painful treatments she underwent to alleviate her problems. She also testified that she had a restricted range of motion in her neck as a result of the accident. There was testimony from several witnesses including Lamb that x-rays, an MRI, and a CAT scan showed no orthopedic injury and that she suffered a soft tissue injury.
Several doctors and a physical therapist testified on Lamb's behalf. Collectively, they described Lamb's subjective complaints of pain, as well as their own observations of her condition. The witnesses who examined Lamb described muscle tightness or tenderness in her back and neck and a restricted range of motion in her neck. The medical witnesses described the types of treatments Lamb received, including "trigger point injections" (shots of various drugs directly into muscles that are in spasm), deep massage (which the testifying witnesses agreed was a painful procedure), and various home exercises. Lamb also had "contusions" (bruises) on her back which were noted in hospital records. To varying degrees, these witnesses agreed that Lamb had improved somewhat under the treatments, but had not fully recovered. Different medical witnesses expressed different opinions as to whether Lamb had recovered as much as she could, or if further treatment would improve her recovery. Many of these observations and comments were recorded in hospital and doctors' records.
There was certainly subjective evidence of pain. Likewise, there was some objective evidence from Lamb's physicians and therapist showing that she suffered pain. However, the defense pointed out that every evaluation by each health care provider relied in part on responses from Lamb about her level of pain, making each evaluation at least partly subjective. There was also evidence that Lamb was seen by various persons carrying a grandchild or doing yard work. Lamb herself testified that she had done these things, while asserting that she was prevented from doing yard work or playing with her grandchildren. These witnesses testified that they saw Lamb moving her head and neck without difficulty until she noticed she was being watched. Moreover, the objective tests performed on Lamb, namely the x-rays, MRI, and CAT scan, showed no injury.
There was also evidence that the actual impact occurred at a very low speed since Lamb was initially traveling at under 40 miles per hour, she hit her brakes prior to the impact, and she believed she actually might not hit Franklin's car. The other driver involved in the accident was not injured. Damage to the vehicles was minor, and both were driven away from the accident scene.
Additionally, several of the medical witnesses admitted that tight muscles could be the result of high tension. Lamb's husband was suffering from severe medical problems for some time prior to the automobile accident. At that time and throughout her treatment, Doyle Lamb was alternately confined to his home or was admitted for hospital stays. Lamb referred to stress and tension related to her husband's condition when talking to her physical therapist, which the therapist noted in her records.
Finally, the defense presented testimony from Dr. Heydemann, who reviewed Lamb's case. Heydemann testified that Dr. Wolcott's records did not support a diagnosis of myofascitis and that myofascitis is generally diagnosed based on complaints from the patient when all other options have been ruled out.[2] He also testified that there was evidence in the medical records indicating that Lamb was either faking or exaggerating her complaints for financial or other gain.
Since there was conflicting evidence regarding past and future pain, the matter was clearly a question for the jury. It is not within the province of this Court to interfere with the jury's resolution of conflicts in the *343 evidence, or to pass on the weight or credibility of the witnesses' testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951). Moreover, a jury's failure to find a fact vital to recovery need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). Accordingly, we conclude that the jury's findings on past and future pain and mental anguish are not so against the great weight and preponderance of the evidence as to be manifestly unjust. The jury's award comports with Dr. Heydemann's testimony in that they awarded exactly the amount of medical expenses that he testified were reasonable, and they awarded nothing for pain and suffering, past or future. We conclude that the challenged jury findings are not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Accordingly, we overrule Lamb's first and second points of error.
Franklin's Cross-Points
Franklin asserts five cross-points in her brief. By her first three cross-points, Franklin contends that the trial court reversibly erred when it sua sponte rendered a modified judgment and judgment non obstante veredicto because there was no written motion requesting such relief, in sua sponte disregarding the jury's affirmative findings of negligence and apportionment, and that there was some evidence supporting the jury's affirmative findings of apportioned negligence. Because the record does not reflect that a motion for judgment non obstante veredicto was filed, or that a hearing on such motion was had, we conclude that the trial court erred in granting such relief.
Rule 301 of the Texas Rules of Civil Procedure reads in relevant part:
The judgment of the [trial] court shall conform to the pleadings.... Provided, that upon motion and reasonable notice the court may render judgment non obstante verdicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence. (emphasis added).
We note at the outset that the trial court's modified judgment and judgment non obstante veredicto does not recite the filing of a motion for judgment j.n.o.v., the fact of notice or waiver, that hearing was had, the appearances, or a ruling on the motion. Absent such recitals in the judgment, the record may be considered to determine whether the facts are shown elsewhere. See Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970 (1936). However, if the motion, notice, and hearing are not shown by any part of the record, a judgment disregarding the verdict or specific findings under Rule 301 will be reversed. Id. A trial court may on its own motion disregard a jury finding which is immaterial. Scott v. King, 647 S.W.2d 394, 396 (Tex. App.Dallas 1983, no writ). Nevertheless, the trial court may not disregard a material finding on its own motion. Id. A question is immaterial only when it should not have been submitted or though properly submitted, it has been rendered immaterial by other findings. Id.
In the matter before us, Lamb objected orally to the submission of the comparative negligence issue on the grounds that there was no evidence of any negligence on her part. The court overruled the objection. After trial, Lamb filed a motion for new trial asserting that the jury's finding that Lamb was negligent was against the great weight and preponderance of the evidence and that the facts in evidence were insufficient to support the jury finding. Lamb contends that the trial court's subsequent modification of the judgment was proper based on her initial objection and her motion for new trial pursuant to Rule 329b(e) of the Texas Rules of Civil Procedure.[3] It is Lamb's position that the modified order was merely a recognition by the trial court that its initial ruling on her objection to the submission of the *344 comparative fault questions was improper. We do not agree.
The record is devoid of a motion to disregard the jury findings as to the comparative fault questions that were submitted. Lamb's motion for a new trial cannot serve as the basis for such relief. Before a trial court can render a judgment non obstante veredicto, it must determine that there is no evidence having probative force upon which the jury could have made the findings relied upon. Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970). Lamb's motion for new trial asserts that there is insufficient evidence of her negligence, but not that there is no evidence.
In any event, there is some evidence to support the comparative fault finding. Lamb testified that she was running numerous errands on her one hour lunch break. She also admitted that she had a sandwich in the vehicle with her, which the responding police officer found on the floor of the vehicle after the accident. Lamb also testified that she had a drink with her, although the police officer did not find it. These facts were sufficient for the jury to infer that Lamb was either in a rush, or eating while driving, or both. No other jury finding renders the comparative fault finding immaterial. Since there was no motion to disregard the jury's findings, and the questions on comparative fault were material, and there was some evidence of probative force to support the jury finding, the trial court erred in rendering the modified judgment non obstante veredicto which disregarded the findings. Accordingly, Franklin's first three cross-points are sustained.
By her fourth cross-point, Franklin asserts that the trial court erred in overruling her own motion for judgment non obstante veredicto because there was no evidence to support the jury's finding of lost earnings sustained in the past by Lamb. We agree.
The jury found that Lamb suffered a loss of $2,000.00 earnings in the past. However, Lamb testified that she had not lost any pay during the time she was away from work. The only evidence possibly supporting an award for lost earnings comes from testimony that Lamb missed 28 1/2 days of work as a result of her injuries. However, there is no evidence in the record showing that Lamb's sick leave was compensable time; that is, there is no evidence that by using sick leave, Lamb was losing any wages or compensation. Accordingly, the trial court erred in overruling the appellees' objections and motions notwithstanding the verdict as to the jury award on lost earnings. We sustain Franklin's fourth cross-point.
By her fifth cross-point, Franklin contends that the trial court erred in overruling her motion for judgment notwithstanding the verdict because there is no evidence to support the jury's finding that Lamb will, in reasonable probability, incur necessary medical care in the future. Franklin contends that there is no evidence that Lamb, in reasonable medical probability, will require necessary medical treatment in the future. Franklin also contends that there is no evidence linking the auto accident to the injuries Lamb would need future treatment for. We disagree.
Randall Wolcott, one of Lamb's doctors, testified that Lamb would "probably" in the future have "exacerbations" and that she would "need some management." He stated that physical therapy costs $80.00 per session, and a flair up would entail 6 to 8 sessions. Dr. Balch, who works with Lamb, testified that in his opinion the primary reason for Lamb's condition was the automobile accident. Finally, Gisela Mueller, Lamb's physical therapist, testified that she believed Lamb could benefit from future therapy and that her condition might improve from such treatment. These witnesses spoke not only in terms of Lamb's apparent pain levels, but also in regard to her mobility and range of motion.
Texas courts have consistently held that the award of future medical expenses is primarily a matter for the jury to determine. Hughett v. Dwyre, 624 S.W.2d 401, 405 (Tex. App.Amarillo 1981, writ ref'd n.r.e.). The same conflicting evidence that supports the jury's determination of zero damages for past and future pain also supports the submission of the question on future medical care. Moreover, the jury's award for future medical treatment is not inconsistent with the *345 zero finding for past and future pain; the jury could have believed that Lamb would in all reasonable probability need future treatment to regain mobility and range of motion. Based on this evidence, the trial court properly denied Franklin's motion for judgment notwithstanding the verdict. We overrule Franklin's fifth cross-point.
Allstate's Cross-Points
Allstate raises two cross-points of error. By its first point, Allstate asserts that the trial court erred in overruling its objection to the submission of the jury question on lost earnings in the past. By its second cross-point, Allstate contends that the trial court erred in overruling its motion for judgment notwithstanding the verdict because there is no evidence to support the jury's finding that Lamb will, in reasonable probability, incur necessary medical care in the future. Allstate's first cross-point raises essentially the same issue raised by Franklin's fourth cross-point. Allstate's second cross-point raises the same issue raised in Franklin's fifth cross-point. We refer to the above discussion on those matters. Accordingly, we sustain Allstate's first cross-point and overrule Allstate's second cross-point.
In sum, we overrule Lamb's first and second points by which she challenged the jury's failure to find damages for her claimed past and future physical pain and mental anguish. Also, we sustain Franklin's first, second and third cross-points of error by which she challenges the trial court's sua sponte action disregarding the jury's negligence and apportionment findings against Lamb. Further, we sustain Franklin's fourth cross-point and Allstate's first cross-point of error by which they challenged the jury's award of $2,000 to Lamb for past loss of earnings because there is no evidence to support the award. Lastly, we overrule Franklin's fifth cross-point and Allstate's second cross-point by which they challenged the jury's award of $1,000 to Lamb for future medical care.
Accordingly, we reverse the trial court's judgment signed on July 24, 1997, and render judgment as follows:
It is acknowledged that by virtue of a stipulation entered into by the parties and their counsel of record in this cause in the trial court, Allstate Indemnity Company is subrogated to the rights of Irene Lamb in the amount of $5,000 out of Lamb's recovery from Ruby Gaynell Franklin, and that Allstate Indemnity Company is entitled to recover such sum from Franklin.
It is, therefore, ordered, adjudged and decreed that Irene Lamb and Allstate Indemnity Company do have and recover $6,750 from Ruby Gaynell Franklin, apportioned as follows: to Allstate, the sum of $5,000 plus post-judgment interest at the legal rate from July 24, 1997, until paid; to Irene Lamb, the sum of $1,750 plus post-judgment interest from July 24, 1997, until paid.
It is further ordered, adjudged and decreed that Irene Lamb is entitled to recover pre-judgment interest on the $6,750 sum. In this connection, we sever this matter from the instant action and remand the pre-judgment interest matter to the trial court for a determination of the amount of pre-judgment interest and the rendition of judgment for such interest in favor of Irene Lamb against Ruby Gaynell Franklin.
Costs in the trial court are adjudged against Ruby Gaynell Franklin.
Costs in this appellate court are adjudged against Irene Lamb.
NOTES
[1] Pilkington is factually similar to the case before us. In Pilkington, plaintiff's vehicle was rear-ended at about 15 miles per hour. The defendant was not injured except for some bruises. Immediately after the accident, the plaintiff had severe pain in her head. She never had any problems prior to the accident. X-rays and MRI's of the plaintiff actually showed some objective signs of injury; namely an irregularity in her spine and an "anterior glenoid labrum tear." However, within one year of the accident, the MRI was normal. Otherwise, the only objective sign of injury was muscle spasms.
[2] Myofascial pain was described by Dr. Wolcott as being caused by muscle that has changed character, that is no longer functioning the same way and elicits subjective complaints from the patient. Dr. Heydemann defined myofascial syndrome as a diagnosis that is based on subjective complaints of a patient, when all else has been ruled out. The term "myofascitis" was used at trial interchangeably with these other terms.
[3] "If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until 30 days after such timely filed motions are overruled, either by written and signed order or by operation of law, whichever occurs first." Tex.R. Civ. P. 329b(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612670/ | 282 So. 2d 640 (1973)
Erben SCOTT and Margaret Scott, Appellants,
v.
ANCHOR INN APARTMENTS, INC., a Corporation, et al., Appellees.
No. R-480.
District Court of Appeal of Florida, First District.
September 13, 1973.
S. Thompson Tygart, Jr., Jacksonville, for appellants.
Judson Freeman, Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellees.
PER CURIAM.
Appellants seek reversal of a final judgment entered at the end of the plaintiffs' evidentiary case dismissing their action for specific performance of an alleged oral contract.
The alleged contract sought to be enforced related to the number of shares or porportionate ownership that plaintiffs were entitled to in a real estate venture with plaintiff's brother and his wife.
Following the taking of testimony, the trial court ruled that the evidence as to the respective amount of stock or interest in the venture that each brother and his wife were to have was so conflicting that the plaintiffs had failed to establish the existence of the contract that plaintiffs alleged in their complaint. In essence, the plaintiffs' evidence was to the effect that they were to have forty-nine percent of the corporate stock and the appellees fifty-one percent, whereas the tenor of the appellees' evidence given as an adverse witness for the plaintiffs was that appellant Erben Scott was to receive four shares as compared to five shares for each for appellees Allen Scott and his wife, Gloria. The evidence revealed that Erben contributed $2,000.00 for the four shares issued to and received by him and that he loaned the corporation $10,500.00 for which he received a corporate note which has since been paid on his demand. Appellant and his wife also signed the long-term notes and mortgage which financed the corporation's acquisition of the realty, as did the appellees.
The trial court being confronted with this critical factual conflict correctly declined to grant specific performance. That result is consistent with the rule announced in Humphrys v. Jarrell, Fla.App., 104 So. 2d 404, 410, viz:
"... Specific performance is an equitable remedy and is not granted as a matter of right or grace but as a matter of sound judicial discretion vested in the *641 chancellor governed by principles of law and equity applicable to the particular facts or circumstances. The exercise of this discretion by the chancellor must be legally sound and not arbitrary. Moreover, the granting of a final decree in a specific performance suit requires that the proof be clear, competent, and satisfactory. This test imposes a greater degree of proof than that required under the preponderance of evidence rule... ."
It is obvious that the trial judge did not find that the essential elements necessary to authorize specific performance had been proved with that degree of clarity and certainty to justify granting the relief sought.
Accordingly, the judgment reviewed herein is affirmed.
CARROLL, DONALD K., Acting C.J., and WIGGINTON and SPECTOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612666/ | 282 So. 2d 869 (1973)
Irving M. CHAUVIN, Plaintiff and Appellant,
v.
Catherine Tullah CHAUVIN, Defendant and Appellee.
No. 4288.
Court of Appeal of Louisiana, Third Circuit.
September 18, 1973.
*870 Harold L. Savoie, Lafayette, for plaintiff and appellant.
Ashton J. Landry, Lafayette, for defendant and appellee.
Before FRUGE, SAVOY and DOMENGEAUX, JJ.
DOMENGEAUX, Judge.
Plaintiff herein filed a suit for separation from bed and board from his wife, the defendant, alleging that she had abandoned him. The defendant answered the suit denying the abandonment and reconvened against plaintiff for a separation from bed and board on the grounds of cruel treatment and for alimony pendente lite in the amount of $400.00 per month. Trial was had on the merits following which the District Judge rendered judgment in favor of plaintiff and against defendant granting the former a judicial separation from his wife, and in favor of defendant and against plaintiff, on the reconventional demand, granting defendant alimony in the amount of $200.00 per month. The plaintiff appealed that judgment to this court and asks that we overturn that portion of the judgment which grants defendant alimony and in the alternative that we reduce the amount of the alimony granted. Defendant neither appealed nor answered the appeal of plaintiff and we therefore do not concern ourselves with the judgment of separation, but rather we limit our inquiry into a propriety of the alimony award contained in the judgment. LSA-C.C.P. Art. 2133.
Our law is well settled to the effect that a wife who has insufficient income for her own support is entitled to alimony pendente lite, regardless of which spouse *871 was at fault in causing the separation, and that such alimony is due the wife from the time of the separation until a final judgment of divorce be rendered. La.Civil Code Articles 119, 120, 148; Boucvalt v. Boucvalt, 235 La. 421, 104 So. 2d 157; Thevis v. Thevis, La.App., 254 So. 2d 480; Adams v. Adams, La.App., 243 So. 2d 318; writ refused 258 La. 212, 245 So. 2d 410. The evidence put forth by the defendant in the instant case regarding her needs was uncontradicted, and it therefore established her right to alimony pendente lite.
As aforesaid, plaintiff-appellant asks in the alternative that we reduce the amount of alimony awarded. We are not inclined to do so in view of the large discretion allowed a District Judge in setting the amount of alimony pendente lite. Stansbury v. Stansbury, La.App., 258 So. 2d 170; Gardes v. Gardes, La.App., 249 So. 2d 221; McMath v. Masters, La.App., 198 So. 2d 734. The uncontradicted evidence in this regard shows that the defendant wife and her minor daughter have a combined need of the sum of $321.00 per month, as shown by defendant's sworn affidavit itemizing her monthly expenses, and her testimony to the effect that these expenses include those of maintaining her daughter. The defendant's daughter was hers by a previous marriage and was unrelated to plaintiff. It was also shown that the plaintiff's income, derived from social security and veteran's benefits, is in the neighborhood of $600.00 per month. Under those circumstances we cannot say that there was an abuse of the trial court's discretion in granting defendant the sum of $200.00 as alimony pendente lite, since it was reasonable to conclude that $121.00 per month would be spent in supporting the child, to whom plaintiff owed no obligation.
For the above and foregoing reasons the judgment of the District Court is affirmed at costs in both courts of plaintiff-appellant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612697/ | 745 F. Supp. 595 (1990)
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff,
v.
Robert Sanders BAER, et al., Defendants.
No. C 89-3775 FMS.
United States District Court, N.D. California.
September 11, 1990.
*596 Lawrence M. Guslani, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Cal., for plaintiff.
Steven R. Manchester, Manchester & Williams, San Jose, Cal., for Robert Sanders Baer.
E. Gerard Mannion, Wesley M. Lowe, Sangster, Mannion & Curfman, San Francisco, Cal., for Arthur Eric Dahlstrom.
O'Reilly & Collins, Menlo Park, Cal., Susan B. Jordan, San Francisco, Cal., for Hilda Ives.
ORDER GRANTING SUMMARY JUDGMENT
FERN M. SMITH, District Judge.
This is an action for declaratory relief as to defendant's right to insurance coverage for a wrongful death action currently pending in state court. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. The matter came before the Court for hearing on the plaintiff's motion for summary judgment on August 15, 1990. For the reasons stated at the hearing and for the reasons set forth below, the Court grants summary judgment in favor of the plaintiff.
FACTS
Defendant Robert Sanders Baer is a 42-year old real estate developer residing in Palo Alto. He and Dareen Dahlstrom were close personal friends for over twenty years. Prior to 1988, Dahlstrom was living in Los Angeles with her husband. In July of 1988, she came to Palo Alto to visit Baer. Her father had recently passed away, and Dahlstrom was in the process of separating from her husband. She planned to spend a weekend with Baer and then live in his house for two months while he traveled in Africa.
Baer had, on several occasions, used a recreational drug known as "Ecstasy."[1] He believed that its use had certain psychological and emotional benefits. Prior to Dahlstrom's July, 1988 visit, Baer told her about his experiences using the drug, and the two discussed the possibility of Dahlstrom trying it during her visit. They discussed the effects of the drug and the ways in which it might help Dahlstrom cope with the changes in her life. On July 22, 1989, she informed Baer that she wanted to use the drug.
The next day, at his home, Baer and Dahlstrom went through various rituals in preparation for her use of the drug, concluding with the following brief prayer: "May this bring harm to no one and blessing to all." Baer then took approximately 200 to 300 milligrams of the drug from his personal supply and dissolved it in a glass of water. He believed this amount to be appropriate for Dahlstrom because it was slightly less than half of the does he usually gave himself. Dahlstrom drank the mixture immediately thereafter.
Approximately twenty minutes later, she began exhibiting certain effects of the drug, including writhing on the floor. After thirty minutes, Dahlstrom calmed down *597 and appeared very relaxed. Baer noted that she seemed comfortable and left the room for several minutes. When he returned, Dahlstrom was unconscious and not breathing. He telephoned 911 after he was unable to revive her. Dahlstrom was transported to Stanford University Hospital, where she was pronounced dead.
On February 13, 1990, Dahlstrom's survivors filed a wrongful death action against Baer in the Superior Court for the County of Santa Clara. The issue before this Court is whether Baer is entitled to receive coverage for that lawsuit under a home-owners insurance policy issued to him by State Farm Fire and Casualty Company.
ANALYSIS
State Farm has moved for summary judgment on three grounds: (1) the administration of the drug to Dahlstrom was not an accident; therefore, the event was not an "occurrence" as defined by the policy; (2) public policy considerations preclude coverage for persons who provide illegal drugs to others in their home; and (3) coverage is precluded by an exclusion in the policy for injury that is either expected or intended by the insured or that is caused by the insured's willful and malicious acts. In opposition, the defendants argue that, (1) although Baer intended to give Dahlstrom the drug, he did not intend any injury; (2) because her death was an accident, the event constituted an "occurrence" under the policy; and (3) summary judgment is inappropriate because there are material issues of fact as to Baer's negligence in choosing the dosage he gave to Dahlstrom and in failing to summon medical assistance promptly.
After full consideration of the parties' submissions and oral argument, the Court holds that insurance coverage for the act of providing an illegal drug to another in the insured's home is precluded as against public policy and by the provisions of California Civil Code § 1668. The Court finds it unnecessary, therefore, to interpret the terms of the policy or to resolve factual issues as to Baer's "negligence." This holding is based upon the findings set forth below.
1. Ecstasy is a Controlled Substance.
There is no dispute that the drug "Ecstasy" was a Schedule I controlled substance under federal law on July 23, 1988.[2] The Controlled Substance Act, 21 U.S.C. § 841(a), makes it illegal to manufacture, distribute, dispense, or possess with intent to manufacture, distribute or dispense, any controlled substance. Schedule I contains the most dangerous of illegal drugs. Prior to placing a substance on Schedule I, the government must make the following findings: (1) the drug has a high potential for abuse; (2) the drug has no currently accepted medical use in treatment in the United States; and (3) there is a lack of accepted safety for use of the drug under medical supervision. 21 U.S.C. § 812(b). While Baer may have believed that "Ecstasy" was safe and beneficial, in fact he dispensed a dangerous, hallucinogenic, federally-controlled street drug. Under the Controlled Substances Act, it was patently illegal for him to do so. 21 U.S.C. § 841(a).
2. California Law Precludes Coverage for Illegal Acts.
California Civil Code section 1668 provides as follows:
All contracts which may have as their object, directly or indirectly, to exempt anyone from the responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.
(Emphasis added.) This section, along with California Insurance Code section 533, which prohibits coverage for the willful *598 acts of the insured, embodies the state's intent to prohibit insurance coverage for willful torts or illegal acts. See, State Farm v. Huie, 666 F. Supp. 1402, 1405 (N.D.Cal.1987), affirmed, 849 F.2d 1218. These sections are read into every insurance contract in the state and function as the equivalent to an exclusionary clause in the policy itself. Id.
The California Supreme Court has interpreted Insurance Code section 533 as precluding coverage only as to those willful acts that are done with an intent to harm or a "preconceived design to inflict injury." See Clemmer v. Hartford Insurance Co., 22 Cal. 3d 865, 887, 151 Cal. Rptr. 285, 587 P.2d 1098 (1978); Peterson v. Superior Court, 31 Cal. 3d 147, 181 Cal. Rptr. 784, 642 P.2d 1305 (1982). The law is not clear as to whether the application of Civil Code section 1668 is similarly limited. There are, for instance, certain illegal acts for which coverage is provided in the event of accidental injury. An obvious example would be driving over the speed limit. Some courts have also have held that coverage is not necessarily precluded by the criminal nature of the insured's actions. In Allstate Ins. Co. v. Overton, 160 Cal. App. 3d 843, 206 Cal. Rptr. 823 (1984), the insured struck another person in the face and was subsequently sued for personal injuries. Although the insured was convicted of misdemeanor battery as a result of the incident, the court held that coverage for the personal injury action might still apply, because the conviction alone did not prove the insured's state of mind. Similarly, in Clemmer v. Hartford Insurance Co., 22 Cal. 3d 865, 151 Cal. Rptr. 285, 587 P.2d 1098 (1978), the court held that coverage under a comprehensive personal liability policy was not necessarily precluded by the insured's conviction for second degree murder because it was not clear that he had the mental capacity to form an intent to injure. In both of these cases, the primary issue was the insured's state of mind, or lack thereof; neither court addressed the effect of Civil Code section 1668.
Although there are certain cases in which an insured may be entitled to coverage for an act that proved to be unlawful, these cases generally involve situations in which the violation of law, the injury, and sometimes the act itself, were unintended by the insured. This is not such a case. Baer knew or should have known that "Ecstasy" was a federally controlled substance and that it was illegal to dispense the drug to others. Nevertheless, he willfully prepared and administered the drug to Dahlstrom. As the court explained in State Farm Fire & Cas. Co. v. Huie, 666 F.Supp. at 1405:
That [principal] point is the California legislature's intent not to insure certain acts, regardless of the definition of the liabilities that might arise from them. The focus should be on the act which is what the legislature is trying to prevent rather than on the theories of civil or criminal liability that might arise from that act. Regardless of the language of individual criminal statutes, or the language used by the California courts in the individual cases before them, the legislative intent is clear. That is, that some acts are so extreme that public policy does not permit them to be insured.
(Emphasis in original.) The Court holds that the provision of a Schedule I controlled substance to others in the insured's home is an act "so extreme" that it cannot be insured under California law, pursuant to Civil Code § 1668.
3. The Provision of Illegal Drugs is Inherently Harmful.
As an additional and alternative basis for this holding, the Court finds that the administration or provision of Schedule I controlled substances by an unlicensed individual is in that category of activities that carries with it an inherent danger of injury. Recently, in relation to cases of sexual assault and child molestation, courts have held that there are certain acts from which an intent to harm may be inferred. See, e.g., Allstate Ins. Co. v. Kim W., 160 Cal. App. 3d 326, 333, 206 Cal. Rptr. 609 (1984); State Farm Fire & Cas. Co. v. Bomke, 849 F.2d 1218, 1219 (9th Cir.1988); Allstate Ins. Co. v. Gilbert, 852 F.2d 449, 452 (9th *599 Cir.1988); State Farm Fire & Cas. Co. v. Abraio, 874 F.2d 619, 623 (9th Cir.1989). Because of the significant physiological and neurological effects of controlled substances, and the danger inherent in their unsupervised use, the Court finds that the furnishing of Schedule I drugs is also in this category. Public policy precludes the provision of insurance coverage for those who choose to engage in inherently harmful activities of this nature.
CONCLUSION
For the reasons stated above, summary judgment is granted is granted in favor of the plaintiff. Judgment shall be entered accordingly,
SO ORDERED.
NOTES
[1] The technical name for this drug is methylenedioxymethamphetamine, abbreviated as MDMA.
[2] For several years after its "discovery," "Ecstasy" was not an illegal drug. Some mental health professionals administered it to their patients in "therapeutic doses." It was also available for purchase, in some manner, by nonprofessionals seeking to experiment with its mind-altering effects. Indeed, the quantity of the drug given to Dahlstrom was purchased by Baer before the drug was made illegal. The statute placing "Ecstasy" on Schedule 1 of the Controlled Substances Act was effective March 23, 1988. 21 C.F.R. 1308. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614628/ | 939 So.2d 40 (2006)
Darryl C. HARDIN and Ann Price Hardin d/b/a Antiques and Collectibles of Northport
v.
KIRKLAND ENTERPRISES, INC.
2040720.
Court of Civil Appeals of Alabama.
March 10, 2006.
*41 Ritchie L. Tipton, Tuscaloosa, for appellants.
Gary L. Blume of Blume & Blume, Attorneys at Law, P.C., Tuscaloosa, for appellee.
CRAWLEY, Presiding Judge.
On July 21, 2004, Kirkland Enterprises, Inc. ("the landlord"), sued Darryl C. Hardin and Ann Price Hardin d/b/a Antiques and Collectibles of Northport ("the tenants"), alleging the breach of a lease. Following a bench trial, the circuit court entered a judgment in favor of the landlord in the amount of $46,841.00, representing the amount of rent due under the remaining term of the lease, late fees, eviction costs, repair costs, and attorney fees and costs of the action. The tenants appeal, conceding that they owe the landlord $23,896.44, but contending that the balance of the judgment in excess of that amount is erroneous because the lease agreement did not allow the landlord to collect unaccrued (or "accelerated") rent after the eviction.
On August 15, 2001, the tenants signed a three-year commercial lease. They paid rent until November 2003, after which they made no more payments through the *42 end of the lease term, August 14, 2004. On December 11, 2003, the landlord served the tenants with a notice of termination of the lease. On December 30, 2003, the landlord served the tenants with a "Notice of Eviction Action," which was brought pursuant to § 35-9-80, Ala.Code 1975, in the Tuscaloosa District Court. Following the entry of a judgment in favor of the landlord in the district court and the tenants' unsuccessful appeal to the circuit court, the tenants vacated the leased premises on March 8, 2004.
After the tenants vacated the premises, the landlord remodeled the building. On July 1, 2004, the landlord moved its subsidiary, Weathers Auto Supply Company, Inc., into the premises when the subsidiary was forced to relocate because of an urban-renewal project. When asked whether the subsidiary paid rent to the landlord, Buddy Kirkland, the landlord's president, testified as follows:
"[W]e factored that into our financial statements, yeah. That is our building and, of course, we sort of set our businesses up like in departments, you know, and we had allocated so much rent to each division."
There was no evidence regarding the amount of rent that the landlord allocated to the subsidiary.
The tenants argue that they owe no rent past March 8, the date they vacated the premises and the landlord recovered possession.
"After the dispossession of a tenant in summary proceedings for nonpayment of rent, the lease is at an end, and the tenant's liability thereafter is for damages, not further rent payments."
49 Am.Jur.2d Landlord and Tenant § 1012 (1995) (footnote omitted). See O'Byrne v. Henley, 161 Ala. 620, 622-23, 50 So. 83, 83 (1909) (stating that "[a]n eviction of the tenant by the landlord . . . will authorize the tenant to abandon the premises, and will exonerate him from further liability for rent"). It is, however, "within the right of the contracting parties to agree that the time for the payment of the rent might be accelerated, in certain contingencies," H.M. Price Hardware Co. v. Meyer, 224 Ala. 35, 38, 138 So. 543, 546 (1931); see also Maddox v. Hobbie, 228 Ala. 80, 83, 152 So. 222, 223 (1934), and "there must be an express provision in a lease in order for it to provide for acceleration upon default." Camelot Music, Inc. v. Marx Realty & Improvement Co., 514 So.2d 987, 990 (Ala.1987). Accord International Biochemical Indus., Inc. v. Jamestown Mgmt. Corp., 262 Ga.App. 770, 772, 586 S.E.2d 442, 445 (2003):
"Although the general rule is that when a landlord evicts a tenant and takes possession of the premises, the lease is terminated and the right to claim rent which accrues after eviction is extinguished, the parties to a lease may contract to hold the lessee liable for post-eviction rent."
See generally Annotation, Liability for Rent Accruing after Landlord's Institution of Action or Proceedings Against Tenant to Recover Possession, 93 A.L.R. 1474, 1477 (1934) (stating that "it is generally recognized that an actual eviction of a tenant for any cause will, in the absence of a contractual provision to the contrary, relieve him from any liability for subsequently accruing rent, the lease having been terminated by such eviction").
The parties disagree about whether the lease contains a contractual provision allowing for the collection of rent after eviction. Section 12 of the lease provides that, in the event the rent is not paid when due, the landlord "shall have the option to do any of the following in addition to and *43 not in limitation of any other remedy permitted by law or by this lease":
"I. Terminate the lease in which event Lessees shall immediately surrender the premises to Lessor. If Lessees fail to do so, Lessor may, without further notice and without prejudice to any other remedy Lessor may have for possession or arrearages in rent or damages for breach of contract, enter upon the premises and expel or remove Lessees and Lessees' effects, by force if necessary, without being liable to prosecution for any claim for damages therefor; and Lessees agree to indemnify Lessor for all loss and damage that Lessor may suffer by reason of such lease termination, whether through inability to relet the premises or through decrease in rent, or otherwise; in the event of such termination, Lessor may, at Lessor's option, declare the entire amount of rent which would become due and payable during the remainder of the term of this lease or any renewal or extension thereof to be due and payable immediately, in which event, Lessees agree to pay the same at once, together with all rents, theretofore due, together with interest thereon, if any, at a rate of 12% per annum, plus any costs of collection and a reasonable attorney's fee.
"II. Enter the premises as the agent of the Lessees, by force if necessary, without being liable to prosecution for any claim for damages therefore, and relet the premises as the agent of the Lessees, and receive the rent therefor, and the Lessees shall pay Lessor any deficiency that may arise by reason of such reletting, on demand at anytime from time to time."
(Emphasis added.)
Section 12.I. of the lease is composed of two sentences. The first sentence is short; it gives the landlord the right to terminate the lease, and it states that, if the landlord exercises that option, the tenants "shall immediately surrender the premises" to the landlord. The second sentence is longer and consists of three provisions separated by semicolons. The second sentence deals with the rights and obligations of the parties in the event the tenants fail to surrender the premises upon the landlord's termination of the lease. In that event, the landlord may enter and expel the tenants and remove the tenants' effects (forcibly, if necessary) and the landlord will not be liable for damages. The acceleration-of-rent provision is located in the second sentence, after the second semicolon, and is introduced by the phrase "in the event of such termination."
The tenants argue that the phrase "in the event of such termination" refers to the kind of termination described in the first provision of the second sentence that is, a termination brought about by the landlord's reentry of the premises and expulsion of the tenants. The landlord, on the other hand, argues that the phrase refers to the entirety of § 12.I., dealing with termination of the lease. Moreover, the landlord points out that the tenants did not "immediately surrender the premises" as contemplated by the first sentence of § 12.I. The issue therefore is: Does the phrase "in the event of such termination" refer to what happened in the present casethe landlord's termination of the lease by eviction and the tenants' eventual surrender of the premises to the landlord? Or does the phrase "in the event of such termination" refer only to the specific scenario described in the second sentence of § 12.I.the landlord's entry upon the premises and his expulsion of the tenants and removal of the tenants' effects?
The circuit court apparently determined that the phrase introducing the acceleration-of-rent provision referred to both *44 types of terminationsthose outlined in the first sentence and those outlined in the second sentence of § 12.I. The circuit court's judgment states, in pertinent part:
"The Court finds that § 12 of the Lease Agreement specifically allows the [landlord] to reenter the premises and also declare the entire amount of rent, which would become due and payable during the remainder of the term of the Lease. Thus, [the tenants] contractually agreed that they could be held liable for this accelerated rent, even in the event of eviction."
"It is well settled that lease agreements are contracts and that the general principles of contract construction apply in ascertaining the scope and meaning of a lease agreement." Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098 (Ala.2003). Whether a lease is ambiguous is a question of law for the trial court. Interstate Inv. Corp. v. Rose Care, Inc., 631 So.2d 836, 839 (Ala.1993). An appellate court applies a de novo review to a trial court's determination of whether a contract is ambiguous and to a trial court's determination of the legal effect of an unambiguous contract term. See Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001).
We acknowledge that there may be some grammatical ambiguity about what type of termination the phrase "such termination" refers to. Nevertheless, we hold that the phrase is not ambiguous in the legal sense. A provision in a written instrument is not ambiguous in the legal sense if the terms are "susceptible of only one reasonable meaning." Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (emphasis added). Reading § 12 of the lease as a whole leads to the conclusion that subsection I. refers to the event of termination of the leasehowever that termination is accomplishedin contradistinction to subsection II., which refers to a continuation of the lease allowing the landlord to relet the premises as the agent of the tenants and to seek any deficiency in rent from the tenants. See generally McClure v. Daniel, 45 Ala.App. 558, 561-62, 233 So.2d 500, 502 (Civ.1970) (noting that "[w]hen a lessee abandons the leased premises or defaults in payment of the rent, it is the option of the lessor to allow the premises to remain vacant and recover rent for the whole term, or to put an end to the lease by re-entry").
As the landlord points out, construing § 12.I. in the way the tenants propose could encourage a landlord who intends to insist upon the right to accelerate the rent to risk a physical confrontation with the tenant (by expelling the tenant from the leased premises) rather than to use the more peaceable statutory remedy of eviction. Moreover, the tenants' conduct in this case did not fit within the scenario contemplated by the first sentence of § 12.I., i.e., an "immediate[ ] surrender" of the premises to the landlord. Instead, the tenants failed to surrender possession of the premises until the landlord had prevailed in both the district court eviction proceeding and the tenants' appeal to the circuit court. We, therefore, hold that the circuit court correctly determined that the tenants "contractually agreed that they could be held liable for . . . accelerated rent . . . in the event of eviction."
The tenants next contend that, even if the landlord was entitled to seek accelerated rent after the eviction, they are not liable to pay the accelerated rent because the landlord did not make a timely demand for payment of accelerated renteither in its notice of termination, its notice to vacate, or its eviction action. The lease provision applicable to this contention is contained in § 12.I.:
*45 "Lessor may, at Lessor's option, declare the entire amount of rent which would become due and payable during the remainder of the term of this lease or any renewal or extension thereof to be due and payable immediately, in which event, Lessees agree to pay the same at once. . . . "
(Emphasis added.) The tenants argue that, because the landlord did not exercise its option to declare the accelerated rent "due and payable immediately," i.e., at the termination of the lease, the landlord waived its right to seek accelerated rent later, on July 21, 2004, when it filed its complaint in this proceeding.
The quoted provision in § 12.I. of the lease is an optional, as opposed to an automatic, rent-acceleration provision. See generally C.T. Drechsler, Annotation, What is Essential to Exercise of Option to Accelerate Maturity of Bill or Note, 5 A.L.R.2d 968, 970 (1949):
"It appears to be well settled that a provision in a bill or note accelerating the maturity thereof on nonpayment of interest or installments, or other default, at the option of the holder, requires some affirmative action on the part of the holder, evidencing his election to take advantage of the accelerating provision, and that until such action has been taken the provision has no operation."
An optional acceleration provision is not self-executing; it generally requires the holder of the option to take some affirmative action evidencing his intention to exercise the option within a reasonable time after default. See McJenkin v. Central Bank of Tuscaloosa, N.A., 417 So.2d 153, 157 (Ala.1982):
"A `due on sale' acceleration clause, not unlike other acceleration clauses, while giving an option to the holder to declare the full amount due, is not self-executing. Default does not ipso facto mature the whole debt. Walker Bank & Trust Co. v. A.P. Neilson, 26 Utah 2d 383, 490 P.2d 328 (197[1]). And the election of the holder to declare the acceleration of the due date of the whole debt must be exercised within a reasonable time after default. Malouff v. Midland Federal Savings and Loan Association, 181 Colo. 294, 509 P.2d 1240 (1973). See, also, Tierce v. APS Co., 382 So.2d 485 (Ala.1979)."
(Footnote omitted.)
Although we have found decisions indicating that the holder of an optional right to accelerate a debt waives the right to exercise his option if he accepts partial payments or past-due payments, see In re Parks, 193 B.R. 361, 366 (Bankr.N.D.Ala. 1995) (noting that "`[t]he forfeiture declarable under the strict terms of the contract may be waived by continued recognition and receipt of part payments, after ground of forfeiture'" (relying on Alabama law and quoting Barry v. Welch, 248 Ala. 167, 168, 26 So.2d 872, 873 (1946))), the tenants cite no authority (and we have found none) for the proposition that a landlord waives his right to collect unaccrued rent after an eviction if the landlord does not immediately make a demand for payment pursuant to an optional acceleration clause in the lease.
The tenants make no argument that the landlord had a duty to mitigate its damages upon termination of the lease. They do not contend that the landlord's recovery should have been reduced by the rent allocated by the landlord to its subsidiary's occupation of the premises after July 1, 2004. Cf. Watts Bldg. Corp. v. Schoel, Ogle, Benton, Gentle, & Centeno, 598 So.2d 832, 834 (Ala.1992) (holding that the landlord "is entitled to collect the rent due under the remaining term of the lease, subject to [the landlord's] mitigation of its damages"). They also do not contend that *46 the circuit court erred by failing to require the landlord to reduce its claim for future rent to present value. Cf. HealthSouth Rehab. Corp. v. Falcon Mgmt. Co., 799 So.2d 177, 185 (Ala.2001). See generally David C. Skinner, Gambling with Remedies: Rent Acceleration and Mitigation of Damages in Alabama, 45 Ala. L.Rev. 275 (1993).
Accordingly, we conclude that the judgment of the Tuscaloosa Circuit Court is due to be affirmed.
AFFIRMED.
THOMPSON, PITTMAN, and MURDOCK, JJ., concur.
BRYAN, J., concurs in the result, without writing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697255/ | [Cite as In re P.A.R., 2014-Ohio-802.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
IN THE MATTER OF: :
:
P.A.R., : Case NO. 13CA3550
:
:
Minor Child - Custody : DECISION AND JUDGMENT ENTRY
:
APPEARANCES:
COUNSEL FOR APPELLANT: Jay S. Willis, 612 6th Street, Suite C, P.O. Box 316,
Portsmouth, Ohio 45662
COUNSEL FOR APPELLEE: Brigham Anderson, Anderson & Anderson, 408 Park
Avenue, Ironton, Ohio 45638
CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED: 2-24-14
ABELE, P.J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court, Juvenile Division,
judgment that denied a motion to modify custody of P.R., filed by T.S., the child’s biological
mother and appellant herein. Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE DECISION OF THE TRIAL COURT TO GRANT THE
MOTION TO DISMISS THE MOTION FOR MODIFICATION
OF CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS
DISCRETION AND ERRED AS A
MATTER OF LAW WHEN IT
DENIED APPELLANT’S MOTION
FOR MODIFICATION OF
CUSTODY.”
SCIOTO, 13CA3550 2
THIRD ASSIGNMENT OF ERROR:
“THE DECISION OF THE TRIAL COURT TO GRANT THE
MOTION TO DISMISS THE MOTIONS FOR CONTEMPT
REGARDING PARENTING TIME WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND
ERRED AS A MATTER OF LAW WHEN IT DENIED
APPELLANT’S MOTIONS FOR CONTEMPT REGARDING
PARENTING TIME.”
{¶ 2} Shortly after P.R.’s birth, appellees, P.R.’s paternal grandparents, filed a custody
petition. When P.R. was born, appellant and P.R.’s father had abused drugs for several years
and continued to do so for several years after the birth.
{¶ 3} On August 30, 2006, the trial court entered an agreed entry that awarded custody
of the child to the appellees and gave appellant and P.R.’s father “reasonable visitation * * *
pursuant to the standard orders of visitation of this Court.” Approximately one year later,
appellant and P.R.’s father had another child. Appellant has had custody of the second child
since his birth.
{¶ 4} On November 7, 2011, appellant filed (1) a motion to modify the 2006 custody
order; and (2) a motion to find appellees in contempt. Appellant alleged that the appellees failed
to allow her to visit the child and that this failure constituted a change in circumstances.
Appellant also requested the court to find appellees in contempt for failing to comply with the
2006 visitation order.
{¶ 5} On October 25, 2012, the court held a hearing to consider appellant’s motions.
Appellant testified that she believed that when she agreed to give the appellees custody in 2006
SCIOTO, 13CA3550 3
“that nothing would have changed” regarding her right to see the child. Appellant did not think
that she would receive “standard orders of visitation of the Scioto County Juvenile Court,” but
that she would receive the visitation “under an agreement between her and [appellees] that * * *
wasn’t filed.” Appellant stated that through February 2012, she did not receive standard
visitation. Appellant testified that in February 2012, she and the appellees agreed that appellant
would have standard visitation and that since that time, she generally has been able to visit the
child.
{¶ 6} Appellant further testified that since she began regular visits with the child, they
have developed “a good relationship” and the child calls her “mom.” She testified that she feels
a “void” without the child and that P.R. and P.R.’s younger sibling should be together to
eliminate “confusion.” Also, P.R.’s younger sibling has “been really emotional” when P.R.
leaves the visitations.
{¶ 7} Appellant testified that she believes that circumstances have changed because (1)
appellant no longer uses drugs, (2) Mr. Phillips has a new job, and (3) appellees have medical
issues. She also stated that the relationship she and P.R.’s younger sibling have developed with
P.R. constitutes a change in circumstances.
{¶ 8} After appellant presented her evidence, appellees requested the court to dismiss
appellant’s motion to modify custody. In particular, the appellees asserted that appellant failed
to demonstrate that any change in circumstances had occurred so as to warrant a custody
modification. The trial court stated that it would take the matter under advisement.
{¶ 9} On March 29, 2013, the trial court denied appellant’s motion. The court
determined that the evidence did not show “that the child’s or the custodian’s circumstances have
changed in any significant way since the child’s parents agreed to relinquish custody.” The
SCIOTO, 13CA3550 4
court explained:
“Clearly, [appellant]’s circumstances were changed by becoming drug-free,
becoming employed, getting divorced and regaining her driver’s license. The
only changes in the circumstances of the custodians * * * are that they do not take
drugs and that Mr. Phillips has another job. No testimony was presented showing
that the child’s circumstances have changed.”
The court found that the change in appellant’s circumstances was “not relevant to the R.C.
3109.04(E)(1)(a) inquiry” and denied appellant’s motion to modify custody.
{¶ 10} The trial court also denied appellant’s contempt motion as it found the evidence
“far more conflicting and confusing than clear and convincing.” The court explained: “[F]or the
last eight months [appellant] has been getting the standard visitation and before that she did not
know what her visitation was and she did not know that she was getting the standard order.”
The court further found that appellant did not know whether appellees actually knew the
visitation schedule. Consequently, the court denied appellant’s motion to find appellees in
contempt. This appeal followed.
I
{¶ 11} In her first and second assignments of error, appellant challenges the trial court’s
finding that a change in circumstances had not occurred. However, the two assignments of error
involve different procedural issues. Nevertheless, because they involve the same substantive
issue, we address them together.
{¶ 12} In her first assignment of error, appellant asserts that the trial court erred by
granting appellees’ motion to dismiss because the facts show that a change in circumstance had,
in fact, occurred. In her second assignment of error, appellant argues that she established that a
SCIOTO, 13CA3550 5
change in circumstance had, in fact, occurred, and that the court's denial of her motion to modify
custody constitutes an abuse of discretion.
{¶ 13} Appellant argues that the following facts constitute a change in circumstances: (1)
appellant has been drug-free for over two years, she maintains full-time employment, and she has
a stable home; (2) appellees have “serious health issues;” (3) Mr. Phillips was convicted of theft
in 2007; and (4) the child has developed “a strong relationship with both her mother and her
brother.” Appellant also claims that the appellees consistently denied her visitation with the
child and that this denial constitutes a change in circumstances.
A
MOTION TO DISMISS
{¶ 14} A challenge to a decision to deny a Civ.R. 41(B)(2)1 motion is, in essence, a
challenge to the weight of the evidence. Civ.R. 41(B)(2) provides:
After the plaintiff, in an action tried by the court without a jury, has
completed the presentation of the plaintiff’s evidence, the defendant, * * *, may
move for a dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief. The court as trier of the facts may then determine
them and render judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence.
When a trial court rules on a Civ.R. 41(B)(2) motion, the court must weigh the evidence, resolve
any conflicts, and render judgment in the defendant's favor if the plaintiff has shown no right to
1
Civ.R. 41(B)(2) applies when a party moves to dismiss a motion to modify a prior custody order. Stevenson v.
Kotnik, 11 Dist. Lake No. 2010-L-063, 2011-Ohio-2585, ¶58; Jones v. Jones, 4th Dist. Highland No. 06CA25, 2007-Ohio-4255,
th
¶54.
SCIOTO, 13CA3550 6
relief. Ramco Specialties, Inc. v. Pansegrau, 134 Ohio App.3d 513, 520, 731 N.E.2d 714
(1998). “Where plaintiff’s evidence is insufficient to sustain plaintiff’s burden in the matter, the
trial court may dismiss the case.” In re Estate of Fugate, 86 Ohio App.3d 293, 297, 620 N.E.2d
966 (4th Dist. 1993). A reviewing court will not reverse a dismissal pursuant to Civ.R. 41(B)(2)
unless the trial court’s decision is incorrect as a matter of law or is against the manifest weight of
the evidence. Johnson v. Tansky Sawmill Toyota, 95 Ohio App.3d 164, 167, 642 N.E.2d 9
(1994).
{¶ 15} When an appellate court reviews a trial court’s custody decision under the
manifest weight of the evidence standard of review, the court “‘“weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the [fact-finder] clearly lost its way and created such a manifest
miscarriage of justice that the [judgment] must be reversed * * *.”’” Eastley v. Volkman, 132
Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶20, quoting Tewarson v. Simon, 141 Ohio
App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001); State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997).
{¶ 16} Furthermore, when reviewing evidence under the manifest weight of the evidence
standard, an appellate court generally must defer to the fact-finder’s credibility determinations.
Eastley at ¶21. As the Eastley court explained:
“‘[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.’”
SCIOTO, 13CA3550 7
Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984),
fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶ 17} Additionally, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties’ demeanor and attitude that
does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d
1159 (1997). As the Ohio Supreme Court long-ago explained:
“In proceedings involving the custody and welfare of children the power of the
trial court to exercise discretion is peculiarly important. The knowledge obtained
through contact with and observation of the parties and through independent
investigation can not be conveyed to a reviewing court by printed record.”
Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
B
STANDARD OF REVIEW GOVERNING CHILD CUSTODY DECISIONS
{¶ 18} Generally, appellate courts review trial court custody modification decisions with
the utmost deference. Davis, 77 Ohio St.3d at 418; Miller v. Miller, 37 Ohio St.3d 71, 74, 523
N.E.2d 846 (1988). Thus, a reviewing court will not reverse a trial court’s child custody
decision absent an abuse of discretion. In re West, Washington App. No. 01CA8 (Dec. 24,
2001), citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, 1162 (1997), and In
re Shepard, Scioto App. No. 98CA2586 (March 19, 1999). Generally, an abuse of discretion
constitutes more than an error of law or judgment; rather, it implies the court’s attitude was
unreasonable, arbitrary or unconscionable. E.g., Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d
339, 342, 695 N.E.2d 1140 (1998); Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d 440,
448, 659 N.E.2d 1242 (1996). An appellate court may not find an abuse of discretion simply by
substituting its judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp.
SCIOTO, 13CA3550 8
Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135,
137–138, 566 N.E.2d 1181 (1991). Furthermore, “[c]ustody determinations are some of the
most difficult and agonizing decisions a trial judge must make, and, therefore, appellate courts
must grant wide latitude to a trial court’s consideration of the evidence.” Id., citing Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
C
LEGAL STANDARD GOVERNING CUSTODY MODIFICATION
{¶ 19} R.C. 3109.04(E)(1)(a)2 governs the modification of a prior custody decree and
states:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that have
arisen since the prior decree or that were unknown to the court at the time of the
prior decree, that a change has occurred in the circumstances of the child, the
child’s residential parent, or either of the parents subject to a shared parenting
decree, and that the modification is necessary to serve the best interest of the
child. * * * *
2
We observe that neither party disputes that R.C. 3109.04(E)(1)(a) applies in this case, a case that involves a custody
dispute between a parent and a nonparent. In re Brayden James, 113 Ohio St.3d 420, 2007–Ohio–2335, 866 N.E.2d 467;
Purvis v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489 (4th Dist.), ¶10; Bragg v. Hatfield, 152 Ohio
App.3d 174, 2003-Ohio-1441, 787 N.E.2d 44 (4th Dist.), ¶21. But, see, In re E.Z.H., 5th Dist. Holmes No. 12CA015,
2013-Ohio-3494, ¶19.
[Cite as In re P.A.R., 2014-Ohio-802.]
{¶ 20} Thus, the statute precludes a trial court from modifying a prior custody decree
unless it finds that a change has occurred in the circumstances of the child, the child’s residential
parent,3 or a parent subject to a shared-parenting decree and that the child’s best interest
necessitates modifying the prior custody decree. In re Brayden James, 113 Ohio St.3d 420,
2007-Ohio-2335, 866 N.E.2d 467, ¶14. Thus, whether a change in circumstances occurred is a
threshold question in a custody modification case.
D
CHANGE IN CIRCUMSTANCES
{¶ 21} The change in circumstances requirement promotes stability in a child’s life. Id.
at ¶15. As the court explained in Davis, 77 Ohio St.3d at 418:
“‘The clear intent of [R.C. 3109.04(E)(1)(a)] is to spare children from a constant
tug of war * * *. The statute is an attempt to provide some stability to the
custodial status of the children, even though the parent out of custody may be able
to prove that he or she can provide a better environment.’”
Quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (1982). Appellate courts
must not, however, “make the threshold for change so high as to prevent a trial judge from
modifying custody if the court finds it necessary for the best interest of the child.” Davis, 77
Ohio St.3d at 420-421. Thus, although the change “need not be ‘substantial,’” it must be more
than slight or inconsequential. Id. at 417-418; Bragg at ¶23 (4th Dist.) (“The change must be
significant—something more than a slight or inconsequential change.”). A change in
circumstances must be one of consequence–one that is substantive and significant–and it must
relate to the child’s welfare. Davis, 77 Ohio St.3d at 418; In re D.M., 8th Dist. Cuyahoga No.
87723, 2006–Ohio–6191, ¶35, quoting Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604–05,
3
Even though appellees are not the child’s “residential parent,” the Ohio Supreme Court nevertheless applies this
statute to residential nonparents. In re Brayden James, 113 Ohio St.3d 420,
2007-Ohio-2335, 866 N.E.2d 467.
SCIOTO, 13CA3550 10
737 N.E.2d 551 (7th Dist., 2000) (explaining that the phrase change of circumstances means “‘an
event, occurrence, or situation which has a material * * * effect upon a child’”); Beaver v.
Beaver, 143 Ohio App.3d 1, 10, 757 N.E.2d 41 (4th Dist., 2001), quoting Holtzclaw v. Holtzclaw,
Clermont App. No. CA92-04-036 (Dec. 14, 1992) (“‘Implicit in the definition of changed
circumstances is that the change must relate to the welfare of the child.’”).
{¶ 22} A change in circumstances may be of consequence, for example, when (1) a
residential parent’s new marriage creates hostility among the parties and frustrates visitation; (2)
a child advances from infancy to adolescence; (3) a residential parent’s unruly behavior
necessitates police involvement; and (4) “fights between the residential parent and a new spouse
* * * require[] police intervention, along with the fact that the residential parent had moved six
times in two years.” James at ¶18 (citations omitted). Furthermore, “[i]t is a well-settled rule
in Ohio that a custodial parent’s interference with visitation by a noncustodial parent may be
considered as part of a ‘change in circumstances’ which would allow for modification of
custody.” Holm v. Smilowitz, 83 Ohio App.3d 757, 773, 615 N.E.2d 1047 (4th Dist., 1992).
For interference with visitation to constitute a change in circumstances, however, the interference
must be “systematic” or “continuous and willful.” Hinton v. Hinton, 4th Dist. Washington No.
02CA54, 2003-Ohio-2785, ¶29. Thus, “frequent conflicts, misunderstandings, defects and
defaults in literal visitation compliance is [not] sufficient prima facie grounds to demonstrate a
sufficient change of circumstances as to allow modification.” Venuto v. Pochiro, 7th Dist.
Mahoning No. 02CA225, 2004-Ohio-2631, ¶49. When a parent repeatedly denies the other
telephonic communication and requires the nonresidential parent to seek court intervention on
multiple occasions to obtain visitation, then this interference may constitute a change in
SCIOTO, 13CA3550 11
circumstances. Clark v. Smith, 130 Ohio App.3d 648, 654, 720 N.E.2d 973 (3rd Dist. 1998)
(upholding trial court’s finding that the mother’s interference with visitation constituted a change
in circumstances when mother repeatedly denied the father telephonic communication and when
on at least three occasions, father had to seek court intervention in order to obtain visitation).
{¶ 23} In James, supra, the Ohio Supreme Court determined, as a matter of law, that the
record failed to demonstrate a change in circumstances sufficient to warrant a change in custody.
Id. at ¶18. Although the Ohio Supreme Court did not set forth the facts that supported its
determination that a change in circumstances had not occurred, the appellate decisions reveal the
underlying facts. In the appeal after remand, the court determined that based upon the Ohio
Supreme Court’s reversal, the nonresidential parents’ “commendable progress” in attending
counseling sessions and completing various parenting programs, “was not pertinent to a ‘change
in circumstances’ determination.” In re B.J., 1st Dist. Hamilton No. C-081261, 2009-Ohio-6485,
¶19; In re James, 163 Ohio App.3d 442, 2005-Ohio-4847, 839 N.E.2d 39 (1st Dist.,2005), ¶3.
Neither is the birth of a new sibling to a nonresidential parent, nor the nonresidential parent’s
purchase of a home and demonstration of stability. James, 163 Ohio App.3d at ¶66.
{¶ 24} In the case at bar, we believe that the evidence that appellant presented is similar
to the evidence that the parents presented in James and that the Ohio Supreme Court determined
is insufficient to constitute a change in circumstances. Just as the parents in James, appellant
made commendable progress since she admirably relinquished custody to the paternal
grandparents. Appellant has also become drug-free, obtained employment, and has a stable
home. Moreover, just like the parents in James, appellant added a sibling to the family. The
James court, however, did not believe that these changes in the nonresidential parent’s life
constituted the necessary change in circumstances in the child’s life, or in the child’s custodian’s
SCIOTO, 13CA3550 12
life. Thus, we conclude that the very positive and encouraging changes appellant has made in
her life, while commendable, are insufficient to meet the R.C. 3109.04(E)(1)(a) change in
circumstances requirement. None of these changes are changes in the child’s or the child’s
custodian’s circumstances.
{¶ 25} Appellant nevertheless asserts that she and P.R.’s younger sibling have developed
a strong relationship with P.R. and that this development also constitutes a change in P.R.’s
circumstances. However, our review of the record reveals no evidence that the development of
this relationship has affected P.R. in a material way and has changed P.R.'s circumstances.
Consequently, one may only speculate that the development of the relationship has affected P.R.
{¶ 26} Although appellant testified that before she began to regularly visit P.R. the child
“looked at [her] as if [she] was an aunt or * * * an acquaintance maybe,” the evidence also fails
to show that this change has affected the child’s circumstances in a consequential manner.
Appellant states that the child has always called her “mom” and continues to do so. Appellant,
however, offered no testimony that P.R.’s increased visitation has changed the child’s
circumstances in some way other than simply seeing appellant more often and developing a
stronger relationship. While the increased visitation certainly may affect appellant and the
younger sibling and create a “void” for them, we found no evidence in the record to show that a
“void” has been created in P.R.’s life and that this “void” affects P.R. in a consequential manner.
{¶ 27} We additionally observe that appellant visited P.R. since her 2006 birth, although
with varying degrees of regularity. The present change in visitation with P.R. is a slight
change–it is what P.R. has always known, but now occurs on a more consistent basis. However,
we again note that nothing in the record shows that increased visits have affected P.R. in any
SCIOTO, 13CA3550 13
material way. Therefore, we do not believe that under the facts in the case sub judice, the
increased visitation is a change of substance in the child’s circumstances. This is not to state
that a nonresidential parent’s increased visitation with a child who is in a nonparent’s custody
could never constitute a change in circumstances. Rather, our holding is based upon the
particular facts in the case at bar.
{¶ 28} Moreover, assuming, arguendo, that appellees denied appellant visitation at
various points between 2006 and 2012, nothing in the record shows that it was so systematic,
willful or continuous as to constitute an interference with appellant’s visitation and, thus,
constitute a change in circumstances. During that time, apparently neither appellant nor
appellees knew exactly what visitation rights or schedule appellant actually had. Appellant
explained that even though the 2006 order granted her standard visitation, she did not know what
that meant and she did not know whether appellees knew. She stated that none of the parties
employed counsel in 2006 and she believed that she and the appellees followed an off-the-record
visitation agreement. Appellant also testified that when she went to appellees’ house to visit
with P.R., appellees rarely denied her the chance to do so. Appellant further admitted that for at
least the first two and one-half years of P.R.’s life, she continued to abuse drugs and that she
entered drug rehabilitation on three different occasions. In light of these circumstances, any
failure of the appellees to allow appellant to have regular visitation is not an interference with
appellant’s visitation schedule–no one knew exactly what schedule they should follow, appellant
continued for a time to abuse drugs, and appellant entered drug rehabilitation. Appellant also
candidly admits that once the court clarified the visitation orders in 2012, she was able to visit
with the child. After our review of the case sub judice we agree with the trial court's conclusion
SCIOTO, 13CA3550 14
that the minor problems that appellant claims to have encountered when she exercised visitation
after 2012 do not rise to the level of a systematic, willful or continuous denial of visitation so as
to constitute an interference with visitation and a change in circumstances.
{¶ 29} Additionally, even if the appellees have developed health problems, the evidence
does not establish that these are changes of consequence. Nothing in the record demonstrates
that the health conditions have affected the child or the appellees in any significant manner.
Likewise, nothing in the record demonstrates that any of the other alleged changed circumstances
have had a substantive impact on the child or appellees. At most, the changes are slight or
inconsequential.
{¶ 30} Thus, we conclude that the trial court did not abuse its discretion by determining
that appellant failed to establish that a change in the child’s or appellees’ circumstances had
occurred. Consequently, the court did not abuse its discretion by denying appellant’s motion to
modify custody. Moreover, to the extent that the trial court granted appellees’ motion to
dismiss, the trial court did not err as a matter of law by determining that the evidence failed to
show a change in circumstances and its finding is not against the manifest weight of the
evidence.
{¶ 31} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
first and second assignments of error.
II
{¶ 32} In her third and fourth assignments of error, appellant asserts that the trial court
erred by failing to find appellees in contempt for failing to comply with the 2006 standard
visitation order.
SCIOTO, 13CA3550 15
A
STANDARD OF REVIEW
{¶ 33} Generally, a trial court possesses broad discretion when considering a contempt
motion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75, 573 N.E.2d 62 (1991); State ex
rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). Thus, absent an abuse of
discretion, an appellate court will uphold a trial court’s contempt decision. E.g., Welch v. Muir,
4th Dist. No. 08CA32, 2009–Ohio–3575, ¶10. We previously set forth the meaning of “abuse of
discretion” and thus do not repeat it here.
B
CONTEMPT
{¶ 34} “Contempt of court” is the disobedience or disregard of a court order or a
command of judicial authority. E.g., Daniels v. Adkins, 4th Dist. Ross No. 93CA1988 (June 3,
1994); Johnson v. Morris, 4th Dist. Ross No. 93CA1969 (Dec. 13, 1993). It involves conduct
that engenders disrespect for the administration of justice or “which tends to embarrass, impede
or obstruct a court in the performance of its functions.” Denovchek v. Trumbull Cty. Bd. of
Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988), quoting Windham Bank v.
Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus (1971). “The
law of contempt is intended to uphold and ensure the effective administration of justice,” “to
secure the dignity of the court and to affirm the supremacy of law.” Cramer v. Petrie, 70 Ohio
St.3d 131, 133, 637 N.E.2d 882 (1994). A court “possesses both inherent and statutory authority
to compel compliance with its lawfully issued orders.” State ex rel. Bitter v. Missig, 72 Ohio
St.3d 249, 252, 648 N.E.2d 1355 (1995), citing Cramer, 70 Ohio St.3d at 133–134, and R.C.
2705.02(A).
SCIOTO, 13CA3550 16
{¶ 35} A distinction exists between criminal and civil contempt. Criminal contempt
proceedings vindicate the authority of the legal system and punish the party who offends the
court. Scherer v. Scherer, 72 Ohio App.3d 211, 214, 594 N.E.2d 150 (3rd Dist., 1991); In re
Skinner, 4th Dist. No. 93CA547 (Mar. 23, 1994). The sanction imposed for criminal contempt
operates as a punishment for the completed act of disobedience. E.g., Brown v. Executive 200,
Inc., 64 Ohio St.2d 250, 254, 416 N.E.2d 610 (1980).
{¶ 36} Civil contempt exists when a party fails to do something ordered by a court for the
benefit of an opposing party. Pedone v. Pedone, 11 Ohio App.3d 164, 165, 463 N.E.2d 656 (8th
Dist., 1983); Beach v. Beach, 99 Ohio App. 428, 431, 134 N.E.2d 162 (2nd Dist., 1955). The
punishment is remedial, or coercive, in civil contempt. State ex rel. Henneke v. Davis, 66 Ohio
St.3d 119, 120, 609 N.E.2d 544 (1993). In other words, civil contempt is intended to enforce
compliance with a court’s orders.
{¶ 37} The party seeking to enforce a court order must establish, by clear and convincing
evidence, the existence of a court order and the nonmoving party’s noncompliance with the terms
of that order. Wolf v. Wolf, 1st Dist. Hamilton No. C–090587, 2010–Ohio–2762, ¶4; Morford v.
Morford, 85 Ohio App.3d 50, 55, 619 N.E.2d 71 (4th Dist., 1993). The burden then shifts to the
defendant to establish any defense. Morford.
“Clear and convincing evidence is that measure or degree of proof which is more
than a ‘preponderance of the evidence,’ but not to the extent of such certainty as is
required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of fact a firm belief or conviction as to the facts sought to be
established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Thus, even when the plaintiff bears the burden of proof by “clear and convincing” evidence, our
SCIOTO, 13CA3550 17
standard of review is deferential and the presence of “some competent, credible evidence”
requires us to affirm the trial court’s judgment. State v. Miller, 4th Dist. No. 11CA3217,
2012–Ohio–1901, ¶24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
{¶ 38} In the case at bar, we cannot state that the trial court's refusal to hold appellees in
contempt for violating the 2006 custody order constitutes an abuse of discretion. Clearly, a
court order gave appellant standard visitation, but the appellees did not give appellant that
standard visitation. Appellant, however, entered a drug rehabilitation program and used drugs
during the first two and one-half years of the child’s life. Thus, it would have been impractical
for appellant to exercise “standard visitation” during the time she abused drugs and attended drug
rehabilitation. Furthermore, appellant stated that she did not know what exactly “standard
visitation” meant and that she did not know whether appellees knew what it meant. She also
explained that she believed that she and appellees had reached some other agreement regarding
visitation that is not documented in the record. In view of these circumstances, we cannot
conclude that the trial court abused its discretion by refusing to find appellees in contempt of the
2006 order.
{¶ 39} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
third and fourth assignments of error and affirm the trial court’s judgment. We also hasten to
add that we recognize the positive strides that appellant has made and that we encourage her to
continue her progress for both her benefit and the benefit of her family.
JUDGMENT AFFIRMED.
[Cite as In re P.A.R., 2014-Ohio-802.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellees shall recover of appellants
the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. & *Powell, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
*Judge Michael Powell, Twelfth District Court of Appeals, sitting by assignment of the Ohio
Supreme Court in the Fourth Appellate District. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/97170/ | 216 U.S. 262 (1910)
MISSOURI PACIFIC RAILWAY COMPANY
v.
STATE OF KANSAS EX REL. RAILROAD COMMISSIONERS.
No. 38.
Supreme Court of United States.
Argued November 30, 1909.
Decided February 21, 1910.
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
*263 Mr. Balie P. Waggener for plaintiff in error.
Mr. Fred S. Jackson, with whom Mr. G.F. Grattan was on the brief, for defendants in error.
*266 MR. JUSTICE WHITE delivered the opinion of the court.
This is a writ of error to a judgment of the Supreme Court of Kansas ordering a peremptory mandamus commanding the Missouri Pacific Railway Company to obey an order of the state board of railroad commissioners. The order directed the putting in operation of a passenger train service between Madison, Kansas, and the Missouri-Kansas state line, on what is known as the Madison branch of the Missouri Pacific Railway Company.
The branch road in question lies between Madison, Kansas, and Monteith Junction, Missouri. From Madison to the state line is 89 miles and from the state line to Monteith Junction is 19 miles, the total distance between the two terminal points being 108 miles. At Monteith Junction the Madison branch intersects with the Joplin line of the Missouri Pacific, by means of which connection is made with Kansas City and other points. There being no terminal facilities at Monteith Junction, the trains operated on the Madison branch do not remain over at the junction, but run as far as Butler station, three miles distant on the Joplin line, where terminal facilities exist.
There are no large towns on the Madison branch, either in Kansas or Missouri, and the country which that branch serves is largely agricultural, Kansas City being the nearest and *267 most natural market for the products of the territory. The greater volume of the passenger travel, however, originating on the Madison branch does not move to Kansas City by going to Monteith Junction, but leaves the branch at various points between Madison and the state line, at which points the branch crosses various roads, which, generally speaking, run in a northerly or northeasterly direction, affording a means of reaching Kansas City more directly than by going to Monteith and thence via the Joplin line to that city. Three of these intersecting roads are operated by the Atchison and Topeka, two by the Missouri, Kansas and Texas, one by the St. Louis and San Francisco, one by the Kansas and Colorado Pacific, and one by the Missouri Pacific. Pleasanton is the last station on the branch in Kansas and is six miles distant from the state line.
Without clearing up some confusion in the record upon the subject, we take the fact to be as stated by the court below, that the branch between Madison and Monteith Junction, at least so far as it was constructed within the State of Kansas, was built by a Kansas corporation chartered in 1885, known as the Interstate Railroad Company, and that to aid in the building of the road within the State of Kansas about two hundred thousand dollars was contributed by counties through which the road passed. A construction company did the work, at the contract cost of $1,095,000, and this sum was paid by the railway company by delivering to the contractors an issue of $1,622,000 of six per cent mortgage bonds. The Interstate Railroad Company, in July, 1890, consolidated with another Kansas corporation known as the St. Louis and Emporia Railroad Company, the consolidated company being designated as the Interstate Railway Company. Subsequently, in December, 1890, by authority of a statute of Kansas, the Interstate Railway Company and eleven other Kansas railway corporations were consolidated, the consolidated company being designated as the Kansas and Colorado Pacific Railway Company.
*268 The Missouri Pacific Railway Company is a corporation chartered in Missouri, Kansas, and Nebraska. It owns virtually all the mortgage bonds issued by the Interstate Railroad Company for the construction of the Madison branch and a majority of the stock of that company. Indeed, it is the owner of a majority of the stock and mortgage bonds of all the constituent companies which united in forming the consolidated company known as the Kansas and Colorado Pacific Railway Company, and, as the lessee of the latter company, operates its lines of road, including, of course, the Madison branch. It is not questioned that substantially all the equipment used in operating the roads covered by the leases is owned by the Missouri Pacific Railway Company.
In September, 1905, residents along the Madison branch within the State of Kansas filed a petition with the board of railroad commissioners, alleging, in substance, that only a mixed train was furnished for passenger service on the branch, that such service subjected the public to great inconvenience, prevented anything like a regular and timely passenger service, and, besides, was dangerous to those traveling over the road. An order was prayed requiring the Missouri Pacific to operate a regular passenger train over the branch road between Madison and the state line. The evidence introduced before the board is not in the record. After a hearing, the following finding and order was made (76 Kansas, 490):
"Now, on this seventh day of December, 1905, after hearing the evidence and argument of counsel, in the above entitled action, the board finds that during the years 1902 and 1903, when the respondent railway company operated a passenger train on said Madison branch of its line, that the said passenger train was operated at a loss, and there was no testimony introduced at this hearing that the train, if put on as asked for by the petitioners, could be operated at a profit to the respondent company. The board believes that the people along the line of the Madison branch of said company are entitled to better passenger train service than they are *269 now receiving, and it has been represented to the board by officers of said company that the respondent is constructing motor cars for establishment on its branch lines that can be operated at a much less expense than steam service.
"It is therefore ordered by the board that on or before the first day of May, 1906, a motor passenger car service be put on and operated on said Madison branch, from Madison, Kansas, to the Kansas and Missouri state line, and in the event said railroad company is unable at that time to put on a motor car passenger service, a regular steam passenger train service be forthwith put on and operated."
The road not having obeyed, this proceeding by mandamus was commenced to compel compliance.
Three special defenses were set up in the return to the alternative writ. In the first it was insisted that the branch road was an interstate road and could only be operated as such, and, therefore, was not subject to the jurisdiction of the railroad commission or the courts of the State of Kansas, and in the second it was claimed that the burden which would be occasioned by compelling the operation of a passenger train service would be confiscatory and in violation of rights protected by the Fourteenth Amendment. The court below, in its opinion, thus, we think, accurately summarized the elaborate averments relating to the two defenses just referred to (76 Kansas, 470):
"To the alternative writ an answer was filed which denies that the company operated the Madison branch as a line of road wholly within the State of Kansas, and alleges that said branch is a part of the Missouri Pacific general system; that defendant maintained terminal facilities for the said branch at Butler, Mo., twenty miles east of the Kansas State line, where the branch connects with the main line of defendant's railroad, that the company has no terminal facilities near the State line within the State of Kansas, and that the branch road cannot be operated as a road within the State of Kansas without such terminal facilities, to maintain which would *270 involve the company in ruinous expense. It also alleges that the order is unreasonable and confiscatory, and that the company could not comply with it without great financial loss; that the entire revenue of the road within the State of Kansas, including passenger and freight business, is insufficient to meet the expense and cost of operating the road within the State; that from July 1, 1903, to April 30, 1905, it maintained separate passenger train service upon this branch, but was obliged to abandon the same and return to the mixed passenger and freight service because the total receipts of passenger and freight business during that period proved wholly insufficient to meet the expenses of operation. It further alleges that compliance with the order of the board would compel defendants to divert its revenues from other lines and parts of its system outside the State of Kansas to the maintenance of separate passenger train service in the State, and that the extent of such additional cost would amount to a confiscation of its property."
The third defense set up that the company was diligently endeavoring to perfect a motor car for experimental purposes, that the practical utility of such service on railway tracks was problematical, and that it was the design of the company "to test the practicability of said character of service on its said Madison branch line as soon as the same can be done, and is also its design to furnish said motor car service for separate passenger traffic if the cost of said service can be brought within the passenger service cost of the mixed train service, which it now furnishes, and if said motor car service can be successfully operated from the standpoints of utility and safety and other considerations necessary to be taken into account."
By stipulation a referee was appointed to take evidence and report findings of fact and conclusions of law. The referee transmitted the evidence taken and made lengthy findings of fact, upon which his conclusions of law were stated. Those conclusions briefly were that although it might be unreasonable *271 to order a separate passenger train service to be operated on the branch line, viewed as an absolutely independent line, it was not unreasonable to compel the furnishing of such service, viewing the line as a part of the system of the Missouri Pacific road, and taking into account the possible benefits which might arise to that system. It was, however, concluded that as the branch road was an interstate road, and could only be operated as such, the State was without power to compel the putting in operation of the passenger train service between Madison and the state line, and that the relief prayed for should therefore be refused.
It was recognized by the Supreme Court of Kansas when it came to consider the report of the referee that the authority which the commission had exerted in making the order took its source in a section of the act of the legislature of Kansas enacted in 1901, and now found in § 5970, General Statutes of Kansas of 1901, the section being as follows:
"Whenever in the judgment of the railroad commissioners it shall appear that any railroad corporation or other transportation company fails in any respect or particular to comply with the terms of its charter or the laws of the State, or whenever in their judgment any repairs are necessary upon its road, or any addition to its rolling stock, or any addition to or change of its stations or station houses, or any change in its rates for transporting freight, or any change in the mode of operating its road and conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, said commissioners shall inform such corporation of the improvement and changes which they adjudge to be proper, by a notice thereof in writing, to be served by leaving a copy thereof, certified by the commissioner's secretary, with any station agent, clerk, treasurer or any director of said corporation; and if such orders are not complied with, the said commissioners, upon complaint, shall proceed to enforce the same in accordance with the provisions of this act as in other cases."
*272 Reviewing the findings and conclusions of the referee, the court held that the referee was wrong in holding that there was a want of power in the commission to make the order, and it was therefore decided that the order was valid and that the duty of the railroad company was to obey it. 76 Kansas, 467.
A brief summary of the questions passed on by the court will serve to an understanding of the assignments of error which we are called upon to consider:
a. The court disposed of certain contentions which would seem to have been raised at the argument concerning the repugnancy to the state constitution of the law creating the commission and conferring authority upon that body, and held the objections untenable. As these involved matters of purely state concern we shall not further refer to them.
b. The court also adversely disposed of a contention based upon the assumption that the railway company had by its charter a contract right to regulate the time and manner of operating its trains, and hence was not subject to the order which the commission had made. Although such contention did not deny that the charter right relied on was subject to repeal or amendment by the legislature, it was urged that, as the legislature had not expressly amended or repealed the right, such a result should not be made to flow from the section conferring powers upon the commission, as repeals by implication were not favored.
Having thus cleared the way for the graver questions which the case involved, the court came to consider, first, the reasonableness on its face of the order of the commission, viewed in the light of the findings of that body; second, the reasonableness of the order tested by the findings of the referee and the evidence upon which such findings were based; and third, the validity of the order in view of the power of Congress to regulate interstate commerce as applied to the nature and character of the road to which the order of the commission was made applicable.
*273 As to the first, although the duty of the company under its charter was referred to and authorities were cited, with evident approval, holding that the obligation to operate a separate passenger train service rested upon a railroad company in the fulfillment of the law of its being, the court did not expressly pass upon that aspect of the case, but held that as it did not plainly and obviously result upon the face of the findings and order made by the commission, that the service required would be rendered at a pecuniary loss, it could not in any event be said that the order was unreasonable on its face. As to the second, considering the inherent and prima facie reasonable nature of the service, the performance of which the order commanded, along with the findings of the referee and the evidence, it was held that the unreasonableness of the order had not been established, since, taking all the foregoing into account, it had not been affirmatively proven that any material pecuniary loss would be sustained from rendering the service in question. In reaching this conclusion it was pointed out that as a result of the state statute a prima facie presumption of reasonableness attached to the order of the commission, and therefore the burden was on the railroad company to overcome this presumption. As to the third contention, it was held that the exertion by the State of its authority to regulate the operation within the State of the road chartered by the State was but the exercise of a lawful state police power which did not impose any direct burden upon interstate commerce, and hence did not conflict with the Constitution of the United States.
The grievances which the railroad company deems it may endure by the enforcement of the order of the commission as commanded by the court are expressed in many assignments of error. To consider them in detail is not essential, as all the complaints which they embrace were embodied in the argument at bar by the counsel for the railway company in the following propositions:
"First. The order of the board and the mandate of the *274 State court were, in substance and effect, a regulation of commerce among the States, and the court was without power or jurisdiction in the premises.
"Second. The order of the board, on its face, is manifestly unreasonable, and, in the light of the findings of fact, arbitrary, and without the first element of due process of law, and a denial of the equal protection of the law guaranteed by the Federal Constitution.
"Third. The order and judgment of the State court, on the evidence and facts found, deprived the railroad company of its property without due process of law, and without compensation, and denied to it the equal protection of the law.
"Fourth. The order of the board of railroad commissioners was an usurpation of power by the board, and the construction placed upon the law by the State court impaired the obligation of the contract between the State and the railway company, in violation of the Constitution of the United States, and deprived it of its property without due process of law and without compensation, and denied to it the equal protection of the law."
While it may be that in some of their aspects each of the first three propositions involve considerations apparently distinct from the others, as in substance the ultimate reasons by which all three are controlled, are identical, we consider them together. Before doing so, however, we dispose of the question concerning the alleged impairment of a contract right, protected by the Constitution of the United States, which is formulated in the fourth proposition, by pointing out the twofold contradiction upon which the proposition is based. As it is not denied that the asserted charter right was held subject to the power of the State to repeal, alter or amend, it follows that the proposition amounts simply to saying that an irreparable contract right arose from a contract which was repealable. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 345. Stating the contention in a different form, the same contradiction becomes apparent. As *275 the argument concedes the existence of the legislative power to repeal, alter or amend, and as it is impossible to assume that a legislative act has impaired a contract without by the same token declaring that such act has either repealed, altered or amended, hence the proposition relied upon really contends that the contract has been unlawfully impaired by the exercise of a power which it is conceded could lawfully repeal the contract. And, of course, this reason is controlling, irrespective of the scope of the alleged charter right, since whatever be the extent of the right conferred it was subject to the reserved power.
The court in Atlantic Coast Line v. N. Car. Corp. Com'n, 206 U.S. 1, reiterating a doctrine expounded in preceding cases, said (p. 19):
"The elementary proposition that railroads from the public nature of the business by them carried on and the interest which the public have in their operation are subject, as to their state business, to state regulation, which may be exerted either directly by the legislative authority or by administrative bodies endowed with power to that end, is not and could not be successfully questioned in view of the long line of authorities sustaining that doctrine."
Also in the same case, restating a principle previously often announced, it was held (p. 20) that railway property was susceptible of private ownership, and that rights in and to such property securely rested under the constitutional guarantees by which all private property was protected. Pointing out that there was no incompatibility between the two, the truism was reannounced that the right of private ownership was not abridged by subjecting the enjoyment of that right to the power of reasonable regulation, and that such governmental power could not in truth be said to be curtailed because it could not be exerted arbitrarily and unreasonably without impinging on the enduring guarantees by which the Constitution protected property rights.
The Coast Line case was concerned with the exertion of *276 state power over a matter of state concern. But the same doctrines had been often previously expounded in reference to the power of the United States in dealing with a matter subject to the control of that Government. Moreover, in the cases referred to, as the power of the two governments operated in different orbits, it was always recognized that there was no conflict between them, although it was constantly to be observed that, resulting from the paramount operation of the Constitution of the United States, even the lawful powers of a State could not be exerted so as to directly burden interstate commerce.
Coming to apply the principles just stated to the order in question, and considering it generically, it is obvious that it exerted a lawful state power. Its commands were directed to a railroad corporation which, although chartered by other States, was also chartered by Kansas, and concerned the movement of a train on a branch road wholly within the State which had been built under the authority of a Kansas charter, although the road was being operated by the Missouri Pacific under lease. The act commanded to be done was simply that a passenger train service be operated over the branch line within the State of Kansas. Unless then for some reason, not manifested in the order, intrinsically considered, it must be treated as such an arbitrary and unreasonable exercise of power as to cause it to be, in effect, not a regulation, but an infringement upon the right of ownership, or, considering the surrounding circumstances, as operating a direct burden upon interstate commerce, it is clear that, within the doctrine previously stated, no error was committed in directing compliance with the order. And this brings us to consider the several reasons relied upon to establish, first, that the order made by the railroad commission was so arbitrary and unreasonable as to cause it to be void for want of power; or, second, that the order was void because its necessary operation was to place a direct burden upon interstate commerce.
*277 1. The alleged arbitrary and unreasonable character of the order.
In its principal aspect this contention is based on the insistence that the order and findings of the commission and the findings of the referee, when elucidated by the proper inferences of fact to be drawn from the evidence, show the service which the order commanded could not be rendered without a pecuniary loss. And this, it is insisted, is the case, not only because of the proof that pecuniary loss would be occasioned by performing the particular service ordered, considering alone the cost of that service and the return from its performance, but also because it is asserted the proof establishes that the earnings from all sources, not only of the branch road, but of all the roads operated by the Missouri Pacific in Kansas, produced no net revenue and left a deficit. It is at once evident that this contention challenges the correctness of the inferences of fact drawn by the court below. They therefore assume that we are not bound by the facts as found by the court below, but must give to the evidence an independent examination for the purpose of passing on the constitutional question presented for decision. But we do not think that the case here presented requires us to consider the issues of fact relied upon, even if it be conceded, for the sake of argument only, that on a writ of error to a state court, where a particular exertion of state power is assailed as confiscatory because ordering a service to be rendered for an inadequate return, the proof upon which the claim of confiscation depends would be open for our original consideration, as the essential and only means for properly performing our duty of independently ascertaining whether there had been, as alleged, a violation of the Constitution. We say this because, when the controversy here presented is properly analyzed, the first and pivotal question arising is whether the order complained of did anything more than command the railroad company to perform a service which it was incumbent upon it to perform as the necessary result of the possession and enjoyment *278 of its charter powers, and which it could not refuse to perform as long as the charter powers remained and the obligation which arose from their enjoyment continued to exist. The difference between the exertion of the legislative power to establish rates in such a manner as to confiscate the property of the corporation by fixing them below a proper remunerative standard and an order compelling a corporation to render a service which it was essentially its duty to perform, was pointed out in Atlantic Coast Line v. N. Car. Corp. Com'n, supra. In that case the order to operate a train for the purpose of making a local connection necessary for the public convenience was upheld, despite the fact that it was conceded that the return from the operation of such train would not be remunerative. Speaking of the distinction between the two, it was said (p. 26):
"This is so (the distinction) because as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident some pecuniary loss from rendering such service may result. It follows, therefore, that the mere incurring of a loss from the performance of such a duty does not in and of itself necessarily give rise to the conclusion of unreasonableness, as would be the case where the whole scheme of rates was unreasonable under the doctrine of Smyth v. Ames. . . .
* * * * * * * *
"Of course, the fact that the furnishing of a necessary facility ordered may occasion an incidental pecuniary loss is an important criteria to be taken into view in determining the reasonableness of the order, but it is not the only one. As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the obligation to discharge that duty must be considered in connection with the nature and productiveness of the corporate business as a whole, the character of the services required, and the public need for its performance."
Indeed, the principle which was thus applied in the Atlantic *279 Coast Line case had previously, as pointed out in that case, been made the basis of the ruling in Wisconsin &c. Ry. Co. v. Jacobson, 179 U.S. 287. The fact that the performance of the duty commanded by the order which is here in question may, as we have conceded for the purpose of the argument, entail a pecuniary loss, is, of course, as declared in the Atlantic Coast Line case as a general rule, a circumstance to be considered in determining its reasonableness, as are the other criteria indicated in the opinion in that case. But where a duty which a corporation is obliged to render is a necessary consequence of the acceptance and continued enjoyment of its corporate rights, those rights not having been surrendered by the corporation, other considerations are in the nature of things paramount, since it cannot be said that an order compelling the performance of such duty at a pecuniary loss is unreasonable. To conclude to the contrary would be but to declare that a corporate charter was purely unilateral, that is, was binding in favor of the corporation as to all rights conferred upon it and was devoid of obligation as to duties imposed, even although such duties were the absolute correlative of the rights conferred. Was the duty which the order here commanded one which the corporation was under the absolute obligation to perform as the result of the acceptance of the charter to operate the road, is then the question to be considered.
It may not be doubted that the road by virtue of the charter under which the branch was built was obliged to carry passengers and freight, and therefore as long as it enjoyed its charter rights was under the inherent obligation to afford a service for the carrying of passengers. In substance this was all the order commanded, since it was confined to directing that the road put on a train for passenger service. True it is that the road was carrying passengers in a mixed train, that is, by attaching a passenger coach to one of its freight trains. Testing the alleged unreasonableness of the order in the light of the inherent duty resting upon the corporation, it follows *280 that the contention must rest upon the assumption that the discharge of the corporate duty to carry passengers was so completely performed by carrying them on a mixed train as to cause an order directing the running of a passenger train to be so arbitrary and unreasonable as to deprive of rights protected by the Constitution of the United States. But when the necessary result of the contention is thus defined its want of merit is, we think, self-evident, unless it can be said as a matter of law that there is such an identity as to public convenience, comfort and safety between travel on a passenger service train and travel on a mixed train that is, a train composed of freight cars with a passenger car attached as to cause any exertion of legislative authority for the public welfare based on a distinction between the two to be repugnant to the Constitution of the United States. The demonstration as to the want of foundation for such a contention might well be left to the consensus of opinion of mankind to the contrary. The unsoundness of the proposition was clearly pointed out by the Supreme Court of Illinois in People v. St. Louis, A. & T.H.R. Co., 176 Illinois, 512, 524, where it was said:
"Independently of the provisions of the lease, which was a contract between the lessor and the lessee companies, the right of the people to insist upon the running of a separate passenger train is implied from the charter obligation to equip and operate the road. Inasmuch as a railroad company is bound to carry both passengers and freight, the obligation of the appellee required it to furnish all necessary rolling stock and equipment for the suitable and proper operation of the railroad as a carrier of passengers, no less than as a carrier of freight. It cannot be said that the carriage of passengers in a car attached to a freight train is a suitable and proper operation of the railroad, so far as the carriage of passengers is concerned. The transportation of passengers on a freight train or on a mixed train is subordinate to the transportation of freight, a mere incident to the business of carrying *281 freight. To furnish such cars as are necessary for the suitable and proper carriage of passengers involves the necessity of adopting that mode of carrying passengers which is best adapted to secure their safety and convenience. This can be accomplished better by operating a separate passenger train than by operating a mixed train; that is to say, the duty of furnishing all necessary rolling stock and equipment for the suitable and proper operation of a railroad carrying passengers involves and implies the duty of furnishing a train which shall be run for the purpose of transporting passengers only, and not freight and passengers together."
Even, however, if it be conceded that the reasoning of the case just cited may not be universally applicable because conditions might exist which in some cases might cause a different rule to apply, there is no room for such view in this case. This is so because, as was pointed out by the court below, the statutes of Kansas in force at the time the branch road was incorporated lend cogency to the conclusion that the effect of the acceptance of the charter was to bring the road under the obligation of furnishing passenger service, a duty which could not be escaped by giving the service only on a mixed train and thus subjecting passengers to the resulting dangers and inconveniences. Nor do we think there is any force in the argument elaborately pressed, that chapter 274, Kansas Laws of 1907, as amended by chapter 190, Laws of 1909 (which is in the margin)[1], shows that the law *282 of Kansas proceeds on the conception that there is no distinction between a passenger train service and the carriage of passengers on a mixed or freight train. On the contrary, we think the statute referred to sustains the opposite inference, since it recognizes that persons who avail of the right conferred to travel in the caboose of a freight train are not entitled to ordinary passenger facilities or to the legal protection ordinarily surrounding passenger traffic. The first, because the statute provides that persons must get on or off the caboose where the company finds it convenient to place that car, and second, because persons riding in the caboose are afforded redress for injury only where the company is guilty of gross negligence.
The contention that the order is unreasonable in and of itself, irrespective of whether there is profit in the operation of the train service which the order commands to be operated, because it directs the movement of the passenger train directed to be run to the state line, where, it is said, there are no terminal facilities, and no occasion for the termination of the transit, is disposed of by the considerations previously stated. We say this because its unsoundness is demonstrated by the reasoning which has led us to conclude that there was no merit in the contention that the fact of pecuniary loss was of itself alone adequate to show the unreasonableness of the order. This follows, from the principle which we have previously expounded to the effect that the criterion to apply in a case like this the nature and character of the duty ordered *283 and not the mere burden which may result from its performance.
2. That the order was void because it operates a direct burden upon interstate commerce.
To support this proposition it is urged that the charter of the Interstate Railroad Company, the builder of the branch, provided for a road not only in Kansas but to extend into Texas and Missouri, and therefore for an interstate railroad. This being its character, the argument proceeds to assert that the regulation of traffic on the road, whatever be the nature of the traffic, was interstate commerce and beyond the control of the State of Kansas. But this simply confounds the distinction between state control over local traffic and Federal control over interstate traffic. To sustain the proposition would require it to be held that the local traffic of the road was free from all governmental regulation, unless at the same time it were held that the incorporation of the road had operated to extend the powers of the Government of the United States to subjects which could not come within the authority of that Government consistently with the Constitution of the United States. Manifestly, the mere fact that the charter of the road contemplated that it should be projected into several States did not change the nature and character of our constitutional system and therefore did not destroy the power of Kansas over its domestic commerce or operate to bring under the sway of the United States matters of local concern and of course could not project the authority of Kansas beyond its own jurisdiction. The charter therefore left the road for which its provided subject as to its purely local or state business to the authority of the respective States into which it was contemplated the road should go, and submitted the road as an entirety, so far as its interstate commerce business was concerned, to the controlling power conferred by the Constitution upon the Government of the United States.
The contention that a burden was imposed upon interstate *284 commerce by causing the train to stop at the state line where there were no terminal facilities, but in a disguised form reiterates the complaint which we have already disposed of, that the order, because of the direction to stop at the state line, was so arbitrary and unreasonable as to be void. The order cannot be said to be an unreasonable exertion of authority, because the power manifested was made operative to the limit of the right to do so. Besides, the proposition erroneously assumes that the effect of the order is to direct the stoppage at the state line of an interstate train, when, in fact, the order does not deal with an interstate train or put any burden upon such train, but simply requires the operating within the State of a local train, the duty to operate which arises from a charter obligation. It is said that as the state line may be but a mere cornfield and great expense must result to the railway from establishing necessary terminal facilities in such a place, it must follow that the road, in order to avoid the useless expense, must operate the passenger service directed by the order, not only to the state line, but twenty miles beyond to Butler, on the Joplin line, where terminal facilities exist. From these assumptions, it is insisted, that the order must be construed according to its necessary effect, and, therefore, must be treated as imposing a direct burden upon interstate commerce by compelling the operation of the passenger train, not only within the State of Kansas, but beyond its borders. But under the hypothesis upon which the contention rests the operation of the train to Butler would be at the mere election of the corporation, and, besides, even if the performance of the duty of furnishing adequate local facilities in some respects affected interstate commerce, it does not necessarily result that thereby a direct burden on interstate commerce would be imposed. Atlantic Coast Line v. Wharton, 207 U.S. 328.
Affirmed.
NOTES
[1] Part of Chapter 274, Kansas Laws of 1907, as amended by Chapter 190, Laws of 1909.
That all freight trains to which a caboose is attached shall be obliged to transport, upon the same terms and conditions as passenger trains, all passengers who desire to travel thereon, and who are above the age of fifteen years, or who, if under fifteen years, are accompanied by a parent or guardian, or other competent person, but no freight train shall be required to stop to receive or discharge any passenger at any other point other than where such freight train may stop; nor shall it be necessary to stop the caboose of such trains at the depot to receive and discharge passengers; provided, that on such trains the railroad companies shall only be liable for their gross negligence; and provided further, that this act shall not be construed to apply to freight trains on main lines, the most of which trains shall be composed of cars loaded with live stock.
Any officer or employe of such railroad company who shall violate any of the provisions or conditions of § 1 of this act shall, upon conviction, be deemed guilty of a misdemeanor, and shall be fined in any sum not less than ten nor more than one hundred dollars, or by imprisonment in the county jail for not less than five nor more than thirty days, or by both such fine and imprisonment. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1612703/ | 745 F. Supp. 1117 (1990)
Arlene CHALFIN, Harry Chalfin, Richard Chalfin, Alan Chalfin and Susan Chalfin-Dughi, Plaintiffs,
v.
BEVERLY ENTERPRISES, INC., Defendant.
Civ. A. No. 87-3319.
United States District Court, E.D. Pennsylvania.
September 7, 1990.
*1118 Stephen A. Feldman, Philadelphia, Pa., for plaintiffs.
Robert St. Leger Goggin, Philadelphia, Pa., for defendant.
MEMORANDUM
LOWELL A. REED, Jr., District Judge.
Before the court is the motion of the plaintiffs for reconsideration of my ruling[1] dismissing certain counts of the plaintiffs' complaint and, in the alternative, for certification for final judgment pursuant to Rule 54(b) or permissive appeal of an interlocutory order pursuant to 28 U.S.C. § 1292(b) (Document No. 31). For the reasons set forth below, the motion of the plaintiffs will be denied.
Procedural Background[2]
The original complaint filed by Mrs. Chalfin and her family contained seven counts that claimed damages under Title XIX of the Social Security Act, 42 U.S.C. § 1396-1396i (1982 & Supp. IV 1986), the Pennsylvania Health Care Facilities Act, 35 Pa.Stat.Ann. §§ 448.101-448.904 (Purdon Supp.1989), the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.Stat.Ann. §§ 201-1 to 201-9.2 (Purdon *1119 1971 & Supp.1989), and state law breach of contract and intentional infliction of emotional distress damages. Oral argument was presented on December 19, 1988. By order dated June 26, 1989, I granted the motion of the defendant to dismiss Counts I-IV on the grounds that there is no private right of action under either Title XIX of the Social Security Act or the Pennsylvania Health Care Facilities Act and I dismissed the intentional infliction of emotional distress claims (Counts V) and the violations of Pennsylvania unfair trade practices and consumer protection laws (Count VII) as to all plaintiffs, except Arlene Chalfin.[3]
Plaintiffs' Motion for Reconsideration
In support of their motion for reconsideration, plaintiffs contend that they have stated a cause of action for negligence in their complaint under the doctrine of negligence per se. Plaintiffs assert that the conduct in Counts I-IV constituted negligence per se because it alleged defendants breached statutory and regulatory duties owed to the plaintiffs. See Memorandum In Support Of Motion For Reconsideration; Or Alternatively For Certification For Final Judgment Pursuant To Fed.R.Civ.P. 54(b) Or Permissive Appeal Of Interlocutory Order [hereinafter Plaintiffs' Memorandum of Law] at 4-5 (Document No. 31). Additionally, plaintiffs assert that all plaintiffs have stated a cause of action for intentional infliction of emotional distress (Count V) and that plaintiff Harry Chalfin stated a cause of action under the unfair trade practices and consumer protection statutes (Count VII). Each argument will be addressed below.[4]
Violation of a Statute or Regulation (Counts I-IV)
While the violation of a statute or regulation may provide the basis for a finding of negligence per se, it is well established that not every breach of a statutory duty imposes liability. See Cecile Industries, Inc. v. United States, 793 F.2d 97, 100 (3d Cir.1986); Frederick L. v. Thomas, 578 F.2d 513, 517 (3d Cir.1978). In Cecile, the court found that before the violation of a statute will be deemed negligence per se, the court must find that the "intent of the statute was at least in part, to protect the interest of the plaintiff individually, as opposed to the public." Cecile, 793 F.2d at 99-100 (citing Ennis v. Atkin, 354 Pa. 165, 168-69, 47 A.2d 217, 219 (1946)). Plaintiffs' arguments in support of both this motion and in response to the defendant's earlier motion for summary judgment have not convinced me that the intent of statutes cited in Counts I-IV was "to protect the interest of the plaintiff individually."
In my memorandum opinion granting defendant's motion to dismiss Counts I-IV, I found that Title XIX of the Social Security Act did not provide plaintiffs with a private right of action. See Chalfin, at 1166. It is clear from my analysis of that issue that Congress, in enacting Title XIX, did not intend to hold a private provider of services directly liable to individual patients[5] for statutory violations. Rather, Congress intended to make those facilities *1120 responsible to the state. The legislative history of the Act clearly indicates that this legislation is primarily directed at the role of participating states in providing medical care with the assistance of federal funds. Rather than focusing on the individual patient, the bill attempts to outline certain requirements that the state must comply with in order to become and remain eligible for federal funding. See S.Rep. No. 404, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code Cong. & Admin.News 1943, 2014.
Additionally, I found that the Pennsylvania Health Care Facilities Act also did not provide plaintiffs with a private right of action. The intent of that statute was not to impose a standard of conduct on the health care facilities that enured directly to a patient. Rather, the statute's intent is to promote responsible operation and ownership of health care facilities and encourage innovation and efficiency in this area. The Act also established a comprehensive administrative scheme that would allow the Pennsylvania Department of Health to enforce the goals of this legislation. See Chalfin, at 1171-72.
The Pennsylvania Supreme Court generally follows the concepts set forth in the Restatement (Second) of Torts when analyzing the standards of conduct that a court may adopt to determine when and to whom a duty exists in negligence cases. Section 288 of the Restatement sets forth principles that determine when a standard of conduct defined by legislation or regulation should not be adopted:
The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively ... to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public.
Restatement (Second) of Torts, § 288(c).
The comment to Section 288(c) states:
Other legislative enactments and administrative regulations are intended for the purpose of imposing upon the actor the performance of a service which the state, or some subdivision of it, has undertaken to give to the public. They are intended to make the actor responsible to the state, rather than to any individual.
Restatement (Second) of Torts, § 288(c), comment d (emphasis added).
The duty to retain a patient, provide reasonable notice to a patient of an intent to discharge, to accept medical assistance as payment in full for covered services and to comply with the Nursing Home Bill of Rights are all duties imposed upon nursing home care providers by the federal government or the state of Pennsylvania. Breaches of these duties are not corrected by individual liability suits. Under the statutes cited, the federal government or Pennsylvania state agencies are empowered to correct breaches by health care providers.
Thus, it is clear that Title XIX of the Social Security Act and the Pennsylvania Health Care Facilities Act are types of legislation that were not intended to create a tort duty between the health care facility and the patient.[6]See Restatement (Second) of Torts, § 288(c). Accordingly, plaintiffs' request for reconsideration of Counts I-IV under a negligence per se theory of liability is denied.
Emotional Distress and Unfair Trade Practice (Counts V and VII)
In their motion for reconsideration, plaintiffs also assert that all plaintiffs have stated a cause of action for intentional infliction *1121 of emotional distress (Count V) and that plaintiff Harry Chalfin stated an additional cause of action under the unfair trade practices and consumer protection statutes (Count VII). In their memorandum in support of their motion, however, plaintiffs do not address the basis for their bald assertion regarding these counts. Compare Motion For Reconsideration at 3 with Plaintiffs' Memorandum of Law at 2-5.
Plaintiffs have not advanced any additional arguments or pointed to any new facts that would show they indeed satisfy the elements of an intentional infliction of emotional distress claim or establish that violations of unfair trade practice or consumer protection laws against plaintiff Harry Chalfin occurred. As a result, I find there is no basis for granting their request for reconsideration of my dismissal of Counts V and VII as to all plaintiffs, except Arlene Chalfin.
Motion for Certification for Final Judgment
Plaintiffs request, in the alternative, that pursuant to Fed.R.Civ.P. 54(b) I enter final judgment against all plaintiffs for Counts I-IV and against plaintiffs Harry Chalfin, Richard Chalfin, Alan Chalfin and Susan R. Chalfin-Dughi on Counts V and VII. In support of their request, plaintiffs assert that entry of judgment would expedite the ultimate outcome of their individual claims. See Plaintiffs' Memorandum of Law at 6-7.
Under Rule 54(b), the court has the discretion to enter a final judgment as to one or more claims or parties. See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10, 100 S. Ct. 1460, 1466, 64 L. Ed. 2d 1 (1980); Fed.R.Civ.P. 54(b) advisory committee notes; 10 C. Wright, A. Miller & M. Kane, Fed.Prac. & Procedure § 2654 at 38 (1990). However, "Rule 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. The power of the trial judge should be used only `in the infrequent harsh case' as an instrument for the improved administration of justice." Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 363 (3d Cir.1975), (quoting Panichella v. Pennsylvania Railroad Co., 252 F.2d 452, 454 (3d Cir.1958)).
In reviewing requests for 54(b) certifications, courts consider many factors, including, among others: (1) the relationship of the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time, and (4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of the trial, frivolity of competing claims and expense. Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d at 364.
Because the claims that remain pending are related to and include the same facts as support the counts for which plaintiff seeks certification, certification for review of the dismissed counts at this time is not appropriate because it would result in the inefficient use of the reviewing court's resources. Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698 (7th Cir.), cert denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).
Moreover, with respect to the intentional infliction of emotional distress claims of Plaintiff Arlene Chalfin's husband and children, these claims are directly related to Arlene Chalfin's pending claims. As defendant correctly points out in response to this portion of plaintiffs' motion, if Arlene Chalfin does not prevail on her pending claims, her children and husband will not be able to do so on the same facts. Therefore, I find that the entry of judgment on these claims is not warranted at this time because the appeals court may be required to reconsider not only the same facts, but also the same issues when, and if, Arlene Chalfin's intentional infliction and other pending claims are appealed.[7]
After balancing all factors, I find that the interests of sound judicial administration *1122 and justice to the litigants would not be advanced by entering a final judgment on the dismissed claims, and therefore, I choose not to do so. Curtiss-Wright, 446 U.S. at 5, 100 S.Ct. at 1463.
Motion for Permissive Appeal of Interlocutory Order
Finally, plaintiffs request, pursuant to 28 U.S.C. § 1292(b), permission to file an interlocutory appeal of my earlier decision to dismiss Counts I-IV. Certification pursuant to 28 U.S.C. § 1292(b) is appropriate only when an order "involves a controlling issue of law as to which there is substantial ground for difference of opinion and [when] an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
Plaintiffs assert that their negligence per se and private right of action claims concern a controlling question of law that would be best resolved by my allowing an interlocutory appeal. I disagree. The party seeking certification has the "burden of showing that exceptional circumstances justify a departure from the `basic policy of postponing appellate review until after the entry of a final judgment.'" Fukuda v. Los Angeles County, 630 F. Supp. 228, 229 (C.D.Cal.1986) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 2461, 57 L. Ed. 2d 351 (1978)). Plaintiffs have not satisfied their burden.
Research by the court and the parties has uncovered only five federal cases that address the issue of whether a private right of action may be implied under Title XIX of the Social Security Act. See Chalfin, 1166-67. Only two cases, both district court decisions, recognized an implied right of action. The only court of appeals to consider this issue held that Title XIX does not provide a private of action. See Stewart v. Bernstein, 769 F.2d 1088, 1092-94 (5th Cir.1985). In these circumstances, plaintiffs have not established that there are substantial grounds for difference of opinion that justify granting permission to file an interlocutory appeal.
I find, therefore, that an interlocutory appeal serves no purpose in this case. Plaintiffs' rights will not be jeopardized by maintaining the unity of this action. Breaking it into parts to be reviewed individually is inefficient and unnecessary,[8] and therefore I decline the request to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Conclusion
The plaintiffs in their motion have not presented sufficient reasons or evidence to substantively challenge the findings and conclusions contained in the earlier memorandum granting defendant's motion for summary judgment. At the same time, the need or propriety of a partial final judgment or certification for interlocutory appeal are not established. Accordingly, both the motion for reconsideration and the alternative motion for certification pursuant to 54(b) or interlocutory appeal will be denied.
NOTES
[1] See Chalfin v. Beverly Enterprises, 741 F. Supp. 1162 (E.D.Pa.1989) (Document No. 30).
[2] A complete factual background is contained in my earlier decision. Id. at 1164-66.
[3] The claim by Arlene Chalfin for intentional infliction of emotional distress and violations of Pennsylvania's consumer protection and unfair trade practice laws and a claim by all of the plaintiffs for breach of contract remain pending.
[4] Additionally, plaintiffs mention in passing that defendants are liable to them for negligence based upon the breach of a contractual duty between the parties. Even under the most liberal reading of plaintiffs' complaint, however, I cannot find that plaintiffs have alleged a claim for negligent performance of an undertaking to render services. While I note that plaintiffs maintain their claim for breach of contract (Count VI), nothing in their complaint, either in Count VI or elsewhere, indicates an intention to also allege a negligence action based upon defendant's contractual obligations. Accordingly, I find that a breach of contract claim alone is not sufficient, even under the most liberal notice pleading standard, to put defendant on notice that a negligence claim, arising out of that contract, has also been alleged. See Fed.R. Civ.P. 8(e) & (f).
[5] While I found that Mrs. Chalfin was a member of the class for whose benefit the statute was enacted, this classification was meant only to protect her Medicaid rights in a discriminatory context. Id. at 1168-69. It was not intended to place her within a protected class for tort duty purposes.
[6] Almost all of the cases that plaintiffs cite involve the violation of a "safety" statute and are completely distinguishable from those in the instant case. See e.g., Kaplan v. Kaplan, 404 Pa. 147, 171 A.2d 166 (1961) (parking on left side of street in violation of a parking ordinance); Steele v. Peoples Natural Gas Co., 386 Pa. 439, 127 A.2d 96 (1956) (car parked in violation of statute on sidewalk, which caused sidewalk to collapse); Listino v. Union Paving Co., 386 Pa. 32, 124 A.2d 83 (1956) (focused on the question of proximate and intervening cause and not negligence per se); Ennis v. Atkin, 354 Pa. 165, 47 A.2d 217 (1946) (parking vehicle within fifteen feet of fire hydrant in violation of vehicle code). The statutes in the case at bar are administrative in nature. They are not "safety" statutes where the negligence per se doctrine is traditionally applied. See Cecile, 793 F.2d at 100.
[7] Presently pending is the Defendant's Motion for Summary Judgment (Document No. 37) that specifically requests the dismissal of all of Arlene Chalfin's pending claims.
[8] This is particularly true in view of the pending motions for summary judgment on the remaining counts. See Defendant's Motion for Summary Judgment on Counts V, VI and VII (Document No. 36) and Plaintiffs' Cross-Motion for Summary Judgment on Counts VI and VII (Document No. 37). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3768350/ | Plaintiff's action against defendants was predicated upon a cognovit note. The petition was in the short form and judgment taken on the warrant of attorney. The petition averred that the plaintiff acquired the note from the payee for valuable consideration, namely, $200, on November 16, 1936. Judgment was entered September 29, 1937. *Page 254
In January, 1938, during the term in which the judgment was rendered, defendants moved for its suspension on the grounds that it was taken upon a warrant of an attorney and defendants were not summoned or otherwise legally notified of the time and place of the taking of such judgment; that the judgment was taken for more than was due the plaintiff, and that there was a failure of consideration for the note. With the motion there was filed an answer. The court, being of opinion that the answer did not state a valid defense to plaintiff's action, overruled the motion to suspend the judgment and thereafter defendants filed an amended answer in which there was set up a defense of partial failure of consideration and a further defense as follows:
"That the plaintiff is not a holder of said $200 note in due course, in that plaintiff did not take said note in good faith nor for value."
The court upon consideration of the amended answer held that it was insufficient and overruled the motion to suspend the judgment. The entry journalizing the action of the trial judge stated:
"Upon consideration thereof [namely the motion to suspend the judgment] and the memoranda in support of the same and the answers tendered therewith and the memorandum opposing the same, the court finds that said motion is not well taken, and the same is accordingly hereby overruled."
Defendants having interposed a motion for a new trial, the court also overruled that motion. An appeal on questions of law is prosecuted. There are five assignments of error but they may be epitomized under the claim that the court erred as a matter of law in refusing to suspend the judgment against the defendants.
Upon the face of the petition it appears that the plaintiff was a holder in due course of the note sued upon. The defense of partial failure of consideration *Page 255
could only be urged against the plaintiff if and when its primafacie right to recover a judgment by the introduction of its note was met with proof that it was not the bona fide holder of the note for value before due.
The right to open up the judgment was predicated upon paragraph 9 of Section 11631, General Code, and Section 11637, General Code. Section 11631, General Code, sets forth the causes for the vacation or modification of orders or judgments after term, but it has long been recognized that any cause which will justify the opening up of a judgment after term will support such action during term although in the latter situation the trial judge is not necessarily confined to the causes set forth in Section 11631, General Code, but has certain inherent power over and beyond that found in any statutory enactment. 23 Ohio Jurisprudence, 1117, Section 959.
Paragraph 9 of Section 11631, General Code, provides, as a ground for vacating or modifying a judgment:
"For taking judgments upon warrants of attorney for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment."
It appears from the transcript of the pleadings and journal entries that the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment because it was taken upon cognovit form of note and by virtue of the warrant of attorney in the note.
It is necessary to the suspension of the judgment that it also appear that the judgment was taken for more than was due the plaintiff and further that under Section 11637, General Code, there was a valid defense to the action in which the judgment was rendered.
We have the benefit of a short opinion of the trial judge in which he assigns, as his reason for denying *Page 256
the motion, that the tendered amended answer, alleging that the plaintiff was not a holder of the note in due course in that it did not take it in good faith or for value, did not state a valid defense but at best was but a conclusion of law. The journal entry overrules the motion generally.
Counsel for appellee insist that in this determination the reason assigned therefor was correct and that the action cannot be set aside in this court for the further reasons that "the Court of Common Pleas was within its discretionary power in denying appellants' motion to vacate a judgment," and, "appellants have no right to appeal from an order within the discretion of the Common Pleas Court."
We have heretofore referred to Metzger v. Zeissler, 13 N.P. (N.S.), 49, 22 O.D. (N.P.), 63, with approval. The first two propositions of the syllabus of this case determine that with the motion setting forth grounds for vacation of the judgment the defendant should by affidavit or orally or by both methods present his evidence in support of the motion. Section 11636, General Code. The third paragraph of the syllabus is pertinent to the proper procedure here:
"At the same time the defendant should proffer a verified answer to the petition, setting forth affirmatively facts showing non-liability in whole or in part. If the answer does not state facts which, if established, would constitute a defense to the claim, the proceeding will be treated as at an end and the judgment will not be disturbed * * *." (Italics ours.)
It should be borne in mind that the requisites of a valid defense to a cause of action in a proceeding to open up an existing judgment may be different than when filed within rule and before judgment. Before judgment a defendant is well within his rights in setting up in his answer a general denial of the averments of the petition but such pleading should not be permitted in a proceeding to suspend or vacate a *Page 257
judgment. So that what may be a defense before judgment may be entirely inadequate and insufficient to warrant an adjudication, under Section 11637, General Code, that there is a valid defense to the action upon which judgment has been taken. In the light of this announcement of principle the averments of the amended answer should be considered.
In our judgment the trial court was correct in the determination that the allegation of the amended answer that the plaintiff was not a holder of the note in due course, in that it did not take it in good faith or for value, was nothing more than a conclusion of law. 2 Bates' New Pleading, Practice, Parties and Forms, 1124, cites and comments with favor upon Vorhees v.Fisher, 9 Utah 303, 34 P. 64, wherein it was held, "that `the plaintiff is not an innocent holder for value' is a mere conclusion and will not sustain proof of want of good faith; the facts should be distinctly averred," and from Underwood v.Quantic, 85 Kan. 111, 116 P. 361, holding that "a denial that the payee. `for value endorsed and transferred said note to plaintiff' does not deny his title."
In 49 Corpus Juris, 76, Section 64, it is said:
"An averment that one is or is not an innocent purchaser, orbona fide holder; that possession was taken in good faith, or in bad faith; or that before maturity a note lawfully came into the possession of plaintiff for value, is a conclusion of law * * *."
In Phillips Code Pleading, 339, it is stated that:
"In actions, on negotiable instruments, an allegation that the plaintiff is not the bona fide holder is not sufficient. The facts showing the male fides should be stated."
We are cited to two cases decided by this court, Miller v.McGill, 15 Ohio Law Abs., 511, and Graham v. Dayton Morris PlanBank, 13 Ohio Law Abs., 618. Considered in the light of the facts there is no divergence of holding nor inconsistency in the adjudication *Page 258
in these cases. The court in the Miller case re-announed the principles that during term the trial court has control and supervision of its own judgments and may control them within the sphere of a sound discretion, and, further, that the only question for determination of this court upon error prosecuted from the refusal of the Court of Common Pleas to open up a judgment and to permit an answer to be filed within the term in which the judgment is rendered is whether there was an abuse of discretion on the part of the lower court. We there held that the answer clearly, within the spirit of Section 11637, General Code, stated a valid defense and by force thereof the court abused its discretion in not suspending the judgment. In the Graham case,supra, we said that judgments taken by confession must be given the standing and effect of any other judgment and are not to be set aside unless and until it appears that some good reason exists requiring vacation; that the court must be satisfied that the defense urged as a ground for vacating a judgment, if true, states a defense at law.
We re-state the requisite procedure to suspend a judgment during the term in which it is taken.
If any of the grounds set forth in Section 11631, General Code, are assigned as a reason for the action sought, then it is necessary, first, that the court find that the ground set forth in the motion is well made and further that the provision of Section 11637, General Code, has been met. With the motion an answer should be tendered for filing. Section 11637, General Code, says that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered; that this adjudication is requisite to the suspension of a judgment has been held many times in Ohio. Follett v. Alexander, 58 Ohio St. 202, 50 N.E. 720; Lee v. Benedict, 82 Ohio St. 302, *Page 259 92 N.E. 492; Watson v. Paine, 25 Ohio St. 340. This section relates to procedure to open up judgments during as well as after term as is manifest by the use of "motion or petition," a motion being the proper form during term, and petition after term.
Obviously the prerequisites to an adjudication of a valid defense require more than a general denial of the averments of the petition which would be sufficient to state a defense before judgment. It is essential that the judge, who is called upon to suspend the judgment, must have enough factual information before him to require determination that the defendant has a valid defense. If the party moving to suspend the judgment can within the rules of pleading set out in his answer sufficient facts to apprise the court that he has a defense, this should be done and the adjudication can be made upon the averments of the answer. If, to set forth enough facts to disclose his defense, he would offend the rules of pleadings by setting them out in his answer, then they should be brought to the attention of the court by evidence orally or by affidavit. Unless the defense is a sham, the test which the court should apply to the facts is whether, if true, they state a complete defense in part or in whole to the cause of action set forth in the petition.
If the facts before the court require the adjudication that the mover has a valid defense to the action upon which the judgment was taken, the court should so find and this should be incorporated in an entry suspending the judgment and the cause then stands on the docket until the issues are tried and determined.
Applying the tests heretofore stated to the averments of the answer under consideration by the trial judge in this case, it may properly be said that they did not state such a defense as is contemplated by Section 11637, General Code. This is true whether or not the averments of the answer would have been sufficient if pleaded before judgment taken. The allegation *Page 260
that the plaintiff is not a holder of the note in due course, if made before judgment, would at the most do no more than put the plaintiff on proof as to the essentials of its case and amount to nothing more than a general denial.
Judgment affirmed.
BARNES, P.J., and GEIGER, J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1614634/ | 939 So.2d 51 (2005)
Randy Lee WHEELER
v.
STATE of Alabama.
CR-04-1553.
Court of Criminal Appeals of Alabama.
October 28, 2005.
*52 Randy Wheeler, pro se.
Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
SHAW, Judge.
Randy Lee Wheeler appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his October 2003 convictions for one count of first-degree rape and two counts of first-degree sexual abuse and his resulting sentences, as a habitual felony offender, of 35 years' imprisonment for the rape conviction and 20 years' imprisonment for each of the sexual-abuse convictions, the sentences to run concurrently. On June 18, 2004, this Court affirmed Wheeler's convictions and sentences in an unpublished memorandum. Wheeler v. State, (No. CR-03-0635) 919 So.2d 1242 (Ala.Crim.App.2004) (table). The Alabama Supreme Court denied certiorari review and this Court issued a certificate of judgment on November 12, 2004.
Wheeler filed his Rule 32 petition on March 14, 2005. In his petition, Wheeler alleged:
(1) That the trial court lacked jurisdiction to render the judgment in his case or to impose the sentences because, he says, there was no arrest warrant issued pursuant to the multicount indictment;
*53 (2) That the trial court lacked jurisdiction to render the judgment in his case or to impose the sentences because, he says, the trial court did not place prospective jurors under oath before the voir dire examination;
(3) That the evidence was insufficient to sustain his convictions for one count of rape and two counts of sexual abuse;
(4) That the trial court illegally sentenced him to multiple sentences because, he says, the State lacked the authority to prosecute him for those offenses that were not part of the arrest warrant; and
(5) That he was denied effective assistance of trial and appellate counsel.
After receiving a response from the State, the circuit court summarily denied Wheeler's petition on April 22, 2005.
Initially, we note that Wheeler does not pursue on appeal claims (1) and (4), as set out above. Thus, those claims are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) ("We will not review issues not listed and argued in brief.").
I.
Wheeler contends that the trial court lacked jurisdiction to render the judgment or to impose the sentences because, he says, the trial court did not place prospective jurors under oath before voir dire examination (claim (2)). In its order summarily denying Wheeler's petition, the circuit judge, who was the same judge who presided over Wheeler's trial, stated:
I.
"[Wheeler] does not allege that no oath was ever given to the jurors and, in fact, the trial court administered an oath to the jury before trial. Thus, any defect in the administration of oaths was waivable, and was so waived. Fortner v. State, 825 So.2d 876 (Ala.Crim.App. 2001)."
(C. 80.) We agree with the circuit court. Wheeler did not allege that neither the jury venire nor the petit jury were administered an oath; he alleged only that the jury venire was not administered an oath. Thus, this is a defective-oath situation, which is a nonjurisdictional claim subject to the procedural bars in Rule 32.2, Ala. R.Crim.P. See Brooks v. State, 845 So.2d 849, 851-52 (Ala.Crim.App.2002). Specifically, this claim is barred by Rule 32.2(a)(3) and (5), Ala.R.Crim.P., because it could have been, but was not, raised at trial and on appeal.
II.
Wheeler contends that he is actually innocent of the offenses of which he was convicted and that the evidence was insufficient to sustain his convictions for one count of rape and two counts of sexual abuse (claim (3)). However, this claim was raised and addressed at trial and on direct appeal, and, thus, is barred by Rule 32.2(a)(2) and (4), Ala.R.Crim.P.
III.
Wheeler alleges that both his trial counsel and his appellate counsel were ineffective for not raising or adequately raising several issues (claim (5)).
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied in order to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. *54 at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689, 104 S.Ct. 2052.
Although Wheeler alleged in his Rule 32 petition that the assistance of both his trial and appellate counsel had been ineffective regarding the issue whether an arrest warrant was issued on the multicount indictment, he did not plead with sufficient specificity how the actions or inactions of his trial and appellate counsel were deficient and how this alleged deficient performance prejudiced his defense to the extent required to substantiate a claim under Strickland.
As to Wheeler's claim that his trial and appellate counsel rendered ineffective assistance when no objection was made at trial or no issue raised on appeal regarding the trial court's instruction to the jury that the "victim's word alone was sufficient to convict" (C. 53), we do not find that Wheeler is entitled to any relief on this ground. It is well settled that "`[t]he question of the victim['s] credibility [is] one for the jury and not for this Court.'" Rowell v. State, 647 So.2d 67, 69 (Ala.Crim. App.1994), quoting Coats v. State, 615 So.2d 1260, 1260 (Ala.Crim.App.1992). In the present case, the jury was charged that it was to determine the credibility of each witness when deciding whether to accept or reject that witness's testimony. If the jury believed the victim's testimony concerning the incidents, then the victim's testimony, without more, was sufficient to sustain Wheeler's convictions for rape and sexual abuse; thus, there was nothing for trial counsel to object to or for appellate counsel to raise on appeal.
As to Wheeler's allegation of ineffective assistance of counsel involving the trial court's alleged failure to administer the oath to the jury venire before voir dire examination, we must remand this case to the circuit court to make findings regarding this allegation. In Wilson v. State, 845 So.2d 2, 4-5 (Ala.Crim.App.2002), this Court stated:
"However, Wilson's claim is not that the trial court lacked jurisdiction to render the judgment or to impose the sentence because the venire was not sworn, which is nonjurisdictional and waivable, but that his trial counsel rendered ineffective assistance when he did not object. Thus, whether the venire had been, in fact, administered the oath has a direct bearing on this particular ineffective-assistance-of-trial-counsel claim. See Fortner v. State, 825 So.2d 876 (Ala. Crim.App.2001). Therefore, it is necessary for this cause to be remanded to the circuit court to make such findings as are necessary to determine whether the venire was properly sworn."
The State, in its response to Wheeler's Rule 32 petition, stated:
"The potential jurors are administered an oath, according to Alabama Rules of Criminal Procedure during orientation with the Court Administrator's Office prior to voir dire. Additionally, [the trial judge] administered the oath according to Rule 12.1 after the jury was selected, but prior to trial. (See record page 72, line 24.)"
(C. 68, 69-70.) However, the record in the present case does not affirmatively show that the jury venire was administered an oath before voir dire examination, and the State did not submit an affidavit establishing that the oath was, in fact, administered to the jury venire before voir dire examination. Thus, we have no alternative but to remand this case for the circuit court to *55 determine whether the jury venire was properly sworn. See Ex parte Hamlett, 815 So.2d 499 (Ala.2000).
Based on the foregoing, we remand this case for the circuit court to address the merits of Wheeler's claim that his trial counsel was ineffective for not objecting to the alleged failure to administer the oath to the jury venire and to issue specific findings of fact in that regard. Those findings must necessarily include a determination of whether the jury venire was, in fact, sworn. The circuit court may conduct an evidentiary hearing or may take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 37.9(a), Ala.R.Crim.P. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court's written findings of fact; a transcript of the evidentiary hearing, if one is conducted; and any other evidence received or relied on by the court in making its determination.
REMANDED WITH DIRECTIONS.[*]
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.
NOTES
[*] Note from the reporter of decisions: On February 17, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On April 14, 2006, that court denied rehearing, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/462775/ | 780 F.2d 1015
Jones, Appeal of
85-1225
United States Court of Appeals,Third Circuit.
11/25/85
E.D.Pa.,
Green, J.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1614637/ | 939 So.2d 1282 (2006)
Sean EDWARDS
v.
FORD MOTOR COMPANY.
No. 2006-C-1847.
Supreme Court of Louisiana.
October 27, 2006.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3768352/ | JOURNAL ENTRY AND OPINION
{¶ 1} Pursuant to Crim. R. 12(K) and R.C. 2945.67, the State of Ohio appeals from the order of the trial court that granted defendant Efren Rosa's motion to suppress. For the reasons set forth below, we affirm.
{¶ 2} On June 19, 2002, defendant and co-defendant Eddie Hill were indicted pursuant to a three-count indictment. Count One charged them with possession of less than a gram of heroin. Count Two charged them with trafficking in less than one gram of heroin, and Count Three charged them with possession of less than five grams of cocaine. Defendant pled not guilty and moved to suppress the evidence obtained against him, arguing that the evidence was obtained following an illegal pat-down.
{¶ 3} The matter proceeded to an evidentiary hearing on September 7, 2004. The state presented the testimony of Cleveland Police Officers Scott Lamb and Vincent Mason.
{¶ 4} Officers Lamb and Mason both testified that on May 22, 2002, he and Officer Mason were assigned to the Fresh Start Unit, which investigates drug use and other street crime. At approximately 6:45 p.m., they were patrolling the area of West 44th Street and Lorain Avenue, and observed a group of about ten people standing around a pay phone near a gas station. None of the men were on the phone and none of the men were getting gas. The officers called for assistance and returned to the area a short time later. They approached the men and asked them what they were doing. Defendant told Officer Lamb that he was waiting to use the phone but the officer noticed that it was available.
{¶ 5} Some of the men were cited for having open containers of alcohol and an officer on the scene patted someone down and found drug paraphernalia. Officer Lamb then patted down defendant and found a bottle cap. According to Lamb, such caps are used to prepare heroin for injection. Lamb asked defendant whether he had any needles and he indicated that he did not. Lamb searched defendant further and found six bags of heroin.
{¶ 6} On cross-examination, Officer Lamb admitted that he did not specifically see what the men were doing when he first passed the area. He also admitted that he did not observe the men drop anything, make any exchanges with one another, or conduct any drug transactions. He also admitted that defendant did not have an open container of alcohol on his person, did not make any threats, and did not appear to reach for a weapon.
{¶ 7} On cross-examination, Officer Mason admitted that he did not observe anyone making any drug exchanges, and he was not sure what they were doing. He could not identify anything about defendant in particular which gave him concern.
{¶ 8} The trial court subsequently granted defendant's motion to suppress. The state now appeals and assigns one error for our review.
{¶ 9} The state's assignment of error states:
{¶ 10} "The trial court abused its discretion when it granted the defendant's motion to suppress when there was reasonable, articulable suspicion that the defendant was engaged in criminal activity and a pat down search of his person was justified."
{¶ 11} The Fourth Amendment to the United States Constitution provides:
{¶ 12} "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
{¶ 13} Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to only a few well recognized exceptions.Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576, 88 S. Ct. 507. One of those exceptions is the rule regarding investigative stops, announced in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889,88 S. Ct. 1868. Under Terry v. Ohio, a police officer may stop and investigate unusual behavior, even without probable cause to arrest, if he has sufficient evidence to reasonably conclude that criminal activity is afoot. The officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21. An investigatory stop "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v.Cortez (1981), 449 U.S. 411, 417, 66 L.Ed.2d 621, 101 S.Ct. 690. "The officer [making a Terry stop] * * * must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch.'" Terry,392 U.S., at 27.
{¶ 14} A person's mere proximity to others independently suspected of criminal activity does not, without more, provide a sufficient constitutional basis to search that person. Ybarra v. Illinois (1979),444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245. In Ybarra, the court emphasized that probable cause must exist with respect to each person searched:
{¶ 15} "It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. * * * Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. * * * *."
{¶ 16} Finally, the standard of review with respect to motions to suppress is whether the trial court's findings are supported by competent, credible evidence. See State v. Winand (1996),116 Ohio App.3d 286, 688 N.E.2d 9. When considering a motion to suppress, the trial court assumes the role of trier-of-fact and is in the best position to resolve factual questions and evaluate the credibility of a witness. State v. Kobi (1997), 122 Ohio App.3d 160, 701 N.E.2d 420. An appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. Accepting the facts as found by the trial court as true, the appellate court must then independently determine as a matter of law, without deferring to the trial court's conclusions, whether the facts meet the applicable legal standard. Id.
{¶ 17} In this matter, the trial court's ruling is supported by competent, credible evidence. The facts of record fail to establish an objective manifestation that defendant was or was about to be engaged in criminal activity. The officers did not identify specific and articulable facts which warranted a stop of defendant. They did not establish that the defendant made furtive gestures, hand-to-hand exchanges, or contact with passing motorists. Although another man at the scene had a crack pipe, there is no evidence that the men were acting in concert.
{¶ 18} The assignment of error is without merit.
Affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Cooney, J., And Rocco, J., Concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1612718/ | 282 So. 2d 789 (1973)
J. Gervais DOHMANN, Sr., Plaintiff and Appellee,
v.
Ronald C. RICHARD et al., Defendants and Appellants.
No. 4297.
Court of Appeal of Louisiana, Third Circuit.
September 18, 1973.
*790 McBride & Brewster, by Norman P. Foret, Lafayette, and Lewis & Lewis, by John M. Shaw, Opelousas, for defendantsappellants.
Robert F. Dejean Sr., of Dejean & DeJean, Opelousas, for plaintiff-appellee.
Before FRUGE, SAVOY, and DOMENGEAUX, JJ.
DOMENGEAUX, Judge.
Plaintiff-Appellee J. Gervais Dohmann, Sr., a salesman employed by Bordelon Chevrolet, Inc., brought this suit for damages, alleging that he, a pedestrian, was struck by a one-half ton pickup truck being driven by Ronald C. Richard on the parking lot of his employer in Opelousas, Louisiana, on January 29, 1968, at approximately 11:30 A. M. Made defendants were Richard, the latter's employer, Dimmick Supply Company, Incorporated, and the insurer of the truck, State Farm Mutual Automobile Insurance Company. Universal Underwriter's Insurance Company, the workmen's compensation insurance carrier of plaintiff's employer, intervened in the suit to recover the sums paid by it to plaintiff for compensation and medical benefits.
After a trial on the merits, judgment was rendered by the trial court in favor of plaintiff and against all defendants in the sum of $60,401.02, which represented $40,000.00 for loss of earnings, $18,000.00 for physical and mental pain and suffering and mental anguish, and $2,401.02 for medical expenses. The claim of the intervenor in the amount of $6,301.02 was recognized *791 and ordered deducted from the total judgment in favor of plaintiff.
Defendants have appealed devolutively to this court. Plaintiff has neither appealed nor answered defendants' appeal.
Appellants suggest to us that the trial judge erred in three particulars: (1) In finding the defendant Richard negligent; (2) in failing to find plaintiff solely or at least contributorily negligent; and (3) in fixing an award so high as to constitute manifest error.
Bordelon Chevrolet, Inc. operates an automobile sales business and its main building or "garage" is located on the corner of Court and North Streets. The front or eastern side of the building faces Court Street, and the north side faces North Street. To the rear or western side of the building there is a hard surfaced open area which can be entered from North Street and which contains a number of yellow painted parking lanes. The parking lanes run east and west. Between the southwest corner of the main building and the northeast corner of the body shop there is an 18-foot opening which leads to the front used car lot located to the south of the main building and which is used as a one-way exit by vehicles leaving the aforementioned parking area to reach Court Street.
On the day of the accident, defendant Richard, while in the scope and course of his employment with defendant Dimmick, was making deliveries in his employer's 1966 model Chevrolet one-half ton pick-up truck and while so engaged entered the afore-described parking area of Bordelon Chevrolet, Inc., and backed into one of the parking lanes so that the front of his vehicle was pointing generally east. He alighted from his parked vehicle, delivered a package to Bordelon's parts department, and returned to his pickup. After an interval of time, he started the motor and moved out of the parking lane in the general direction of the 18-foot opening referred to, and while the truck was in motion, struck plaintiff who was walking in the same direction.
Plaintiff testified that he emerged from the main office and walked up to Richard's parked pick-up truck. The left door was open, and Richard, who was sitting behind the driver's wheel, was talking to George H. Burleigh, another salesman for Bordelon, who was standing at the left of the truck near the open door. Plaintiff asked Burleigh a question about the price of a particular vehicle which had been traded in, secured a response, and walked toward the west, or rear of the parked truck. He went completely around the rear, and over to the right side of the truck, and after spotting a customer who was waiting for him near the 18-foot opening, began to walk in that easterly direction alongside, but three to four feet on the right of the truck. He walked ahead of the front of the truck, and while so walking was struck by the truck, and rolled along its right side. He apparently got his foot caught at or near the right end of the rear bumper, and was thrown to the ground. Plaintiff testified that defendant Richard "Cut in on me", and denied that he veered to his left or that he ran into the truck.
Although two witnesses, Burleigh and Don Louis Butler, did not see the initial contact between the plaintiff and the truck, they did see plaintiff "spinning" along the right side of the vehicle and eventually falling to the ground. In other particulars they generally corroborated plaintiff's version of the accident.
Defendant Richard testified that he saw plaintiff to the right rear of his pickup. He says plaintiff was generally walking east, but was looking in all directions. Before leaving he testified that he looked to his left then to his right, started the motor, and moved forward. He stated that after starting, "I started cutting to my right". He denies seeing plaintiff at or near his travel lane before the accident happened.
Although the District Judge assigned no reasons therefor, he concluded that the sole *792 cause of the accident was the negligence of the defendant driver, Richard. The circumstances of this accident are purely factual.
As a general rule, findings of fact by the trier thereof, particularly when involving the credibility of witnesses, are entitled to great weight on appeal, and will not be disturbed unless found to be clearly erroneous. We have reviewed the record very carefully, and find that there is ample support to uphold the factual conclusions herein concerning the sole cause of the accident.
It is established in our jurisprudence that a vehicular accident occurring on other than a public thoroughfare is governed by the general tort law of our state. Nevertheless the provisions of the Highway Regulatory Act (LSA R.S. 32:1 et seq.) are of persuasive value in determining the degree of care expected of a motorist in the operation of his vehicle. Hinegardner v. Dickey's Potato Chip Company, 205 So. 2d 157; writ refused 251 La. 746, 206 So. 2d 94; Cheramie v. Pierce, La.App., 261 So. 2d 380. Of such value in this case are LSA R.S. 32:103 pertaining to the moving of parked vehicles, and LSA R.S. 32:211 et seq., pertaining to pedestrians rights and duties.
It is evident that the trial judge concluded that while moving from the parked position, and thereafter, defendant Richard was not keeping a proper lookout, failed to ascertain that his movement could be made with reasonable safety, inadvertently failed to observe the plaintiff's position and/or had a monentary lapse of attention in his effort to get out of the parking lot, and struck plaintiff who himself was without fault. In this we find no manifest error.
As a result of the accident plaintiff was thrown to the ground and there is some evidence to the effect that he was rendered unconscious for a period of time. Immediately after the accident he was confined to the Opelousas General Hospital wherein he stayed for some 5 days. He was then discharged so that he could enter a hospital in Baton Rouge for further observations by a neurosurgeon who had performed a disc operation on plaintiff some 12 years prior to this accident. He remained in the Baton Rouge hospital for 4 days, and was returned to his home but some time later he was again confined to an Opelousas hospital by his family physician wherein he remained for approximately three weeks.
From the time of the accident to the time of trial, he was examined and/or treated by Dr. R. Luke Bordelon, an orthopaedic surgeon; Dr. Daniel L. Buller, a surgeon; Dr. S. J. Rozas, a General Practitioner and his family physician; Dr. Joseph M. Edelman, a neurosurgeon; and Dr. William E. McCray, a psychiatrist.
Plaintiff's complaints after the accident were of pain in the left leg, left hip, back, head, neck, and testicles. He was treated conservatively and placed in various types of traction, as it was evident that he received some physical injuries consisting of contusions and sprains, but obviously his physical injuries were not overly serious and should have been of a moderate duration. Accordingly most of the aforementioned doctors who treated him found that his difficulty was not of a significant organic type, but that he had enough difficulty to focus on, and act as, a stimulus for a psychological state. He was finally referred by his family physician to Dr. William E. McCray.
Doctor McCray first saw plaintiff on April 16, 1969, treated him rather extensively with high doses of tranquilizing and antidepressant medication, saw him regularly over a period of months and was of the opinion that plaintiff had developed a psychotic state known as a depression. Although he could not say definitely that the accident was the cause of the psychotic depression, he was emphatic that it was a precipitating factor in the development of the illness. The doctor held no hope for improvement of plaintiff's mental condition *793 even with the medication he had prescribed. He considered him totally unemployable.
The record is replete with testimony from members of his family, neighbors, friends, his former employer, and his family physician, that prior to the accident plaintiff was an outgoing, industrious, hard-working, individual, who was close to his family and friends; but that since the accident he constantly complains of various physical ailments, blackouts, spells, difficulty with memory and concentration, and is very nervous and moody. He wants to be alone at all times, and has no patience, or interest in the outside world. In short, he had a complete personality change. He has lost interest in hunting and outdoor recreation, tending his garden, lawn, etc., all of which he participated in and enjoyed before the accident.
We are satisfied that the record shows that the plaintiff is totally and permanently disabled as a result of the accident sued on herein in his present condition. However, appellants contend that plaintiff has not fulfilled his responsibility to take all reasonable steps to mitigate his injuries and as such his award for damages should be limited or decreased. This they base on plaintiff's refusal to subject himself to electro-shock treatments as recommended by Dr. McCray.
In this connection it is true that Dr. McCray recommended electro-shock treatments and opined that they would in all probability improve plaintiff's condition. The doctor explained to the plaintiff and his family the involvements of receiving such therapy. He indicated that there was some danger in the process although he thought it was minimal as compared to some risks that are prevalent in the administration of certain medicines and surgery. He indicated that the administering of shock treatments results in a convulsion very similar to an epileptic fit, and that the treatment carries with it the risk of fractures and dislocations because of the convulsions resulting therefrom.
The doctor thought that there was an approximate 80% to 90% chance of improvement if plaintiff would take the treatment, although of course, he could not guarantee the results.
It is evident that the plaintiff and his family were extremely frightened of the prospect of electro-shock treatments. In fact it is obvious that the plaintiff himself feigned improvement in his condition as an excuse not to submit himself to such treatments.
Appellants have cited us some cases in our jurisprudence, and correctly so, to the effect that where an injured person unreasonably refuses to minimize his damages by accepting non-dangerous and customary medical treatment which is recommended by his physicians, the damages against a tort feasor may be limited to that which the injured person would have reasonably recovered if he had undergone the recommended treatment. Fossier v. D. H. Holmes Co., 19 La.App. 434, 139 So. 709; Andrus v. Great American Insurance Company, La.App., 161 So. 2d 109; Roy v. Robin, La.App., 173 So. 2d 222.
The cases cited and others which we have found through our independent research have to do with operations and the administration of regimens of treatment concerning physical injuries. None have to do, nor have we been able to discover any which may be applicable in cases of mental illness and the administration of electro-shock treatment. In the case at bar we are dealing with what is perhaps the most misunderstood field of medicine, i.e. treatment of the mind. Plaintiff is not being asked to have a fractured bone placed in a cast, a hernia repaired, or any other conventional form of surgery. Instead it is proposed that he subject himself to electro-shock, a form of treatment designed to work a change in his personality.
*794 Furthermore we bear in mind that our society has not progressed to a point in which it accepts mental illnesses, and particularly the drastic treatment thereof by such measures as shock therapy, with the same tolerance that it now regards physical surgery or treatment. Accordingly we cannot disregard the effect that such treatment, given the present attitudes of our society, is likely to have on plaintiff's future relations with his peers. In so stating we do not intend to in any way demean the value of such treatments or to question the effectiveness with which they are generally credited within the medical profession, but refer only to the attitudes held towards them by the public at large. As testified to by Dr. McCray the treatment is of undoubted value and benefit in many cases and may very well be so in the case at bar. However, for the reasons given we are not prepared to hold at this time that psychiatric therapy of this sort falls within the spirit, or the letter, of that line of jurisprudence which requires injured persons to mitigate their damages. Accordingly in view of all the facts and circumstances present in this case we are unable to hold that the plaintiff's refusal to submit to the electro-shock therapy is unreasonable.
Plaintiff was 56 years of age at the time of the accident, and had been married for 33 years. He is the father of 12 children, six of whom from ages 18 down to 3 years were living with and being supported by him. He has little education, but has always been a good provider for his family over the years. At the time of the accident he had been employed as an automobile salesman by the same employer for some 17 years. His average annual income for the three years prior to the accident was $6,367.49; this does not include the furnishing by his employer of an automobile, gas, oil, maintenance and insurance therefor, plus annual fringe benefits through bonuses which some years amounts to as much as $1,800.00. Considering his age, we can reasonably anticipate that he would have spent at least another 9 years at his job. We find no manifest error in the trial court's award of $40,000.00 for loss of earnings, past and future.
Similarly we find the award for physical and mental pain and suffering and mental anguish in the amount of $18,000.00 to be within the discretionary powers of the district court. La.C.C. Art. 1934(3); Lomenick v. Schoeffler, 250 La. 959, 200 So. 2d 127; Miller v. Thomas, 258 La. 285, 246 So. 2d 16.
Finally, the record substantiates the award for medical expenses.
For the above and foregoing reasons the judgment of the district court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612785/ | 145 N.W.2d 339 (1966)
180 Neb. 748
In the Matter of the GUARDIANSHIP OF Anna MALNICK, Incompetent.
Samuel J. MALNICK, Appellee-Cross-Appellant,
v.
Anna MALNICK, Appellant-Cross-Appellee.
No. 36284.
Supreme Court of Nebraska.
October 7, 1966.
McCormack, McCormack & Brown, Omaha, for appellant.
John J. Lawler, Omaha, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and C. THOMAS WHITE, District Judge.
BOSLAUGH, Justice.
This is a proceeding upon a petition for the appointment of a guardian for the estate of Anna Malnick. The trial court found that joint guardians should be appointed. Anna Malnick has appealed from that judgment.
The appellant is the widow of Paul Malnick who died in December 1964. Paul Malnick was also survived by a son, Samuel *340 J. Malnick, the petitioner; Freda Shields, a daughter; and two grandchildren, the children of a deceased son.
The appellant is now 80 years of age and lives alone. She is in good health for a person of her age and cares for a garden at her home. There is evidence that she has developed arteriosclerosis of the heart and her blood pressure is somewhat higher than normal. She is not afflicted with any mental illness.
The appellant was born in Poland and came to the United States in 1928. She understands and is able to speak the Ukranian language, but understands and can speak only a few words in English. She is unable to read or write.
While her husband was living, the appellant and her husband did not have a checking account. It was their custom to keep money in their home, pay their bills in cash, and purchase savings bonds with their excess funds or deposit them in savings accounts.
At the time of the death of Paul Malnick, the appellant had approximately $800 in cash in her home. She received approximately $400 in cash in February 1965 when approximately $28,000 in savings bonds were cashed and part of the proceeds reinvested. During the administration of the estate the appellant received over $3,300 in cash from the administrator and $900 which was refunded by the mortuary. The appellant testified in November 1965 that she had "a couple hundred" in cash at her home at that time. There is no satisfactory explanation in the record as to what has happened to the cash which the appellant received between December 1964 and November 1965.
Section 38-201, R.R.S. 1943, provides for the appointment of a guardian for any person who, by reason of extreme old age or other cause, is mentally incompetent to have the charge and management of his property. Section 38-202, R.R.S. 1943, provides that if it shall appear to the court, after hearing, that the person in question is incapable of managing his property, it shall appoint a guardian of his estate.
Where one is, by reason of old age, disease, weakness of mind, or from any cause, unable or incapable, unassisted to properly manage his property, he is incompetent, and a guardian should be appointed. In re Guardianship of Blochowitz, 135 Neb. 163, 280 N.W. 438. The incapacity of a person, which will authorize the appointment of a guardian, is a question of fact in each case, and the finding of the trial court thereon will not ordinarily be disturbed. Keiser v. Keiser, 113 Neb. 645, 204 N.W. 394.
The record in this case sustains the finding of the trial court that the appellant is unable to manage her property without assistance and, for that reason, is incompetent within the meaning of the statute. The appointment of a guardian for the estate of the appellant was proper.
The trial court appointed Freda Shields and the Omaha National Bank of Omaha, Nebraska, as joint guardians. The record shows that Freda Shields has been assisting the appellant in the handling of her affairs. The appellant has conveyed her residence property to herself and Freda as joint tenants. The bonds which were purchased in February 1965 were registered in the name of the appellant and Freda as joint tenants. The checking accounts which have been opened by the appellant are joint accounts with Freda. The safe deposit box in which appellant keeps her securities is joint with Freda and her husband.
It will be the duty of the guardian in this case to investigate the transactions which have taken place since the death of Paul Malnick and take whatever action may be appropriate to protect the interests of the appellant. In view of the circumstances in this case and the interest which Freda Shields has in the transactions which have *341 occurred, she is not a suitable person to be appointed as a guardian for the estate of the appellant. The judgment should be modified accordingly.
The trial court directed that a deed from Freda Shields and her husband conveying their interest in the appellant's residence property to the appellant be recorded, and the judgment should serve as a conveyance if the deed was not recorded. This matter was not properly before the court in this proceeding and should be deleted from the judgment.
The judgment of the district court, as modified, appointing the Omaha National Bank of Omaha, Nebraska, as guardian for the estate of Anna Malnick is affirmed.
Affirmed as modified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612807/ | 145 N.W.2d 482 (1966)
In the Matter of Jeanette BRAUN, a Minor Under the Age of Eighteen Years.
STATE of North Dakota, Plaintiff and Respondent,
v.
Jeanette BRAUN, Defendant and Appellant.
Cr. 350.
Supreme Court of North Dakota.
October 20, 1966.
*483 Lanier, Knox & Shermoen, Fargo, for appellant.
Harold O. Bullis, State's Atty., Richland County, Wahpeton, for respondent.
KNUDSON, Justice.
The appellant Jeanette Braun was committed by the Juvenile Court of Richland County to the State Industrial School by order dated April 18, 1966, having been adjudged a delinquent minor. On July 26, 1966, she made a motion before the district court for a new trial under Rule 59(c) (2), North Dakota Rules of Civil Procedure, and a further motion to the court for relief from the order of April 18, 1966, committing her to the State Industrial School under Rule 60(b) (2) and (6), supra. It was stipulated by the parties that the motion be submitted to the court upon the affidavits attached to and a part of the motion and on all the files and records. On August 29, 1966, the court issued its order denying the motion for a new trial or rehearing. Jeanette appealed on September 13, 1966, to the supreme court from the judgment dated April 18, 1966, committing her to the State Industrial School at Mandan, and the whole thereof, and from the order dated August 29, 1966, denying the petition and motion of Jeanette for a rehearing in said case and from the whole thereof, and demanded a trial de novo in the supreme court.
Jeanette sets forth the following specifications of error:
I
The District Court sitting as Juvenile Court erred under all the circumstances involved in finding that appellant was a juvenile delinquent.
II
That if said Court could properly find that appellant was a juvenile delinquent, that said Court erred, in her condition of pregnancy, in committing her to the State Industrial School at Mandan, North Dakota.
*484 III
That the Court erred in denying appellant a new trial or a new hearing upon all of the affidavits submitted at that time.
IV
That the Court specifically erred at the time of denying said motion and petition for a new trial and new hearing in holding that "The basis urged for the new trial or rehearing is that the Court did not permit Ronald C. Kelly, the purported father of the unborn child of Jeanette Braun, to testify at the hearing * * *."
V
That in effect, the Court has refused to allow an unborn child to have a legal name and father at the time of its birth.
The State contends that the motion for a new trial or a rehearing was not made within sixty days from the date of the rendition of the decision of the court, and was not made upon the basis of newly discovered evidence to justify relief under Rule 60(b) (2), supra, which provides:
[N]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).
Rule 59(b), supra, provides that a former verdict or other decision may be vacated and a new trial granted for causes materially affecting the substantial rights of a party, including:
4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.
Rule 59(c), supra, provides the time within which a motion for new trial must be made after the return of the verdict or rendition of the decision:
1. Upon the ground of newly discovered evidence, within six months; and
2. Upon any other ground, within sixty days, unless the court, for good cause shown, shall extend the time.
The state further contends that the appeal to the supreme court was not made within sixty days from the order of the court finding Jeanette to be a delinquent child and committing her to the State Industrial School.
The motion of Jeanette for a new trial in the district court was made under Rule 59(c) (2), supra, and for relief from the judgment of April 18, 1966, committing her to the State Industrial School, under Rule 60(b) (2) and (6), supra.
It is apparent from the facts in this case that there is no showing of newly discovered evidence to support the motion under Rule 60(b) (2), supra, and therefore we must consider whether the motion for relief from the judgment of April 18, 1966, comes within Rule 60(b) (6), which provides:
(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order in any action or proceeding for the following reeasons: * * * or (6) any other reason justifying relief from the operation of the judgment. * * *
This broad language gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. Of course, this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. But if it is unjust that a judgment be enforced, Rule 60(b) (6), supra, provides an avenue *485 for escape from the judgment, unhampered by detailed restrictions, and the courts have used this clause in a wide variety of situations. Barron & Holtzoff, Federal Practice and Procedure, Rules Edition, Chapter 11, § 1329. It is apparent that Jeanette's motion for a new trial, made July 26, 1966, was made more than sixty days after the rendition of the judgment and order dated April 18, 1966, required by Rule 59(c) (2), supra, and the appeal to this court dated September 13, 1966, is more than six months from the judgment and decree of March 7, 1966, determining that Jeanette was a delinquent child within the meaning of the statutes. The notice of appeal of Jeanette recites that appeal as being from the judgment of April 18, 1966, committing her to the State Industrial School. However, this latter judgment or order, although it reiterated the determination that she was a delinquent child, in fact, was an order committing her to the State Industrial School.
Regardless of the question whether the motions for new trial and the notice of appeal to this court were or were not timely made, we are of the opinion that Rule 60 (b) (6), supra, should be invoked in this case in the interests of justice and for the best interests of the minor and the State of North Dakota.
There is no doubt that the defendant Jeanette was a delinquent child within the meaning of the statutes, and the court was correct in so finding her and in assuming jurisdiction over her. However, the question arises: Was the order committing her to the State Industrial School for the best interests of Jeanette Braun and of the State of North Dakota?
Jeanette had been living at the home of her parents at Wahpeton, North Dakota, and had been attending high school. On or about February 4, 1966, Jeanette, with four other girls, in her bedroom, drank two six-packs of beer, of which Jeanette and her friend drank all but two cans. The next morning Jeanette and her friend, who stayed overnight, were late for school. Jeanette attended her first class, skipped her second class, and during the third class had some difficulty with her teacher because of giggling and laughing, and otherwise cutting up. The incident was reported by the school authorities to the Juvenile Commissioner who filed a petition with the district court praying the court to make provision for such child as the court may deem proper. A hearing was held on the petition on February 23, 1966, and on March 7 the court issued its order determining Jeanette to be a delinquent child within the meaning of the statutes, further ordering that the child should remain in the custody of her parents and placed on probation for a period of six months with the Juvenile Commissioner. It was further ordered that as a condition of probation that she be placed in a school to finish her high school. Jeanette at this time was sixteen years of age and a Junior in the Wahpeton high school. Jeanette had dropped out of school in her sophomore year to have an illegitimate child out of wedlock. She finished her sophomore year by correspondence.
The parents were unable to place Jeanette in any high school because the Wahpeton high school and the Hankinson Academy refused to accept Jeanette. Jeanette and her parents were brought before the court again on April 5, 1966, because of their failure to place Jeanette in school. It was brought out at this hearing that Jeanette was pregnant and planned on being married. The court ordered a clinical examination to determine whether or not she was pregnant. Thereafter, on the 18th day of April, 1966, the court ordered Jeanette committed to the State Industrial School at Mandan.
The Industrial School sent Jeanette to the Florence Crittenton Home at Fargo as the Industrial School had no facilities for the care of pregnant girls. While she was at the Florence Crittenton Home she and her father and Ronald Kelly, the father of *486 her unborn child, went to Sisseton, South Dakota, where she and Mr. Kelly were married. After her marriage she returned to her home as the Florence Crittenton Home would not keep a married woman. Shortly thereafter the marriage was annulled as Jeanette had not obtained the order of the juvenile court or of the superintendent of the State Industrial School granting Jeanette permission to marry, as required by § 14-10-07, N.D.C.C. Thereafter, on July 25, 1966, Jeanette filed the motion for a new trial or for a rehearing before the juvenile commissioner and the district court, which motion was denied. The affidavit of Ronald Kelly attached to the motion states that he is the father of the unborn child; that he is 22 years of age; that on May 27, 1966, he graduated from the Wahpeton School of Science; that he and Jeanette are very much in love and are desirous of becoming married; that his father has purchased a home situated on two acres of land in Renville County next to the farming operations of affiant and his father for the purpose of providing a good and suitable home for him and Jeanette and their children; that affiant is engaged in farming with his father and his brother, the farm consisting of seventeen and a half quarters of land; that at the hearing on April 5 he appeared at the courthouse to tell the court that he and Jeanette wanted to get married but was informed that he could not attend the hearing and he was not able to testify; that he has been charged with statutory rape and the fact that the said statutory rape charge is still pending has nothing to do with this affiant's desire to enter into said marriage, and that the desire to marry is because of the love of the parties for each other and the desire to give a name to their unborn child and to live together as man and wife.
The affidavit of Jeanette Braun states that she is very much in love with Ronald Kelly and that she desires to be legally married to him and to give her unborn child a name and a permanent family home.
The affidavit of Mathew Braun and Ramona Braun, parents of Jeanette Braun, states that they are desirous that their daughter Jeanette be married to Ronald Kelly and they are confident that he will prove to be a good husband and father, and that the unborn child of their daughter be born in wedlock.
With the foregoing statement of facts in mind we will consider the question: Was the order of commitment to the State Industrial School for the best interests of Jeanette Braun and the State of North Dakota?
To begin our discussion we would like to quote from the opinion of the late Honorable Thomas Burke in the case of State v. Myers, 74 N.D. 297, 22 N.W.2d 199, at page 201:
We realize that proper disposition of cases of juvenile delinquency requires a delicate balancing of mixed considerations and that even the most careful weighing of pertinent factors can only result in conclusions that are speculative to the extent that they attempt to predict the course of future events. Confidence that a correct conclusion has been reached must of necessity rest upon hope founded in experience, rather than on certainty. We think therefore that the problem should be approached in a spirit of optimism and that drastic remedies should not be invoked where we can have reasonable hope that lesser ones will have an equal if not a complete success.
What then are the factors to be considered and what relative weight is to be given to each? To what extent is the welfare of an individual delinquent to be counterbalanced by the good of the state? In one sense, a decision, which will help quiet public indignation over a scandalous condition which has arisen in a community, or which, because of its severity, will act as a forbidding example *487 to other youngsters, may be said to be for the good of the state. But we do not think that, as used in the juvenile act, the phrase can be given such a broad interpretation. Considerations of expediency, the satisfaction of public indignation, or example are contrary to the whole spirit of the juvenile act. They are dependent on publicity to be effective for any purpose and all proceedings in juvenile court are declared by statute to be "confidential." Section 27-1606, R.C. 1943. We therefore hold that the good of the State requires a child to be removed from a community only when his delinquency is such that he has become a danger to society either because of his own conduct or his influence upon others.
In the case under consideration we have a girl, now 17 years of age at the time of the hearing, who has given birth to one illegitimate child and is about to give birth to another within the next month or so, unless she is permitted to marry the father of her unborn child. There are instances of other indiscretions on the part of Jeanette over the past few years of drinking beer on a few occasions. Her school work has been haphazard and her grades vary from incompletes to A. The record does not disclose any other indiscretions than her sexual indiscretions and the beer drinking. It appears to us that, though this situation is serious, there was another alternative than that of committing her to the State Industrial School, and that is to have permitted these young people to marry. Certainly the State Industrial School is not an institution for pregnant girls as they have no facilities to care for them. It appears that Ronald Kelly comes from a substantial farm family, well able to provide a good home for himself and his wife and child.
We therefore determine it is not for the best interests of the minor to continue in effect the commitment to the State Industrial School. We think that it is for the best interests of the minor and the State of North Dakota that these two young people be permitted to marry, and we therefore hold that the court abused its discretion in failing to relieve the minor of her commitment to the State Industrial School. The court had another alternative in permitting her to be married to the father of her unborn child. It appears that the juvenile court did not seriously consider this alternative. Mr. Kelly apparently is well able to care for a wife and children and these young people should be given the opportunity to show that they can accommodate themselves to a normal life.
The order entitled Order Denying Motion for New Trial or Rehearing is reversed and remanded to the district court sitting as a juvenile court with direction to enter an order pursuant to Rule 60(b), supra, relieving Jeanette Braun from the order committing Jeanette Braun to the State Industrial School dated April 18, 1966, and with further direction to enter an order pursuant to § 14-10-07, N.D.C.C., granting permission to Jeanette Braun to marry Ronald C. Kelly.
We wish to point out, however, that our holding in this case is based only on the special facts of this case and is not to be considered as a proper or recommended solution in all cases involving premarital indiscretions.
TEIGEN, C. J., and ERICKSTAD, STRUTZ and MURRAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304707/ | McAMJS, J.
This appeal by the County Chairman, County Trustee and the Tax Assessor of Unicoi County presents the question of whether properties of the City of Johnson City, a municipality with situs in Washington County, are exempt from taxation by Unicoi County wherein the properties are located. With the exception of a water line serving a few customers in the village of Unicoi, the Chancellor found that all of the property described in the bill was being used exclusively for a public purpose within the sense of the constitutional and statutory exemption. Accordingly, it was decreed that such property with that exception be stricken from the tax rolls of Unicoi County and that the collection of any tax on property declared by the decree to be exempt from taxation be perpetually enjoined. Defendants have assigned two errors: (1) That the Chancellor erred in *233holding that the properties of complainant, City of Johnson City, located in Unicoi County were being used exclusively for municipal purposes and (2) that the Chancellor erred in holding that a former decree of the Chancery Court of Unicoi County in 1915 constitutes res ad-judicata.
The bill was filed by the City of Johnson City on June 22,1950, against the officials of Unicoi County above mentioned alleging that complainant owned in connection with the operation of its municipal water system many acres of land in Unicoi County whereon is located an infiltration plant and that it also owned within the county certain riparian rights. It was further alleged that, although exempt under Code Section 1085(1), such properties had been assessed for taxes by Unicoi County for the year 1950; that, as previously held in a decree of the Chancery Court of Unicoi County, such properties were being used exclusively for public purposes and, under the statute, are exempt from taxation by Unicoi County. The prayer of the bill was for a declaratory decree holding such properties exempt from taxation and holding the former decree res adjudieata.
The answer admitted that the property of the city located in Unicoi County had been assessed for taxation for the year 1950. It was denied, however, that such properties were exempt on the ground that they were being used exclusively for municipal purposes. Former adjudication was denied, and a declaration of the rights of the parties requested.
By Chapter 121 of the Private Acts of 1909 the City of Johnson City was empowered to acquire, own and operate a municipal water system for the purpose of furnishing water to its inhabitants and people residing in the territory adjacent to the city. Acting under this *234authority, the city purchased what is known in the record as Blue Springs and certain other water rights in Unicoi County. A pipe line, 14 miles in length, was then constructed connecting Blue Springs with Johnson City. Water was pumped from the Springs into a chlorinating tank and without further purification the water was allowed to run through the lines and furnished to the inhabitants of the city. The city owned 370 acres surrounding Blue Springs and in 1915 Chancellor Hal H. Haynes rendered a decree in the Chancery Court of Unicoi County holding that attempts of the County of Unicoi to levy a tax upon this property on the ground that it was being used for other than municipal purposes were unwarranted since only about four acres of the 370 acre tract was in cultivation and the balance constituted a watershed for the Springs. There was no appeal from that decree.
Several years later, in order to meet the growing demands of its inhabitants for water, the city purchased the Davis Springs with a small acreage surrounding the Springs, merging the new supply with that already being taken from Blue Springs and treating the whole in the same manner as formerly. Still later, and in 1929, the city acquired for the same purpose 1,200 additional acres in what is known as the Bed Pork area of Unicoi County. Following this purchase another suit was filed by the city to enjoin a threatened assessment of its properties for taxation by Unicoi County. This case was heard by Chancellor S. E. Miller who filed a memorandum opinion holding that the properties were being used exclusively for municipal purposes and were not subject to taxation. A recent search failed to locate a decree based upon Chancellor Miller’s memo. Later, another tract of 100 acres was purchased as a site for a filtration plant and, *235in 1946, the plant was constrncted at a point near the center of this tract, the plant itself covering only about 1 acre. Since 1946, the filtration plant has been nsed for the purification of water taken from North Indian Creek, the city having previously purchased all the lower riparian rights on this stream. All of the above tracts are located in what is known as Limestone Cove of Unicoi County but neither tract adjoins any other tract owned by the city.
At the time of the assessment in 1950, the city owned in Unicoi County about 1,900 acres of land in the four separate tracts above mentioned together with the lower riparian rights on North Indian Creek. The 1,200 acres comprising the Bed Fork area is mountainous and contains streams of water flowing into North Indian Creek from which, as stated, the city takes water into its filtration plant. As we understand the record, it is not necessary to run the water flowing from Blue Springs and from Davis Springs into the filtration plant but only to put it through a process of chlorination. However, the overflow from these springs, if any, passes into North Indian Creek above the filtration plant. From these sources the city takes into its line 5.3 million gallons of water per day. Of this amount, 3.3 million gallons come from the two Springs mentioned and 2 million gallons are taken from the Creek through the filtration plants and thence into the line.
The record shows that the main line, 14 miles in length, runs through the unincorporated Town of Unicoi, located in Unicoi County, thence through open country, cutting across a corner of Carter County, and then into Washington County before reaching the corporate limits of Johnson City. Another line extends from Johnson City through Washington and Carter counties a distance of *236about 4 miles, along a heavily populated section of highway, to the village of Milligan College. Most of this line is outside the present corporate limits of Johnson City and from it water is sold to people living along the line. In June, 1951, the city had ,a total of 7,810 customers. Sixteen Hundred and Eight, or 20.59 percent, lived outside the corporate limits of the city. The entire water system, including land, filtration plant and lines, is valued at approximately $1,000,000 and approximately one-half of this value is represented by holdings in Unicoi County. For the year ending June 30, 1951, after paying its current bonded water debt, interest and operating costs, the water department of the city had an operating surplus for the year of $145,000 leaving out of consideration depreciation on its facilities.
Except an annual rental of $35 for a cabin which the city permitted to be occupied for a few years and then discontinued renting, it has received no revenue from its land holdings in Unicoi County. During one year the city received for dead timber removed to reduce the fire hazard some several hundred dollars. It permitted one of its tenants who was employed as a caretaker to grow four-tenths of an acre of tobacco and another was allowed to graze a few cattle on some of the open land. The city received nothing for these uses.
ISection 28 of .article 2 of the State Constitution provides :
“All property, real, personal or mixed, shall be taxed, but the Legislature may except such as may be held by the State, by counties, cities or towns, and used exclusively for public or corporation purposes”.
Code Section 1085(1) provides that there shall be exempt from taxation:
*237“All property of the United States, .all property of the State of Tennessee, or any connty, or of any incorporated city, town, or taxing district in the state that is nsed exclusively for public, county or municipal purposes.’ ’
As early as Smith v. City of Nashville, 88 Tenn. 464, 12 S. W. 924, 7 L. R. A. 469, it was held that property held by a municipality for the purpose of supplying water to its inhabitants is being used exclusively for a public purpose within the sense of the Constitution and of the statute.
In City of Knoxville v. Park City, 130 Tenn. 626, 630, 172 S. W. 286, 287, L. R. A. 1915D, 1103, it was said:
‘ ‘ The true test to be applied is whether the municipality sought to be subjected to taxation is engaged in the administration of the property in question for a public purpose; that is, for governmental purposes. It is the character of the use to which the property is put, and not so much the person who owns or administers it, or the place where the property may be situate, that is determinative of this question of exemption from taxation. ’ ’
The opinion in that case, prepared by Mr. Justice Williams, contains an exhaustive and learned review of a wide range of cases dealing with this question. The facts were that the City of Knoxville acquired by purchase a water system located in the City of Park City, the west boundary of Park City being within 300 feet of the east boundary of the City of Knoxville for a distance of about 1 mile. In purchasing the private water company supplying both municipalities, the City of Knoxville assumed the contract then in existence between the company and Park City and continued to operate within the limits of both cities. In this situation, the City of Park City *238■undertook to levy a privilege tax for the operation of a water works within its limits, also an ad valorem tax for the year 1910. The bill was filed to enjoin the collection of these taxes. The court recognized the holding of many cases, including Smith v. City of Nashville, supra, that the fact that water is furnished to inhabitants of unincorporated suburbs is a mere incident to, and not destructive of the public purpose and use entitling the municipality to invoke the right of exemption.
In distinguishing these holdings from the question posed, however, it was said:
“It is difficult to conceive how the city of Knoxville has any public or corporate purpose to serve within the corporate limits of Park City. All municipal purposes therein are those of Park City, created by legislative act to exercise them. The furnishing of a water supply for itself and its inhabitants is its municipal purpose and cannot be Knoxville ’s.
“Nor may it logically be conceived that the city of Knoxville serves even incidentally its own corporate public purpose by means of the Park City system. What is the primary ‘public purpose’ of Park City may not be an incidental ‘public purpose’ of Knoxville. The Legislature will be taken to have intentionally lodged the full power and duty in that regard in its local governmental representative, Park City.”
■ The general question was re-examined a short time later in Johnson City v. Weeks, 133 Tenn. 277, 180 S. W. 327, 3 A. L. R. 1431, in which the situation was more nearly analogous to that presented in the instant case. Mr. Justice Williams wrote the opinion in that case also and reviewed the holdings in Smith v. City of Nashville, *239supra, and City of Knoxville v. Park City, snpra, as well as a large number of decisions from other jurisdictions. In the Weeks case it appears Johnson City had extended its water line beyond its corporate limits for the purpose of furnishing- water to the inmates of National Soldiers Home located in Washington County. Washington County undertook to levy an assessment for county purposes on the water lines of the city outside its corporate limits and, as in this case, the city invoked the constitutional exemption, as well as that allowed by statute, insisting that the property levied upon was exclusively devoted to a public or corporate purpose and not subject to taxation.
The opinion reiterates the holding of (Smith v. City of Nashville, supra, that a water line does not lose its character. of being public property exclusively used in furtherance of a public purpose merely because it extends beyond the corporate limits of the municipality, sustaining it on the reasoning that the existence of sickness and epidemics is a matter of concern to nearby urban populations. Distinguishing City of Knoxville v. Park City on the ground that in that case the municipality sought to be taxed was furnishing water to the inhabitants of a separate municipality, it was held that the Chancellor erred in holding the line running to the National Soldiers Home subject to taxation.
Except as to the lines serving the Town of Unicoi which the Chancellor held subject to taxation, we .cannot escape the conclusion that these cases require an affirmance of the Chancellor’s holding as to the filtration plant and water lines. We think the rule of incidental use which they clearly recognize applies. The sale of water to inhabitants of the Town of Unicoi constitutes only a minor fraction of the sum total of sales to inhabitants *240of the city ,and its suburbs. If the city made no sales to the inhabitants of the Town of Unicoi, its need for a source of supply and facilities for purification and distribution would not be materially lessened. The mere fact that some revenue is incidentally derived from public property primarily and principally devoted to a public use does not in and of itself alter the character of the holding as one for a public purpose within the sense and meaning of the exemption. Annotations, 3 A.L.R. 1445; 101 A. L. R. 790; 129 A. L. R. 485; 155 A. L. R. 425; City of Cleveland v. Board of Tax Appeals, 153 Ohio St. 97, 91 N. E. (2d) 480, 16 A.L.R. (2d) 1354.
The question remains: Are the city’s holdings in the watershed within the protection of the exemption? The city insists and the proof shows that, in order to prevent erosion and afford a more uniform flow of water from the springs and creek throughout the year by preventing a rapid run-off during heavy rains, it is desirable to keep the watershed in timber and that for purposes of sanitation it should be kept as free of human habitation as possible. To do this it is desirable, if not necessary, to own a good part of the land comprising the watershed though pollution may be overcome or mitigated by filtration. Hence, it is argued, its entire properties in Unicoi County are being used exclusively for municipal purposes.
We think there is merit in this argument. The exemption would be of little value if a municipality could be forced to choose either to keep its watershed too small to ensure an adequate supply of pure water or lose its right to an exemption for all of its property not immediately and directly used in the operation of its system.
While we are fully conscious of the possible serious effects of the loss of revenue to Unicoi County, we are *241unable to escape the conclusion that relief can come only from legislation circumscribing’ the exemption. Except as to the pipe line in the Town of Unicoi held by the Chancellor to be taxable, we find that all of the city’s holdings are being used exclusively for municipal purposes within the sense of the exemption.
In this view of the case, it becomes unnecessary to decide whether the county is concluded by the decree and memorandum opinion in earlier litigation.
Affirmed and remanded. Costs to be taxed to appellants.
Hale and Howard, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1612746/ | 32 Wis.2d 311 (1966)
ACE REFRIGERATION & HEATING COMPANY and another, Appellants,
v.
INDUSTRIAL COMMISSION and another, Respondents.
Supreme Court of Wisconsin.
October 3, 1966.
November 1, 1966.
*313 For the appellants there were briefs by Kivett & Kasdorf, attorneys, and Clifford C. Kasdorf of counsel, all of Milwaukee, and oral argument by Clifford C. Kasdorf.
For the respondent Industrial Commission the cause was argued by E. Gordon Young, assistant attorney general, *314 with whom on the brief was Bronson C. La Follette, attorney general.
For the respondent Warren J. Klotzbach there was a brief by Hanley, Wedemeyer, Schapiro & Cavanaugh, attorneys, and Nathan Schapiro of counsel, all of Milwaukee, and oral argument by Nathan Schapiro.
HALLOWS, J.
The sole issue on this appeal is whether Klotzbach at the time of his injury was an employee of Ace Refrigeration & Heating Company or an independent contractor. The evidentiary facts are not in material dispute but different ultimate facts and inferences were drawn by the examiner and the commission. The plaintiffs argue the examiner is the only fact finder who heard and saw the witnesses while the commission members relied upon a summary of the evidence, and therefore more weight should be given to the findings of the examiner. This is especially true, it is argued, because Klotzbach suffered a mental illness and there was testimony he had a persecution complex which might affect his testimony and credibility. As we read the transcript of the testimony the credibility of Klotzbach is not really a substantial element, as the facts are not in material dispute. Nor do the plaintiffs raise any question of due process because the hearing officer was reversed and presumably did not participate in the findings of fact by the commission. See Wright v. Industrial Comm. (1960), 10 Wis. (2d) 653, 103 N. W. (2d) 531. The difficulty of which the plaintiffs complain is inherent in the fact-finding process and in the use by some administrative agencies of an examiner as the initial step in fact-finding. Wright v. Industrial Comm., supra; Fitz v. Industrial Comm. (1960), 10 Wis. (2d) 202, 102 N. W. (2d) 93; Matayo v. Industrial Comm. (1958), 5 Wis. (2d) 401, 92 N. W. (2d) 743; Berg v. Industrial Comm. (1940), 236 Wis. 172, 294 N. W. 506; State ex rel. Madison Airport Co. v. Wrabetz (1939), 231 Wis. 147, 285 N. W. 504.
*315 We recently said in Indianhead Truck Lines v. Industrial Comm. (1962), 17 Wis. (2d) 562, 567, 117 N. W. (2d) 679, wherein the commission "reversed" the findings of its examiner, that "[t]he ultimate responsibility for findings is upon the commission itself." Consequently, on review in this court, it is the findings of the commission which are scrutinized to determine if they are supported by credible evidence, and the determination of credibility is left to the administrative process.
Whether a person is an employee or an independent contractor for the purposes of ch. 102, Stats., is a question of law to be determined by the application of welldefined rules to the facts. Duvick v. Industrial Comm. (1963), 22 Wis. (2d) 155, 162, 125 N. W. (2d) 356; Harry Crow & Son, Inc., v. Industrial Comm. (1963), 18 Wis. (2d) 436, 440, 118 N. W. (2d) 841; Standard Oil Co. v. Industrial Comm. (1942), 239 Wis. 457, 460, 1 N. W. (2d) 874.
We stated in Scholz v. Industrial Comm. (1954), 267 Wis. 31, 64 N. W. (2d) 204, 65 N. W. (2d) 1, the principal or primary test for determining if an employeremployee relationship exists is whether the alleged employer has a right to control the details of the work. We have also pointed out there are subsidiary and secondary tests which should also be considered, among which are: (1) The direct evidence of the exercise of the right to control; (2) the method of payment of compensation; (3) the furnishing of equipment or tools for the performance of the work; and (4) the right to fire, or terminate the relationship. Green Valley Co-op. Dairy Co. v. Industrial Comm. (1947), 250 Wis. 502, 27 N. W. (2d) 454; Kolman v. Industrial Comm. (1935), 219 Wis. 139, 262 N. W. 622; St. Mary's Congregation v. Industrial Comm. (1953), 265 Wis. 525, 62 N. W. (2d) 19. See 1 Larson, Law of Workmen's Compensation, p. 636, sec. 44.00. These tests are subsidiary in the sense they rest on evidentiary facts and support the primary test.
*316 We have serious doubts whether the finding that Klotzbach was an employee under sec. 102.07 (4), Stats., can be sustained by the evidence, but we are of the opinion that Klotzbach was a statutory employee under subsection (8) of that section. In view of this conclusion it is not necessary to detail all the evidentiary facts but some are necessary to an understanding of our conclusions.
Ace was in the business of selling, installing and servicing heating, refrigerating and air-conditioning equipment. It was desirous of entering the residential-heating field, and in September of 1961, advertised for a salesman who could plan and lay out heating systems and sell such equipment for residential use. In response to this ad, Klotzbach met with the general manager of Ace and represented himself as a heating engineer experienced in the planning and selling of residential-heating systems. He stated he was capable of producing a large volume of residential business, and the present company with which he was associated was not capable of handling all of his work. A written memorandum of part of the discussion was made by the general manager of Ace to the effect the arrangement would be on a commission basis of four percent of gross sales for new installations, seven and one-half percent on air-conditioning systems, and ten percent on furnace-repair work. Klotzbach was to receive a $100-per-week draw against his commissions with a maximum limit at any time of $2,000 over earned and unpaid commissions. He was permitted to use gasoline for his automobile from the company's pump.
Klotzbach's hours of work were not restricted. There was no withholding for federal or state income taxes or social security. Ace reserved the right to accept or reject proposals for installations which Klotzbach might develop. Letters were sent out to contractors by Ace at the request of Klotzbach informing them of this association. Klotzbach used a desk, telephone, and drawing board in the office of Ace. However, he did much of his *317 work at his home, used his own instruments, kept his own hours, made no reports to Ace and called upon such building contracting prospects as he chose. Prior to the arrangement with Klotzbach, Ace had no contacts with contractors in the residential-building field, but Klotzbach had. Although the control of the designing of heating systems and the method of their installation was solely in Klotzbach, before the proposals were submitted to the prospects they were subject to approval by Ace. If they were acceptable to Ace they were submitted to the prospect and if accepted became a contract between Ace and the purchaser.
From September, 1961, to the time of the accident the following March, approximately 100 proposals were submitted to Ace and 32 were accepted, which constituted a total business of $44,129.75. Ace in its relationship with Klotzbach was interested in the production of acceptable residential business and not with the details of its production.
Considering the four subsidiary tests we find very little, if any, exercise of control by Ace over Klotzbach. Payment on a commission basis is not controlling and in this case it is characteristically neutral on the question of ultimate control. See 1 Larson, Law of Workmen's Compensation, p. 648, sec. 44.33 (b). The furnishing of equipment under these circumstances is not substantial and the right to fire was not even considered or discussed by the parties. On the inconclusive evidence presented we have grave doubts that the finding by the commission that Ace exercised control over the details of Klotzbach's work should be sustained.
However, an independent contractor may be a "statutory employee" if he meets the requirements of sec. 102.07 (8), Stats. Under this section, an independent contractor is eligible for compensation provided: (1) He does not maintain a separate business; (2) does not hold himself out and render services to the public; and (3) is not *318 himself an employer subject to ch. 102. The examiner found only that Klotzbach sometimes held himself out to and rendered some services for others during the period he was working for Ace. In reversing, the commission found Klotzbach did not maintain a separate business. These findings are not mutually exclusive. Nor does the finding of the commission meet all the requirements of the section. However, the evidence is undisputed and only one reasonable inference can be drawn therefrom. In such a case the drawing of the inference is a question of law and not a question of fact. Stommel v. Industrial Comm. (1962), 15 Wis. (2d) 368, 112 N. W. (2d) 904; Van Roy v. Industrial Comm. (1958), 5 Wis. (2d) 416, 92 N. W. (2d) 818.
We may agree with Ace that Klotzbach has the burden and must prove he is not in one of the exceptions in sec. 102.07 (8), Stats. This follows from the proposition that the burden of proving entitlement to workmen's compensation benefits is on the claimant. Peterson v. Industrial Comm. (1955), 269 Wis. 44, 68 N. W. (2d) 538; Van Valin v. Industrial Comm. (1962), 15 Wis. (2d) 362, 112 N. W. (2d) 920; Walter v. Industrial Comm. (1953), 264 Wis. 522, 59 N. W. (2d) 463.
There is no contention that Klotzbach was an employer subject to ch. 102, Stats., and the evidence that Klotzbach maintained a separate business and held himself out to and rendered service to the public is not substantial. We think to qualify as a statutory employee the applicant must prove both he does not maintain a separate business and does not hold himself out and render services to the public, while it is sufficient for disqualification to prove either the maintenance of a separate business or the holding of oneself out to the public. During the period of his relationship with Ace, Klotzbach purchased a furnace from Ace and had it installed in his mother-inlaw's house. He arranged for Ace to service some heating systems which had been installed by companies with *319 which Klotzbach had previously been associated. This work was billed to Klotzbach. Klotzbach also purchased material and labor from Ace for use on jobs not contracted for by Ace.
Klotzbach sold some equipment for a manufacturer with whom Ace did not do business. This sale was made through Ace because the manufacturer dealt only with retailers and Klotzbach received the entire commission. If Klotzbach was an independent contractor maintaining a separate business, it is difficult to understand why it was necessary for this isolated sale to be run through Ace's books.
This evidence of rendering service to the public is de minimis and does not constitute a practice or course of conduct of holding oneself out to the public as an independent contractor. Sec. 102.07 (8), Stats., contemplates a separate business, not isolated activity, and further contemplates one's holding himself out to render services. Klotzbach did hold himself out as a heating engineer but these were his qualifications in connection with his obtaining business for Ace, not business for himself.
Certainly the purchase and installation of a furnace for one's mother-in-law would not constitute maintaining a separate business or holding oneself out to render service to the public. Only three sales were made to or on behalf of Klotzbach. These occurred during the month of January and totaled $71.12. During this time Klotzbach brought in business for Ace in the amount of $44,129.75. There is no testimony of what happened to the proposals not accepted by Ace.
On the positive side, Klotzbach testified that during the period he neither worked for anyone else, offered his services to anyone else, nor sold furnaces other than the one to his mother-in-law. We think the evidence substantiates the finding of the commission that Klotzbach did not maintain a separate business and as a matter of law we conclude that he did not hold himself out to and *320 render services to the public within the meaning of sec. 102.07 (8), Stats. Klotzbach was a statutory employee and the order was properly affirmed by the circuit court.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612766/ | 282 So.2d 649 (1973)
STATE of Florida, Appellant,
v.
David K. SIGERSON, Jr., Appellee.
No. 72-1057.
District Court of Appeal of Florida, Second District.
September 12, 1973.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellant.
Peter J.T. Taylor, Putney, Taylor § Hampton, Tampa, for appellee.
BOARDMAN, Judge.
This is a timely interlocutory appeal filed by the appellant, State of Florida, pursuant to the applicable statute and rules of this court from the order of the trial court granting appellee's motion to suppress evidence.
Appellee, David K. Sigerson, Jr., was charged in an information with possession of marijuana in violation of the Florida Drug Abuse Law, Section 404.02, Florida Statutes, F.S.A. After proper hearing the trial court, as stated above, granted the motion to suppress.
It appears from the record that appellee was attempting to board an aircraft at *650 Tampa International Airport when, while checking into the airport, he apparently fell within the criteria of a "skyjacker profile"[1] as developed by the Federal Aviation Administration in conjunction with commercial airlines. He was, therefore, designated as a "selectee."
The incident occurred on June 26, 1972. The case is governed by the Federal Aviation Regulations effective February 6, 1972, requiring each airline to screen passengers and carry-on baggage so that no explosives or weapons would be carried abroad, and the Federal Aviation Regulation effective March 9, 1972, requiring each airline to adapt a security program with respect to checked baggage and cargo to accomplish the same end.
The regulations, supra, required appellee, before boarding the aircraft, to pass through a device known as a magnetometer[2] and undergo a search of his baggage and person. Appellee was searched by a Deputy United States Marshal and found to be in control of more than five grams of marijuana. Appellee was not advised that he had the right of refusing to be searched provided he did not board the aircraft.
At the hearing on the motion to suppress the contraband, the state offered as its only witness Mitchell A. Newberger, then a Deputy United States Marshal, since appointed to the position of United States Marshal for the Middle Judicial District of Florida. The trial court, after extensive and lengthy interrogation, permitted the witness, Newberger, to testify as an expert witness as to what the profile actually is and on the use and purpose of the magnetometer. Timely objection was made to this ruling by the attorney for appellee. Whereupon, the assistant county solicitor commenced to continue his questioning of the said witness who stated he was refusing to testify concerning the profile in the presence of the appellee on instruction from the United States Department of Justice and headquarters office of the United States Marshal's Service, Washington, D.C. Subsequently, the prosecutor requested that the defendant be excused from the hearing in order that the trial court interview the witness, Newberger, as to the criteria of the profile. Counsel for appellee objected and the trial judge then indicated he was ready to rule on the motion. Prior to the announcement of the court's decision, the prosecutor suggested an alternative method of procedure which was that all persons exit the courtroom except the judge, court reporter and the witness, Marshal Newberger. Counsel for appellee objected to the suggestion that both he and the accused be barred from the hearing. The state then elected to proceed no further with the hearing and requested the court to grant a continuance pending the filing of an appeal.
We have carefully considered the record, briefs and oral argument. The record is not as complete as we would like for it to be. As stated previously herein, the state did not choose to offer additional testimony at the pretrial suppression hearing. As a consequence it is unnecessary for us to reach or decide several underlying questions and issues which might otherwise have been presented.
We are faced with the narrow issue of deciding whether the ruling of the trial court granting the appellee's motion to suppress the contraband was proper and correct. We think it was as will hereinafter be shown.
Obviously the appellee was charged with a violation of Florida law. He could have been charged with a violation of a federal statute. The case being here the law of Florida is controlling. However, in view of the nature of the case sub judice, *651 we must also look to the applicable federal decisions for at least guidance in arriving at our decision. Particularly so since our research has not disclosed a Florida case precisely on point.
The hearing on the motion to suppress, while not deciding the guilt or innocence of the appellee, is clearly a critical stage of the prosecution and the confrontation clause of the Sixth Amendment to the United States Constitution guarantees an accused in a criminal case the right to confront the witnesses against him. Federal courts have permitted in camera proceedings on the criteria of the profile in airport search cases without the accused being present. But, in such cases, the attorney for the accused was permitted to attend and take part in the proceedings. See United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971), and United States v. Bell, 464 F.2d 667 (2d Cir.1972). Our research has not disclosed a single reported case, federal or state, wherein both the accused and his attorney were barred or excluded from attendance at such in camera proceedings. It would have been reversible error for the trial court to have granted the prosecutor's request to conduct the in camera proceedings without the attorney for appellee being present.
We recognize the absolute necessity of maintaining the integrity and the secrecy of the profile for the protection and safety of the airplane traveling public. But, by the same token, we cannot sanction or condone the unreasonable and unwarranted intrusion or invasion of the inherent individual rights of an accused.
We point out that there is not one shred of evidence in the record to establish probable cause for the search and seizure. As previously stated, only one witness testified in behalf of the state, i.e., Deputy United States Marshal Newberger, who candidly admitted that he did not have personal knowledge of the facts of this case. The state did subpoena other witnesses but, for reasons known to the prosecutor, did not see fit to call upon them to testify. Further, the trial court gave the prosecutor every reasonable opportunity to proceed to present such other matters as he deemed advisable. The state elected not to proceed. Whereupon, in a well-reasoned order, the trial judge granted appellee's motion to suppress the evidence.
None of the many cases cited by appellant in its brief involved similar factual circumstances as involved in the case sub judice. We cannot agree with the appellant's contention that cases decided in the federal and state courts on the matter of disclosure of confidential informers are analogous and controlling in this case. Our ruling should not be viewed as critical of the federal government's antihighjack program which is a highly commendable effort to prevent what all agree should be prevented.
The order of the trial court is hereby
Affirmed.
MANN, C.J., and LILES, J., concur.
NOTES
[1] A method developed by the federal government and used by the nation's airport facilities to help determine potential skyjackers. It is based on personal appearance and personality.
[2] A device used at airports to detect metal objects of a certain weight, primarily used in the prevention of skyjacking. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1769426/ | 538 S.W.2d 224 (1976)
BRASWELL MOTOR FREIGHT LINES, INC., Appellant,
v.
Sid TETENS, Individually and d/b/a L. C. Hobbs Construction Company, et al., Appellees.
No. 12414.
Court of Civil Appeals of Texas, Austin.
June 9, 1976.
*225 D. James Smith, Dallas, for appellant.
Malcolm Robinson, Hooper & Robinson, Austin, and Benjamin N. Hamilton, Sheehy, Lovelace & Mayfield, Waco, for appellees.
O'QUINN, Justice.
Braswell Motor Freight Lines, Inc., a common carrier, brought this suit in March of 1974 against several defendants to recover $3,300 in freight charges plus attorney's fees. From judgment of district court that Braswell take nothing, appeal has been perfected to this Court.
Appellant has failed to include in its brief any point of error upon which it relies on appeal. Rule 418, Texas Rules of Civil Procedure, plainly provides that the brief for appellant should contain "A statement of the points upon which the appeal is predicated, separately numbered in short form and without argument, and germane to one or more assignments of error when assignments are required."
A point of error is an indispensible part of a brief on appeal. Johnson-Sampson Construction Co. v. W & W Waterproofing Company, 274 S.W.2d 926, 929-930 (Tex.Civ.App. Amarillo 1953, writ ref. n. r. e.). When appellant's brief does not embrace any points of error, and no fundamental error appears in the record, the brief presents nothing for the appellate court to review, and the appeal is not entitled to consideration. Cox v. Messer, 469 S.W.2d 611, 613 (Tex.Civ.App. Tyler 1971, no writ); Slayton v. White, 487 S.W.2d 204, 205 (Tex. Civ.App. Tyler 1972, writ ref. n. r. e.).
We have examined the record and find no fundamental error. Upon close examination of appellant's brief, we find a statement which by liberal construction may be termed suggestion of a single point of error. The statement reads: "Braswell now appeals, contending the court erred in excluding relevant evidence and in granting motion to dismiss at the close of Braswell's case." (Emphasis added)
It is true, as stated by appellant, that at the close of Braswell's evidence, the trial court made a final ruling, which was not to dismiss the cause, but to enter judgment that Braswell take nothing by its suit.
From a careful review of the briefs and the statement of facts, it appears that Braswell's claim of error is leveled at refusal *226 of the trial court to permit Braswell to introduce into evidence a freight bill without compliance with requisites of Article 3737e, V.A.C.S., pertaining to business records. Braswell failed to lay a proper predicate for introduction of the freight bill. As offered at the trial, the bill was mere hearsay and therefore inadmissible.
Contrary to Braswell's contention that the trial court refused to admit into evidence the bill of lading pertaining to the cargo shipped through Braswell, we find that Braswell never at any time offered the bill of lading or attempted to lay a predicate for its admission. Without the bill of lading, appellant failed to establish a prima facie case. The bill of lading would have been admissible under Tex.Bus. & Comm. Code Ann. sec. 1.202, but the freight bill, as an entry on the other records, was not shown to have been made upon the basis of personal knowledge as required by Art. 3737e, V.A.C.S. Maurice Pincoff's Company v. Southern Stevedoring Company, 489 S.W.2d 277, 278 (Tex.Sup. 1972, affirming Tex.Civ.App. 472 S.W.2d 841).
It is settled that a bill of lading is the best evidence of its contents and of the contract of shipment, and in a suit on a bill of lading, as in this case, plaintiff must introduce the bill into evidence or account for its nonproduction. This Braswell failed to perform in any respect. See 9 Tex. Jur.2d Bills of Lading, sec. 54 et seq., p. 446 et seq. (1969).
Appellees have moved to dismiss this appeal. We find no fundamental error and no ground for reversal of the trial court's judgment, and since appellant failed to bring any point of error, we deem it proper to affirm the judgment of the trial court. Judgment of the trial court that appellant take nothing by its suit is in all things affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612911/ | 282 So. 2d 652 (1973)
John A. BRYANT et al., Appellants,
v.
A.E. COLE et al., Appellees.
No. 72-36.
District Court of Appeal of Florida, Second District.
September 12, 1973.
*653 George J. Adler of Meyers & Mooney, Orlando, for appellant Bryant.
Grover C. Freeman, Tampa, for appellants Royal-Globe and Tampa Electric Co.
William J. Terry of Fowler, White, Gillen, Humkey, Kinney & Boggs, Tampa, for appellee Cole.
McNULTY, Judge.
In this personal injury action appellant Bryant, an employee of Tampa Electric Company, slipped and fell at his place of employment at a time when appellee Cole was undertaking certain construction for the Tampa Electric Company at the latter's plant. The construction contract between Cole and Tampa Electric Company contained a provision relating to the extent of Cole's obligations in maintaining safety precautions at the job site. The material provisions of the contract in this regard are as follows:
"SAFETY PRECAUTIONS... . Contractor further understands that due to the nature of the work to be performed hereunder other hazardous or dangerous conditions, which are not necessarily related to the inherent dangers of electricity, may also be involved in the work. Accordingly, Contractor agrees prior to the commencement of the work to make necessary inspection and to ascertain the existence and extent of any actual or potential hazardous or dangerous conditions and to instruct his employees with respect to said conditions and to the safety measures to be taken in connection therewith. Contractor further agrees to take all necessary safety precautions, to furnish and install all safeguards necessary for the prevention of accidents and to otherwise fully comply with all laws, rules and regulations pertaining to safety and accident prevention.
REMOVAL OF REFUSE. The Contractor agrees to clean up the work as it progresses from day to day, and to remove therefrom and from the adjoining premises, driveways and streets all waste materials and rubbish, and, when the work is finished, to remove from the site of the work all tools, machinery, rubbish and all waste materials for which, in the opinion of the Engineers, the Contractor or its subcontractors are responsible, and to leave the work free and clear from all obstructions and hindrances. In addition, the Owner reserves the right to stop all construction work until the work area is restored to a neat and orderly appearance, if, in the Owner's opinion, this action is justified by excessive public complaints."
It was shown at trial that Bryant lost his footing and slipped as aforesaid when some loose rock rolled under his feet and that such loose rock came from and as a result of the Cole construction job.
Bryant sued Cole in negligence and, in a separate count, as a third-party beneficiary under the foregoing contractual provision *654 alleging that Cole breached his contractual undertaking to keep the job site clear of hazardous debris. The trial court directed a verdict against Bryant on the third-party beneficiary count but submitted the negligence issues to the jury. A verdict was rendered in favor of Cole. Bryant appeals only from the directed verdict on the third-party beneficiary count. We affirm.
To begin with, we do not construe the afore-quoted provisions of the contract between Tampa Electric Company and appellee Cole as showing an intention primarily and directly to benefit Bryant or the class of persons to which he belongs as third-party beneficiaries. If anything, appellant was at most an indirect or incidental beneficiary, which is not enough under the settled law of Florida.[1] True it is that Tampa Electric Company and Cole clearly contemplated that a third party might be injured by residual hazards on the job, but the primary purpose of the quoted provisions was to hold Tampa Electric Company harmless in the event thereof.[2] In this regard, the case differs from the New York case of Lanite Sales Co. v. Klevens Corp.,[3] heavily relied upon by appellants, wherein the agreement in question contained specific provisions relating to benefits directly accruing to third parties.
But even if we were to assume that appellant Bryant was a primary and direct beneficiary of the contract, it is clear that the essence of Cole's undertaking was "... to take all necessary safety precautions ... install all safeguards necessary for the prevention of accidents ... and to leave the work free and clear from all obstructions and hindrances... ." Now surely it cannot be said that Cole thereby undertook to become an absolute insurer against the possibility that the contemplated hazards may exist. So it follows that if he is liable under his undertaking at all it must be because of some fault or knowing breach on his part. That is to say, that he did not take all reasonably "necessary precautions," nor did he install all reasonable "safeguards for the prevention of accidents," nor did he leave the work reasonably "free and clear from all obstructions and hindrances." If any of the foregoing were the case, of course, he would have been guilty of negligence. But appellant got to the jury on this point, and to that extent did indeed receive the benefits of Cole's undertaking. He was not prejudiced, therefore, by the directed verdict complained of.
Affirmed.
LILES, A.C.J., and HOBSON, J., concur.
NOTES
[1] See, e.g., American Empire Insurance Co. of South Dakota v. The Fidelity and Deposit Co. of Maryland (5th Cir.1969) 408 F.2d 72; American Surety Co. of New York v. Smith (1930), 100 Fla. 1012, 130 So. 440; DiCamillo v. Westinghouse Electric Corporation (Fla.App. 1960), 122 So. 2d 499.
[2] See, Southern California Gas Co. v. A.B.C. Construction Co. (Cal.2d Dist. 1962), 204 Cal. App. 2d 747, 22 Cal. Rptr. 540; Silverman v. Food Fair Stores, Inc. (1962), 407 Pa. 507, 180 A.2d 894.
[3] (1954), 205 Misc. 303, 128 N.Y.S.2d 182. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612767/ | 145 N.W.2d 892 (1966)
Margaret MONSON, Laurel Monson, Lee Monson, a minor, by Melfred Monson, his father and guardian ad litem, and Melfred Monson, individually, Plaintiffs and Respondents,
v.
Melvin H. NELSON, as Administrator of the Estate of Richard E. Olson, deceased, Defendant and Appellant.
No. 8227.
Supreme Court of North Dakota.
October 13, 1966.
*894 Duffy & Bakken, Cooperstown, for plaintiffs and respondents.
Dale H. Jensen, Asst. Atty. Gen., Bismarck, and Gene C. Grindeland, Sp. Asst. Atty. Gen., Mayville, for defendant and appellant.
KNUDSON, Justice.
This is an appeal by the Attorney General of North Dakota on behalf of the North Dakota Unsatisfied Judgment Fund, from an Order for Payment of Judgment from Unsatisfied Judgment Fund made by the District Court of Griggs County in favor of the plaintiffs, Margaret Monson, Laurel Monson, Lee Monson, a minor by Melfred Monson, his father and guardian ad litem, and Melfred Monson, individually, and against the defendant Melvin H. Nelson, as administrator of the estate of Richard E. Olson, deceased.
This case arose out of an automobile accident which occurred October 20, 1962. Laurel Monson was the driver of an automobile in which Margaret Monson and Lee Monson were passengers. An automobile driven by Richard Olson struck the Monson vehicle, severely injuring its occupants. Richard Olson died from injuries received in the collision. Melvin H. Nelson was appointed administrator of the estate.
This action was commenced by the service of a summons and complaint on the defendant administrator on May 18, 1963. Upon the default of the defendant for failure to answer the complaint, the plaintiffs, on June 19, 1963, served on the Highway Commissioner and the Attorney General a Notice to Take Default Judgment. The matter was heard by the district court on July 23, 1963. The court found that the negligence of Richard Olson in the operation of his motor vehicle was the proximate cause of the injuries to the plaintiffs, and made his Order for Judgment on August 13, 1963. Pursuant to such Order the Judgment was entered by the Clerk of Court on August 21, 1963, awarding the plaintiffs the following amounts: $10,000.00 to Margaret Monson; $7,500.00 to Laurel Monson; *895 $2,500.00 to Lee Monson; and $4,163.42, together with costs and disbursements of $147.20, to Melfred Monson. The award to Melfred Monson was for medical and dental services and care incurred by him for the treatment of the injuries to Margaret, Laurel, and Lee Monson. An execution issued on this judgment was returned wholly unsatisfied by the sheriff of Griggs County on August 22, 1963. On the application of the plaintiffs the court made an order on September 9, 1963, for the payment of the judgment from the Unsatisfied Judgment Fund in the aggregate amount of $20,047.20, to each of the plaintiffs in the following limits: To Margaret Monson the sum of $8,224.83; to Laurel Monson the sum of $6,165.87; to Lee Monson the sum of $1,445.83; to Melfred Monson the sum of $4,163.42 and costs in the sum of $47.20; amounting to a total payment to said plaintiffs in the sum of $20,047.20.
The only issue raised by the Attorney General is whether the maximum amount payable from the Unsatisfied Judgment Fund in one accident is ten thousand dollars, as provided by § 39-17-07, N.D.C.C., or twenty thousand dollars, as provided by Chapter 282, § 2, of the 1963 Session Laws, amending § 39-17-07, in considering the amount payable in an accident involving bodily injury occurring before July 1, 1963.
Prior to the 1963 amendment, the pertinent part of § 39-17-07, supra, read as follows:
No order shall be made by the court directing the payment of more than five thousand dollars, exclusive of costs, in the case of a judgment resulting from bodily injury to, or the death of, one person in one accident, nor, subject to such limit of five thousand dollars for each person so injured or killed in one accident, shall an order be made directing the payment of judgments for more than ten thousand dollars, exclusive of costs, in cases arising out of one accident. * * *
The identical part of the statute, as amended by § 2 of Chapter 282, supra, reads as follows:
No order shall be made by the court directing the payment of more than ten thousand dollars, exclusive of costs, in the case of a judgment resulting from bodily injury to, or the death of, one person in one accident, nor, subject to such limit of ten thousand dollars for each person so injured or killed in one accident, shall an order be made directing the payment of judgments for more than twenty thousand dollars, exclusive of costs, in cases arising out of one accident. * * *
The effect of the amendment was to increase the maximum amount recoverable from the Unsatisfied Judgment Fund from five thousand dollars for each person and ten thousand dollars in one accident, to ten thousand dollars for each person and twenty thousand dollars in one accident.
The Attorney General, representing the Unsatisfied Judgment Fund, argues that the judgment in this case was rendered against the defendant as of June 8, 1963, the date he came in default for failure to answer the complaint. His position is that all judicial acts were completed prior to July 1, 1963, by the doctrine of relation back. He contends that the subsequent acts of the court of determining the amount of the damages, the order for judgment, the entry of judgment, and the order to pay out of the Fund, were merely procedural, and related back to June 8, 1963, the date of default, a date prior to July 1, 1963, the date the amendment became effective, and therefore, the order for payment from the Unsatisfied Judgment Fund should have been limited to ten thousand dollars as provided by the statute before it was amended.
The contention of the appellant that the judgment was rendered and became final as of June 8, 1963, is untenable, being contrary to the rules of civil procedure and the decisions of this court.
*896 Our rules of civil procedure provide that in all cases other than for a sum certain, the court shall require such proof as may be necessary to enable it to determine and grant the relief to which the plaintiff may be entitled before directing the entry of a default judgment by the clerk of court.
Rule 55, N.D.R.Civ.P., reads in part:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the fact is made to appear by affidavit or otherwise, the court may direct the clerk to enter an appropriate judgment by default in favor of the plaintiff and against the defendant as follows:
(1) When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court * * * may direct the entry of judgment.
(2) In all other cases, the court, before directing the entry of judgment, shall require such proof as may be necessary to enable it to determine and grant the relief, if any, to which the plaintiff may be entitled. To this end, the court may:
1. Hear the evidence and assess the damages; * * *
This court, in discussing this question in Naderhoff v. Geo. Benz & Sons, 25 N.D. 165, 141 N.W. 501, at page 509, 47 L.R.A., N.S., 853, quoting from Tuttle v. Smith, 6 Abb. Pr. 329, said:
* * * The extent of the injury, or the amount of damages, is matter of judgment or legal discretion depending on extrinsic facts. It may be stated first in the complaint in round numbers, according to the claim and opinion of the plaintiff; but it must be determined upon evidence, or the proof of facts, which cannot be pleaded, but must be exhibited to the court, to enable it to make any clear, not to say just, disposition of the matter.
Here in the instant case the plaintiffs' claims are not for a sum certain or for a sum which can by computation be made certain, which is included in the first subdivision. To come within the first subdivision the claim must be for the recovery of a definite sum of money as such, and without calling upon the court to ascertain or adjudge anything but the existence and terms of the contract by which it is due, and from which the court may direct the entry of judgment without other proof.
However, the plaintiffs' claims in this action are not founded upon contract but upon tort for unliquidated damages for injuries sustained in an accident caused by the negligence of the defendant's decedent. Here the plaintiffs are required to prove the facts essential to their claim.
Where the action is in tort or for an unliquidated claim or amount, a default admits plaintiff's right to recover something, at least nominal damages, but does not admit the amount to which he is entitled, and there is no final judgment until the amount is ascertained, * * *
49 C.J.S. Judgments § 201c, p. 358 (1947).
This court has held that a judgment is not effective and does not become final until it is entered in the judgment book. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621; Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371, 16 Ann.Cas. 1210; Groth v. Ness, 65 N.D. 580, 260 N.W. 700.
A mere right to a default judgment does not constitute a final judgment under our rules. Before any judgment can have any force as such it must, in our opinion, be entered in the judgment book. Rule 58, N.D.R.Civ.P.
Rule 58, N.D.R.Civ.P., states that a judgment does not become effective until it is entered in the judgment book.
*897 A judgment * * * upon failure to answer may be entered by the clerk upon the order of the court or the judge thereof, * * * The judgment in all cases shall be entered and signed by the clerk in the judgment book; this entry constitutes the entry of the judgment; and the judgment is not effective before such entry. * * *
"Judgment" is defined in our rules of civil procedure as follows:
"Judgment" as used in these rules includes a decree and any order from which an appeal lies. * * *
Rule 54(a), N.D.R.Civ.P.
Section 28-27-04, N.D.C.C. provides that "An appeal from a judgment may be taken within six months after the entry thereof by default," and in Rule 54(b) it is said "the court may direct the entry of a final judgment," and in Rule 54(c) "every final judgment shall grant the relief." Certainly the purpose and intent of our statutes and rules contemplate that a judgment becomes final only after the entry thereof in the judgment book, and that no theory of relation back is contemplated or intended by these statutes or rules. Therefore, in this case the judgment became final on August 21, 1963, when the judgment was entered by the clerk in the judgment book.
The respondents argue, in support of the payment from the Fund in the increased amounts allowed under the 1963 amendment to § 39-17-07, that
The controlling factor is the perfection of a judgment and the satisfaction of statutory requirements in order to proceed against the Fund after the judgment has been returned unsatisfied. If the Legislature had intended that causes of action accruing prior to the enactment of the legislation were not to be within the scope of the Unsatisfied Judgment Fund, such an exclusion would have been specifically enumerated in the statutes. To this end they are completely silent, manifesting the intent that all judgments perfected after the enactment of the Unsatisfied Judgment Fund are entitled to payment out of the Fund as provided in section 39-17-07, as amended, upon compliance with other provisions of Chapter 39-17 and more specifically with Sections 39-17-03 and 39-17-04.
The respondents are correct in their contention that the statutory requirements must be met by first obtaining a final judgment and having it returned unsatisfied by the sheriff before the judgment creditor can proceed against the Fund. And here such requirements have been met by the respondents by obtaining a judgment which was rendered by the judge on August 21, 1963, and was entered in the judgment book on August 21, 1963.
However, the respondents are in error in their contention that
* * * If the Legislature had intended that causes of action accruing prior to the enactment of the legislation were not to be within the scope of the Unsatisfied Judgment Fund, such an exclusion would have been specifically enumerated in the statutes. To this end they are completely silent, manifesting the intent that all judgments perfected after the enactment of the Unsatisfied Judgment Fund are entitled to payment out of the Fund as provided by section 39-17-07, as amended, * * *.
On one hand the respondents contend that the amendment is prospective in its application, at least as to judgments obtained after the effective date of the amendment, and, on the other hand, the respondents contend that the amendment is retroactive in its application to causes of action arising before the effective date of the amendment, as the amendment does not specifically exclude claims arising from such causes of action.
The general rule of statutory construction that an act of the legislature is presumed to be prospective unless the legislature *898 clearly manifests a contrary intention is well established in this state by case law and statute. See Gimble v. Montana-Dakota Utilities Co., 77 N.D. 581, 44 N.W. 2d 198, and cases cited.
See also § 1-02-10, N.D.C.C.:
No part of this code is retroactive unless it is expressly declared to be so.
And in Great Northern Ry. Co. v. Severson, 78 N.D. 610, 50 N.W.2d 889, we said:
It is both a general and statutory rule of construction that the Legislature intends an act to operate prospectively only, unless the contrary * * * appears.
The question of statutory construction resolves itself to one of ascertaining and giving effect to the legislative intention. That intention must be sought, first, in the language of the statute, and if that language is ambiguous or of doubtful meaning, then resort may be had to certain extrinsic aids. A careful examination and consideration of the provisions of Chapter 39-17, N.D.C.C., and Chapter 282, Session Laws of 1963, amending § 39-17-07, leads us to the conclusion that the language of the amendment evinces a legislative intention that the amendment should operate prospectively only; and that there is no intention that the amendment should apply to judgments for damages for injuries sustained in an automobile accident occurring before the effective date of the amendment.
In speaking of the effect of an amendatory act (under a constitutional provision similar to § 64 of the Constitution of North Dakota) Sutherland says:
The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively according to the general rule.
1 Lewis, Sutherland, Stat. Const. pp. 442, 443, cited in Ford Motor Co. v. State, infra.
We find nothing in Chapter 282, supra, indicating any intention on the part of the legislature that the new provisions embodied in the act should be retroactive in its operation. The presumption is that the legislature intended that they should operate prospectively only. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883.
The respondents argue that since the amendment is silent as to causes of action arising prior to the effective date of the amendment the legislature intended that the amendment should apply to causes of action arising prior to the effective date of the amendment.
But this contention of the respondents is contrary to the general rule and statute on statutory construction that an act is presumed to be prospective unless the legislature clearly manifests a contrary intention. The statute being silent, it cannot be said that such silence constitutes an express declaration that the provisions of the amendment shall operate retroactively. Here there are no words or expressions in the amendment that it shall operate retroactively; therefore, the amendment increasing the limits of recovery from the Fund does not apply in this case where the claim or cause of action arose prior to the effective date of the amendment.
The respondents contend that the time of the recovery of the judgment is controlling rather than the time that the cause of action arose and "that all judgments perfected after the enactment of the Unsatisfied Judgment Fund are entitled to payment out of the Fund as provided in section 39-17-07, as amended * * *." Since the judgment *899 here was rendered after the effective date of the amendment, therefore, it is contended, recovery from the Fund should be had in the increased amounts provided by the amendment.
It cannot be seriously contended that the legislature in 1947, when the Unsatisfied Judgment Fund Act was first enacted, intended that judgments recovered after the effective date of the original Act upon causes of action arising before such effective date would be entitled to payment from the Fund. The amendment of the original Act increasing the limits of recovery in the same language as in the original Act indicates that it was used in the same sense and with the same effect in the amendment.
In construing statutes, the courts must take judicial notice of the history of the terms employed, and, where the statutes have been in existence for a long period of time, it must be presumed that the Legislature has at all times been aware of the meaning originally attaching to those terms.
Eddy v. Krekow, 54 N.D. 220, 209 N.W. 225, syllabus 1.
In our opinion the amendment does not express an intent by the express words nor by implication from its provisions of the legislature that the amendment shall be applied retroactively to claims accruing prior to the effective date of the amendment.
The order of the district court is reversed and the case remanded to the district court to enter an order in conformity with § 39-17-07, N.D.C.C., as it read prior to the 1963 amendment.
TEIGEN, C. J., and ERICKSTAD and STRUTZ, JJ., concur.
MURRAY, J., not being a member of the Court at the time of submission of this case, did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612921/ | 282 So.2d 104 (1973)
L. C. HALL
v.
STATE.
3 Div. 216.
Court of Criminal Appeals of Alabama.
August 21, 1973.
Cameron & Cameron, Thomas T. Gallion, III, Montgomery, for appellant.
William J. Baxley, Atty. Gen., Montgomery, J. Parke Keith, Selma, Sp. Asst. Atty. Gen., for the State.
ALMON, Judge.
L. C. Hall was convicted of the first degree murder of Homer A. Kimbrough and sentenced to life imprisonment.
Kimbrough was killed by a shotgun blast in the stomach during a robbery at a motel where he and his wife lived and where she was employed. She was away from the motel when the shooting occurred but discovered the dead body of her husband when she returned.
Charles Burton testified that on the evening of the homicide he and the defendant *105 went to the home of Clyde Nathan where the defendant armed himself with a sawed-off shotgun. The defendant, according to Burton, later concealed the shotgun in the sleeve of his coat. The two of them then went to Peak's Motel and demanded money from the deceased who was sitting in the doorway. Burton further testified that after he had taken money from a cash box, the defendant told the deceased to go to his room and get his wallet; that the defendant followed the deceased to his room and Burton then heard tussling noises followed by a shot. After this occurred, the defendant ran from the deceased's room and stated that he had shot the deceased in the leg. Burton testified that he then went to the room of the deceased and saw him holding his stomach and trying to get on the bed. Both men then fled from the scene.
According to Burton's testimony, he was clearly an accomplice and the only eye witness to the crime.
The nature and measure of corroboration required by § 307 of Title 15, Code of Alabama 1940, have received the attention of our appellate courts on numerous occasions and although there have been some variations in interpretation, there has been no substantial departure from the general proposition that while the statute has been liberally construed, Horn v. State, 15 Ala.App. 213, 72 So. 768, such liberality of construction does not relieve the State of its obligation to offer other evidence tending to connect the defendant with the commission of the offense charged. Sorrell v. State, 249 Ala. 292, 31 So.2d 82; Fagan v. State, 35 Ala.App. 13, 44 So.2d 634.
The correct approach to the problem of corroboration is set out in Sorrell, supra:
"`* * * the proper test in determining whether there was sufficient corroboration of the testimony of an accomplice, according to statutory requirements, is first to eliminate the evidence of the accomplice and then, if upon examination of all the other evidence there is sufficient inculpatory evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration.' 2 Wharton, Criminal Evidence § 752, 11th Ed."
Thus, we shall examine the evidence introduced at trial other than that of the accomplice which tends to connect the defendant with the commission of the offense.
John Hale testified that, within a short time of the shooting, he saw the defendant enter the home of Clyde Nathan and return with a gun wrapped in a leather coat which was placed in the defendant's car; that about an hour and a half later, he again saw the defendant who at that time appeared to be in an agitated state, and the defendant stated "He had rubbed the dude out."
Sandra Smith testified that shortly before the time of the shooting she saw the defendant and Burton together in an automobile.
Mona Sabrina Harris testified that she knew both the defendant and Burton, and that on the evening of the shooting, she was at Clyde Nathan's house and saw the defendant get a sawed-off shotgun from a closet and hand it to Burton.
There were other tendencies of the evidence which more loosely connected the defendant with the crime; however, without regard to them or to the fact that the day following the shooting the defendant left the state, we are persuaded that there was ample testimony, if believed by the jury, to afford that degree of corroboration required by law to support the conviction.
The appellant further argues in brief that the evidence was insufficient to support the conviction because of the proven bias, and interest of the witnesses who testified against him. He argues that because John Hale and Burton were first *106 cousins and lived together, and further because Sandra Smith and Mona Sabrina Harris were the girl friends of Hale and Burton, that they were not worthy of belief. There is no merit in this argument because the credibility of witnesses is solely for the jury and not a matter of review on appeal.
Appellant further contends that reversible error attended the trial court's admission into evidence of certain gruesome photographs. We are not in accord with appellant's position in this regard. Photographs are not inadmissible merely because they are cumulative of other evidence. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; McKee v. State, 33 Ala.App. 171, 31 So.2d 656. A photograph, though gruesome and inflammatory in nature, is admissible if it has a reasonable tendency to prove or disprove some material fact in issue. Baldwin v. State, 282 Ala. 653, 213 So.2d 819; McKee v. State, supra.
The judgment appealed from is therefore due to be and is hereby
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860873/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00500-CR
Ex Parte: Gerald Glen Roberts, Appellant
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 0960766, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
By application for writ of habeas corpus, appellant sought the dismissal of a prosecution
for possession of controlled substances on the ground that he had not been timely indicted. See Tex. Code
Crim. Proc. Ann. art. 32.01 (West 1989). The writ issued, a hearing was held, and relief was denied.
Article 32.01 provides:
When a defendant has been detained in custody or held to bail for his appearance
to answer any criminal accusation before the district court, the prosecution, unless
otherwise ordered by the court, for good cause shown, supported by affidavit, shall be
dismissed and the bail discharged, if indictment or information be not presented against
such defendant at the next term of the court which is held after his commitment or
admission to bail.
With an exception not applicable here, a discharge under this article is a bar to any further prosecution for
the offense discharged or for any other offense arising out of the same transaction. Tex. Code Crim. Proc.
Ann. art. 28.061 (West 1989).
Appellant was arrested on April 11, 1996, for possession of a controlled substance, and
subsequently released on bail. The terms of the 207th Judicial District Court begin in Hays County on the
first Mondays of February, May, August, and November. Tex. Gov't Code Ann. § 24.123(c)(3) (West
1988). (1) The grand juries organized for the February term, during which appellant was arrested, and the
May term, the next to be held after the appellant's arrest, did not return an indictment against appellant.
Appellant filed his writ application on August 5, 1996, and the hearing on the application was held on
August 14. On the day of the hearing, the State filed its sworn answer explaining that appellant had not
been indicted because:
The Defendant was arrested on April 11, 1996 for the offense of possession of a
controlled substance to-wit: psilocin prior to any indictment being presented, it was
necessary for the suspected contraband to be submitted to the Texas Department of Public
Safety crime lab for substance identification and weighing. The submission was made on
June 21, 1996. The results of this analysis were prepared by the crime lab on August 8,
1996. The July Grand Jury last convened on July 4th 1996. At this point in time the
results of the drug analysis were not known or in the possession of the Criminal District
Attorney's office. The case is prepared for presentation to the August term of the Grand
Jury.
At the hearing, the prosecutor testified that the last meeting of the February term of the
grand jury was on April 10, a day before the offense occurred. The May term grand jury met in May,
June, and July. As of the time of the hearing, the prosecutor had not received the result of D.P.S.'s
analysis. However, a call by the prosecutor to D.P.S. revealed that its results were "published" on August
8 showing that the substance was psilocin. On June 13, the prosecutor made inquiry of the Hays County
Sheriff's office and requested that it obtain a drug analysis as soon as possible. On July 25, the prosecutor
called the D.P.S. lab. At the end of the hearing, the trial court agreed that the order should show that there
was good cause shown for the delay.
In his sole point of error, appellant contends the trial court erred in finding good cause for
the State's failure to not obtain an indictment within the time constraints of article 32.01. We find our
opinion in Ex parte Brian Mallares, No. 03-96-00529-CR (Tex. App.--Austin May 1, 1997), (2) is
dispositive of appellant's complaint. With the slightest variance in of key dates that are not material to the
issue before us, the instant cause is a mirror image of Mallares.
Without a word-for-word repetition of Mallares, we find the instant cause to fall squarely
within its holding. The disparity of term lengths within Hays County with the district court in the present
cause having a relatively short term, the prosecutor not seeking an indictment until he obtained an analysis
of the contraband, and a lack of a showing that the State deliberately sought to delay the prosecution are
all factors that dictate that the trial court's ruling under the unique facts of the instant cause was within the
"zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (opinion on rehearing). Accordingly, we cannot hold that the trial court's ruling that good cause was
shown as contemplated by article 32.01 was an abuse of discretion. Appellant's point of error is overruled.
The order denying habeas corpus relief is affirmed.
Tom G. Davis, Justice
Before Justices Aboussie, Jones and Davis*
Affirmed
Filed: May 8, 1997
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.
Gov't Code Ann. § 74.003(b) (West 1988).
1. Two other district courts have jurisdiction in Hays County. The 207th Judicial District Court's terms
coincide with those of the 22nd Judicial District Court. Tex. Gov't Code Ann. § 24.386(d)(1) (West
1988). The 247th Judicial District Court has six-month terms beginning the second Tuesdays in June and
December. Tex. Gov't Code Ann. § 24.451(b) (West 1988).
2. Mallares also held that article 32.01 does not violate the separation of powers clause of the Texas
Constitution.
st, did not return an indictment against appellant.
Appellant filed his writ application on August 5, 1996, and the hearing on the application was held on
August 14. On the day of the hearing, the State filed its sworn answer explaining that appellant had not
been indicted because:
The Defendant was arrested on April 11, 1996 for the offense of possession of a
controlled substance to-wit: psilocin prior to any indictment being presented, it was
necessary for the suspected contraband to be submitted to the Texas Department of Public
Safety crime lab for substance identification and weighing. The submission was made on
June 21, 1996. The results of this analysis were prepared by the crime lab on August 8,
1996. The July Grand Jury last convened on July 4th 1996. At this point in time the
results of the drug analysis were not known or in the possession of the Criminal District
Attorney's office. The case is prepared for presentation to the August term of the Grand
Jury.
At the hearing, the prosecutor testified that the last meeting of the February term of the
grand jury was on April 10, a day before the offense occurred. The May term grand jury met in May,
June, and July. As of the time of the hearing, the prosecutor had not received the result of D.P.S.'s
analysis. However, a call by the prosecutor to D.P.S. revealed that its results were "published" on August
8 showing that the substance was psilocin. On June 13, the prosecutor made inquiry of the Hays County
Sheriff's office and requested that it obtain a drug analysis as soon as possible. On July 25, the prosecutor
called the D.P.S. lab. At the end of the hearing, the trial court agreed that the order should show that there
was good cause shown for the delay.
In his sole point of error, appellant contends the trial court erred in finding good cause for
the State's failure to not obtain an indictment within the time constraints of article 32.01. We find our
opinion | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2860896/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00658-CR
Steve Chavez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
NO. 4162, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING
PER CURIAM
Appellant pleaded guilty to an indictment accusing him of unauthorized use of a vehicle.
He also pleaded true to enhancement paragraphs alleging two previous felony convictions. The district
court found that the evidence substantiated appellant's guilt and, pursuant to a plea bargain, deferred further
proceedings and placed appellant on community supervision. Later, the court revoked supervision on the
State's motion, adjudicated appellant guilty, and assessed punishment, enhanced by the previous
convictions, at imprisonment for fifty-three years. Appellant filed a general notice of appeal.
Appellant's brief contains two points of error by which he contends the district court failed
to consider the entire punishment range in assessing punishment and that the evidence is factually insufficient
to support the punishment assessed. These points neither raise a jurisdictional issue nor challenge the
voluntariness of the guilty plea. We are without jurisdiction to consider either point of error. Watson v.
State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996); Lyon v. State, 872 S.W.2d 732, 736 (Tex.
Crim. App. 1994); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Hutchins v. State, 887
S.W.2d 207, 209 (Tex. App.--Austin 1994, pet. ref'd); Tex. R. App. P. 40(b)(1).
The appeal is dismissed.
Before Justices Powers, Jones and Kidd
Dismissed for Want of Jurisdiction
Filed: April 24, 1997
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1612943/ | 5 Mich. App. 139 (1966)
145 N.W.2d 798
PEOPLE
v.
SMITH.
Docket No. 1,943.
Michigan Court of Appeals.
Decided November 9, 1966.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Norman K. Kravitz, Assistant Prosecuting Attorney, for plaintiff.
William J. Heyns, for defendant.
T.G. KAVANAGH, J.
The appellant was arrested on the charge of unlawfully driving away an automobile[*] and was brought before the judge of police court where he waived examination. Arraignment proceedings were held in circuit court where the defendant's plea of guilty was accepted. Defendant was sentenced to 3 to 5 years. A subsequent motion to set aside the plea was denied and defendant brings this appeal.
Appellant's first assertion of error is that the trial court failed to comply with GCR 1963, 785.3(2) before imposing sentence and therefore improperly accepted appellant's plea of guilty.
The germane portion of the arraignment proceeding is as follows:
"The Court: Woodrow Charles Smith, do you understand the charge against you?
"Defendant: Yes, sir.
"The Court: Where do you live, Mr. Smith?
"Defendant: 411 First street, Manistee, Mich.
*141 "The Court: 411 First street, Manistee?
"Defendant: Yes.
"The Court: How old are you?
"Defendant: Twenty-two.
"The Court: Married?
"Defendant: Single.
"The Court: This is a serious charge placed against you. If you enter a plea of guilty, or if you are found guilty after trial, there is a possibility I will send you to prison. Do you understand that?
"Defendant: Yes, sir.
"The Court: I advise you you are entitled to a jury trial to have it determined whether you are guilty or not guilty. Do you understand that?
"Defendant: Yes, sir.
"The Court: I further advise you that you are entitled to be represented by an attorney, and that is an attorney you employ. If you have no money to employ an attorney, if you so request, I will appoint an attorney to represent you. Do you understand that?
"Defendant: Yes, sir.
"The Court: Do you have an attorney?
"Defendant: No.
"The Court: Are you prepared to proceed at this time to enter a plea of guilty or not guilty, or do you feel you should have an attorney represent you?
"Defendant: I will make a plea of guilty.
"The Court: I see, then you waive your right to have an attorney appointed by the State; is that correct?
"Defendant: Yes, sir.
"The Court: How do you plead?
"Defendant: Guilty."
The foregoing dialogue reflects neither actual nor substantial compliance with GCR 1963, 785.3(2), which reads in part:
"(2) Imposing Sentence. If the accused pleads guilty, after such plea and before sentence the court *142 shall inform the accused of the nature of the accusation and the consequence of his plea, and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted."
That we find such noncompliance to be reversible error accords with our prior resolutions of this same issue. See People v. Atkins (1966), 2 Mich App 199 and People v. Curtis Lee Williams (1966), 2 Mich App 232.
Having determined appellant's plea to have been improperly accepted, we do not consider whether the admission, at the time of sentencing, of the record of a prior conviction was prejudicial.
The decision of the trial court is hereby reversed and the cause remanded for proceedings consistent with this decision.
BURNS, P.J., and FITZGERALD, J., concurred.
NOTES
[*] CL 1948, § 750.413 (Stat Ann 1954 Rev § 28.645). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919941/ | 660 So.2d 1273 (1995)
FORD MOTOR CREDIT COMPANY,
v.
George MATHIS.
No. 92-CA-00418-SCT.
Supreme Court of Mississippi.
August 3, 1995.
Rehearing Denied October 12, 1995.
Nicholas Van Wiser, Byrd & Wiser, Biloxi, for appellant.
Williams S. Murphy, Murphy & Shepard, Lucedale, for appellee.
Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, JJ.
JAMES L. ROBERTS, Justice, for the Court:
This is an appeal from a summary judgment entered against Ford Motor Credit Company ("FMCC") and in favor of George Mathis ("Mathis") on April 20, 1992, in the Circuit Court of George County, Mississippi. The trial court held FMCC's sale of a truck repossessed from Mathis at a wholesale auction open only to dealers was not commercially reasonable under Miss. Code Ann. § 75-9-504. We reverse.
FACTS AND PROCEDURAL HISTORY
On May 22, 1987, George Mathis purchased a used 1984 Mazda B2000 pickup truck which he financed through Ford Motor Credit Company. Mathis signed a Retail Installment Sales Contract whereby he agreed to pay the sum of $4,039.59 over a period of 42 months. He subsequently defaulted on the agreement and voluntarily surrendered the truck to FMCC.
*1274 After recovering the truck, FMCC mailed to Mathis via certified mail a notice of repossession prior to sale. The lower court found the notice complied with Miss. Code Ann. §§ 75-9-504 and 75-9-507 in all respects. The truck was sold at the Mississippi Automobile Auction in Hattiesburg, Mississippi, for the sum of one thousand six hundred fifty dollars ($1,650.00), a sale price which was 137% above the National Automobile Dealers Association "Blue Book" wholesale value. After making all "credits, adjustments and offsets" there was a remaining balance of $2,427.29 owing on the contract.
Subsequently, FMCC filed a complaint in the Circuit Court of George County, Mississippi, for recovery of the vehicle's outstanding balance of $2,427.29 plus $364.09 in attorney's fees for a total of $2,791.38. The defendant, Mathis, filed an answer in which he alleged that he was entitled to damages for FMCC's failure to dispose of the repossessed truck in a commercially reasonable manner, and for its failure to sell the truck for its reasonable fair market value. The issues were eventually narrowed to whether the post-repossession sale of the truck at the Mississippi Auto Auction was a commercially reasonable sale as required under the Uniform Commercial Code, Miss. Code Ann. §§ 75-9-504 and 75-9-507.
FMCC filed a Motion for Summary Judgment on April 24, 1990. A hearing on the motion was held on July 6, 1990, before the Honorable Clinton E. Lockard. Judge Lockard denied the motion without prejudice subject to its being reconsidered upon the submission of additional affidavits. The additional affidavits were subsequently filed with the court and FMCC's Motion for Summary Judgment was again heard by the circuit court, the Honorable Darwin Maples presiding. An order was entered on November 21, 1990, denying FMCC's motion. An amended order was filed by Judge Maples on January 3, 1991, in which he set out his findings of fact and conclusions of law upon which he based his decision to deny FMCC's Motion for Summary Judgment.
FMCC was then granted leave to petition this Court for an interlocutory appeal. On March 1, 1991, this Court denied that Petition for Leave to File Interlocutory Appeal. The case was set for trial on three separate occasions. Finally, on April 20, 1992, Mathis filed a Motion for Summary Judgment. On that same date, the circuit court, the Honorable Kathy King Jackson presiding, entered a ruling that Mathis was entitled to summary judgment as a matter of law. In granting summary judgment, Judge Jackson adopted the findings of fact and conclusions of law made by Judge Maples in an earlier order.
During discovery, FMCC submitted affidavits from Gordon Illing, an employee of FMCC, Gary Sells, assistant general manager of Mississippi Auto Auction in Hattiesburg, Rickie Chatagnier, an employee of General Motors Acceptance Corporation in Biloxi, Mississippi, and Al Payne, an employee of Chrysler Credit Corporation in Mobile, Alabama. The facts given in these affidavits were undisputed by Mathis and were therefore accepted as true by the lower court.
The Mississippi Auto Auction, Inc. is a wholly owned subsidiary of Anglo-American Auto Auction, Inc. Anglo-American Auto Auction, Inc. has subsidiaries doing business throughout the United States. These auctions are only open to licensed automobile dealers who are able to meet certain financial and stability criteria.
The Hattiesburg auto auction attracts dealers from all 50 states. However, the sales area primarily targeted by the auction includes 15 states. Those states primarily targeted include all the states bordering Mississippi plus California, Indiana, Texas, Arizona and Missouri. Regularly scheduled auctions are held once a week. In addition, special sales are also held. Prior to a sale approximately 3,500 mail-outs are sent to dealers in the target area. Employees of the Hattiesburg auction also make approximately 300 telephone calls per week to publicize the sales. The auction also has two traveling representatives, each of whom call upon about 75 dealers per week. There is an average weekly attendance of 220 dealers bidding on cars at the Hattiesburg auction. Mississippi Auto Auction, Inc. sold approximately 24,000 cars in 1989. Anglo-American Auto Auction, Inc., through its collective subsidiaries, *1275 sells approximately 500,000 cars per year.
In his affidavit, Sells stated that approximately 100 Ford repossessions are sold each week at the Hattiesburg auto auction. The auction also handles "repossession sales for local banks, finance companies, rental companies and some dealer consignments." "Virtually every type of lending entity regularly engaged in financing automobiles uses an auto auction similar to the Hattiesburg Auto Auction."
NADA "Blue Book" wholesale values are determined by the prices bid by dealers at car auctions which are transmitted by computer to the NADA. Auto auctions are virtually the only method used by FMCC, General Motors Acceptance Corporation and Chrysler Credit Corporation for selling repossessed vehicles.
The lower court held that although the data regarding auto auctions was not in dispute, "as a matter of law, that such a sale, calculated to generate a wholesale price [as opposed to a retail price], is not a commercially reasonable sale as is required under Mississippi's adopted version of Article 9 of the Uniform Commercial Code." FMCC was held to have complied with all other requirements of Article 9 in regard to the repossession of Mathis' truck.
APPEAL
FMCC argues that the resale of a repossessed automobile through a dealers-only auto auction intended to generate a wholesale price is a commercially reasonable sale under the UCC and the provisions of Miss. Code Ann. Sections 75-9-504 and 75-9-507. § 75-9-504 reads in pertinent part:
(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one (1) or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable... .
The lower court held the repossession and sale of the truck financed by Mathis through FMCC was proper in all respects with the exception of the manner of the sale. The trial judge held that since the truck was sold at an auction open only to dealers and therefore calculated to generate a wholesale, not a retail, price, it was commercially unreasonable. The lower court found that the price obtained for Mathis' repossessed truck was 137% above the NADA "Bluebook" wholesale price. The lower court did not find the price obtained for the truck to be commercially unreasonable. It found instead that the sale was not commercially reasonable because the auction was intended only to bring a wholesale price. Because of the lower court's ruling, only the commercial reasonableness of the manner of sale will be addressed here. Commercial reasonableness is discussed in § 75-9-507 as follows:
(2) The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner... .
The wholesale disposition of repossessed collateral is commercially reasonable if it is "consistent with ordinary commercial practice among dealers." White & Summers, Uniform Commercial Code (3rd Ed. 1988 & Supp. 1994) § 27-11.
Comment 2 to § 9-507 of the U.C.C. reads:
One recognized method of disposing of repossessed collateral is for the secured party to sell the collateral to or through a dealer a method which in the long run may realize better average returns since the secured party does not usually maintain his own facilities for making such sales. Such a method of sale, fairly conducted, is recognized as commercially reasonable *1276 under the second sentence of subsection (2).
The wholesale versus retail issue has not been previously addressed in Mississippi. The courts of several other states have dealt with this issue, however, and have as a general rule been unwilling to hold the sale of' repossessed vehicles at wholesale auction to be commercially unreasonable.
In a case with facts very similar to the case at bar, the Georgia Court of Appeals, in interpreting a statute identical to § 75-9-507(2), held:
Bank South has shown, by way of affidavit, that the collateral was disposed of at a private auction by a recognized automobile auction company according to standard practice and procedure for sales of this kind. Bank South has disposed of collateral in this manner on a weekly basis for 11 years... . Because McMillian has offered no evidence to the contrary, we agree the trial court correctly concluded that the method and manner of sale were commercially reasonable.
McMillian v. Bank South, N.A, 188 Ga. App. 355, 373 S.E.2d 61, 62 (1988). See also Lee v. Trust Company Bank, 204 Ga. App. 28, 418 S.E.2d 407, 408 (1992).
The Alabama Civil Court of Appeals has also held the wholesale auction of repossessed vehicles to be commercially reasonable. In Daniel v. Ford Motor Credit Co., 612 So.2d 483 (Ala. Civ. App. 1992), FMCC sold a repossessed automobile at a wholesale dealers' auction for a price less than the average wholesale price listed in the NADA appraisal guidebook. In finding the disposition to be commercially reasonable, the Alabama Court opined:
The testimony has indicated that the wholesale dealer auction is the usual manner of sale of repossessed automobiles and that it is in conformity with the reasonable commercial practices among dealers in repossessed automobiles, in accordance with § 7-9-507(2). In view of the evidence, of the requirements of the statute, and of the proper notice that was given, we cannot hold that the sale was commercially unreasonable.
Id. at 485.
In Gaynor v. Union Trust Co., 216 Conn. 458, 582 A.2d 190 (1990), the Connecticut Court held a bank's wholesale disposition of repossessed used cars to be commercially reasonable.
In Union National Bank of Wichita v. Schmitz, 18 Kan. App.2d 403, 853 P.2d 1180 (1993), the Kansas Court of Appeals refused to hold the disposition of repossessed collateral at a dealers-only wholesale auction to be per se commercially unreasonable. The Court opined:
It is well established that whether a particular disposition was done in a commercially reasonable manner is a question of fact to be determined by the trier of fact. The burden of proving that the collateral was disposed of in a commercially reasonable manner is placed upon the secured creditor... .
* * * * * *
The method utilized to dispose of the collateral in this case was a well-known, regularly scheduled, dealer-only wholesale auction. The trial court's findings that this sale was commercially unreasonable are so broad that they virtually declare any dealer-only wholesale auction to be not commercially reasonable. In deciding this issue, the trial court focused solely on the nature of the auction and the price received for the vehicle. The trial court's decision, if allowed to stand, would mean that a dealer-only wholesale auction could not be commercially reasonable. This is not the law, and the trial court erred in reaching this conclusion.
* * * * * *
We think it apparent from the decisions and the statutes cited that the mere fact collateral is sold at wholesale and not "exposed to the retail market" is not in and of itself sufficient to render a sale commercially unreasonable. The trial court in the *1277 instant matter erred in reaching this conclusion.
Id. 853 P.2d at 1184-6.
Like the Kansas Court, we find the lower court erred in its holding that the sale of repossessed vehicles at wholesale without first exposing them to the retail market is per se commercially unreasonable. When the factors of manner, method, time, place and terms of sale are considered, the disposition of repossessed property at a dealer-only wholesale auction may very well be commercially reasonable. This is a question for the finder of fact in a particular case. If the debtor challenges the commercial reasonableness of the disposition of his repossessed vehicle, the burden is on the creditor to show through the aggregate of circumstances that the sale met all the factors of commercial reasonableness. Schmitz, 853 P.2d at 1187. See also Northern Commercial Co. v. Cobb, 778 P.2d 205 (Alaska 1989); Villella Enterprises, Inc. v. Young, 108 N.M. 33, 766 P.2d 293 (1988).
We find that the trial court erred in granting summary judgment to Mathis and reverse and remand for a trial on the merits.
CROSS-APPEAL
Since we find the trial court erred in granting summary judgment to Mathis, both issues on cross-appeal are moot and, therefore, need not be addressed.
CONCLUSION
The trial court erred in holding that the sale of a repossessed vehicle at a dealers-only auction is per se commercially unreasonable. Both issues on cross-appeal are moot. For the foregoing reasons this case is reversed and remanded on direct appeal and cross-appeal is dismissed as moot.
ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: DISMISSED AS MOOT.
HAWKINS, C.J., PRATHER, P.J., SULLIVAN, PITTMAN, BANKS and SMITH, JJ., concur.
DAN M. LEE, P.J., concurs in result only.
McRAE, J., dissents with separate written opinion.
McRAE, Justice, dissenting:
Since a "dealer-only" auction is essentially a private sale, I applaud the majority's recognition that the burden belongs on a creditor to demonstrate that the sale of repossessed property has been handled in a commercially reasonable manner. In this case, however, Ford Motor Credit Company has not met its burden. I would therefore affirm the summary judgment in Mathis's favor.
Although the majority acknowledges that manner, method, time, place, and terms of sale are factors to consider when determining the commercial reasonableness of the sale of repossessed property, it appears to take for granted the reasonableness of a sale based on wholesale, and not retail, price. Why? Because that is how everybody does it. Nothing, however, in our statutes or case law directs us to assume that repossessed property is properly sold in a dealers-only wholesale auction rather than a retail auction. To the contrary, in the analogous situation of a deficiency judgment in a real property foreclosure sale, determination of fair market value does not even contemplate a sale where the public is not in attendance and placing bids. Wansley v. First National Bank of Vicksburg, 566 So.2d 1218, 1224 (Miss. 1990); Haygood v. First National Bank of New Albany, 517 So.2d 553, 556 (Miss. 1987). While a lending institution, if it so chooses, may sell a vehicle in a private sale through a dealer, it is the dealer who sells the vehicle at retail to the public when the institution does not have the facilities to do so.
Obtaining a fair price for the repossessed property benefits both debtor and creditor. In this case, however, we are given no indication of what a "fair" price for Mathis's vehicle might have been. The NADA Blue Book provides both the wholesale and retail prices of vehicles, as well as the current loan value. That information was not made a part of the record. Instead, the majority relies only on the affidavit of a Ford Motor Credit Company employee, who stated that the sale of the vehicle for $1,650.00 represented 137% of its *1278 wholesale value. Further, Ford Motor Credit incurred $198.00 in transporting the vehicle to Hattiesburg for the sale. Might a "fairer" price have been achieved at a lower cost had the car been sold elsewhere?
I would affirm the trial court's decision since Ford Motor Credit Company failed to meet its burden of showing that Mathis's vehicle was sold in a commercially reasonable manner. To the contrary, the creditor proved only that it utilized a closed (private) sale and sold the vehicle for a wholesale price after incurring the unwarranted expense of transporting it outside of the area where it was financed and housed. I do agree with the majority only to the extent that it correctly places the burden of demonstrating reasonableness on the creditor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919943/ | 660 So.2d 1024 (1992)
Ignacio CANTU
v.
STATE.
CR-91-726.
Court of Criminal Appeals of Alabama.
September 30, 1992.
Rehearing Denied November 25, 1992.
Tom DiGiulian, Decatur, for appellant.
James H. Evans, Atty. Gen., and Gilda Williams, Asst. Atty. Gen., for appellee.
PATTERSON, Presiding Judge.
Ignacio Cantu appeals from the circuit court's denial of his A.R.Cr.P. 32 petition contesting his 1989 conviction for trafficking in cocaine, in violation of § 13A-12-231(2)(c), Code of Alabama 1975, pursuant to a guilty plea.[1] For this conviction, Cantu was sentenced to 25 years' imprisonment and was fined $250,000. He did not appeal.
In his petition, Cantu alleged that his guilty plea was not voluntarily made with an understanding of the consequences of that plea; that his trial counsel was ineffective; and that the trial court was without jurisdiction to render the judgment or to impose the sentence. Cantu supported these allegations by the averment that he was misinformed of the maximum sentence; specifically, he alleged that he was erroneously told by the court and by his counsel that the maximum possible sentence was life imprisonment without parole.
At a hearing on the allegation of ineffective assistance of counsel, Cantu testified that the Ireland form (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)) reflects and that his two attorneys had told him that the applicable sentence range was 15 years' imprisonment to life imprisonment without parole. He further explained that because he did not want to chance life imprisonment without the possibility of parole, he bargained with the prosecution for a 25-year sentence. Finally, he testified that, prior to his plea, he had not been advised that the correct range was 15 years' imprisonment to 99 years' or life imprisonment.
One defense attorney testified that he does not specifically remember talking with Cantu about the range of punishment, that he could not testify as to whether he knew the correct range at that time, and that he may have been under the impression that the maximum sentence was life imprisonment without parole. Cantu's other attorney testified that Cantu was originally offered a 25-year sentence in exchange for his guilty plea, but that when Cantu confessed during his accomplice's trial, that offer was replaced by an offer for a term of life imprisonment and that that offer was eventually lowered to 25 years' imprisonment. He also testified that, because *1025 the sentencing statute has no maximum range, he advised Cantu that the maximum sentence was possibly life imprisonment without parole.
The record also reflects that, after Cantu entered his plea, the trial court asked, "What is the range of punishment for this?" and the prosecutor answered the following: "It is a minimum of 15 calendar years. There is not a maximum. There is also the mandatory $250,000 fine, Judge." The Ireland form reflects the range "not less than 15 [years] nor more than life [without] parole."
The circuit court ruled, as a matter of law, that because the statute under which Cantu was sentenced does not provide for a maximum sentence, the possible maximum range was life imprisonment without parole and, thus, that the Ireland form and counsel's advice were correct. The court accordingly further found that counsel was not ineffective.
Cantu pleaded guilty to violating § 13A-12-231(2)(c), which provides that the offender "shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000.00." Indeed, this specific section provides no maximum. However, § 13A-12-231(10) (so designated at the time of the offense, November 25, 1988, but presently § 13A-12-231(12)) provides, in pertinent part, that the felony of trafficking in cocaine "shall be treated as [a] Class A felon[y] for purposes of title 13A, including sentencing under section 13A-5-9." See also Robinson v. State, 588 So.2d 944, 945 (Ala. Cr.App.1991) (wherein the court stated that "trafficking in cocaine ... under § 13A-12-231... is a Class A felony"). The argument that § 13A-12-231(10)'s classification of cocaine trafficking as a Class A felony is pertinent solely for the application of the Habitual Felony Offender Act has been rejected. In Ball v. State, 592 So.2d 1071, 1075 (Ala.Cr. App.1991), after quoting § 13A-12-231(10) in its entirety, the court held, "The above subsection by its wording makes § 13A-12-231 applicable to all sections, including the habitual felony offender section, of Title 13A." As a Class A felony conviction, a cocaine trafficking conviction carries a maximum punishment of imprisonment "for life or not more than 99 years," § 13A-5-6(a)(1), not life imprisonment without parole, as Cantu was advised.
Because Cantu was misinformed of the applicable maximum sentence, this cause must be remanded to the circuit court with the order that Cantu's conviction be "reversed," in accordance with Ex parte Rivers, 597 So.2d 1308 (Ala.1991).[2] In Rivers, the Court held that, where a defendant is not informed of the minimum possible sentence, his sentence is "clearly illegal or is clearly not authorized by statute"; that, accordingly, such issue is not procedurally barred from collateral review by the failure to raise it at trial; and that failure to inform results in an unknowing, involuntary, and unintelligent plea that mandates reversal. The Rivers Court construed this issue of the illegality of sentence to raise the issue of the trial court's lack of jurisdiction to impose sentence (by virtue of the fact that the Court found it not to have been precluded by Rivers's failure to raise it at trial, see Rule 32.2(a)(3)). Although we have declared in Parish v. State [Ms. CR-90-1285, September 30, 1992][*] (Ala.Cr.App.1992), that we are uncertain as to how and to what circumstances the Rivers rule should be applied, we consider that, until we receive any contrary indication from the Alabama Supreme Court, the Rivers rule applies where the defendant has received incorrect sentencing information, as Cantu did.
Therefore, we hold that because Cantu was not correctly informed of the maximum sentence, his sentence is void and, in accordance with Rivers, 597 So.2d at 1310, his conviction must be reversed and the cause remanded for further proceedings. This cause is reversed *1026 and remanded for such action to be taken.
REVERSED AND REMANDED.
All Judges concur.
NOTES
[1] Cantu appeals from the adjudication of the merits of an amended petition. On appeal of the summary denial of his original petition, we remanded for Cantu to have an opportunity to amend his faulty petition, in accordance with Rule 32.6(a). Cantu v. State, 587 So.2d 1287 (Ala.Cr.App.1991).
[2] Although Cantu's brief's main focus is his ineffective counsel claim, we construe his argument in brief to also address the issue of whether his plea is void. Moreover, as will be discussed, because this issue has been deemed to be of jurisdictional magnitude, we can address it without any argument from the appellant.
[*] Reporter of Decisions' note: The Court of Criminal Appeals, on April 23, 1993, withdrew the September 30, 1992, opinion in Parish v. State and on that date substituted a new opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612834/ | 11 So.3d 942 (2009)
IVES
v.
STATE.
No. SC08-2444.
Supreme Court of Florida.
May 28, 2009.
Decision without published opinion Review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612926/ | 282 So.2d 85 (1973)
Johnnie Frank LLOYD, alias
v.
STATE.
5 Div. 158.
Court of Criminal Appeals of Alabama.
August 28, 1973.
*86 Hooton & Hooton, Roanoke, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
BOWEN W. SIMMONS, Supernumerary Circuit Judge.
The defendant appeals from a judgment for murder in the first degree. Punishment was fixed at life imprisonment.
The homicide occurred on February 3, 1972 in a rural building that housed a combination residence and mercantile store. Part of the residence opened on the front, as did the store, while the remaining portion of the residence was on the back side.
The wife of the deceased Letlow left about 6:15 in the morning for work, while her husband, as usual, was left to tend his store.
Sanford Holt, a propane gas salesman called by the State as a witness, testified that on the morning of February 3, 1972 about 9:40, he, in an effort to deliver gas, tried to get in the front door of the store and, finding it locked, he then tried another front door to his left. Finding it locked, he went to the back door and found it locked. He did not see Mr. Letlow during that time.
A milk salesman, Bobby Simpson, testified that he arrived at the Letlow home about 9:40 A.M. on February 3, at which time the gas man was there; that he tried the store door and it was locked; he did not see the defendant there, but had seen him in the store on occasions prior to this time.
Winston Hunt, for the State, testified that he lived close to the Letlow store about 5½ miles on Knight's Mill Road in Chambers County. Further testifying, he said that he saw Mr. Letlow that morning about 6:15 on February 3, 1972, at which time he left to go to work; that Mrs. Letlow worked and, as she had done for many years, rode with him to their place of employment. It appears that Mr. Letlow was alive at that time and on the premises, supra.
About 3:25 P.M. on that day, he took Mrs. Letlow to her home, found a note on the door, took Mrs. Letlow's key and opened the back door, at which time he found the dead body of Mr. Letlow. He then described the position of the body, and to some extent the appearance of the area where the body was found. He let *87 Mrs. Letlow in the front door after which he called the Sheriff. He testified that the whole house was locked and the front door to the store was bolted from the inside.
Mrs. Letlow, the widow of the deceased, testified that her husband carried on his person $500 or $600 to cash checks on the first of the month, and that he had this amount of money on him when she left.
Mrs. Letlow also testified on cross examination that she kept a key to the house and her husband kept a key; also that she did not see the defendant who frequently helped her husband around the store.
On redirect the witness testified that the front door leading into the store was locked from the inside with a thumb bolt.
Mrs. Joe Hall, called by the State, testified that about 7:45 on February 3, 1972 she talked to Mr. Letlow over the phone from her nearby home and solicited his aid in getting her car started. He responded and brought the defendant along; utilized his assistance in getting her car started; that when she left to go to work, Mr. Letlow and the defendant were sitting in her front driveway with her mother and father.
On cross examination, the witness testified that both were real friendly and did not have any difficulty or words. The witness, in response to a question by the Court, stated that it was 8:15 in the morning when she called Mr. Letlow; also that the defendant helped Mr. Letlow around the store.
Mr. Bill Sanders, father of Mrs. Joe Hall, supra, testified that he saw the defendant along with Mr. Letlow just before 8:00 A.M. on February 3, 1972 at his daughter's house, where he and the defendant came to crank his daughter's car. He also stated that they remained there less than five minutes after his daughter left. They helped him (the witness) crank his car, the engine of which had stalled when trying to crank his daughter's car. He testified that Letlow's store was in sightless than a quarter of a mile; that he left just a few minutes after Mr. Letlow and the defendant left his daughter's house; that he did not hear any shots fired.
Mrs. C. L. Henderson, also called by the State, testified that on February 3, 1972, she lived in a community adjoining Mr. Letlow's; that about 9:00 or 9:30 A.M. on that day, she talked to Mr. Letlow over the phone for about three minutes and placed an order with him for some gas; that the gas was delivered about 9:30 A.M. that morning.
Robert Brooks, called by the State, testified that he lived about a quarter of a mile from Letlow's store or "a little better"; that on February 3, 1972 about 9:00 A.M., the defendant came by his home, stayed approximately ten minutes, and while there he let the defendant have a dollar and took his pocketbook as security; that the defendant then left and went down toward Mr. Landrum's, which was in the direction of Letlow's store; that he came back in about one-half hour and repaid the dollar with four quarters; that was about thirty minutes after he first left the house at about 9:10 A.M. The defendant then left but did not tell him where he was going. The witness said his son married the defendant's sister; that the defendant was a frequent visitor at his home. Further the witness said when the defendant came back, he came from the direction of Letlow's store.
Alva Landrum, a witness called by the State, testified that he lived in the same community with Mr. Letlow; that on February 3, 1972 about 9:50 or 10:00, in the daytime, he saw the defendant coming into his yard; that on getting within seven, eight, or ten feet the defendant said "I will give you $3.00 to run me to LaFayette." The defendant at this time had a "little old suitcase" which he used to fend the dogs which were barking at him. The witness thereupon said the defendant told him "I will give you $3.00 to carry me to LaFayette *88 right quick." He testified that he brought him to LaFayette and put him off at Boyd's store, at which time he had the suitcase. He requested that the witness carry the empty suitcase back and give it to his sister.
Sheriff James C. Morgan testified that he responded to a call and went to Letlow's store where he found Mr. Letlow dead just inside the door of his residence; that he had six bullet wounds in his body. The witness described the location of these wounds and also described the disarray of the store area where some blood was found. The witness also said he found a fold-over type billfold partially in the deceased's hip pocket, and another on the floor just away from the body. Neither of the purses contained any money. The cash register was closed and contained a small amount of changenickels, dimes and quarters; that it was about 3:32 P.M. on February 3, 1972 when he arrived at the scene.
Witness also stated that he knew where Robert Brooks lived, which was about four-tenths of a mile from Letlow's store; that it took him nineteen minutes, on a test walk at a normal gait, to walk from the Brooks' home to Letlow's store and back to the starting point.
The witness testified on cross-examination that he found one .32 caliber bullet behind a chair that was turned over; that he did not find a pistol in his investigation.
A taxi driver, Roosevelt Carr, testified that on February 3, 1972 after 10:00 in the morning, the defendant asked him in LaFayette to carry him to West Point; that he carried him first to Langley's wood yard where they remained "something after twenty minutes", after which he took him to West Point. The defendant paid him $6.00 for both rides, that is, to the wood yard and then to West Point.
Winston Hunt, being recalled, testified that it was approximately four miles from Robert Brooks' home to the area where the defendant's daddy lived.
Coroner A. C. Farrington testified that the deceased was dressed in a pair of blue carpenter type overalls; that he found a roll of bills, $115.00, in the rule pocket of the overalls; that he did not find money in either of the billfolds; that he found no pistol of any kind.
Richard Roper, State Toxicologist, after qualifying as an expert, testified that he examined the dead body of Mr. Letlow in Opelika, to which point the body was transferred; that he made an external examination of the body about 11:00 P.M. February 3, 1972; that Mr. Letlow at that time had been dead in excess of ten to twelve hours. Later the witness amended his testimony by saying Letlow had been dead ten or fifteen hours prior to 11:00 P. M. February 3, 1972. He also testified about removing some .32 caliber bullets from the body of the deceased; that the cause of death was "hemorrhage and shock associated with multiple gunshot wounds to the body, which penetrated a major artery and major vein." The witness further testified that he did not compare the removed bullets with any pistol because he had no such weapon.
Sheriff James C. Morgan testified on recall that he found a .22 caliber pistol under the counter of the store, but it had not been fired. He further testified that he went to Detroit for defendant who waived extradition; that the defendant made no statement to him about the case. The State thereupon rested.
We note here that the defendant did not move to exclude the State's evidence. The record does not contain a motion for a new trial.
The defendant, after being sworn, testified in his own behalf. He said he was 19 years of age and reached the 10th grade in school; that he cut grass for Mr. Letlow from time to time. He further testified *89 that he went to Detroit in November 1971 where he was employed by U. S. Shelving Corporation; he thereupon identified a slip of paper representing his first paycheck. This exhibit was admitted into evidence, but is partially illegible.
The witness further stated that he left Detroit by bus for Alabama where he arrived on Saturday night immediately preceding February 3, 1972; that on Thursday morning February 3, 1972, he went to Mr. Letlow's store and at the request of Mr. Letlow he went with him to crank Mrs. Leola Hall's car; that after he and Mr. Letlow got back to the store he left and went to Robert Brooks' house; that this was a little after 8:00 o'clock. He denied shooting or robbing Mr. Letlow; also he denied that he locked the doors. He said that he stayed at Robert Brooks' house little over an hour and after leaving there he went to the home of his sister Rosa Jane Holloway on Knight's Mill Road; that his sister's home was about one-half mile from the Brooks' home; that he stayed there about fifteen minutes and then returned to the Brooks' home, but he had no judgment as to what time it was. He contended that after leaving the Brooks' home the second time, he went to the house of Harvey Landrum; that he got his suitcase at his sister's home. He said he then went to Boyd's store in LaFayette with Landrum, where he stayed a while. He then got a taxi and went to West Point where he boarded a 4:30 bus to Detroit, where he was employed.
The witness further testified that he got laid-off in Detroit a week; came to Alabama and stayed four days; got back to Detroit on Friday evening and started work on Friday night. Also, witness said he had $65.00 when he left Detroit and came back to Alabama. He further testified that on Saturday night following his arrival in Detroit, he learned of the death of Mr. Letlow; that his information came by phone from his sister in Alabama. She told him the Sheriff was looking for him.
On cross-examination, the witness testified that he had worked for Mr. Letlow many times before but never saw him with any money; that before going to Detroit he had worked three or four months at night in Langdale Mill. He stated that he started work in Detroit around January 4, 1972.
The witness further testified that when he came home, he paid $34.00 for his ticket and had $40.00 or $45.00 left. He stated that on Tuesday after his return to Alabama, he helped his brother with some cordwood for which he received $4.00 per cord; that he did not remember how much his brother paid him.
Further testifying, the witness said that when he went to Robert Brooks' house, that he had his money with him and that he did not borrow a dollar from Brooks; that he had $40.00 or $45.00 of his own out of which he paid Brooks a dollar for some whiskey. He contended that he paid the taxi driver $6.00 and Mr. Landrum $3.00; that he paid a return bus fare of $34.00 after which he had a dollar and some little change; that he had cakes and drank coca colas on his return trip to Detroit.
We think the evidence is positive and clear that some person on February 3, 1972 murdered Mr. Letlow by firing six .32 caliber bullets into his body; that one or more of these bullets caused his death. However, the evidence is entirely circumstantial that the defendant (appellant here) was the person who did the killing. To authorize submission of a criminal case to the jury, there must be substantial evidence tending to prove all elements of the charge; mere scintilla of evidence, in view of presumption of innocence, being insufficient. Ex parte Grimmett, 228 Ala. 1, 152 So. 263(4). This case reversed and remanded Grimmett v. State, 26 Ala.App. 56, 152 So. 262.
Opportunity on the part of the appellant to commit the crime for which he *90 was indicted, tried and convicted or even knowledge of its commission without more, is not sufficient evidence upon which to base a verdict of guilt. Thomas v. State, 19 Ala.App. 499, 98 So. 322; Lang v. State, 252 Ala. 640, 42 So.2d 512. The Supreme Court in Ex parte Acree, 63 Ala. 234 observed:
"* * * The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires. * * *"
For circumstantial evidence to be sufficient to justify a jury in convicting upon it, the circumstances proved must not only be consistent with the hypothesis that the defendant is guilty but inconsistent with the hypothesis that he is innocent, and inconsistent with every other rational hypothesis except that of his guilt. Copeland v. State, 23 Ala.App. 91, 121 So. 445(3).
This court held in Bell v. State, 36 Ala. App. 390, 56 So.2d 683(2) as follows:
"When the law is respected, when the Constitution is maintained, though crime may sometimes go unpunished, at least innocence is secure."
We also held in Bell, supra, that we cannot resort to speculation and conjecture in determining the guilt of a defendant.
It rarely occurs that two cases present the same identical facts. This is true in DeSilvey v. State, 245 Ala. 163, 16 So.2d 183.
We will not specifically cite other cases collated in the Alabama Digest, Vol. 6, Criminal Law 552(3).
Suffice it to say, the evidence here presents no more than a strong suspicion of appellant's guilt as charged in the indictment. The guilt of the appellant under the evidence is conjectural.
The defendant's requested written charge No. 7 should have been given by the court and its refusal was error.
We hold that the judgment from which this appeal was taken should be and is hereby reversed and remanded.
The foregoing opinion was prepared by Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
Reversed and remanded.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070376/ | Order entered July 23, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00895-CV
TEXAS HEALTH HARRIS METHODIST HOSPITAL FORT WORTH, Appellant
V.
GREG FRAUSTO, ET AL., Appellee
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-13131
ORDER
The Court has reviewed the clerk’s record in this case. The clerk’s record does not
include the June 19, 2014 order denying Texas Health Harris Methodist Hospital Fort Worth’s
Objection to the Sufficiency of Plaintiffs’ Chapter 74 Expert Report and Motion to Dismiss.
Accordingly, the Court ORDERS the district clerk to file on or before July 31, 2014 a
supplemental clerk’s record including the June 19, 2014 order. The Court DIRECTS the Clerk
to send a copy of this order by electronic transmission to Gary Fitzsimmons, District Clerk.
.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1612873/ | 11 So. 3d 388 (2009)
Robert W. LATNER and Linda P. Latner, Appellants,
v.
PREUSLER & ASSOCIATES, INC., etc., Appellee.
No. 5D08-1780.
District Court of Appeal of Florida, Fifth District.
March 13, 2009.
Rehearing Denied April 13, 2009.
*389 S. LaRue Williams and Drew Williams of Kinsey, Vincent, Pyle, P.L., Daytona Beach, for Appellants.
Kevin K. Dixon of Kevin K. Dixon, P.A., Inverness, for Appellee.
TORPY, J.
The central issue in this construction contract dispute is whether the lower court erred in its interpretation of the jury verdict by entering judgment in favor of Appellee, the contractor, even though the jury awarded no damages. We reverse.
Appellants contracted with Appellee to perform repairs to their house after it sustained hurricane damage. During the performance of the work, a dispute arose and Appellants terminated the contract before it was completed. Appellee recorded a construction lien and sued to foreclose it in a two-count complaint alleging breach of contract and lien foreclosure. Appellants counterclaimed seeking damages for a fraudulent lien and breach of contract. The case proceeded to jury trial culminating in a special interrogatory verdict, the form of which was presented to the jury without objection. During deliberations, the jury asked, "If we were to award for damages under breach of contract, paragraph two, and we award the lien, does that double the amount to [Appellee]?" After discussion with counsel, the judge decided to respond by writing, "No."[1]
Although the jury concluded that Appellants had breached the contract, it awarded zero damages. The jury also concluded that the lien was not fraudulent, but made no award on the lien foreclosure count because the verdict form was devoid of any questions on that claim. The signed verdict stated:
1. Who do you find, by the greater weight of the evidence, breached the contract? (check one)
✓ (a) DEFENDANTS/COUNTERCLAIMANTS
LATNERS
____ (b) PLAINTIFF/COUNTERDEFENDANT
RESTORATION
If you checked (a) DEFENDANTS/LATNERS, then you should complete number 2 below. If you checked (b) PLAINTIFF RESTORATION, you should skip Number 2 and go to Number 3 below.
2. What is the amount of money damages which RESTORATION sustained as a result of the breach of contract by LATNERS?
$ 0
---
3. We find that Plaintiff/Counterdefendant RESTORATION breached the contract but is entitled to a set-off in the amount of:
$____
4. Do you find, by the greater weight of the evidence, RESTORATION's Claim of Lien included claims of labor or services not performed or materials not furnished?
Yes____ No ✓
*390 If you answered "No", your verdict is for RESTORATION on this issue. If your answer is "Yes", proceed to question Number 5.
5. Did RESTORATION (a) exaggerate the amount of its claim of lien, or (b) include non-lienable items, or (c) untimely file its claim of lien?
Yes____ No____
If you answered "No", your verdict on this issue is for RESTORATION. Please skip the next question and to [sic] the bottom of the Verdict Form and date and sign the form. If your answer is "Yes", your verdict on this issue is for LATNERS and you should proceed to question 6.
6. If there was no good faith dispute, should LATNERS be awarded punitive damages against RESTORATION because of either (or all) of the following:
(a) The lien amount was compiled with such willful and gross negligence as to amount to a willful exaggeration as to the Lien
(b) included non-lienable items; or
(c) untimely filed
Yes ____ No ____
If you [sic] answer is "NO", your verdict on this issue is for RESTORATION. If your answer is "Yes", go to the next question Number 7.
7. How much should LATNERS receive in punitive damages from RESTORATION?
Amount of Claim of Lien Filed: $55,163.82
Amount of Lien that should have
been filed __________
Difference: $
Please sign and date the verdict form and return it to the courtroom.
When the jury returned the verdict, neither party objected or sought clarification. Subsequently, Appellants filed motions seeking entry of judgment or, alternatively, a new trial. Appellee filed no challenge to the verdict but sought judgment based on the verdict. The trial court concluded that the jury's verdict was for Appellee on its lien foreclosure count and entered judgment for the full amount of the lien. It reasoned, "[T]he only figure in this verdict form, which both of you agreed to, which sets forth the claim of lien was 55, and the jury did not see fit to reduce that, so in my opinion that becomes the finding that the claim of lien is in that amount."[2] Accordingly, it denied Appellants' post-trial motions and this appeal ensued.
We conclude that, based on the verdict and the lack of objection at the time the verdict was returned, the trial court had no alternative but to enter judgment for Appellants. As for the breach of contract claim, the verdict was inconsistent because it resolved the liability issue in favor of Appellee but awarded no damages. See MSM Golf, L.L.C. v. Newgent, 853 So. 2d 1086, 1087 (Fla. 5th DCA 2003) (noting inconsistency in award of zero damages after finding breach of contract).[3] The problem here is that Appellee failed to raise that issue at the time the verdict was returned, which constitutes a waiver of any right to have the verdict corrected on that basis. Cocca v. Smith, 821 So. 2d 328, 330 (Fla. 2d DCA 2002) ("To preserve the issue of an inconsistent verdict, the party *391 claiming inconsistency must raise the issue before the jury is discharged and ask the trial court to reinstruct the jury and send it back for further deliberations."); Moorman v. Am. Safety Equip., 594 So. 2d 795, 799 (Fla. 4th DCA 1992) ("It is quite basic that objections as to the form of the verdict or to inconsistent verdicts must be made while the jury is still available to correct them."); Keller Indus., Inc. v. Morgart, 412 So. 2d 950 (Fla. 5th DCA 1982) (holding that error regarding inconsistent interrogatory verdicts could not be corrected because counsel failed to bring inconsistency to court's attention before jury discharged). Absent a proper challenge to the inconsistent verdict, the trial court was powerless to enter judgment for damages when none had been awarded by the jury and the amount of damages was disputed. See First Sealord Sur., Inc. v. Suffolk Const. Co., Inc., 995 So. 2d 609, 610-11 (Fla. 3d DCA 2008) (applying rule in context of appellee who received judgment without challenge to verdict but who later sought new trial based on inconsistency).
As for Appellee's lien foreclosure claim, the jury failed to deliver a verdict on that count. The jury found that the claim of lien did not include charges for labor or materials not furnished to the property (the issue on the counterclaim). That finding, however, does not equate to a finding in favor of Appellee on that claim because, at a minimum, the jury did not set a value on the labor or materials incorporated into the improvement, which was a disputed issue at trial. Although Appellee had the right to submit this issue for determination by the jury, by approving the form of the verdict and failing to bring the issue to the attention of the trial court before the jury was discharged, Appellee waived any objections to the verdict form and completeness of the verdict.
Cory v. Greyhound Lines, Inc., 257 So. 2d 36 (Fla.1971), cited by Appellee, is distinguishable. In that case, proper objections were levied before the jury was discharged. But even in that circumstance, our high court only authorized the amendment of a verdict when the verdict is "manifestly irregular" and the true intent of the jury can be "ascertained with certainty." Id. at 40 (citing Southern Pac. R. Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827 (1956)).
Here, what the trial court was left with was a verdict awarding no damages to Appellee on any theory. In the absence of a proper and timely challenge to the inconsistency or sufficiency of the verdict, the court had no choice but to enter judgment according to the verdict in favor of Appellant. See Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908) (stating return of no verdict on count is verdict in favor of defendant on that count).
REVERSED AND REMANDED.
EVANDER, J., concurs.
MONACO, J., concurs and concurs specially with opinion.
MONACO, J., concurring.
I concur in the opinion of the majority, but I write because this result troubles me. While I agree that a reversal of the final judgment is required, I conclude that a new trial would probably be a fairer result. The difficulty is that neither party objected to the verdict form when it went to the jury, or to the verdict result before the jury was discharged. Under those circumstances and after searching the verdict for clues, I agree that a reversal is required and that the Latners, the homeowners, should prevail.
The facts of this case are well presented in the majority opinion, and I shall not *392 repeat them. I begin my exploration of this rather strange case with some fundamental notions about jury verdicts. Generally speaking a verdict is a determination of a jury with respect to issues framed by the pleadings, based upon the evidence considered by it. See Wismer v. Alyea, 103 Fla. 1102, 138 So. 763 (1932). The goal, however, is always to seek to implement the intention of the jury as set forth in the verdict. If the intention of the jury is apparent, its verdict will suffice to sustain a judgment entered in conformity with that intent. See Cory v. Greyhound Lines, Inc., 257 So. 2d 36, 40 (Fla.1971); Buffett v. Geldhauser, 155 So. 2d 844 (Fla. 3d DCA 1963). If the verdict is internally inconsistent or contains contradictory findings, a party must preserve the verdict error for appellate review before the jury is discharged. See Crawford v. DiMicco, 216 So. 2d 769, 771 (Fla. 4th DCA 1968). If after pointing out the inconsistency of the verdict prior to discharge of the jury no relief is granted, then a new trial is the remedy. See Alvarez v. Rendon, 953 So. 2d 702 (Fla. 5th DCA 2007); Southland Corp. v. Crane, 699 So. 2d 332 (Fla. 5th DCA 1997).
A trial court can always correct a verdict where it appears that minor clerical, transpositional or other simple errors are found on the face of a verdict. See Cory, 257 So.2d at 40; Continental Assurance Co. v. Davis, 538 So. 2d 542, 544 (Fla. 1st DCA 1989). On the other hand, if a verdict results from a misconception by the jury of the facts or law involved, or if confusion is apparent and the verdict does not appear to reflect the true intention of the jury, then a court cannot correct the verdict. See Continental Assurance. It seems to me that the present case falls within the latter category, and we are, thus, left with trying to decipher what the jury meant.
Here, the jury first finds that the Latners breached their contract with the contractor, yet awarded zero damages. It then made a specific finding that the contractor did not file a fraudulent lien, but it ignored the remainder of the questions. Remarkably, the jury was never asked to determine the amount that should have been awarded on the lien. That neither party suggested that the verdict was inconsistent before the jury was discharged is surprising. Equally surprising is the fact that both parties appeared to have thought that they won, because both asked for the trial court to enter a judgment on the verdict in their favor. Finally, no party objected to the verdict form, and neither party to this appeal has asked this court to remand for a new trial.
The trial judge concluded that the verdict should be for the contractor primarily because the only number found in the verdict other than zero was the preprinted $55,163.82 found in question 7, a question involving punitive damages. Yet the jury did not fill out that section as punitive damages were not awarded. Instead, the only question involving a dollar amount that the jury completed indicated that although the Latners breached the construction contract, the contractor sustained no damages.
I think the trial judge erred in entering a verdict based on the $55,163.82 number, particularly in view of the fact that everyone agreed that the maximum lien amount that could possibly have been claimed was $43,375.71. The jury simply never awarded any amount for the lien, and indeed were never asked to do so. As the only discernable result that can be mined from the verdict is the zero award for contract damages, I concur in the result reached by the majority. If, however, the error had *393 been preserved, I would have favored a new trial.
NOTES
[1] We are unable to attribute any significance to this question. The question could have come from one juror and gives no insight into the deliberative process. Even if the question was from the entire jury, the judge answered the question correctly that the jury could award damages under both theories. Notwithstanding the judge's answer, the jury awarded no damages. We are unable to infer from this that the jury intended to award damages to Appellee.
[2] Question 7, which the jury failed to answer, clearly pertained to the counterclaim.
[3] Appellants argue that the verdict is not inconsistent because the jury could have determined that they breached the contract by terminating it prematurely but that the work was defective and had no value. We assume for argument's sake that the verdict was inconsistent. We noted in MSM that the issue of preservation of the inconsistent verdict before discharge of the jury had not been raised in that appeal. Id. at 1087 n. 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612888/ | 282 So. 2d 909 (1973)
C. F. HALSTEAD CONTRACTOR, INCORPORATED
v.
Rubin F. LOWERY, as Administrator of the Estate of Rubin Harvey Lowery, Deceased.
Civ. 138.
Court of Civil Appeals of Alabama.
May 23, 1973.
Rehearing Denied June 20, 1973.
*910 Harry Cole and Robert C. Black, Montgomery, for appellant.
Frank W. Riggs, Montgomery, for appellee.
WRIGHT, Presiding Judge.
This is an appeal from a verdict and judgment for $10,000 in a suit brought under the Alabama Employer's Liability Act.
Suit was brought by the administrator of the estate of Rubin Harvey Lowery, deceased, against C. F. Halstead and C. F. Halstead Contractor, Incorporated. Verdict was in favor of C. F. Halstead and against C. F. Halstead Contractor, Incorporated. The complaint as amended claimed damages from defendants as the employer of the deceased in four counts. Two of the counts charged that the death of the deceased was caused by the negligence of a fellow employee and superintendent. The other two counts charged the death was caused by the wantonness of the same fellow employee and superintendent. It was alleged in each count that the deceased was an employee of defendants' but was not subject to the Workmen's Compensation Act because his employment was casual and not in the usual course of the business of defendants, or that his employment was as a domestic servant, or that defendants did not regularly employ more than eight employees.
Such allegations constitute three of the exceptions which remove an employee from the provisions of the Workmen's Compensation Act as provided in Title 26, § 263 of the Code. For the purposes of this appeal it is conceded that appellant employed more than eight employees.
To the complaint, appellant filed a special plea of the statute of limitation of one year. Demurrer was sustained to the plea.
Though numerous assignments of error have been presented, there are two basic matters involved in this appeal. We consider the first to be whether the action brought is subject to a one year statute of limitation. Second, whether under the evidence, the deceased employee was at the time of injury subject to the Workmen's Compensation Act.
*911 We must begin our consideration with the premise that all actions for injury or death brought by an employee or his personal representative against his employer are presumed to come under the Workmen's Compensation Act. Pound v. Gaulding, 237 Ala. 387, 187 So. 468. When a suit is brought by an employee or by his personal representative against the employer for injuries or death, the complaint should conform to the Workmen's Compensation Act, or should state facts showing the relationship to be within the exceptions to the Act as provided in Title 26, § 263. Whatley v. Ala. Dry Dock & Shipbuilding Co., 279 Ala. 403, 186 So. 2d 117; Bell v. Brooks, 270 Ala. 691, 121 So. 2d 911. The stated premise is necessary because it is provided in Title 26, § 272 as follows:
"The rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee, his personal representative, parent, dependents or next of kin, at common law, by statute or otherwise on account of said injury, loss of services or death; and except as herein provided in article 1 and article 2 (as the case may be) of this chapter. No employer included within the terms of this chapter, shall be held civilly liable for any personal injury to or death of any workman due to accident while engaged in the service or business of the employer, the cause of which accident originates in the employment;..."
We must further consider that the Workmen's Compensation Act superseded the Employer's Liability Act except in cases excepted from the Workmen's Compensation Act by § 263 thereof and which would otherwise come within the Employer's Liability Act. Pound v. Gaulding, supra.
Appellee's intestate in this case was an employee of appellant, C. F. Halstead Contractor, Incorporated. He was on appellant's regular payroll along with some 250 other employees. The business of appellant was that of a general contractor. The deceased was a college student who had applied for and been given employment by appellant for the summer months. He was paid by the hour for a forty hour week. He was a general laborer and performed tasks as directed by his superiors. On June 6, 1968, the deceased was requested by a superior to assist in draining and cleaning a swimming pool located at the home of C. F. Halstead. The home and pool were located on the same property with the business of C. F. Halstead Contractor, Incorporated.
There was evidence that the employees of C. F. Halstead Contractor, Incorporated, at times did work on the private property of C. F. Halstead for which Halstead was charged on the books of appellant corporation. During the draining of the pool, a submergible electric pump was connected and lowered into the pool by an employee and superintendent of appellant. After the pool was pumped clear of water, and while deceased and another employee were in the pool, the superintendent went to shut off the pump at a switch. After the pump stopped running, the deceased took hold of it while standing in the wet pool and was electrocuted. Upon examination by an expert it was discovered that it had been so connected by the fellow employee at the power source that the pulling of the switch and stopping the running of the pump did not remove the electricity from the frame of the pump. By taking hold of the pump the deceased came in contact with some 250 volts of electricity and was killed instantly. The death occurred on June 6, 1968.
The suit herein was filed on June 5, 1970. We will consider first appellant's contention that the statute of limitation for bringing this action under the Employer's Liability Act is that provided by Title 7, § 26, or one year, and that the court erred in sustaining demurrer to the plea. We must hold that such plea was good and the court erred in sustaining demurrer thereto.
*912 Prior to the enactment of the Employer's Liability Act there was no right of action by an employee against the employer for injury caused by the negligent acts of fellow employees, since at common law a servant upon entering employment assumed the risk of injury from the negligent conduct or omission of a fellow servant. Northern Ala. R. Co. v. Mansell, 138 Ala. 548, 36 So. 459; L. & N. R. Co. v. Chamblee, 171 Ala. 188, 54 So. 681.
The enactment of the Employer's Liability Act created a new cause of action by the employee against the employer for injury from the negligent conduct of a fellow employee occurring under specified circumstances. Title 26, § 326. Title 26, § 328 extended the employee's right of action for such injury, if it resulted in death, to the personal representative. The Act did not provide a limitation upon the time for bringing such action by the personal representative. Therefore, in the absence of such provision, the general statute for the bringing of such action for injury by the employee had he not died must be looked to. That statute is Title 7, § 26. The application of the statute of limitation of one year to an action by the personal representative for death of an employee under the Employer's Liability Act was determined as early as 1891 in the case of O'Kief v. Memphis & Charleston RR Co., 99 Ala. 524, 12 So. 454, and followed in subsequent cases. L & N R Co. v. Chamblee, supra; Williams v. Ala. Great Sou. Ry. Co., 158 Ala. 396, 48 So. 485; Gulf States Steel Co. v. Jones, 204 Ala. 48, 85 So. 264.
Appellee contends that the limitation of two years as provided in the Wrongful Death Statute, Title 7, § 123, applies, and cites as authority the case of Liberty Mutual Ins. Co. v. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So. 2d 821. There it was said by the court: "It follows then, that there is only one statute of limitation applicable to actions for wrongful death and this is the two-year statute."
We find no fault with the above statement as applied to the facts in that case. It involved a suit for wrongful death against a third party. Section 312 of the Workmen's Compensation Act. In this case, the action is not one for wrongful death, as such action is created by Title 7, § 123, but is an action under the Employer's Liability Act. That these two actions are separate and distinct is clearly pointed out in Gulf States Steel Co. v. Jones, supra. The purpose of the wrongful death statute is punitive. The purpose of the action for death under the Employer's Liability Act is compensatory. Both statutes created new actions unknown at common law, but for different purposes. There is an entirely different measure of damages and an entirely different basis for establishing liability in the two actions.
Appellee contends that the plea of the statute was improper in form because it does not appear from the complaint what statute of limitation was applicable. This argument is not acceptable as it is clear from the complaint that the action arises from employee-employer relationship under the Employer's Liability Act. It is not an action brought under Title 7, § 176, or § 217,(1) or § 217(1) of the Code. In fact, under the alleged relationship of the parties there could be no action under the doctrine of respondeat superior by the employee against the employer except that provided under the Employer's Liability Act. Neither does the allegation that the acts of the co-employee causing the injury and death were wanton change the limitation for bringing an action under the Employer's Liability Act.
We conclude therefore that the trial court erred in sustaining plaintiff's demurrer to defendant's plea of the one year statute of limitation, for the complaint shows on its face that the action was not brought within one year from the injury and death of plaintiff's deceased. The evidence presented was in accord with the allegations of the complaint. It follows *913 therefore that the court further erred in refusing to give appellant's requested affirmative charge to the jury.
Since the prosecution of this case under the pleadings and evidence is barred by the statute of limitation and will not be for retrial, we pretermit consideration of the remaining question of whether the deceased was subject to the Workmen's Compensation Act.
Reversed and remanded.
BRADLEY, J., concurs.
HOLMES, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612945/ | 4 Mich. App. 654 (1966)
145 N.W.2d 352
WEILER
v.
HEUPLE.
Docket No. 1,026.
Michigan Court of Appeals.
Decided October 25, 1966.
James J. Kelley, Jr., for plaintiffs.
George W. Paxson (Lewis & Watkins, of counsel), for defendants.
QUINN, J.
As alleged tenants in common, plaintiffs filed complaint for partition of certain real estate in Dundee township, Monroe county, Michigan. Defendant Amy Heuple, individually and as administratrix of the estate of Theo Irish, appeared and answered denying that the plaintiffs or the other defendants owned any interest in the land involved and alleging ownership in herself individually and as administratrix aforesaid. In addition, she pleaded as affirmative defenses the statute of limitations,[*] laches and estoppel. Defendant Heuple moved for summary judgment pursuant to GCR 1963, 117. Plaintiffs answered this motion and filed their motion for summary judgment. The trial court granted plaintiffs' motion and denied defendant Heuple's.
The latter appeals raising 3 questions for decision, namely: the propriety of the trial court's construction *657 of the deed under which all parties claim an interest in the disputed property; the sufficiency of the affidavit filed in support of plaintiffs' motion for summary judgment; and whether the statute of limitations and laches bar plaintiffs' action.
April 10, 1913, the land in dispute was conveyed to Homer Irish and Vernie Irish. They were father and son. Following their names as grantees in the introductory paragraph, the deed contains the following language:
"Each to own the undivided one-half and not to be by survivor-ship,. as to Homer Irish but survivor-ship as to Vernie Irish."
The granting clause of the deed reads:
"unto the said parties of the second part, and to their heirs and assigns, forever, * * *."
The habendum clause reads:
"To have and to hold the said above described premises to the said parties of the second part, and to their heirs and assigns, to the sole and only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever."
Vernie's proper name was Lavern and he was one of three sons of Homer, the others being Earl, father of the plaintiffs, and Carl. Lavern married Theo, a sister of defendant Amy Heuple.
May 20, 1924, Homer Irish died. His estate was administered in Monroe county probate court with Lavern Irish as administrator. The inventory of the estate did not include the land here involved. A final account was filed January 21, 1925.
July 30, 1924, Lavern executed a quitclaim deed to Josephine Brunton conveying the land here involved. She reconveyed to Lavern and Theo, husband and wife, to create a tenancy by the entireties.
*658 From 1913 to Homer's death, the property was equally controlled and managed by Homer and Lavern and their wives. After Homer's death, Lavern and Theo managed and controlled the premises until Lavern's death, and Theo continued in control until her death. Sometime in the 1940's, Fern Weiler worked the farm but in what capacity is not shown.
The trial court construed the 1913 deed to Homer and Vernie as creating a tenancy in common, and we believe he did so properly. In force at the time was a statute designated as CL 1897, § 8826, presently CL 1948, § 554.44 (Stat Ann 1957 Rev § 26.44), which reads:
"All grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy." (The exception in the following section has no application to the case at bar.)
There is no express declaration of joint tenancy and without such declaration, a joint tenancy cannot be created. Atha v. Atha (1942), 303 Mich 611. In addition, to create a joint tenancy a written instrument of conveyance is required, which will produce unity of time, title, interest, and possession. Union Guardian Trust Company v. Vogt (1933), 263 Mich 330. The conveyance here involved did not create unity of title or interest in the grantees.
While there is serious doubt that plaintiffs' affidavit in support of their motion for summary judgment meets the requirements of GCR 1963, 117.3, as defined by GCR 1963, 116.4, because many of the statements therein are hearsay and would not be admissible in evidence, none of such objectionable statements affect the disposition of the case in view of our construction of the deed involved. Hence, if *659 the affidavit was held to be insufficient, it would not be grounds for reversal.
On the death of Homer Irish, plaintiffs became tenants in common with Lavern, since their father, Earl, predeceased Homer. We believe the rule stated in Taylor v. S.S. Kresge Company (1950), 326 Mich 580, is dispositive of defendant's claim that the statute of limitations and laches bar plaintiffs' action. The Supreme Court there adopted from Campau v. Campau (1880), 44 Mich 31, the rule:
"The presumption should be that the tenant in possession respects and recognizes the rights of his cotenants, until the contrary clearly appears; that the possession is rightful, and not to the exclusion of others having equal rights."
We find nothing in this record to overcome this presumption prior to the time plaintiffs filed this action.
Affirmed, with costs to plaintiffs.
HOLBROOK, P.J., and McGREGOR, J., concurred.
NOTES
[*] See CL 1948, § 609.1 (Stat Ann § 27.593). REPORTER. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612907/ | 282 So. 2d 266 (1973)
STATE of Alabama on the relation of Charles KERNELLS
v.
Mark EZELL, Individually and as Probate Judge of Choctaw County, Alabama, and Juanita Wheeler, Intervenor.
SC 462.
Supreme Court of Alabama.
September 6, 1973.
*267 Irvin J. Langford, and John L. Lawler, Mobile, for appellant.
William L. Utsey, and W. H. Lindsey, III, Butler, for appellee.
BLOODWORTH, Justice.
This is an appeal from an order and judgment of the Circuit Court of Choctaw County, Alabama, granting appellees' motion to dismiss appellant's amended petition for writ of mandamus, which sought to compel appellee as Probate Judge of Choctaw County, to allow appellant, a citizen and taxpayer of that county, to inspect a petition for a local option liquor referendum for Choctaw County.
The single assignment of error charges that the court erred in dismissing appellant's amended petition for writ of mandamus. The basic issue before us on this appeal is whether appellant was entitled to inspect the petition or whether the probate judge was correct in denying such request. This court has concluded that appellant is entitled to such inspection, and that the judge of the court below was in error in granting the appellee's motion to dismiss the appellant's amended petition for writ of mandamus.
It appears from the petition, as amended, that appellant is over the age of twenty-one years, a bona fide resident citizen and a duly qualified elector and voter of Choctaw County, Alabama, as is the appellee, who is the probate judge of that county. The petition further alleges that on June 13, 1973, there was filed in the probate court a petition for a local option liquor referendum for Choctaw County, under an act [Act No. 1266, Acts of the Legislature 1971, Vol. III, p. 2195] which requires that a referendum be held provided 25% of the registered voters of the county sign a petition, which is then filed with the probate judge. It is further averred that the appellant on the 26th day of June, 1973, did present himself at the office of the appellee probate judge and did present a written request, as chairman of a committee called "Concerned Citizens for Truth of Choctaw County," that he be permitted to examine the petition requesting the referendum. Said written request was denied in writing by the probate judge. It is further averred that appellant requested examination of the petition for the referendum in order to determine if it contained the names of sufficient qualified voters and that he made known his purpose to the appellee probate judge. The petition concludes that the act of the probate judge in refusing permission to examine the petition, which is a public record, is improper, erroneous, without just cause and without any legal right on the part of the probate judge to refuse to allow appellant to examine the petition. The petition *268 prays for an alternative writ of mandamus or rule nisi ordering and commanding the probate judge to forthwith allow appellant to inspect the petition. Pursuant to the prayer of the petition, the circuit judge entered an order directing the clerk to issue the alternative writ of mandamus returnable July 10, 1973. After a hearing on July 10, 1973, the circuit judge discharged the alternative writ of mandamus and granted the motion to dismiss the petition for writ of mandamus, taxing the costs against the appellant. This appeal then followed.
It is the appellant's contention that the following code section (Title 41, § 145) gives him the right to inspect the petition in this cause, viz:
"Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."
There is no statute of which we have been apprised, by brief or our research, expressly providing otherwise; thus, it would clearly appear that this statute will allow the inspection of the petition by appellant.
This conclusion is strengthened by the decision of this court in Scott v. Culpepper, 220 Ala. 393, 125 So. 643 (1930). There, the question was presented as to the right of a citizen of Cullman County to obtain a certified copy of a death certificate entered in the record books of the local register of precinct number one of that county. This court held that the death certificate, a copy of which was demanded, had been filed with the local registrar and was entered in his record book. Since the local registrar was at that time the custodian, and since it could not be doubted that such record did constitute a "public writing" within the influence of then Section 2695 [now Title 41, Section 145, Code of Alabama of 1940, as recompiled 1958], this "public writing" was held to be subject to inspection by any citizen and a certified copy due to be given him upon demand and payment of the legal fee therefor. The code section and this case would seem to be ample authority for concluding that in the instant case appellant has the right to examine the instant petition.
Moreover, the following code section appears at Title 13, § 292, Code of Alabama 1940, as recompiled 1958, in a chapter dealing with probate courts, viz:
"The records of the office must be free for the examination of all persons, when not in use by the judge, whether such persons are interested in such records or not."
It would appear to be the public policy of the State of Alabama, as reflected by this section, that all of the records of the office of the probate judge must be free for examination of all persons, whether interested in the same or not. Whether the petition in the instant case is included within the term "records," we need not decide. For, there are other sections of the code dealing with the duties of the probate judge which would seem to indicate the public policy of the state is to give access to "books" and "papers" as well as "records."
Title 13, § 280 reads, in part, as follows:
"It is the duty of the judge of probate: "* * *
"3. To keep all the books, papers, and records belonging to his office with care and security; the papers arranged, filed and labeled, so as to be of easy reference; and the books and records lettered, and kept with general, direct and reverse indexes; but, without the authority of the court of county commissioners, he must not make new indexes.
"* * *
"7. On application of any person, and the payment or tender of the lawful fees, to give transcripts of any paper or record required to be kept in his office, properly certified."
*269 Though we have not found, nor has there been cited to us, a case in Alabama dealing with the question as to whether one should be permitted to inspect a petition for a liquor referendum, this precise question was before the Supreme Court of Montana in State ex rel. Halloran v. McGrath, 104 Mont. 490, 67 P.2d 838 (1937). There, an elector was held entitled to inspect petitions for a liquor referendum while in possession of the county clerk and recorder, regardless as to whether such petitions constituted public records or not, in view of a statute authorizing inspection of public records and other matters in the office of any officer. The Montana Code section with which the court there dealt is identical to our Title 41, Section 145, supra. The Montana Supreme Court issued the pre-emptory writ of mandamus prayed for upholding the right of the citizen in that case to inspect the petitions for the referendum.
In the instant case, it seems clear that the appellant is entitled to inspect this "public writing" in the hands of the probate judge, namely, the referendum petition, and that the trial court was in error in sustaining the motion to dismiss the petition for mandamus and in discharging the alternative writ under the allegations as disclosed by the petition.
Appellant has shown "* * * a clear right to demand the performance of a legal duty by one who is so required to perform such act", as authority well established in this state requires to be done before one is entitled to mandamus. Holcombe v. State, 240 Ala. 590, 200 So. 739 (1941). There is no merit in appellee's contention that to allow the appellant "* * * to see the petition would be the same as allowing him to see a person's vote," citing State ex rel. Daily Gazette Company, et al. v. Bailey, et al, 152 W.Va. 521, 164 S.E.2d 414 (1968). In that case, certificates of nomination to place the names of candidates for president and vice president on the election ballot, pursuant to the West Virginia code, were held not to constitute public records. It was further held that a qualified voter who signs the certificate in accordance with the provisions of the code effectively casts his vote for the nomination of the candidates named therein, and thus, his vote is entitled to the same secrecy as one cast in a primary election. We think that holding is inapposite in the instant case. Even in its opinion, the West Virginia Supreme Court of Appeals differentiated that case from cases such as the case at bar:
"These signers were not making a supplication or request to a superior or to a group in authority, as in the connotation of a petition. They were affirmatively making a nomination, which, if done in accordance with the appropriate statute, would succeed in placing their candidate on the ballot in the general election."
Appellees also argue that, to allow "the general public to see such a petition would subject the person signing such to embarrassment, intimidation, and harassment by overzealous opponents of the legal sale of liquor, * * *."
Such contention is answered in a decision of this court in Excise Commission of Citronelle v. State, ex rel. Skinner, 179 Ala. 654, 60 So. 812 (1912). In that case, Mr. Justice Somerville writing for the court held, viz:
"In the present case, however, whatever personal embarrassments might result from the disclosure of the names of those who have signed this recommendation must be regarded as matters of private interest; and, although they might become, in some sense, matters of public concern, even so, they are wholly subordinate to that paramount public interest the maintenance and enforcement of public law. Our conclusions are supported by high authority."
Finally, appellee suggests in brief:
"Also, I believe the Court can take judicial notice of the results of the election *270 which was that the voters of the county voted in favor of the legal sale of liquor.
"This means that the purpose of Appellant in wanting to inspect the petition is now moot, as a majority of those voting favored the legal sale of liquor. * * *"
We cannot agree with appellee's assertion. We have not been able to find an Alabama case directly on point nor has any been cited to us. However, in view of the requirement that the election be held "not less than thirty days, nor more than forty-five days" [Title 29, § 68] of the filing of the petition, "mootness" would always be assured before the usual appellate process is completed. We think this supplies good reason to hold that this case has not been rendered moot by the holding of the election, if in fact it has been held.
In its most recent discussion of "mootness" the United States Supreme Court stated in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973):
"But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be `capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 1494, 23 L. Ed. 2d 1 (1969); Carroll v. President and Commissioners, 393 U.S. 175, 178-179, 89 S. Ct. 347, 350, 351, 21 L. Ed. 2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S. Ct. 894, 897-898, 97 L. Ed. 1303 (1953)."
Additionally, this exception for cases "capable of repetition, yet evading review" has been specifically applied by the United States Supreme Court to the elections context in Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969) where a challenged nominating procedure was dealt with on the merits even after the election because of the likelihood of its being used in future elections.
This exception is properly applicable to the case at bar. The short 30-45 day time period between filing and election, coupled with the possibility of future elections in other counties, convinces us that if the rights of appellant, and those similarly situated, are to be afforded the protection they deserve, the occurrence of the election should not be permitted to effectively deny all review by this court. The cause, therefore, is not moot.
It is thus that we must conclude that the court below erroneously dismissed the petition, and the judgment herein must be reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612935/ | 513 F.Supp.2d 1325 (2007)
GOFORIT ENTERTAINMENT LLC, Plaintiff,
v.
DIGIMEDIA.COM L.P., CyberFusion.com L.P., HappyDays, Inc., Reflex Publishing, Inc., Eric Grant, and Scott Day, Defendants.
No. 6:06CV816ORL28KRS.
United States District Court, M.D. Florida. Orlando Division.
August 10, 2007.
*1326 *1327 Daniel E. Traver, Richard E. Mitchell, Michael D. Porter, GrayRobinson, PA, Orlando, FL, Jason Demian Rosenberg, Kamran Jivani, Robin L. McGrath, Ryan Wilson Koppelman, Alston & Bird, LLP, Atlanta, GA, for Goforit Entertainment, LLC.
Dawn R. Rodda, Michael Gay, Foley & Lardner, LLP, Orlando, FL, for Reflex Publishing, Inc. and Eric Grant.
*1328 ORDER
JOHN ANTOON II, District Judge.
I. Background
Plaintiff, Goforit Entertainment LLC, brought this suit alleging cyberpiracy, trademark infringement, service mark infringement, false designation of origin, and unfair competition against six Defendants-Digimedia.com L.P., CyberFusion L.P., HappyDays, Inc., Scott Day (collectively, "the moving Defendants"), Reflex Publishing, Inc. ("Reflex") and Eric Grant. Plaintiffs claims arise from Defendants' alleged use of Plaintiff's trademark on the Internet. (See Compl., Doc. 1, ¶ 1). Plaintiff alleges that this Court may exercise personal jurisdiction over the Defendants under section 48.193(1)(b), Florida Statutes. (Id. ¶ 10).
Defendants Reflex and Grant have not challenged personal jurisdiction and have answered the Complaint (see Answer, Doc. 26); Grant is a resident of Tampa, Florida, and is the owner of Reflex, a Florida corporation with its principal place of business in Brandon, Florida (Compl. ¶¶ 14 & 6; Answer ¶¶ 4 & 6). However, the moving Defendants contend that none of them is subject to personal jurisdiction in Florida, and accordingly they have filed a Motion to Dismiss (Doc. 32). The Court heard oral argument on the motion on June 25, 2007, (see Mins., Doc. 68), and now concludes that the motion must be granted as to all four of the moving Defendants.
II. Discussion
"The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis by the federal courts." Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir.1990). First, the court "must examine the jurisdictional issue under the state long-arm statute." Id. Second, the court "must ascertain whether or not sufficient minimum contacts exist to satisfy the Due Process Clause . . . so that maintenance of the suit does not offend traditional notions of fair play and substantial justice." Id. (citations and internal quotations omitted). "Only if both prongs of the analysis are satisfied may a federal or state court exercise personal jurisdiction over a nonresident defendant." Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).
The plaintiff bears the burden of establishing a prima facie case of personal jurisdiction by "[p]resent[ing] enough evidence to withstand a motion for directed verdict." Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir.2006) (citations and internal quotation omitted). If "the defendant submits affidavits contrary to the allegations in the complaint, the burden shifts back to the plaintiff to produce evidence supporting personal jurisdiction, unless the defendant's affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction." Id. In the instant case, Plaintiff has not met its burden of establishing a basis for the exercise of personal jurisdiction by this Court over the moving Defendants.
A. The Florida Long-Arm Statute
In the Complaint, Plaintiff alleges that the Defendants are subject to specific personal jurisdiction under section 48.193(1)(b), Florida Statutes, which provides for jurisdiction in this state over any person who "commit[s] a tortious act within this state" where the cause of action arises from that act.[1] The law is not entirely settled as to the scope of this portion of the long-arm statute. See Posner v. *1329 Essex Ins. Co., 178 F.3d 1209, 1215-17 (11th Cir.1999); Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1228 (M.D.Fla.2000); Casitu, L.P. v. Maplewood Equity Partners L.P., 960 So.2d 854 (Fla.App. 3 Dist.2007). Because the due process analysis is dispositive of the personal jurisdiction issue, the Court assumes for the purposes of the instant motion that the "tortious conduct" portion of the long-arm statute has been satisfied.
B. Due Process
Even where a defendant's conduct falls within the forum state's long-arm statute, the exercise of jurisdiction is not proper unless it comports with due process. "[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).
"In a case involving specific jurisdiction, a defendant's contacts with the forum state must satisfy three criteria: they `must be related to the plaintiff's cause of action or have given rise to it'; they must involve `some act by which the defendant purposefully avails itself of the privilege of conducting activities with the forum'; and they `must be such that the defendant should reasonably anticipate being haled into court there.'" Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir.2007) (quoting McGow v. McCurry, 412 F.3d 1207, 1214 (11th Cir.2005)). The Supreme Court has emphasized that "the foreseeability that is critical to due process analysis is . . . that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). "[T]he minimum contacts must be `purposeful' contacts. The requirement for purposeful minimum contacts helps ensure that non-residents have fair warning that a particular activity may subject them to litigation within the forum." Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565 (Fed. Cir.1994) (citations omitted). Plaintiff has not met its burden of establishing that the moving Defendants have meaningful, purposeful contacts with the state of Florida so as to support personal jurisdiction.
Websites/Domain Names
Plaintiff's main assertion regarding the moving Defendants' contacts with Florida involves the Defendants' websites. This Court has previously joined other courts in determining that the Internet does not provide cause to abandon traditional principles guiding the personal jurisdiction analysis. See generally Instabook Corp. v. Instantpublisher.com, 469 F.Supp.2d 1120 (M.D.Fla.2006) (citing Shamsuddin v. Vitamin Research Prods., 346 F.Supp.2d 804 (D.Md.2004)). Moreover, during oral argument on the motion to dismiss, Plaintiff's counsel acknowledged and even emphasized that Internet cases are not different from "traditional" cases and that "purposeful availment" of the forum is the focus of the jurisdictional inquiry. Applying traditional principles, exercise of jurisdiction over the four moving Defendants in Florida would not comport with due process.
*1330 As described and depicted in the parties' filings, Defendants' websites consist of various domain names that "resolve[] to a directory style web site . . . which contain[s] a number, of categories to be searched." (See, e.g., Compl. ¶ 28). The websites contain hyperlinks that "direct the Defendant's web site visitors to the web sites of others." (See, e.g., Compl. ¶¶ 30, 34). Internet users can "`click through' to the web sites of others from the Defendants' web sites." (Compl. ¶ 44; see also Def.'s Mot. at 1 (describing use of "click-through' hyperlinks")). Plaintiff notes that the moving Defendants' websites "direct visitors from across the nation to the websites of others," (Pl.'s Mem., Doc. 41, at 11), and Plaintiff emphasizes that the moving Defendants'"services are aimed at consumers and business[es] located in each and every state in the country, including Florida, and their business model is specifically designed to generate revenue from each and every state in the country, including Florida." (Id. at 5) (emphasis in original).
However, Plaintiff's argument cuts against itself the fact that Defendants' websites are equally accessible everywhere does not establish targeting of Florida. See, e.g., Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1281 (Fed.Cir.2005) (pointing out that the defendant's website was "not directed at customers in the District of Columbia, but instead is available to all customers throughout the country who have access to the Internet"); GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349-50 (D.C.Cir.2000) ("[P]ersonal jurisdiction surely cannot be based solely on the ability of District residents to access the defendants' websites, for this does not by itself show any persistent course of conduct by the defendants in the District. Access to a website reflects nothing more than a telephone call by a District resident to the defendants' computer servers, all of which apparently are operated outside of the District."). Plaintiff additionally contends that moving Defendant Digimedia "has done nothing to prevent Florida residents from seeking to do business with it and comes forward with no evidence that Florida residents do not visit its websites." (Pl.'s Mem. at 14). It is not, however, a defendant's burden to "prevent" others from accessing its sites in order to avoid being subject to a state's jurisdiction; and, in any event, visits to a website by Florida residents would not, without more, constitute sufficient minimum contacts.
Plaintiff also argues that the moving Defendants "specifically target Florida by providing Florida-specific search functionality, content and domain names." (Pl.'s Mem. at 14-15). However, the fact that Internet users can access a site and run a geographically-limited search on that site is not constitutionally sufficient to subject the site registrant to that geographic area; such a holding would fly in the face of traditional jurisdictional principles. Moreover, the Court rejects Plaintiff's assertion that the registration by Defendants Digimedia and HappyDays of domain names that include the names of Florida cities is sufficient to establish jurisdiction. There is some dispute as to whether these sites are even related to this suit Defendants maintain they are not, but Plaintiff has listed some of these Florida-named websites among the hundreds of websites registered by some of the moving Defendants. (See, e.g., List of "Digimedia Domain Names," Ex. A to Compl. (listing 290 domain names, four of which appear to contain names of Florida cities)).[2] The Complaint *1331 mentions some websites that contain the names of Florida cities, but the Complaint's focus is on the Defendants' alleged tortious conduct with regard to the way the hundreds of click-through websites operate in general rather than merely the few sites that happen to contain the names of Florida locations. (See, e.g., Webpage printout, Ex. H to Compl.). Even assuming arguendo that these sites are part of the tortious conduct alleged in the Complaint so as to satisfy the "related to the suit" criterion, they are clearly only a de minimis part comprising only a few of the hundreds of sites Plaintiff has listed of the suit and, in any event, they do not amount to purposeful availment of the privilege of conducting activities in Florida, nor is registration of such site names a contact with the state such that the moving Defendants should reasonably anticipate being haled into court in Florida.
Ownership Structure
Plaintiff makes an additional argument in support of personal jurisdiction as to Defendants Digimedia and CyperFusion based on their "ownership structure." These two Defendants are Texas limited partnerships, each with two limited partners Defendant HappyDays and Defendant Reflex Publishing, Inc. (Day Aff. ¶¶ 18, 20, 32, 35). Reflex is a Florida corporation with its principal place of business in Florida. (Compl. ¶ 4; Answer of Defs. Reflex & Grant, Doc. 26, ¶ 4). Plaintiff contends that Digimedia and CyberFusion are amenable to personal jurisdiction in Florida because they each have Reflex, a Florida corporation, as a limited partner. Plaintiff relies on Carden v. Arkoma Associates, 494 U.S. 185, 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990), in which the Supreme Court held that a limited partnership is a citizen of every state in which any of its general or limited partners is a citizen, and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940), wherein the Supreme Court concluded that "[d]omicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment." Despite this syllogism's seeming logic, however, it does not survive closer analysis.
Carden and Milliken, taken in tandem, do not lead to the conclusion urged by Plaintiff that a limited partnership is automatically amenable to suit in any state where any of its partners is a "citizen." As the Eleventh Circuit has noted, in Carden "[t]he Supreme Court . . . settled the law on how the citizenship of a limited partnership is determined for purposes of diversity jurisdiction, [holding] that for purposes of diversity of citizenship, a limited partnership is a citizen of each state in which any of its partners, limited or general, are citizens." Rolling Greens MHP, L.P. v. Comcast SCH Holdings. L.L.C., 374 F.3d 1020, 1021 (11th Cir.2004) (emphasis added). And, in Milliken, the Supreme Court found that Wyoming had jurisdiction over a Wyoming resident who was served with process while in Colorado.
The fact that the "citizenship" of a limited partnership is determined based on its partners in order to evaluate subject-matter jurisdiction in a diversity-of-citizenship case does not mean that a limited partnership is necessarily amenable to jurisdiction in every state of which any of its partners is a citizen. A limited partnership does not necessarily derive any benefit from the forum merely by virtue of having a limited partner there, nor does it necessarily do business there. Moreover, *1332 the party at issue in Milliken was a human, not a business entity, and the Milliken Court emphasized the benefits that a person derives from the state of his domicile.[3] Such benefits do not necessarily enure to limited partnerships merely by virtue of the presence of a limited or general partner in a forum.
Other courts addressing this issue have rejected the contention that the presence of a partner in the state is sufficient to confer jurisdiction, and this Court agrees with their conclusion. See Mission W. Props., L.P. v. Republic Props. Corp., 162 Md.App. 17, 873 A.2d 372 (2005) (holding that fact that general partner of California limited partnership had reincorporated in Maryland was not sufficient to support personal jurisdiction over limited partnership in Maryland), aff'd, 391 Md. 732, 895 A.2d 1006 (2006); Carlton Invs. v. TLC Beatrice Int'l Holdings, Inc., Civ. A. No. 13950, 1995 WL 694397, at *11 (Del.Ch. Nov. 21, 1995) (rejecting plaintiffs contention that Delaware courts have jurisdiction over unregistered foreign limited partnerships due to a Delaware corporation serving as the partnership's general partner, stating that "[w]hether the presence of a `general partner' in the forum jurisdiction will, without more, subject the limited partnership to in personam jurisdiction is a question that turns on the further question whether the law of the creation of the limited partnership treats it as a jural entity")[4]; Pappas v. Arfaras, 712 F.Supp. 307, 311 (E.D.N.Y.1989) (finding lack of personal jurisdiction over Connecticut limited partnerships, concluding that "the mere fact that some of the limited partners of [the Connecticut limited partnership defendants] are citizens of New York . . . does not amount to `purposeful activity' attributable to defendants in" New York); cf. Touche Ross & Co. v. Canaveral Int'l Corp., 369 So.2d 441, 442 (Fla. 3d DCA 1979) (stating in dicta that the court saw "no constitutional or other legal impediment" to suit against New York partnership in Florida where partnership had both Florida resident partners and out-of-state partners, "as the action . . . clearly arises out of partnership activities performed in this state by the said defendant"). But cf. Liban v. Churchey Group II, L.L.C., 305 F.Supp.2d 136, 141 n. 2 (D.D.C.2004) (noting in dicta in a footnote that "even if it turns out that [the defendant] is . . . a limited liability company [rather than a corporation], it is still subject to personal jurisdiction because at least one of its `principals . . . is a resident of Maryland") (citing Carden and Milliken). The argument with respect to a limited partner is even weaker than as to a general partner, especially where, as here, there is record evidence *1333 regarding the lack of power of the limited partners in the partnership. (See, e.g., Stipulations Regarding Personal Jurisdiction, Doc. 66, ¶ 24 (setting forth provision of partnership agreement stating that limited partner may not take part in management or act on behalf of the partnership)). In sum, the fact that Reflex is a Florida corporation and is a limited partner of Digimedia and of CyberFusion is not sufficient to support exercise of personal jurisdiction over either of these moving Defendants.
Defendant Day
Individual Defendant Day, a resident of the state of Oklahoma, contends that Plaintiff has not alleged any acts linking him to the state of Florida so as to support personal jurisdiction. In response, Plaintiff cites cases regarding potential personal liability of an individual where that individual is the moving force behind infringement. (See Pl.s' Mem. at 16). However, whether an individual may ultimately be liable in connection with corporate activity is a different issue than whether there are enough contacts to subject the individual to personal jurisdiction. Plaintiff also attempts to base jurisdiction over Day on "the same reasons jurisdiction over the corporate defendants is proper." (Pl.'s Mem. at 17). In light of the Court's rejection of Plaintiffs jurisdictional arguments with respect to the business entity Defendants, this argument also fails.[5]
Fair Play and Substantial Justice
Additionally, even if Plaintiff had established minimum contacts, exercise of jurisdiction over these Defendants would offend traditional notions of fair play and substantial justice. "In determining whether jurisdiction comports with [these notions], the court looks at: (a) the burden on the defendant,' (b) the forum State's interest in adjudicating the dispute,' (c) the plaintiffs interest in obtaining convenient and effective relief,' (d) the interstate judicial system's interest in obtaining the most efficient resolution of controversies,' and (e) the shared interest of the several States in furthering fundamental social policies.'" McGow v. McCurry, 412 F.3d 1207, 1216 (11th Cir.2005) (quoting Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1276 (11th Cir.2002)). Consideration of these factors weighs heavily against personal jurisdiction here.
First, the burden on the moving Defendants, who hail from Texas and Oklahoma, of defending the case here in Florida would not, despite modern technology, be insubstantial. Second, while Florida has some interest in adjudicating this dispute due to the presence of the two non-moving Defendants here, this interest is not great. Plaintiff is a Nevada corporation with its principal place of business here, but it is not even registered to do business in this state; indeed, Plaintiff has emphasized the interstate nature of its business in an apparent effort to avoid a negative inference from the fact of its lack of registration. (See, e.g., Pl.'s Mem. at 2 ("All business that GoForlt transacts from within the state of Florida is interstate business. All content for the GoForlt.com website originates from out of state, the services offered through that site are available nationally (indeed internationally), and the web server where all goforit com content is hosted and made available to visitors is located out of state.") (internal citations omitted)). Thus, this is not a situation where Florida has a great concern in adjudicating the dispute. For this same reason, the third factor the plaintiff's interest *1334 in obtaining effective and convenient relief does not favor the exercise of jurisdiction. The fourth factor does weigh in favor of jurisdiction here due to the presence of the other two resident Defendants, and on balance, the fifth factor is seemingly neutral. Overall, however, even if minimum contacts were present, fair play and substantial justice would require dismissal of the claims against the moving Defendants.
Discovery
Plaintiff has requested jurisdictional discovery. However, Plaintiff has not persuaded the Court that such discovery is appropriate here. The request is therefore denied.
III. Conclusion
In accordance with the foregoing, it is ORDERED and ADJUDGED that the Motion to Dismiss (Doc. 32) filed by Defendants Digimedia.com L.P., CyberFusion L.P., HappyDays, Inc., and Scott Day is GRANTED. The claims against these four Defendants are DISMISSED due to lack of personal jurisdiction.
NOTES
[1] In their motion to dismiss, Defendants also note that any assertion that this court has general jurisdiction over the Defendants under section 48.193(2), Florida Statutes, should be rejected. In its response memorandum, Plaintiff continues to rely on section 48.193(1)(b). (See Pl.'s Mem., Doc. 41, at 9). Thus, the Court need not address general jurisdiction; in any event, there is no basis to conclude that the moving Defendants have sufficient connection to Florida to be subject to general jurisdiction via "substantial and not isolated activity within this state." See § 48.193(2), Fla. Stat.
[2] The list of 290 domain names (Ex. A to Compl.) allegedly registered by Digimedia also contains other geographic names, including "Australia.org," "Brazil.net," "Congo.com," "Espana.com," "Guadalajara.com," "Iceland.com," "Liberia.com," "Philippines.com," "Pisa.com," "Queensland.com," "Sydney.org," and "Uganda.com."
[3] The Milliken Court opined:
[T]he authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. Enjoyment of the privileges of residence within the state, and' the attendant right to invoke the protection of its laws, are inseparable from the various incidences of state citizenship. The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incidence of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.
311 U.S. at 463-64, 61 S.Ct. 339 (internal citation and quotation omitted).
[4] See Tex.Rev.Civ. Stat. Ann. art. 6132b-2.01 (Vernon 2007) (providing that under Texas law "[a] partnership is an entity distinct from its partners").
[5] Similarly, to the extent that Plaintiff attempts to bootstrap personal jurisdiction over HappyDays on personal jurisdiction over Defendant Day, such argument fails. (See Pl.'s Mem. at 17-18). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612951/ | 282 So.2d 62 (1973)
Jerry Randolph McBEE
v.
STATE.
4 Div. 200.
Court of Criminal Appeals of Alabama.
June 29, 1973.
Rehearing Denied July 12, 1973.
Clellon Baeder, Auburn, for appellant.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
LEIGH M. CLARK, Supernumerary Circuit Judge.
Appellant was convicted of murder in the first degree of his ten-month-old son. He had entered a plea of not guilty to an indictment charging him and his wife, Frances I. McBee, with the crime. The jury that found him guilty fixed his punishment at life imprisonment. The trial court duly rendered judgment and sentence accordingly, from which this appeal is taken.
Frances McBee, wife of appellant, testified that on the morning of March 18, 1972, appellant left the house where they were living in Dothan, Alabama, and returned in about twenty or thirty minutes, around 9:30 A.M., while she was in the kitchen fixing breakfast; that appellant placed their ten-month-old baby on the *63 kitchen table and attempted to feed it some bologna, which the child could not chew or swallow and was choking on it; that appellant then placed his left hand over the child's mouth and began whipping him over the legs and mid-section with his right hand and that appellant struck the child with both his open hand and fist. The witness testified that there after appellant took the child into the living room and placed him on the couch and returned to the kitchen and struck the witness four or five times, that some argument between them transpired and thereafter appellant returned to the living room. In the meantime she had heard a noise in the living room like the baby had fallen. Appellant returned to the kitchen, and after fussing and fighting with the witness, went back into the living room. The witness saw him, set the child up on the couch, and it went limp. The witness went into the living room and observed that there wasn't any breathing or pulse beat. She testified that when appellant took the child in the living room it was just barely breathing. They both attempted to revive the child by "mouth-to-mouth resuscitation". She wanted to take the baby to the hospital, but appellant wouldn't let her. In about a couple of hours or more appellant asked her to get something to which to wrap the dead body of the baby. She obtained a housecoat and baby blanket and wrapped the body therein, and appellant put him in a cardboard box and placed it in a closet in the kitchen, where it remained two or three days, and it was then placed by appellant in the refrigerator where it remained until March 25. Upon determining that the child was dead, she observed bruises on his mid-section, his ribs and a large bruise on his head, none of which had been there before. She testified that on March 25 appellant asked her to get some coat hangers ready for him, and appellant got a cement block and sent her to the store for a hacksaw. Appellant cut two pieces of metal out of the back seat of the car, put a coat hanger around the body, waited until dark and then they put the body under the back seat. They went to Eufaula, went over the main bridge and pulled off on a side road. Appellant then took the body out, put it on the front floor board and attached the block to the coat hanger that was around the baby's neck. Thereafter they drove to the middle of the bridge going across the Chattahoochee River, stopped there and appellant threw the baby over the side. They returned to Dothan where they remained for approximately a month until inquiries from Mrs. Brooks of the Welfare Department prompted them to leave. She and appellant left Dothan and headed for Pensacola, Florida, but stopped in Crestview, Florida, and reported to the sheriff's office that the child had been kidnapped at a rest area on Interstate 10.
Detective James Deal of the Dothan Police Department testified that a search of the river at Eufaula was made, and that the body of a child tied to a concrete block by a coat hanger around the child's neck was produced. Detective Deal's testimony was largely corroborated by the testimony of Mr. Lamar Miller, of the Enterprise Regional Crime Laboratory of the State Department of Toxicology and Criminal Investigation, who testified that he was in the vicinity of the search of the river, that Lieutenant Deal turned the body of a child over to him, that there was a portion of a concrete block attached to the head of the child by means of a piece of wire which had the appearance of a coat hanger. He testified it was a male child approximately one year old, that the body was badly decomposed.
No evidence was presented by the defense.
We now consider the only points made for reversal in the brief submitted by appellant's attorney.
It is argued in said brief that reversible error is to be found in the action of the trial court during the testimony of *64 Mrs. Sara Brooks, a child welfare worker, as shown by the record as follows:
"Q. [By Attorney for the State] All right. Had you found out that the baby was not in Pensacola?
MR. HERRING: Now, I object to that. It would have to be hearsay.
THE COURT: If she knows, I will permit her to answer. Do you know whether or not the baby was in Pensacola?
"A. The baby was not in Pensacola. This was checked out through the division
MR. HERRING: Now, I object to that and move to exclude it.
THE COURT: Sustain the objection, and that's excluded, Ladies and Gentlemen of the jury. Do not consider that when you come to make up your verdict in this case."
The record does not sustain the contention of appellant. It is clear that the answer of the witness was promptly excluded and the jury instructed not to consider it. The action of the trial court fails to support a charge of reversible error. Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied 254 Ala. 74, 46 So.2d 847; Reaves v. State, 33 Ala.App. 296, 33 So.2d 376, cert. denied 250 Ala. 81, 33 So.2d 378.
Appellant urges that reversible error was committed by the trial court in admitting in evidence a confession of defendant, made to Joe Clark, Sheriff of Okaloosa County, Florida, and others and relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant does not contend that the full Miranda warning was never given, but that it should have been given a second time. It was fully given, and a statement made by defendant-appellant promptly after it was given was to the effect that the child had been kidnapped. After such statement there was a break of about forty-five minutes, and then, according to the testimony of Mr. Clark, defendant-appellant made a statement substantially in accordance with the testimony of his wife. No Miranda warning was made after the mentioned break of approximately forty-five minutes.
In Jones v. State, 47 Ala.App. 568, 258 So.2d 910, the same question was raised on facts as follows:
"After this warning [Miranda] was given the appellant replied that he had not done anything and would not need a lawyer. This interview revealed nothing incriminating and appellant denied any knowledge of or connection with the burglary. The following day appellant was again questioned by Edwards. On this occasion the appellant made several incriminating statements. He admitted going to the church with others but denied going into the church. The Miranda warning was not again given to appellant before this second interrogation."
We adhere to, repeat and apply here what was said in that case, as follows:
"Appellant's second contention raises the question as to whether an accused must be given an adequate Miranda warning before each separate interrogation after a valid waiver of his right to counsel has been made. As a general proposition we think not, particularly under the facts here presented.
* * * * * *
"Whether the Miranda warning should be given before each interrogation must depend upon the circumstances of each case. The length of time and the events which occur between interrogations are relevant matters to consider.
"In support of our conclusion see In re Steven C., 9 Cal.App.3d 255, 88 Cal. Rptr. 97; People v. Hill, 39 Ill.2d 125, 233 N.E.2d 367; Miller v. United States, 396 F.2d 492 (8th Cir.); Tucker v. United States, 375 F.2d 363 (8th Cir.), cert. denied 389 U.S. 888, 88 S.Ct. 128, 19 L. Ed.2d 189.
*65 "In People v. Hill, supra, the court stated:
"It should be made clear that once Miranda's mandate was complied with at the threshold of the questioning it was not necessary to repeat the warnings at the beginning of each successive interview. To adopt an automatic second-warning system would be to add a perfunctory ritual to police procedures rather than providing the meaningful set of procedural safeguards envisioned by Miranda."
Some courts take this position even when the sessions are days apart. See Maguire v. United States, 396 F.2d 327 (9th Cir.), (Warning three days earlier held sufficient); State v. Magee, 52 N.J. 352, 245 A.2d 339 (Warning two and a half days earlier held sufficient)."
We rely upon Jones v. State, supra, as we did in Womack v. State, 49 Ala.App. 505, 273 So.2d 481.
Appellant next urges that the trial court committed error in permitting the jury to hear the evidence on the question of the admissibility of a confession of defendant to Mr. Jack Adkins, a Juvenile Officer of the Dothan City Police Department, that a "voir dire" examination requested by defendant's counsel should not have been conducted in the presence of the jury. The record does not show, and no contention is made, that defendant requested that the evidence on the question of the admissibility of the confession be offered or that the "voir dire" examination be conducted out of the presence of the jury. In the light of the opinion of the Supreme Court in State v. Wilbanks, 289 Ala. 166, 266 So. 2d 619, we are bound by what was said in Vincent v. Alabama, 284 Ala. 242, 224 So. 2d 601, as follows:
"While the better practice is for the trial court to initially hear evidence on the question of the voluntariness of a confession outside the presence of the jury, Duncan v. State, 278 Ala. 145, 176 So.2d 840, [23] [30], we find no reversible error in the instant case because here, as in Duncan v. State, supra, there was no request for a hearing outside the presence of the jury and there was no conflict in the evidence on the main trial. Duncan v. State, supra, [22]."
Our search of the record reveals no error prejudicial to appellant, and we conclude therefore that the judgment below should be affirmed.
The foregoing opinion was prepared by Honorable LEIGH M. CLARK, Supernumerary Circuit Judge, serving as Judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the court.
The judgment below is hereby
Affirmed.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645459/ | 994 So.2d 1104 (2008)
HANNAH
v.
STATE.
No. SC08-1947.
Supreme Court of Florida.
October 15, 2008.
Decision without published opinion. Rev.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/20122/ | 205 F.3d 222 (5th Cir. 2000)
MID-CONTINENT CASUALTY COMPANY, Plaintiff-Counter Defendant-Appellant,v.CHEVRON PIPE LINE COMPANY, ET AL., Defendants,CHEVRON PIPE LINE COMPANY, Defendant-Counter Claimant-Appellee.
No. 98-40831
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
February 29, 2000As Revised March 15, 2000.
[Copyrighted Material Omitted]
Brian Lynn Blakeley, Blakeley & Associates, San Antonio, TX. Christopher L Burke, Brian L Blakeley & Associates, San Antonio, TX, For Plaintiff - Counter Defendant - Appellant. .
James C Winton, Lilly Evelyn Thrower, Baker & Hostetler, Houston, TX, For Defendant - Counter Claimant - Appellee
Appeal from the United States District Court for the Eastern District of Texas. 1:97-CV-95. Joe J Fisher, US District Judge.
JUDGES: Before DUHE, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
1
At issue in this Texas diversity action is whether an injury to an employee of Power Machinery, Inc. (PMI), the named insured for Mid-Continent Casualty Company, "arose out of" PMI's independent contractor work for Chevron Pipe Line Company (CPL), Mid-Continent's additional insured, and is, therefore, covered under PMI's liability policy; and whether the attorney's fees and costs awarded CPL are reasonable, their having been set in the light of a settlement agreement and following a subsequent bench trial on the issue. Regarding coverage, we AFFIRM; for fees and costs, we REVERSE and REMAND.
I.
2
Earl Fant, a PMI employee working on CPL's premises pursuant to a labor services contract between CPL and PMI, was injured on 26 July 1994 while removing a valve in a vessel storage area. As his employer, PMI was immune, under the Texas Workers' Compensation Act, from suit by Fant. In August 1995, Fant and his wife sued CPL in federal court, claiming that its negligence caused his injury (Fant action).
3
The CPL-PMI services contract required PMI to: (1) provide laborers to perform CPL's work; (2) indemnify and hold CPL harmless from claims for injury or death resulting from PMI's performance (except those caused by CPL's wilful or sole fault); (3) insure PMI's contractual indemnity obligations; and (4) name CPL (which PMI did) as an additional insured under PMI's policy with Mid-Continent.
4
Pursuant to the additional insured endorsement, Mid-Continent provided a defense for CPL for the Fant action. By bench trial, the district court in late 1996 ruled: (1) when injured, Fant was an independent contractor, with the PMI foremancontrolling the manner and details of Fant's work; and (2) the design of the valve configuration in the area where Fant was injured was faulty, because it required the PMI crew to manhandle the valve in a cramped area. The court rejected CPL's "borrowed servant" defense; concluded that its negligence was the proximate cause of Fant's injury; and awarded $ 435,000 to the Fants. Fant v. Chevron USA, Inc., No. 95-CV-899 (E.D. Tex. 19 Nov. 1996).
5
Understanding the court to hold that CPL's liability rested solely on the negligent design of its facility, and interpreting the endorsement as covering liability arising only from PMI's negligence, Mid-Continent refused either to further defend or to indemnify CPL. Accordingly, CPL substituted counsel for the appeal in the Fant action.
6
Concomitantly, in the light of its coverage-refusal, Mid-Continent filed this action in December 1996 against Chevron and the Fants. It sought a declaratory judgment, based on a Texas intermediate appellate decision which foreclosed coverage for the additional insured under a similar endorsement: Granite Constr. Co. v. Bituminous Ins. Cos., 832 S.W.2d 427 (Tex. App. 1992, no writ).
7
CPL and the Fants counterclaimed, inter alia, for bad faith and violation of Article 21.21 of the Texas Insurance Code (prohibiting unfair or deceptive trade practices in the insurance business); and sought a declaratory judgment on coverage. In addition, CPL filed a third-party claim against PMI, based on its services contract.
8
Pursuant to the Fants' motion, this action was transferred from the Southern District of Texas, in Houston, to the Eastern District of Texas, in Beaumont. There, it was assigned to the district judge who had presided over the underlying Fant action.
9
Among the motions regarding the parties' claims, Mid-Continent and CPL moved for summary judgment on coverage. This was granted CPL in October 1997, the district court holding that the endorsement unambiguously covered the judgment in the Fant action. Noting that the endorsement does not expressly limit coverage only for when PMI is at fault, the court held that the "arising out of" clause in the policy "means 'originate from' the named insured's, PMI, work for the additional insured, CPL". (Emphasis added.) The court held, in the alternative, that CPL was also entitled to coverage on the bases of (1) Mid-Continent's waiver of its defenses, due to its failure to issue an effective reservation of rights; and (2) CPL's status as a third-party beneficiary under the policy's contractual indemnity provision. Mid-Continent Cas. Co. v. Chevron Pipe Line Co., No. 97-CV-00095, at 27 (E.D. Tex. 10 Oct. 1997).
10
Following the partial summary judgment, CPL's third-party claim against PMI was dismissed. And, with the appeal in the Fant action pending, settlement was reached between CPL, Mid-Continent, and the Fants. In that regard, and for the action at hand, CPL and Mid-Continent settled all issues except coverage and attorney's fees and costs; the latter issue was reserved for a bench trial. Following same, approximately $ 560,000 was awarded CPL in mid-1998. Chevron Pipe Line Co. v. Mid-Continent Cas. Co., No. 97-CV-00095 (E.D. Tex. 2 June 1998).
II.
11
Mid-Continent contests several rulings concerning coverage. In the alternative, although it does not challenge CPL being entitled to fees and costs, it does challenge the amount awarded.
A.
12
Coverage was decided by summary judgment. The application of Texas law in interpreting the "additional insured" endorsement and the coverage holding are reviewed de novo. Sharp v. State FarmFire & Cas. Ins. Co., 115 F.3d 1258, 1260 (5th Cir. 1997); see Liberty Mutual Ins. Co. v. Pine Bluff Sand & Gravel Co., 89 F.3d 243, 246 (5th Cir. 1996) (on summary judgment, questions of law, including interpretation of agreements, are reviewed de novo).
13
The endorsement states: "WHO IS AN INSURED ... is amended to include [CPL], but only with respect to liability arising out of 'your [PMI's] work' for [CPL] by or for you [PMI]". (Emphasis added.) "Your [PMI's] work" is defined in the policy as "work or operations performed by you [PMI] or on your behalf; and materials, parts or equipment furnished in connection with such work or operations".
14
The dispute turns on interpreting "arising out of". Mid-Continent would limit coverage to CPL's vicarious liability for PMI's negligence, and contends, therefore, that the phrase should be narrowly interpreted to have a meaning akin to "caused by". CPL counters that its negligence, as well as PMI's, is covered; and that the injury or accident need only "originate from" or be "related to" the named insured's (PMI's) work for the additional insured (CPL). CPL urges that, if the endorsement is ambiguous, then, under Texas law, we must apply the construction favoring it, the insured. See National Union Fire Ins. Co. v. Kasler Corp., 906 F.2d 196, 198 (5th Cir. 1990).
15
When summary judgment was rendered, only one reported Texas appellate decision, noted supra, addressed the scope of coverage under a similar endorsement: Granite, 832 S.W.2d 427. Mid- Continent principally relies on it, while CPL seeks to distinguish it. The Texas Supreme Court has not ruled on this issue.
16
As here, Granite concerned a services contract by which an independent contractor agreed to include the other party as an additional insured. Pursuant to its contract to remove asphalt from Granite's construction site, Joe Brown Company so named Granite under its policy with Bituminous, "but only with respect to liability arising out of operations performed for such insured [Granite] by or on behalf of the named insured [Brown]". Id. at 428. A Brown employee, injured when his truck overturned, sued Granite, claiming that its negligence in loading his truck caused his injury. Id.
17
Granite contended that coverage was available under the endorsement, because the claim arose out of operations performed under the services contract; Bituminous, that the endorsement covered liability only for activities performed by its named insured, Brown. Id. at 429. After examining both the services contract and the endorsement, the Granite court ruled against coverage. Id. at 430. It acknowledged that the parties presented "contradictory interpretations" of the endorsement; and that, if both were reasonable, Granite's had to be adopted. Id. It reasoned, however, that, in this instance, limiting coverage would best effect the parties' intentions because, under the services contract, the loading operation was delineated as Granite's sole responsibility. Id. The court noted that the allegations in the employee's action made it "obvious" that the claim "arose out of the loading operations performed by Granite ...", during which Brown had no role. Id.
18
Northern Ins. Co. of New York v. Austin Commercial, Inc., 908 F. Supp. 436, 437 (N.D. Tex. 1994), applying Texas law, interpreted Granite to require a claim of direct negligence against the named insured in order to trigger coverage. Noting that the named insured was not a defendant, and that there were no allegations of negligence against it, the court concluded that, under Granite, there was no coverage for the additional insured. Id. Mid- Continent urges that this Austin-holding is the correct interpretation of Texas law; CPL, that Granite was misinterpreted.
19
The parties' clearly demarcated legal positions regarding the policy language are only a piece of this puzzle; in districtcourt, the findings of fact in the underlying Fant action played a central role. At the summary judgment hearing for this action, Mid-Continent asserted that liability in the Fant action rested solely on CPL's negligent design of its facility; and that, because PMI did not participate in such design, its work was not causally connected to the event which prompted liability. Mid-Continent noted that the Fants did not claim that PMI was negligent, and asserted that the district court found no negligence by PMI.
20
CPL contended that the findings of fact in the Fant action were not dispositive, because PMI was not a party and its fault was never before the court; and that the absence of findings regarding PMI's fault is not the equivalent of finding no fault. In this regard, it notes that Mid-Continent's (and the Austin court's) reliance on allegations in the plaintiff's pleadings ignores the worker's compensation bar against suing one's employer.
21
In granting CPL summary judgment in this action, the district court stated that Mid-Continent misunderstood its findings in the Fant action. Acknowledging that it had found CPL's facility design faulty, it explained that CPL's liability was also based, in part, on PMI's failure to utilize equipment available to perform the job safely (described by the court as "operations negligence"), noting that the PMI foreman was in control of Fant's work. In addition, it stated that the Fant action was distinguishable from Granite, because Fant's injury "was not attributable to events for which [CPL] was solely responsible". (Emphasis added.)
22
Subsequent to the summary judgment, and prior to oral argument here, another Texas intermediate appellate court, interpreting a similar endorsement under similar facts, reached a result favoring coverage for the additional insured; in so doing, it disagreed with Granite and Austin "to the extent they [were] contrary to [its] opinion". Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 454 n.4 (Tex. App. 1999, writ denied).
23
In Admiral, K-D Oilfield Services (KD), pursuant to its services agreement with Trident, included Trident as an additional insured, "'but only with respect to liability arising out of the named insured's [KD's] operations'". Id. at 452, 454 (emphasis in original). A KD employee, preparing to perform maintenance on one of Trident's compressors, was injured when it exploded. Id. at 453.
24
As does Mid-Continent here, Admiral Insurance contended that the endorsement provided coverage only if the performance by the named insured, KD, "caused or contributed to" the injury-causing event, and asserted that, instead, "liability [for the injury] arose [solely] out of Trident's operations". Id. at 453. Relying on similar cases from other jurisdictions, Trident responded that coverage was intended as long as there was a nexus between the claim and KD's operations. Id. at 454. It maintained that this nexus was present, because KD's employee was on site to maintain Trident's equipment. Id.
25
Noting that the majority of courts addressing similar endorsements have found coverage for the additional insured where "the named insured's employee was injured ... in connection with performing the named insured's business, even if the cause of the injury was the negligence of the additional insured", id. at 454, the Admiral court held that,
26
because the accident ... occurred to a KD employee while ... on the premises for the purpose of performing preventative maintenance on the compressor that exploded, the alleged liability for the employee's injuries "arose out of KD's operations," and, therefore, was covered by the "additional insured" provision. Further, we note that, giving Admiral every benefit of the doubt, the policy is at best ambiguous and the construction that affords coverage to Trident must be adopted.
27
Id. at 455 (citing National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995)).
28
Shortly before oral argument here, and based on the claimed conflicting holdings in Granite and Admiral, Mid-Continent moved to certify to the Texas Supreme Court the question of interpretation of the endorsement.
29
Subsequent to oral argument, another Texas appellate court has agreed with Admiral's interpretation of the endorsement: McCarthy Bros. Co. v. Continental Lloyds Ins. Co., 7 S.W.3d 725 (Tex. App. 1999, reh'g overruled). The court based its decision on the Texas Supreme Court's recent "broad construction [of] the phrase 'arising out of' in ... an automobile policy". Id. at 729 (citing Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 156 (Tex. 1999)). It expressly "declined to follow" Granite, noting that, by considering the services contract in its duty-to-defend analysis, Granite "violated the 'eight corners' rule" requiring the court to look only to the allegations in the complaint and the terms of the policy. 7 S.W.3d at 730 n.9. See National Union Fire Ins. Co. v. Merchants Fast Motor Lines, 939 S.W.2d 139, 141 (Tex. 1997).
30
As noted, the Texas Supreme Court has not ruled on this issue. Faced with these Texas intermediate appellate decisions, we are Erie-bound to determine what the Texas Supreme Court would hold. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). "'[A] decision by an intermediate appellate court is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced ... that the [Texas Supreme Court] would decide otherwise.'" First Nat'l Bank of Durant v. Trans Terra Corp. Int'l, 142 F.3d 802, 809 (5th Cir. 1998) (quoting Texas Dep't of Hous. & Community Dev. v. Verex Assurance, Inc., 68 F.3d 922, 928 (5th Cir. 1995) (citation omitted)).
31
The Mid-Continent endorsement and those in Granite and Admiral are not identical. Mid-Continent uses "liability arising out of 'your (PMI's) work'", defined by the policy as the named insured's [PMI's] work or operations, while the Granite and Admiral endorsements, respectively, used "liability arising out of operations performed ... by or on behalf of the named insured", Granite, 832 S.W.2d at 428, and "liability arising out of the named insured's operations". Admiral, 988 S.W.2d at 454 (emphasis added). On the other hand, the pertinent language in the two additional insured endorsements at issue in McCarthy is identical to that in Mid-Continent's. See McCarthy, 7 S.W.3d at 727 n.4.
32
Mid-Continent urges that the proper focus of the inquiry is the language "liability arising out of" and, concomitantly, the facts which relate to imposition of liability. It continues to claim that liability was imposed on CPL because of faulty facility design, which it contends was solely CPL's responsibility; and that, therefore, Fant's injury did not "arise out of" PMI's conduct.
33
CPL contends that coverage in this action would be consistent with Granite and Admiral (post-argument, CPL notified us of McCarthy, which had not then been released for publication), because Granite's holding rested on (1) the existence of a provision in the parties' services contract which expressly delegated the activity at issue - loading the truck - to the additional insured; and (2) the finding that negligence in such loading was the sole cause of injury. It states that neither factor is present here, because there is no division of operations in the CPL-PMI contract, and the district court based CPL's liability on PMI's control of the operations, in addition to CPL's faulty facility design. CPL asserts also that project owners' efforts to protect themselves from claims by independent contractors' employees will be thwarted if plaintiff's failure to name the workers-compensation-protected employeras a defendant can defeat coverage for an additional insured. And, it notes that Mid-Continent easily could have limited coverage by including in the endorsement terms such as "vicarious liability" or "negligence of the named insured".
34
To the extent that there is a conflict in the approach taken by Granite and Admiral in interpreting the endorsement, e.g., fault-based versus activity-based, we agree with CPL that our affirming the coverage-for-CPL-ruling does not require us to resolve such conflict. We are persuaded that, in the light of Granite's focus on the word "operations" in the endorsement, which it considered in conjunction with the parties' division of operations in its services contract, there is no need here to reach the same non-coverage holding.
35
First, the word "operations" does not appear in the Mid- Continent endorsement; rather, it uses "your work", which, per its policy definition as work or operations, may indicate that broader coverage was intended; second, the underlying services contract does not divide responsibilities between CPL and PMI vis-a-vis PMI's work; and finally, based on the finding in the Fant action that PMI controlled Fant's work at CPL, his injury, at least in part, "arose out of" PMI's work for CPL. Our holding is also consistent with Admiral. As was the named insured there, PMI was in the business of supplying workers, and its employee, Fant, was injured on CPL's premises while performing the work for which he had been hired.
36
Especially in the light of McCarthy, we are not convinced that the Texas Supreme Court would decide otherwise. And, because of our coverage holding, we need not address Mid-Continent's challenges to the district court's alternative rulings that CPL has coverage because of waiver or contractual liability. (Mid-Continent's motion to certify is DENIED.)
B.
37
In the alternative, Mid-Continent contests the amount of the attorney's fees and costs awarded CPL. This challenge focuses, in part, on the district court's interpretation of the settlement agreement.
38
As noted, pursuant to that agreement, the fees and costs issue was reserved for a bench trial. CPL requested $ 370,000 for this action and $ 130,000 for the appeal in the Fant action; Mid- Continent maintained that, at most, the evidence supported $ 40,000 and $ 15,000, respectively.
39
After the bench trial, which included expert witness testimony, the district judge held that, pursuant to the settlement agreement, he was to determine reasonable and necessary fees and costs pertaining to all of CPL's claims, not just for coverage. In finding the work by CPL's counsel to have been "reasonable and necessary", the court considered the well-known Johnson factors. And, having been persuaded by the testimony of CPL's expert witness, it found the "blended rate" charged by CPL's counsel to be "reasonable and comparable to the customary fees in both Beaumont and Houston, Texas".
40
In the light of the "complex" settlement reached by the parties and the uniqueness of the case, the court found the "'results obtained' factor [not] particularly relevant". CPL was awarded a total of $ 529,209.88 for the appeal in the Fant action and the completed work for this action, as well as $ 30,000 for the prospective work for this appeal.
41
The district court's legal conclusions are reviewed de novo; its fact findings, for clear error. See, e.g., Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 537 (5th Cir. 1998). "Under the clear error standard, we will reverse ... only if we have a 'definite and firm conviction that a mistake has been committed.'" Id. (quoting B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1260 (5th Cir. 1971)). Such findings are not insulated by this deferential standard of review, however, if they are based on "an erroneous view" of the law. Id. (quoting Johnson v.Hosp. Corp. of Am., 95 F.3d 383, 395 (5th Cir. 1996)).
42
We review de novo an unambiguous settlement agreement, see Tarrant Distribs. Inc. v. Heublein Inc., 127 F.3d 375, 377 (5th Cir. 1997), as well as "the determination of whether a settlement agreement is ambiguous." Sid Richardson Carbon & Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746, 753 (5th Cir. 1996). Along this line, the clear error standard is applicable "'when a district court uses extrinsic evidence to interpret an ambiguous'" agreement, Tarrant, 127 F.3d at 377 (quoting In re Raymark Indus., Inc., 831 F.2d 550, 553 (5th Cir. 1987)). Of course, state law governs construction of the agreement. See Lockette v. Greyhound Lines, Inc., 817 F.2d 1182, 1185 (5th Cir. 1987).
43
For diversity cases, attorney's fees awards, which are "entrusted to the sound discretion of the trial court", Texas Commerce Bank Nat'l Ass'n v. Capital Bancshares, Inc., 907 F.2d 1571, 1575 (5th Cir. 1990), are governed by state law. Id.
1.
44
The parties differ on interpretation of their settlement agreement. The pertinent language is found in three provisions. In P 5.2, "MID-CONTINENT agrees that attorneys' fees and costs are recoverable by CPL subsequent to the appeal of [this action] and upon final judgment of the coverage decision if such decision is upheld by [the Fifth Circuit] in favor of CPL". In P 5.3, "the parties agree that the total amount of fees and costs are [sic] to be determined" by the district court. Finally, P 5.5., "The Release", states: "CPL AND THE FANTS GENERALLY RELEASE AND FOREVER DISCHARGE MID-CONTINENT FROM ANY AND ALL EXTRA-CONTRACTUAL CLAIMS WHICH THEY HAVE BASED ON THE MATTERS ALLEGED IN THE LITIGATION SAVE AND EXCEPT THE COURT'S FINDING OF COVERAGE AND AMOUNT OF RECOVERABLE ATTORNEYS' FEES AND COSTS".
45
According to Mid-Continent, the only type fees agreed upon are those CPL could recover in connection with the coverage determination; and, therefore, the district court erred in relying solely on the settlement agreement as the basis for granting fees and costs for CPL's other claims as well. It asserts that, because neither CPL's pleadings nor the pre-trial order give such effect to the settlement agreement, fees for the appeal in the Fant action are "recoverable" only as damages for breach of the insurance policy; fees for the coverage issue in this action, only under 38.001(8) of the Texas Civil Practice and Remedies Code ("reasonable attorney's fees" may be recovered for breach of contract).
46
Mid-Continent asserts further that there is no basis under Texas law for CPL's recovery of fees incurred in pursuit of unsuccessful claims, and that it failed to segregate them. Therefore, under Stine v. Marathon Oil Co., 976 F.2d 254, 264 (5th Cir. 1992) ("Texas law requires that attorney's fees arising from multiple claim litigation be allowed only for those claims for which they are authorized"), it maintains that, as a matter of law, CPL failed to prove what fees were reasonable and necessary regarding its successful claims. Mid-Continent acknowledges the trial testimony of CPL's lead counsel that all fees after entry of summary judgment on the coverage issue were incurred in connection with CPL's Article 21.21 claims, but it contends that the testimony did not aid the court in determining the amount of fees incurred for successful claims prior to that judgment.
47
CPL maintains that it did segregate the fees; that, for the approximate $ 338,000 in fees and $ 36,000 in costs awarded for this action, approximately $ 94,000 in fees and $ 13,000 in costs are attributable to its pursuit of the 21.21 claims. (CPL was also awarded approximately $ 127,000 in fees and $ 28,000 in costs for the appeal in theFant action.) CPL asserts also that the settlement agreement expressly contemplated trial concerning all reasonable attorney's fees and costs, was properly before the court because it was included in the pre-trial order, and was a "major concession", as a quid pro quo for CPL's dropping its 21.21 claims and the opportunity to recover treble damages, on what was otherwise a coverage dispute.
48
CPL points to Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389 (5th Cir. 1995), in which this court, while acknowledging that intermediate Texas courts had assumed such fee awards were recoverable, decided to adhere to our precedent that contracts issued by insurers subject to Article 21.21 were exempt from payment of attorney's fees under 38.001. See Lefarge, 61 F.3d at 402-03. CPL states that, as a result, it pursued the 21.21 claims as the only vehicle for recovering its fees in the coverage action.
49
Finally, CPL contends that, if the settlement agreement is ambiguous, the district court's construction is not clearly erroneous in the light of the entire record and the unrebutted testimony of CPL's counsel that all reasonable fees and costs are "recoverable".
50
For contract interpretation under Texas law, our focus, "'is to ascertain and to give effect to the intentions of the parties as expressed in the instrument'", the settlement agreement. Matador Petroleum Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653, 656 (5th Cir. 1999) (quoting R & P Enter. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980)). A contract, viewed in its entirety, "is ambiguous only if 'it is reasonably susceptible to more than one meaning'", 174 F.3d at 657 (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)); and "all of the surrounding circumstances" must be taken into account. Fender v. Transamerican Natural Gas Corp., 12 F.3d 480, 485 (5th Cir. 1994).
51
Although the fees and costs order, which did not have an express finding of ambiguity, might indicate that the court made its determination based solely on the plain language of the settlement agreement, review of the record makes obvious that the court considered extrinsic evidence in deciphering the parties' intent. Therefore, we must apply the more deferential standard of review for findings of fact.
52
After examining the settlement agreement as a whole, we conclude that the court's interpretation was not clearly erroneous. Mid-Continent is correct that, under the "general rule", CPL has the burden of proving its fees are recoverable, see Aetna Cas. & Sur. v. Wild, 944 S.W.2d 37, 40 (Tex. App. 1997, writ denied) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991)); and that, likewise, fees for claims "not permitted by statute or contract" must be segregated. 944 S.W.2d at 40-41 (citing International Sec. Life Ins. Co. v. Finck, 496 S.W.2d 544, 546-47 (Tex. 1973) (emphasis added)). But, because the interpretation of the agreement was not clearly erroneous, i.e., the agreement permits recovery of reasonable fees and costs related to all of CPL's claims, we uphold the ruling that CPL had no duty to segregate the claims.
2.
53
The amount awarded is an entirely different matter. CPL conceded that it was entitled only to reasonable fees and costs. In making the reasonableness determination, the district court considered the 12 well-known factors outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).1
54
Because Texas courts engage in a similar analysis, it has not been necessary for our court to decide whether the Johnson factors control in Texas diversity cases. See Atlantic Richfield Co. v. Manges, 702 F.2d 85, 87 (5th Cir. 1983) (citing Tuthill v. Southwestern Pub. Servs. Co., 614 S.W.2d 205, 212-13 (Tex. App. 1981, writ ref'd n.r.e.) (citations omitted)); Robinson v. State Farm Fire & Cas. Co., 13 F.3d 160, 164 (5th Cir. 1994) (noting that Texas courts use factors similar to those used in federal courts in awarding attorney's fees). Nor need we do so now; the parties have used the Johnson analysis, and the Texas Supreme Court has recently outlined factors comparable to those in Johnson.2
55
While the clear error standard applies to fact findings on the Johnson factors separately, "the ultimate award of attorney's fees is reviewed for abuse of discretion", as are determinations regarding hours and rates. Cobb v. Miller, 818 F.2d 1227, 1231 (5th Cir. 1987) (citations omitted). In determining recoverable fees, not only must the district court examine "the product of the hours worked multiplied by the billing rate" (the "lodestar"), it must also consider, inter alia, "whether the award is excessive in light of the plaintiff's overall level of success". Romaguera v. Gegenheimer, 162 F.3d 893, 896 (5th Cir. 1998) (citing Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)). Moreover, the requested fees must bear a "'reasonable relationship to the amount in controversy or to the complexity'" of the circumstances of the case. Jerry Parks Equip. Co. v. Southeast Equip. Co., 817 F.2d 340, 344 (5th Cir. 1987) (quoting Giles v. Cardenas, 697 S.W.2d 422, 429 (Tex. App. 1985, writ ref'd n.r.e.)). In deciding whether fees are excessive, we "[are] entitled to look at the entire record and to view the matter in the light of the testimony, the amount in controversy, the nature of the case, and our common knowledge and experience as lawyers and judges". Id.
56
As examples of claimed unreasonable time spent and fees billed, Mid-Continent cites, inter alia: (1) 32 hours spent on the argument summary for a pending summary judgment motion, billed at $ 5,500; (2) 75 hours on the order awarding CPL summary judgment, billed at $ 14,000; (3) $ 5,500 billed for subpoenas issued to Mid-Continent's lead counsel, seeking his files regarding a published decision in which he acted as counsel; and (4) over 30 hours of research for a memo on legal malpractice claims CPL did not initiate, at $ 2,500. Regarding the appeal in the Fant action, Mid- Continent contends that it should not be held accountable, for example, for over $ 30,000 billed to CPL for work done by its counsel prior to their assuming the appeal.
57
Mid-Continent asserts that CPL's counsel overstaffed their work, citing to bill summary entries indicating that 11 lawyers and at least six paralegals, over a period of slightly more than a year, worked on this action. In addition, it contends that CPL's billing 875 hours for theappeal of the Fant two-day bench trial is excessive, noting, for example, that three different attorneys and a paralegal spent a combined 140 hours reviewing the Fant trial transcript, at a cost of $ 19,000; and that there are $ 4,000 in "double charges", i.e., where the same entry appears twice in the same day or on consecutive days.
58
Mid-Continent contends further that the district judge abused his discretion by failing to consider all of the Johnson factors, especially degree of success. It asserts that CPL was unsuccessful on more than half of its claims; and that, even though CPL had sought over $ 10 million in this action, the extent of the benefit it achieved was simply to avoid paying a $ 325,000 settlement to the Fants.
59
And, Mid-Continent claims that the district judge's reliance on the testimony of CPL's expert -- that CPL's blended hourly rate of $ 137 per hour was reasonable -- was error, because that method contradicts the lodestar analysis. It also contests the award of paralegal fees and costs, as consisting mainly of clerical, non-recoverable overhead, and the prospective fees awarded for this appeal ($ 30,000), because the district judge could not determine the reasonableness of the prospective work.
60
CPL responds that its fees and costs were necessitated by Mid-Continent's own conduct, citing, inter alia, its motion to disqualify CPL's lead counsel and his firm, and its efforts to limit discovery. In justification of the award, CPL states that it had to alter its approach in the appeal in the Fant action to show that Fant's supervisor was also a "borrowed servant"; that the "factual intensity" of this defense required a detailed review of the record in the Fant action; and that, after summary judgment was granted on coverage, it began pursuing its Article 21.21 claims, because Mid-Continent was not amenable to a settlement on attorney's fees and costs.
61
CPL asserts that the research on the legal malpractice issue (concerning counsel provided by Mid-Continent to CPL in the Fant action) was legitimate; and that it did not seek reimbursement for fees prior to taking over the appeal in the Fant action. As for costs, CPL explained at trial that it sought costs due, inter alia, to the breach of the insurance contract.
62
CPL maintains that the district court properly considered the Johnson factors, and that it (CPL) had a high degree of success, not only in obtaining coverage, but also in reducing the judgment in the Fant action, valued at approximately $ 550,000 at time of settlement, to $ 325,000; that the district judge did not abuse his discretion in finding the blended rate reasonable; and, citing to case law in the Second and Fourth Circuits, that, because Mid-Continent originally filed suit in Houston, consideration of Houston rates was proper. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (stating that if reasonable, court may consider rates in other communities); Polk v. New York State Dep't of Correctional Servs., 722 F.2d 23, 25 (2d Cir. 1983) (stating that court may look to prevailing rate in forum where action filed). Finally, CPL claims that it segregated clerical work from its paralegal fees, and that the prospective award of fees for this appeal was proper, because Texas courts have specifically approved such awards.
63
Both parties have characterized themselves as victims of litigational warfare: Mid-Continent accuses CPL of responding to its "simple request for declaratory relief as if nuclear war had been declared"; CPL counters that Mid-Continent is responsible for the "blitzkrieg" of litigation which drove up CPL's fees and costs. Needless to say, neither party is a novice to litigation. And, it also goes without saying that the cost in time and expense to the parties and the courts because of this fees and costs dispute is most regrettable and, for the most part, quite unnecessary. No authority need be cited for the fact that such disputes should not be a separate, or second, litigation.
64
Sadly, the "settlement agreement" failed miserably in this regard. Moreover, while it was proper for the district court to consider that agreement, it does not, by itself, "provide ... a meaningful way to determine if the actual amount of attorney fees was in fact reasonable and necessary". Dunn v. Southern Farm Bureau Cas. Ins. Co., 991 S.W.2d 467, 475 (Tex. App. 1999, writ denied).
65
This fees dispute for this action does have some complexity, in part due to the multiple claims. But, based on our review of the record, including the billing summaries submitted by CPL, the award for this action of $ 338,314 in fees and $ 36,485.24 in costs is excessive for what was -- or at least should have been -- simply a coverage dispute. See Capital Bancshares, 907 F.2d at 1575. Along this same line, the award of $ 126,892.25 in fees and $ 27,821.39 in costs for the appeal in the Fant action is unreasonable. In sum, the amount of the award was an abuse of discretion.
66
In this regard, the district court did not abuse its discretion in accepting CPL's blended rate for attorney's fees, or in awarding fees for this appeal. See Clark Adver. Agency, Inc. v. Tice, 490 F.2d 834, 840 (5th Cir. 1974) (citing Yellow Freight Sys., Inc. v. Hydraulic Prods. Co., 482 S.W.2d 659 (Tex. App. 1972)). But, in deciding to use the Johnson factors, the court should have utilized them more precisely, especially, as noted, regarding the degree of success. And, at the least, it should have explained its reasons for rejecting Mid-Continent's other objections to CPL's request. See Atlantic Richfield, 702 F.2d at 88.
67
As discussed, the district court did not clearly err in considering CPL's request for all claims. But, many of Mid-Continent's complaints appear legitimate, including, for example, those about billing record entries regarding clerical work performed by paralegals. See Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982) (noting that paralegal costs may be recovered "only to the extent that the paralegal performs work traditionally done by an attorney"); Gill Sav. Ass'n v. International Supply Co., 759 S.W.2d 697, 703 (Tex. App. 1988, writ denied) (finding "legal work" properly performed by legal assistants recoverable) (emphasis added).
68
Mid-Continent requests that we render judgment on the award, citing Cobb, 818 F.2d at 1235. The Cobb court, having reversed the amount of the award, rendered judgment for the lodestar amount. Id. CPL does not respond specifically to this request; however, it does assert that the district judge, having presided over both the underlying Fant action and this one, was "uniquely positioned" to determine the award. The unusual posture of this issue - a bench trial in which, in addition to documentary evidence, the district judge considered the credibility of the parties' expert witnesses -- persuades us that a remand is the wiser course.
69
Needless to say, on remand, "the court should exclude all time [in CPL's billing records] that is excessive, duplicative, or inadequately documented". Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (emphasis added). And, among other things, the court can better determine the fee to award for this appeal for this action.
III.
70
For the foregoing reasons, those parts of the judgment as to coverage and as to CPL being entitled to attorney's fees and costs are AFFIRMED; those parts as to the amount of those fees and costs are REVERSED; and this matter is REMANDED for further proceedings consistent with this opinion.
71
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Notes:
1
Those factors are: (1) time and labor required; (2) novelty and difficulty of the issues; (3) required skill; (4) whether other employment is precluded; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations; (8) the amount involved and the results obtained; (9) the attorneys' experience, reputation and ability; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citing Johnson, 488 F.2d at 717-19).
2
These factors are "'(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the expertise, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of the collection before the legal services have been rendered.'" Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997)(quoting TEX. DISCIPLINARY R. PROF. CONDUCT 1.04, reprinted in TEX. GOV'T CODE, tit. 2, subtit. G app.(STATE BAR RULES, art. X, 9)) | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1612872/ | 282 So. 2d 301 (1973)
In re Gwen HIGGINS, a minor
v.
NATIONWIDE MUTUAL INSURANCE CO.
Ex parte NATIONWIDE MUTUAL INSURANCE COMPANY.
SC 326.
Supreme Court of Alabama.
August 30, 1973.
*302 Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, III, Birmingham, for petitioner.
M. Clay Alspaugh, Birmingham, for respondent.
McCALL, Justice.
Nationwide Mutual Insurance Company, the insurer and the defendant in the trial court, petitioned us for a writ of certiorari to issue to the Court of Civil Appeals to review and reverse and adverse opinion of that court on the ground that a legal question of first impression in Alabama was involved. See Rule 39, Revised Rules of Practice in the Supreme Court, as amended, Appendix to Title 7, Code of Alabama, Recompiled 1958 (Cum.Sup.). Upon preliminary examination, we were of the opinion that the writ should issue and so granted the application.
The plaintiff, a minor daughter of the named insured in the defendant insurer's automobile liability policy, was also an insured under that policy. She was injured in a one vehicle accident while being transported as a student-passenger in an uninsured Jefferson County, Alabama, school bus allegedly as a result of the negligence of the bus driver. She sought to recover damages for her injuries under the uninsured motor vehicle provision in her father's *303 automobile liability policy. For a better understanding of the facts in the case and the decision of the Court of Civil Appeals, see Higgins v. Nationwide Mutual Insurance Co., Civ. 57 (Ms.), decided on February 7, 1973.
The policy of insurance contains an express exclusion of "an automobile which is owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing," from the definition of the term "uninsured automobile," as defined therein.
The Court of Civil Appeals held that the exclusion in the insurance contract was void. We have carefully reviewed the decision of the Court of Civil Appeals, and it is our considered opinion that in its holding it has reached a correct result and the case is due to be affirmed.
Our Uninsured Motorist Act, Act No. 866 of the Legislature, Acts of Alabama, Regular Session, 1965, Vol. II, p. 1614, listed in the Recompilation as Tit. 36, § 74(62a) provides:
"No automobile liability or moter (sic) vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 5, of the Motor Vehicle Safety-Responsibility Act (Code 1958, Title 36, Sec. 74(46)), under provisions approved by the Commissioner of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer."
The purpose of Act No. 866 is to provide coverage "for the protection of persons insured thereunder" against injury, including death, caused by the wrongful act of an uninsured motorist. Gulf American Fire & Casualty Co. v. Gowan, 283 Ala. 480, 218 So. 2d 688. While there may be argument for not including motor vehicles owned by the United States, Canada, a state or a political subdivision or agency of any of these, since governmental bodies are likely able to respond in damages, the fact remains that the Legislature did not provide this exclusion in the Act. It might have undertaken to do so, had it desired, Jones v. Southern Farm Bureau Casualty Co., 251 S.C. 446, 163 S.E.2d 306, but not having done so, it is mandatory that Act No. 866, the governing law be read into the policy contract as it exists. Where the inclusion of uninsured motorist coverage is mandatory under an act, unless specifically waived, the governing act states what the coverage shall include. Page v. Insurance Co. of North America, 256 Cal. App. 2d 374, 64 Cal. Rptr. 89; Standard Accident Insurance Co. v. Gavin, 184 So. 2d 229 (Fla. App.); Ampy v. Metropolitan Casualty Insurance Co., 200 Va. 396, 105 S.E.2d 839.
In 11 Am.Jur. Trials, § 6, p. 86, it is stated:
"Where a statute [an Act] requiring uninsured motorist coverage is broad and comprehensive in scope, it establishes as a matter of public policy that every bodily injury motor vehicle policy should provide uninsured motorist coverage; the code [Act] becomes in effect a part of every policy of insurance to which it is applicable, as if it were written out in *304 full in the policy itself. * * *." Hendricks v. Meritplan Insurance Co., 205 Cal. App. 2d 133, 22 Cal. Rptr. 682.
Couch on Insurance, Second Edition, Vol. 12, § 45.625, p. 571 states:
"An uninsured motorist statute requiring uninsured motorist coverage enters into the contract of insurance as an implied term and forms a part thereof." Citing among other cases Prosk v. Allstate Insurance Co., 82 Ill.App.2d 457, 226 N.E.2d 498, 25 A.L.R. 3d 1294; Travelers Indemnity Co. v. Powell, (Fla. App.) 206 So. 2d 244; Stevens v. American Service Mutual Insurance Co., (Dist. Col.App.) 234 A.2d 305; Allison v. Imperial Casualty & Indemnity Co., (Fla. App.) 222 So. 2d 254; Rose v. Travelers Indemnity Co., 209 Va. 755, 167 S.E.2d 339; Travelers Indemnity Co. v. Williams, 119 Ga.App. 414, 167 S.E.2d 174; Progressive Mutual Insurance Co. v. Brown, (Fla.App.) 229 So. 2d 645, quashed on other grounds (Fla.) 249 So. 2d 429; Indiana Insurance Co. v. Noble, Ind.App., 265 N.E.2d 419.
In Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 614, 243 So. 2d 736, 742, the restriction on uninsured motorist coverage under consideration was a contractually imposed limit on the total amount recoverable, if more than one insurer became liable to pay under its policy. In rejecting the unauthorized attempt to limit coverage this court said:
"* * * [W]e cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid."
Similarly, an attempt to contract away the uninsured motorist coverage provided by law by excluding from coverage any amounts which were received by the insured from any other similar insurance, was held void and unenforceable in State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So. 2d 619 (1971). There the appellant insurer sought to set off the amounts recovered or to be recovered under workmen's compensation insurance against the amounts due under its uninsured motorist coverage. We held there as in Safeco, supra, that such attempts to avoid the statutory liability of coverage were themselves void.
The Court of Civil Appeals in its opinion cites as authority, Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir.), which dealt with an exclusion in an uninsured motorist coverage which provided that the term "uninsured automobile" does not include a vehicle owned by the United States, Canada, a state, or a political subdivision of any such government or any agency thereof. The U. S. Court of Appeals construing Arkansas law reasoned that the exclusion was invalid as contrary to the Arkansas uninsured motorist statute. We think the decision is apropos and are in accord with its holding.
The petitioner, Nationwide, contends that there is a valid ground to distinguish Vaught, supra, from the instant case, that is, the absence in Vaught of a financially responsible entity to respond in money to the plaintiff's injuries. When acting in its governmental capacity, the City of North Little Rock was not liable in damages for negligent injuries inflicted on others by its employees, servants, and officers. In an attempt to distinguish the cases, the petitioner argues that the plaintiff here may look to the State Board of Adjustment Act (Code of Alabama, 1940, Tit. 55, § 333 et seq., as amended) for recompense. We do not consider in a case of this kind that the measure of an injured person's rights under the State Board of Adjustment Act is equivalent to that afforded by a common law action. In the latter the parties may have the issues of fact determined by a jury, while a student claiming damages for personal injuries incurred on a school bus on account of the driver's negligence would be bound by the board's *305 decision both as to liability and the amount of the award. Under the State Board of Adjustment Act, if it appears to the Board that another is legally liable, it may withhold payment until final settlement has been made with that party, and any damages that are recovered may be offset against payments due under the act. Further the benefits payable under the act are to equal maximums payable under the Workmen's Compensation Law (Chapter 5, Tit. 26, Code of Alabama, 1940, as amended) while an injured party as here may otherwise in a civil action recover reasonable compensation for his injuries. We do not consider the petitioner's contention sufficient to distinguish Vaught from the present situation.
Further we decline to base our holding on the presence or absence of a financially responsible party. Rather the question is whether conditions may be imposed in a policy which conditions restrict the uninsured motorist coverage prescribed by law.
We think that in the absence of any language in the act authorizing the exclusion, no exclusion of governmentally owned motor vehicles may be created in the policy. An attempt to include such in the policy provisions conflicts with the mandate of the act. The act provides such insurance protection for insureds without limitation or restriction as to whether or not the uninsured motor vehicle is governmentally owned or operated, and restricting the act's scope thwarts its purpose.
Nationwide, the petitioner, argues that since Act No. 866 does not define an uninsured motorist, the contracting parties may define its meaning so long as such definition does not conflict with public policy and the provisions of the act. The petitioner contends that it is not against public policy for the parties to agree that an uninsured automobile as defined in the policy shall not include a governmentally owned motor vehicle.
It is reasonable and safe to state that "an `uninsured automobile' is ordinarily defined to include motor vehicles with respect to which neither the owner nor the operator carries bodily injury liability insurance, and `hit and run' automobiles." 7 Am.Jur.2d Automobile Insurance, § 136, p. 462; 79 A.L.R. 2d 1253. We have said that the words of the act control, so the question arises whether the coverage in the policy is narrower or more restrictive than that called for in the act. It is obvious to us that the definition, that an uninsured automobile shall not include an automobile owned by the government or a subdivision thereof, narrows and restricts the general meaning and definition of an uninsured automobile. Further, if the exclusion did not purpose to restrict the meaning of the term "uninsured motorist" as it appears in the act, then why was any definition ever made a provision of the insurance contract? The exclusion in the policy is more restrictive than the act and is therefore void.
Nationwide argues there arises a conflict between the holding in the opinion of the Court of Civil Appeals in this case and its decision in Lammers v. State Farm Mutual Automobile Insurance Co., 48 Ala.App. 36, 261 So. 2d 757, wherein certiorari was denied by this court. See 288 Ala. 745, 261 So. 2d 766. It has been repeatedly stated that the mere denial of a petition for certiorari to one of our appellate courts is not to be taken as an affirmance or agreement by this court of all that is said in the opinion of the appellate court. There are many reasons why writs are denied. The argument that Lammers is contrary to the holding of that court in this case is not convincing because we did not necessarily approve Lammers by denying certiorari.
Being of the opinion that those parts of contracts of insurance which infringe upon or attempt to restrict the uninsured motorist coverage are contrary to the Legislative Act, Safeco Insurance Co. of America v. Jones, supra, State Farm *306 Mutual Insurance Co. v. Cahoon, supra, see also Vaught v. State Farm Fire and Casualty Co., supra, we hold that the clause here in question attempting to exclude governmentally owned vehicles is void and unenforceable. The decision of the Court of Civil Appeals is due to be affirmed.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618091/ | 685 S.W.2d 364 (1984)
ALLIED INDUSTRIAL INTERNATIONAL, INC., Coast Industrial Exchange, Inc., Ray's Bit Retipping Service, Inc., Dresser Industries, Inc. and Crane Welding Supply Company, Appellants,
v.
Jose PLACENCIO, Appellee.
No. 04-83-00280-CV.
Court of Appeals of Texas, San Antonio.
November 21, 1984.
Rehearing Denied February 1, 1985.
*367 G. Thomas Coghlan, San Antonio, Richard C. Keene, Gray & Keene, San Antonio, for appellants.
Russell H. McMains, Corpus Christi, Homero C. Canales, Alice, Steve Hastings, Corpus Christi, for appellee.
Before CADENA, C.J., and BUTTS and TIJERINA, JJ.
OPINION
BUTTS, Justice.
This is a products liability action, arising when a grinding wheel flew apart, injuring plaintiff, Jose Placencio, as he worked with it. The injuries occurred when plaintiff was sharpening or grinding a 25 pound drill bit. It is the bench grinder to which the wheel was attached which is the subject product of the appeal. He with his wife, Frances, sued Allied Industrial International, Inc. and Coast Industrial Exchange, Inc., distributors of the bench grinder; Ray's Bit Retipping Service, Inc., a retailer; Dresser Industries, manufacturer of the grinding wheel; and Crane Welding Supply Company, retailer of the wheel. Transamerica Insurance Company, having paid worker's compensation insurance, intervened to assert subrogation rights to plaintiff's possible recovery. Dresser Industries, Inc., Crane Welding and Ray's Bit Retipping Service each obtained a directed verdict that plaintiff take nothing against them. The judgment is against Allied and Coast. Only Allied and Coast appeal.
In answer to special issues the jury found: (1) when Allied sold the bench grinder in question, it failed to furnish adequate warnings of the danger(s) or adequate instructions for safe use; (2) such failure rendered the bench grinder unreasonably dangerous as marketed; (3) such failure was a producing cause of the occurrence; (4) the guard on the grinder was defectively designed at the time it left the possession of Allied; (5) such defective design was a producing cause of the occurrence in question; (6) Jose Placencio should be compensated in the amount of $650,000 for his injuries resulting from the occurrence and, (7) Frances Placencio was not entitled to any damages for loss of consortium.
The judgment provides (1) that Coast and Allied are jointly and severally liable to Jose Placencio in the amount of $564,495 (the jury awarded $650,000.00); (2) that Allied fully indemnify Coast for any and all amounts owed by it to the plaintiff (Allied acknowledged an agreement to indemnify Coast); (3) that intervenor Transamerica Insurance Company recover $37,365.54 of the judgment; and (4) that Jose's wife recover nothing in her claim for loss of consortium. We reverse and remand.
On the theory of strict liability in tort, plaintiff alleged defendants failed to provide an adequate warning on the grinder as to the actual revolutions per minute at which the grinder rotated. He alleged there were not adequate instructions for the use of the bench grinder with various grinding wheels on the market. And, further, he charged the grinder was defective in that the guard on the grinder did not comply with safety standards for such guards. While plaintiff grounded his suit also upon negligence and breach of warranty theories, the special issues addressed only the strict liability theory of the cause of action.
RESTATEMENT OF TORTS 2d § 402A (1965), adopted as governing by Texas in 1967, governs both warning and *368 design defect cases. In a warning defect case, the plaintiff must show that the manufacturer knew or should have known of the risks at the time the product was sold and failed to provide warnings of the dangers and/or instructions for safe use. Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978). In a design defect case, the plaintiff must show that a facet of the design plan renders the product unreasonably dangerous as designed. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 748 (Tex.1980); Turner v. General Motors Corp., 584 S.W.2d 844, 851 (Tex.1979); Bryan v. John Bean Division of FMC, 566 F.2d 541, 547 (5th Cir.1978).
On appeal Allied and Coast do not challenge the sufficiency of the evidence regarding either a warning defect or a design defect. The evidence is undisputed that the grinder came with no instruction booklet nor any nameplate indicating the safe speed at which the grinder could operate. While an instruction card accompanied the grinding wheel, there was none with the bench grinder.
The testimony of expert witnesses, who were engineers and metallurgists, also established that the guard on the bench grinder, its purpose being to contain debris, was made of a brittle aluminum alloy of slightly more than 1/8th inch thickness contrary to ANSI standards requiring that the guard be made of ductile material, a minimum of 3/8ths inch thickness.[1]
Plaintiff stated he received about onehalf hour of instruction to operate the grinder from his employer, Mac's Bit Service, where he had been working for six weeks before the date of the accident on April 19, 1977. After grinding on a 25 pound drill bit for about one-half hour, he took a "break." Upon returning, he started the bench grinder again. The grinding wheel immediately fractured into two halves. The right guard attached to the bench grinder fragmented. Fragments of the guard, along with debris from the grinding wheel, travelling explosively, struck plaintiff in the face and head, impacting on the bridge of his nose and forehead and penetrating his face shield. This caused impaired vision in plaintiff's right eye; his frontal sinuses were fractured and crushed; his nasal bones were crushed and flattened, resulting in some loss of smell and taste. He also suffered a skull fracture. At the time of trial, he complained of resulting headaches and dizziness and constant watering of the left eye. He has been unable to return to work on a permanent basis, but has sometimes been employed setting up electrical equipment for a musical group.
Allied brings ten points of error. In points one through five, it charges that the trial court erred in failing to grant Allied's submitted defensive issues on misuse and/or alteration, and further that it was plaintiff's burden to show there was no misuse and/or alteration. In points six through eight, Allied argues error resulted when the trial court submitted certain special issues which assumed that Allied had, in fact, sold the bench grinder when the evidence of sale was legally and factually insufficient. In points nine and ten, Allied challenges the damages awarded to plaintiff as being grossly excessive.
Coast brings seven points of error: Coast contends, in points one through three, that the judgment against Coast cannot stand because there are no special issues finding Coast liable. In points four through six Coast challenges as factually insufficient the evidence which would support the jury finding of plaintiff's loss of future earning capacity in the amount of $300,000. In point seven, Coast adopts all of Allied's points of error. Plaintiff claims by crosspoint that the trial court should not have reduced the sum awarded by the jury to plaintiff for his injuries.
Allied submitted its request for special issues on January 27, 1983. The judge refused these requested special issues, endorsed them as refused, and filed them with the clerk of the court. This preserved any error for appellate review. *369 TEX.R.CIV.P. 276. The jury returned its answers to the submitted special issues on that same day. Judgment was entered on March 23, 1983. We must, however, determine whether Allied timely filed objections to the charge of the court. On the first page of its exceptions and objections is the file mark indicating these were filed on June 8, 1983, over two months after judgment was entered. However, on the last page of the exceptions and objections, there is the stamped signature of the trial judge following this statement:
The ABOVE and FOREGOING objections and exceptions were presented to the Court by counsel above-named in timely and proper form, and except as reflected in the Charge of the Court as given to the jury, were by this Court overruled.
There is contradictory evidence on the face of the record, the file mark indicating the exceptions and objections were filed late, and the stamped signature in the back indicating timely filing. TEX.R.CIV.P. 272 provides a presumption that the party making such objections filed them timely. Therefore, we find that Allied's objections were timely made and preserved.
We note, however, that Coast, unlike Allied, neither submitted requested special issues nor offered objections to the court's charge. Coast cannot object in its brief on appeal to the court's charge when it neither submitted special issues nor excepted and objected to the court's charge. Campbell v. Davis, 563 S.W.2d 675, 678 (Tex.Civ.App. Tyler), reversed on other grounds, 572 S.W.2d 660 (Tex.1978). Thus, as to point of error seven, Coast waived any complaint directed to special issue submission.
The matters in argument may be addressed under each of three categories: (1) was it necessary that special issues establish the distributive chain in order to support the liability of Allied and Coast?; (2) was Allied entitled to the defensive issues of misuse and/or alteration in the court's charge?; and (3) what should be the proper award of damages, if any, to plaintiff?
DISTRIBUTIVE CHAIN
Appellant Allied objects to special issues one and four which states that Allied sold the grinder, contending this is an issue in dispute.
Special Issue No. 1
At the time Allied Industrial International, Inc. sold the grinder in question, did it fail to furnish with the product adequate warnings of the danger(s) or adequate instructions for safe use with respect to the product?
"Adequate warnings and instructions" means warnings and instructions that are given in such form that they could reasonably be expected to catch the attention of the reasonably prudent person in the circumstances of its use; and the content of the warnings and instructions must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger and how to avoid it to the mind of a reasonably prudent person.
Answer "Yes" or "No."
Answer: Yes
SPECIAL ISSUE NO. 4
Was the guard on the grinder defectively designed at the time it left the possession of Allied Industrial International, Inc.?
A "defectively designed" product is a product that is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.
Answer: "Yes" or "No."
ANSWER: Yes
Harry W. Steere, general manager of Allied, testified that "Chicago Heavy Duty" is the logo on Allied's products, and that Coast was one of Allied's "big" customers. However, as a result of a move, Allied lost the records of the sale of this particular grinder to Coast. Carl Stronberg, vicepresident and general manager of Coast, testified that he bought the grinder from *370 Allied; he knew this because Allied's logo "Chicago Heavy Duty" appeared on the grinder; however, he could not designate the particular grinder because there was no serial number. Stronberg also testified that he sold two grinders to Ray's Bit Service; the invoice of that sale was admitted into evidence without objection. Ray testified that he bought the subject grinder for his father-in-law who owned Mac's Bits. M.C. McKee, the owner of Mac's Bit Service, testified that he obtained the grinder from Ray.
We find the evidence here conclusively establishes the distributive chain from Allied to Coast to Ray's Bit Service to Mac's Bits. Compare Coca-Cola Bottling Co. of Lubbock v. Fillmore, 453 S.W.2d 239, 241 (Tex.Civ.App. Amarillo 1970, no writ) (link in distributive chain from bottler to filling station missing).
We note the new Texas rule of evidence 902(7),[2] not in effect at the time of trial, provides that the trademark itself connects the product to the manufacturer. Applying the reasoning of Coca-Cola Bottling of Lubbock, supra, we find there is no missing link in the distributive chain. A special issue should not be submitted when evidence is conclusively established or when it is a matter of legal deduction from undisputed facts. Lumbermen's Insurance Corp. v. Jones, 311 S.W.2d 873, 875 (Tex.Civ.App. Fort Worth 1958, writ ref'd n.r.e.) (where stipulation, no issue goes to the jury); Yancey v. Olvera, 518 S.W.2d 935, 942 (Tex.Civ.App. San Antonio 1974, writ ref'd n.r.e.) (where evidence established as a matter of law, submission of special issue not required).
Allied's points six through eight are overruled. The record also discloses a stipulation of the parties that Coast is part of the distributive chain. Thus, no special issue is necessary finding Allied or Coast to be part of the distributive chain.
Coast further argues that because no issues address its liability, the judgment against it must fall. We do not agree. The evidence shows the alleged defects existed when Allied placed the product in the stream of commerce and nothing is shown to demonstrate the alleged defects were not there when Coast sold the product.
Texas courts follow section 402A of the Restatement of Torts 2d and rule that strict liability in tort lies against the distributor as well as the manufacturer of defective goods. Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975). The evidence is undisputed that Coast was a distributor. If there had been affirmative evidence that Coast was not a part of the distributive chain as a seller, the trial court should have submitted an issue on the disputed fact. There was, however, a stipulation that Coast was part of that chain. TEX.R. CIV.P. 277 and 279 place no duty on the trial court to submit an issue on an undisputed fact. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971). Further, Coast did not request any special issue. We overrule Coast's points one through three.
DEFENSIVE ISSUES
Appellant requested fifteen special issues on misuse and/or alteration and negligence as well as definitions on alteration, misuse and negligence. The trial court refused all requested defensive issues and definitions.
In its recent opinion, Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex.1984), the Supreme Court of Texas replaced unforeseeable misuse as a defense with the doctrine of comparative fault, ruling, however, that the doctrine of comparative fault should apply prospectively to govern product cases tried after July 13, 1983. Since the present trial began on January 24, 1983, the defense of unforeseeable misuse rather than comparative fault was a viable one.
*371 In a landmark case, General Motors Corp. v. Hopkins, 548 S.W.2d 344, 352 (Tex.1977), the Texas Supreme Court treats alteration as a kind of misuse. See Sales, Assumption of the Risk and Misuse in Strict Tort Liability Prelude to Comparative Fault, 11 TEX.TECH.LAW REV. 729, 749-53 (1980). In Hopkins, the court said that the alteration of the carburetor was in essence a misuse of that carburetor, but there was no burden on the plaintiff to show the product involved in the accidentproducing event was not subjected to any substantial alteration in its design after leaving the hands of the product supplier. Although some other jurisdictions place this burden on a plaintiff, Texas does not. Allied's point of error three concerning plaintiff's burden to show no misuse or alteration is therefore overruled.
MISUSE
The defense of misuse may be asserted after a product is found to be unreasonably dangerous, and the defect is found to be a producing cause of the injury.
According to Hopkins, supra, there are three elements, all of which are necessary to establish the misuse defense: (1) the defendant must establish that the particular misuse of the product was neither intended nor reasonably foreseeable from the manufacturer's or supplier's perspective; (2)the defendant must establish that the product user could reasonably foresee an injury occurring as a result of the misuse; and (3) the misuse was a producing cause of the injury. If a jury finds these elements are present, it must then determine the percentage by which these concurring causes proximately contributed to the accident and resulting injury. Id. at 351. Sales, Comparative Causation in Strict Tort Liability: One Perspective of Duncan v. Cessna Aircraft Corp., 3 STATE BAR LITIGATION SECTION REPORT 4 (1984).
Allied pled the affirmative defense of misuse and sought to establish during the course of the trial that the grinder had been misused in a number of ways: (1) the employer had cut a slot in the right guard; (2) the work rest and the eye shield had been removed; (3) the flanges (the purpose being to grip the side of the grinding wheel and provide for an even distribution of pressure) were not clean and flat; (4) plaintiff jammed the drill bit between the grinding wheel and guard; (5) plaintiff had ground on the side of the wheel; and (6) plaintiff had run the grinder without checking the r.p.m.'s.
As to alterations, McKee, plaintiff's employer, testified that he was responsible for removing the eye shield and the work rest and that he cut the slot in the guard.[3] In Blackwell Burner Co. v. Cerda, 644 S.W.2d 512, 520 (Tex.App. San Antonio, 1982, writ ref'd n.r.e.), this Court quoted from the Hopkins decision, 548 S.W.2d at 351: "We reject misuse as a defense where the product is dangerous for its foreseeable use and the danger is a producing cause of the injury of a bystander or a user who has not himself made some unforeseeable use of the product."
The misuse defense, at the time of this trial, could nevertheless be applicable even though a supplier was liable for injuries resulting after it placed a dangerous product into the stream of commerce. Products liability was not meant to take the place of insurance, and the supplier should not be required to reimburse the plaintiff for that portion of damages caused by a use of the product that the supplier would not have foreseen and that plaintiff should have foreseen would create or increase the attendant danger. Reduction of the plaintiff's recovery should be ordered where the misuse is a concurring *372 proximate cause of the damaging event. General Motors Corp. v. Hopkins, supra, 548 S.W.2d at 351.
Subsequent to the accident, tests were conducted which indicated the grinding wheel broke as plaintiff operated the grinder at 3650 r.p.m.'s; however, the instructions accompanying the grinding wheel specified the wheel should be run at no more than 2480 r.p.m.'s. It is undisputed that no instructions accompanied the grinder nor was any nameplate attached to the grinder itself to indicate the maximum speed that an attached grinding wheel should be capable of rotating. Since neither plaintiff nor his employer received that kind of warning, such a marketing defect alone would suffice to make this product defective. Blackwell Burner Co., supra, at 516. Compare Lopez v. Aro Corp., 584 S.W.2d 333, 336 (Tex.Civ.App. San Antonio 1979, writ ref'd n.r.e.) (instruction booklet without warning on side of grinder sufficient to warn user).
Allied presented evidence through its expert, Dr. Billy H. Amsted, a consulting engineer, that the flanges on the grinding wheel were not clean, explaining that the excessive buildup interfered with the function of the flanges to distribute the weight uniformly over a greater part of the wheel. A buildup of any kind would cause undue stress on the wheel which was attached to the grinder. This was a violation of Under writers, OSHA, and ANSI standards. In calculating the torque, Amsted said if twenty pounds were placed on the wheel at four and one-half inches out, the torque (force) would be 450 pounds. This would be equivalent to putting 450 pounds on one side of the wheel when there is dirt buildup on the wheel. This is the kind of stress which would cause the wheel to break in half (which it did). Excess buildup on the wheel results in uneven load distribution.
There was testimony from other experts indicating that when a grinding wheel breaks from overspeed, it normally breaks into many pieces. It was stated that when a wheel breaks in half, as in this case, that it may not be from overspeed alone. There was testimony from Amsted that he found evidence of "jamming" of the bit between the grinding wheel and the guard. He could not say whether the breaking of the grinding wheel was caused by jamming or dirty flanges, but he based his conclusions that either could be a cause upon the type of fracture (in half) of the wheel. Also he stated the removal of the tool (work) rest was a substantial alteration, stating if it was impossible to use the work rest, "they" were using the wrong kind of grinder. This last might be a possible misuse by plaintiff, not because of his employer's initial removal of the work rest, but because plaintiff's demonstrated necessity to work without the work rest, there being no room for both the drill bit and the work rest, indicated the wrong kind of grinder was used with this particular grinding wheel and 25 pound drill bit. He further stated there was some evidence that plaintiff had ground on the outside of the wheel, and that may have been a cause of the damaging event. Another expert testified there was some evidence of "improper mounting, premounting damage, and excessive side pressure" by the plaintiff.
While it is accepted that if the injury resulting from a foreseeable misuse of the product is one which an adequate warning would likely prevent, then such misuse is not a defense in an action based on the failure to give such a warning, Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., 518 S.W.2d 868, 875 (Tex.Civ.App. Dallas 1974, writ ref'd n.r.e.) (Citations omitted), in the present case there was some evidence that other possible unforeseeable concurring producing causes existed. Thus the question arises as to concurring producing causes and their unforeseeability. The same rationale applies as to the proven design defect in the grinder guard. We emphasize that the grinding wheel as used and attached to the grinder was a necessary and integral part of the working unit. Without the wheel in operation to grind the drill bit, the damaging event would not have occurred. Therefore, viewing the grinder as *373 if it existed and operated alone does not encompass the whole working unit.
Even if it is argued the evidence is factually insufficient to support an affirmative answer to an opponent's issue, this furnishes no basis for refusal to submit the issue. Clarostat Manufacturing, Inc. v. Alcor Aviation, Inc., 544 S.W.2d 788, 791 (Tex.Civ.App. San Antonio 1976, writ ref'd n.r.e.). Only when there is no evidence to support it may the trial court decline to submit a relevant issue. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). There is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact. Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974); accord, Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
Having pled the defense of misuse, Allied presented evidence of possible misuse of the grinder by plaintiff and tendered issues and instructions on misuse, as well as objections to the charge. A trial court is required to submit all material issues raised by the pleadings and evidence. TEX.R.CIV.P. 277, 279. We hold Amsted's and other experts' testimony was more than a scintilla of evidence because it furnished a reasonable basis for minds to differ as to whether there was misuse by the plaintiff which gave rise to concurring producing causes. We find the trial court should have submitted to the jury the special issues directed to that inquiry. Point of error one is sustained. In view of our disposition of the first point of error, we have no need to address points two through five regarding jury issues not submitted.
DAMAGES
The trial court submitted this issue: (The listed sums of money were written in by the jury):
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Jose Placencio for his injuries, if any, resulting from the occurrence in question.
Consider the following elements of damage, if any, and none other:
(a) Physical pain and mental anguish in the past. $50,000.00
(b) Physical pain and mental anguish that, in reasonable probability, he will suffer in the future. $50,000.00
(c) Loss of earnings in the past. $50,000.00
(d) Loss of earnings in the future. $300,000.00
(e) Disfigurement in the past.
(f) Disfigurement in the future.
(g) Physical impairment in the past. $50,000.00
(h) Physical impairment that, in reasonable probability, he will suffer in the future. $50,000.00
(i) Medical expenses in the past. $40,000.00
(j) Medical expenses that, in reasonable probability, he will incur in the future. $60,000.00
You are to consider each element of damage separately, so as not to include damages for one element in any other element.
Answer in dollars and cents, if any.
ANSWER: $650,000.00
Allied filed a motion for judgment n.o.v. and Coast, a motion to reform the judgment based on jury answers written beside each damage element that was submitted. However, it is plain the jury found that the plaintiff ultimately incurred $650,000 in damages. The trial judge rendered a judgment in the reduced amount of $564,495. It is obvious the trial judge reduced the award for past medical expenses from $40,000 to the stipulated figure, $12,995 and reduced the award for purported future medical expenses by a total of $85,505 leaving the judgment total of $564,495.
Coast and Allied both argue the evidence is legally and factually insufficient to justify the amount awarded to plaintiff, even in *374 the reduced amount of the judgment. Plaintiff, on the other hand, argues that the full jury verdict should be reinstated.
The powers of a trial court and a court of appeals to determine the propriety of a remittitur are governed by the same standard. Highlands Insurance Co. v. Baugh, 605 S.W.2d 314, 319 (Tex.Civ.App. Eastland 1980, no writ).
TEX.R.CIV.P. 440 governs remittitur by a court of appeals. If the court is of the opinion that the verdict and judgment of the trial court is excessive, it may suggest remittitur of the excess and if remittitur is not filed, the appellate court may reverse the trial court's judgment. Missouri-Kansas-Texas Railroad Co. v. Pierce, 519 S.W.2d 157, 159 (Tex.Civ.App. Austin 1975, writ ref'd n.r.e.). In determining whether a verdict is excessive this Court must consider the evidence in the light most favorable to the award. Green v. Rudsenske, 320 S.W.2d 228, 235 (Tex. Civ.App. San Antonio 1959, no writ). An appellate court will not disturb a jury award on the grounds of excessiveness if there is any evidence to sustain the award. J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 743 (Tex.Civ.App. Amarillo 1967, writ ref'd n.r.e.).
We observe that it is only the ultimate figure of damages that this court may consider, not the unsolicited write-ins of the jury. TEX.R.CIV.P. 300, 301. We have examined the record and find that the damages awarded to plaintiff in view of the injuries incurred are not excessive. We therefore do not suggest remittitur, pursuant to TEX.R.CIV.P. 440.
The trial court could also have ordered remittitur upon penalty of a new trial if it thought the sum total excessive. TEX.R.CIV.P. 315. The trial court chose to render judgment in a reduced amount, substituting its findings for that of the jury, and establishing the written-in itemized amounts as part of the verdict of the jury. A judge may not disregard answers to material issues and substitute findings for that of the jury. Highlands Insurance Co., supra, at 319. 4 R. McDONALD, supra, at a § 17.28. We therefore overrule Allied's points nine and ten and Coast's points four through six. We would grant plaintiff's cross-point, reinstating damages in the amount of $650,000 if the cause were not otherwise reversed.
Accordingly, the judgment of the trial court is reversed and the case is remanded for trial.
NOTES
[1] American National Standards Institute sets standards for grinding wheels.
[2] Rule 902. Self-Authentication.
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
[3] We do not address the question of alteration by the employer in this case. See Herrera v. FMC Corp., 672 S.W.2d 5, 8 (Tex.App. Houston [14th Dist.] 1984, no writ). We recognize that in a case where misuse is a defense and the employer is a worker's compensation subscriber, the employer's conduct may not be considered to reduce the percentage of a defendant's liability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460624/ | 976 S.W.2d 738 (1998)
Edward Lockwood MOORE, III, Appellant,
v.
PHI DELTA THETA COMPANY d/b/a Phi Delta Theta Fraternity, The Texas Eta Chapter of Phi Delta Theta Company, and Chris Leonard, Appellees.
No. 01-96-00363-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 7, 1998.
*740 R.L. Pete McKinney, Houston, for Appellants.
Wilton F. Chalker, Houston, for Appellees.
Before WILSON, ANDELL and HUTSON-DUNN,[1] JJ.
OPINION
ANDELL, Justice.
We deny the appellant's motion for rehearing, but withdraw our previous opinion and issue this one in its stead.
We are asked to determine whether the nonparticipating parties to a competitive contact sports event owe a player in that event the same standard of care owed to him by participants. The trial court granted summary judgment in favor of the appellees. We reverse the judgment and remand this cause for further proceedings.
In September 1992, Texas Eta, a chapter of the Phi Delta Theta fraternity, sponsored "war games" for prospective pledges, one of whom was the appellant. The game involved two teams, each attempting to shoot the opposition with paint balls. The last team with an unpainted member would be the winner.
During the game, a tree limb snagged and lifted the appellant's protective goggles. As he stood and fired another round without replacing them, a paint ball hit him, permanently blinding him in one eye. The appellant concedes that he voluntarily participated in the war games. He also admits the fraternity did not charge him either to play the game or use the equipment.
The appellant sued Phi Delta Theta, the Texas Eta chapter, and chapter president, Chris Leonard, alleging negligence in the following respects:
(1) sponsoring an unreasonably dangerous activity,
(2) failing to provide adequate protective equipment to engage in the activity,
(3) failing to properly train him prior to engaging in the activity, and
(4) failing to properly train the fraternity members participating in the activity in the proper use of the equipment.
He further alleged Texas Eta and Leonard were negligent for:
(5) failing to properly monitor the activities of its local chapter, and
(6) failing to have proper rules regulations, and sanctions for its local chapter when that chapter engages in unauthorized rush activities.
The appellees assert the "competitive contact sports doctrine" in defense, arguing that, because war games is a competitive contact sport, the appellees only owed the appellant a duty not to intentionally or recklessly injure him and that, therefore, they could not be liable for negligence. The court granted summary judgment.
We review the grant of a motion for summary judgment under the following standard: (1) a summary judgment movant has the burden of showing there is no genuine issue of material fact as to one or more of the *741 essential elements of the plaintiff's cause of action and that the movant is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
The appellant's first point of error does nothing more than state the standard of review and is, therefore, subsumed into the remaining points of error.
The appellant's second point of error asserts the trial court erred in granting summary judgment on a ground not specifically contained in the motion. We disagree.
As a general rule, assumption of risk has been abolished as an affirmative defense to negligence actions. See Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). Instead, the factfinder must weigh the plaintiff's consent as a comparative negligence factor. See id.; see also TEX. CIV PRAC. & REM.CODE ANN. § 33.001 (Vernon 1997). However, "strict liability cases and cases in which there is a knowing and express oral or written consent to the dangerous activity or condition" are an exception to the general rule. Farley, 529 S.W.2d at 758. The competitive contact sports doctrine, an outgrowth of assumption of risk, falls within the exception. See Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.App.Dallas 1991, writ denied).
The appellees' motion denied they were negligent because the appellant willingly participated in a competitive contact sport. The court granted summary judgment "on the basis that plaintiff assumed the risk of injury in the paint ball game." Because the appellees urged the competitive sports doctrine, which arose from assumption of the risk, and because the more general theory of assumption of risk is now subsumed into principles of contributory negligence, we believe the court based the summary judgment on the competitive contact sports doctrine. Accordingly, we overrule point of error two.
In his third point of error, the appellant contends sponsors of an event may not assert the competitive contact sports doctrine because they are not participants. This issue has not been addressed by a Texas court.
The reason the law relieves participants of the higher standard of care is to encourage a vigorous and competitive spirit on the field of play. See Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258, 260 ([1st Dist.] 1975); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 703 (1990). The doctrine is based on a participant's acknowledgment of the dangers of the game and his readiness to risk possible injury as an opportunity cost of the fun he could have. All participants in sporting activities are presumed aware of certain dangers inherent in a particular sport they play. See Thompson v. McNeill, 53 Ohio St. 3d 102, 559 N.E.2d 705, 707 (1990). Because applying the negligence standard of care to sports participants could chill vigorous and competitive participation, courts are reluctant to allow a cause of action for injuries received during the course of play. See Nabozny, 334 N.E.2d at 260; Marchetti, 559 N.E.2d at 701. Because, "some of the restraints of civilization must accompany every athlete onto the playing field," Nabozny, 334 N.E.2d at 260, a participant in a competitive contact sport may recover damages from another participant only if that other participant intentionally or recklessly injures the first in a way not contemplated by the sport.[2]Connell, 814 S.W.2d at 489. This rule balances the need to protect athletes while maintaining and encouraging the competitive spirit, see Marchetti, 559 *742 N.E.2d at 703, and recognizes that actions that would otherwise be considered negligent in everyday life are accepted, and often encouraged, in a sporting activity. See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex.App.Amarillo 1993, no writ).
There is no Texas case, however, that supports immunizing sponsors and other nonparticipants whose duties extend to instruction, maintenance of equipment and facilities, and other considerations outside the actual conduct of the game. See Connell, 814 S.W.2d at 488 (where standard of intentionally or recklessly causing injury is applied to the participant, but ordinary negligence applied to the polo club). Further, we decline to consider "policy arguments" as a basis for expanding for the first time a narrow exception limited to the benefit of participants in contact sports. Finally, we see a generic difference between participants caught in the spirit of the contest, and nonparticipants who have the benefit of reflection before they act. Of such is the difference between ordinary negligence and intentional or reckless conduct.
We hold that under prevailing standards of Texas law the conduct of non-participants connected to a contact sports activity is judged by concepts of ordinary negligence, rather than the different and more demanding standard of care (from the viewpoint of the plaintiff's burden of proof) that is applied to a game's participants under the competitive contact sports doctrine. Because fact questions remain, we sustain the appellant's third point of error.
We reverse the judgment and remand this cause for further proceedings.
En banc consideration was requested.
A majority of the Justices of the Court voted to overrule the request for en banc consideration.
TAFT, J., dissenting from the overruling of the request for en banc consideration, and HEDGES and NUCHIA, JJ., agree with that dissenting opinion.
TAFT, Justice, dissenting from the overruling of the request for en banc consideration.
Acknowledging this is a case of first impression in Texas, the Panel declined to consider "policy arguments." The Panel sees a difference between participants caught in the spirit of the contest and nonparticipants who have the benefit of reflection before they act. I wholly disagree with the reasoning and result of the Panel's opinion.
Competitive Contact Sports Doctrine
Nevertheless, the Panel opinion's development of the law pertaining to the competitive contact sports doctrine is sound and I repeat it here. As a general rule, assumption of risk has been abolished as an affirmative defense to negligence actions. See Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). Instead, the factfinder must weigh the plaintiff's consent as a comparative negligence factor. See id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 33.001 (Vernon 1997). However, "strict liability cases and cases in which there is a knowing and express oral or written consent to the dangerous activity or condition" are an exception to the general rule. Farley, 529 S.W.2d at 758. The competitive contact sports doctrine, an outgrowth of assumption of risk, falls within the exception. See Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.App.Dallas 1991, writ denied).
The reason the law relieves participants of the higher standard of care (requiring intent or recklessness rather than negligence) is to encourage a vigorous and competitive spirit on the field of play. See Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258, 260 ([1st Dist.] 1975); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 703 (1990). The doctrine is based on a participant's acknowledgment of the dangers of the game and his readiness to risk possible injury as an opportunity cost of the fun he could have. All participants in sporting activities are presumed to be aware of certain dangers inherent in a particular sport they play. See Thompson v. McNeill. Because applying the negligence standard of care to sports participants could chill vigorous and competitive *743 participation, courts are reluctant to allow a cause of action for injuries received during the course of play. See Nabozny, 334 N.E.2d at 260; Marchetti v. Kalish, 559 N.E.2d at 701. Because, "some of the restraints of civilization must accompany every athlete onto the playing field," Nabozny, 334 N.E.2d at 260, a participant in a competitive contact sport may recover damages from another participant only if that other participant intentionally or recklessly injures the first in a way not contemplated by the sport. Connell, 814 S.W.2d at 489. This rule balances the need to protect athletes while maintaining and encouraging the competitive spirit, see Marchetti, 559 N.E.2d at 703, and recognizes that actions that would otherwise be considered negligent in everyday life are accepted, and often encouraged, in a sporting activity. See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex.App.Amarillo 1993, no writ).
Where I part with the Panel opinion is in: (1) its assertion that there is a generic difference between participants and sponsors regarding the benefit of reflection before action; and (2) its express refusal to consider policy arguments in deciding an issue of first impression. Appellant had plenty of time to reflect upon the risks involved in playing war games shooting paint balls before participating. In addressing an issue of first impression, we ought to consider policy arguments. We also ought to consider the manner in which other jurisdictions have decided the matter.
The Benefit of Reflection
The Panel opinion relies on a difference between participants caught in the spirit of the context and nonparticipants who have the benefit of reflection before they act. This ignores the fact that, when dealing with dangers inherent to a particular sport, participants are well aware of the risk in plenty of time to reflect on whether to accept those risks. As stated in the original opinion, and repeated above, "The doctrine [of competitive contact sports doctrine] is based on a participant's acknowledgement of the dangers of the game and his readiness to risk possible injury as an opportunity cost of the fun he could have."
Policy Arguments
Applying the negligence standard of care to sports sponsors for injuries due to inherent dangers of a competitive contact sport is just as likely to chill vigorous and competitive participation as applying it to participants. Indeed, it is likely to chill the opportunity to engage in such sports. The same balance between the need to protect athletes while maintaining and encouraging competitive spirit applies to sponsors as well as participants.
Other Jurisdictions
The Panel opinion acknowledged Ohio cases as the genesis of the competitive contact sports doctrine. Appellees pointed out in their original brief, and on rehearing, that Ohio has applied the doctrine to nonparticipants. See Gallagher v. Cleveland Browns Football Co., 638 N.E.2d 1082 (Ohio App. 1994); Kline v. OID Assoc., Inc., 80 Ohio App. 3d 393, 609 N.E.2d 564 (1992). Appellees also rely on decisions from California and Illinois disallowing recovery against nonparticipant for negligence under competitive contact sports doctrine rationales. See Harrold v. Rolling "J" Ranch, 19 Cal. App. 4th 578, 23 Cal. Rptr. 2d 671 ([2d Dist.] 1993); Keller v. Mols, 156 Ill.App.3d 235, 108 Ill. Dec. 888, 509 N.E.2d 584 ([1st Dist.] 1987).
Conclusion
In deciding an important issue of first impression in Texas, I suggest that appellees' persuasive arguments should at least be addressed. Because a majority of this Court overrules the request for en banc consideration without having done so, I vigorously dissent.
HEDGES and NUCHIA, JJ., agree with this dissenting opinion.
NOTES
[1] The Honorable D. Camille Hutson-Dunn, retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
[2] On rehearing, we are urged to adopt Justice Gonzalez's opinion on a denial of application for writ of error in Davis v. Greer, 940 S.W.2d 582 (Tex.1996). In dicta, Justice Gonzalez recommended a change in the standard of care one sports participant owes another. Id. at 583. In place of the current "reckless or intentional" standard. Justice Gonzalez would prefer courts make "an objective determination of whether the actions were foreseeable or expected in the course of the particular sporting event." Id.
Justice Gonzalez's dicta was not the opinion of the Texas Supreme Court. We refrain from predicting whether his standard will be adopted, and apply the law in its present state. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612966/ | 282 So. 2d 578 (1973)
Lucien EYRAUD et al., Plaintiffs-Appellants,
v.
COMMISSION ON ALCOHOLIC BEVERAGE CONTROL for the State of Louisiana and Virgil D. Joffrion, Commissioner of the Commission on Alcoholic Beverage Control, Defendants-Appellees.
No. 9658.
Court of Appeal of Louisiana, First Circuit.
September 5, 1973.
Michael Silvers and Ronald Tanet, New Orleans, for plaintiffs-appellants.
Robert L. Roshto, Baton Rouge, for defendants-appellees.
Before LOTTINGER, ELLIS and BLANCHE, JJ.
LOTTINGER, Judge.
This matter is before us at this time as the result of an Ex proprio motu show *579 cause order issued by this Court questioning the jurisdiction of this Court on this appeal.
The instant appeal was taken from the Trial Court's refusal to grant the plaintiffs-appellants a preliminary injunction which would have enjoined the Commission on Alcoholic Beverage Control from enforcing ABC Regulation No. XIII.
The appellants filed their petition requesting the preliminary injunction on March 16, 1973, and a rule nisi was fixed for March 22. After hearing the evidence and argument of counsel, the Trial Court submitted written reasons for judgment on March 29. A written judgment denying the preliminary injunction was signed on April 12, and it is from that judgment that the appellants have taken their appeal.
The order of appeal was signed on April 23, 1973 in which order the Trial Court set the amount of the bond at $500.00. However, the bond was not filed until June 15, 1973.
The time limitation for perfecting an appeal in this case is determined by C.C.P. Art. 3612, which provides that "an appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment." It is clear that both the order of appeal and the filing of the appeal bond must be accomplished within the fifteen day period. Morris v. Transtates Petroleum, Inc., 234 So. 2d 243 (La.App. 2nd Cir. 1970), aff., 258 La. 311, 246 So. 2d 183; La. State Board of Medical Examiners v. Keetmann, 221 So. 2d 263 (La.App. 2nd Cir. 1969).
The timely filing of the appeal bond is absolutely essential since the jurisdiction of the appellate court is dependent upon that act. C.C.P. Art. 2088 provides that "the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond...."In similar cases, this Court has ruled that when the appeal bond was not filed timely it was without jurisdiction, and therefore, the appeal must be dismissed. Phillips v. Bergeron, 263 So. 2d 72 (La.App. 1st Cir. 1972); Mathews v. Travelers Insurance Company, 234 So. 2d 468 (La.App. 1st Cir. 1970).
It is evident from the above that the bond was not timely filed.
For the reasons assigned, the appeal is accordingly dismissed at appellants' cost.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612970/ | 282 So. 2d 418 (1973)
Clarence SHEPARD, Jr.
v.
STATE.
1 Div. 309.
Court of Criminal Appeals of Alabama.
August 28, 1973.
Donald E. Brutkiewicz, Mobile, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Special Asst. Atty. Gen., Dothan, for the State.
PER CURIAM.
Clarence Shepard was convicted of the offense of assault with intent to murder by the Circuit Court of Mobile County; was sentenced to five years imprisonment, and he appealed.
On the second day of October 1971, Charles Kelly was driving his car on a rural road in Mobile County returning home from Citronelle when a shotgun blast shattered the windshield. Pellets from the gun and flying glass injured the driver and other occupants of the car. In the car with Kelly was his daughter, his mother-in-law, and a female companion with whom Kelly had been having illicit relations. No one was seriously hurt by the firing of the gun. Immediately after the blast the defendant, who in the past had also had illicit relations with the female companion, was observed in the road behind the car with a shotgun in his hand.
After hiding the gun in a wooded area the defendant went to a phone and reported the shooting and waited to be taken into custody. While in jail he voluntarily *419 wrote out a statement which he handed voluntarily to a sheriff's deputy. The statement as written was as follows:
"October 3, 1971
This is an statement of what happen [sic] on the 2nd of Oct. I came up to town to catch a ride to russell to pick up my gun.
"I had a man tath [sic] i was going to sell the gun to for $15.00. I had the gun hidden in the wood in russell so that no one could find it. It was hidden across from Raymond Loard house. I knew that I couldn [sic] be seen carring [sic] the gun over there. So when I was coming out of the wood [sic] I heard a car coming so I ran across the road and hid in the bushes.
"As the car got closer to me I knew it was Charles Kelly. I had heard talk that he was going to kill me if he saw me over the road. I knew that I couldn [sic] let him [sic] see me. I hid behing [sic] a pine tree, and before the car pass [sic] i thought that I saw his hand out of the window with some thing in it. I wasn [sic] for sure that he did see me when I cross [sic] the road. So I had the gun in my hand when he pass [sic] and was trying to keep out of sight, as was turning as the car pass [sic] some thing mut [sic] have caught the trigger and the gun went off. I had no intention of shooting him. I was going to use the money for selling the gun to get back to Mobile and go to work.
Sign:
/s/ Clarence Shepard, Jr."
This statement was properly admitted in evidence without objection.
All of the occupants of the car testified that the driver was unarmed and that the shooting was unprovoked, and that they did not even see the defendant until after the shooting. Their testimony made out a case of ambush and unprovoked assault with a deadly weapon.
The defendant was the only material witness to take the stand for the defense. His version of the incident on direct examination was as follows:
"Q. All right. Now, listen to me, now, Clarence. Prior to that time, prior to going up there on that morning that the shooting took place, did you have any conversation with a man by the name of L. C. Turner?
"A. That's right. We did have a conversation in Citronelle.
"Q. All right. What if anything did L. C. Turner tell you?
"A. We was sitting around drinking beer and everything,
"MR. BRUNSON: Judge, I'm going to object to it as being hearsay.
"THE COURT: All right, sustain the objection.
"MR. BRUTKIEWICZ: Well, it's a threat communicated, Judge. We have a right to go into a threat communicated to him.
"MR. BRUNSON: No, sir, Judge.
"MR. BRUTKIEWICZ: Judge, I think you should listen to me
"THE COURT: All right. Let's take this argument up outside the presence of the Jury. Show me your law.
"(Whereupon, the Jury was removed from the courtroom and the following took place outside the presence and hearing of the jury:)
"(Whereupon, Mr. Brutkiewicz presented legal argument to the Court; Mr. Brunson presented legal argument to the Court; after which the Court had this to say:)
"THE COURT: All right. I'll rule on it at that time, if there is such evidence. All right, bring the Jury back in.
*420 "(Whereupon, the Jury was returned to the courtroom and the following was had and done before Court and Jury:)
"BY MR. BRUTKIEWICZ:
"Q. All right. We got you down on that road that is part of the Johnson Clay Pit, or dirt pit. Do you remember that morning?
"A. I remember it.
"Q. All right. Your were down on that road, were you?
"A. Yes, sir.
"Q. All right. You had a shotgun?
"A. That's right.
"Q. That's this shotgun here?
"A. That's right.
"Q. Did you see the car owned by Kelly?
"A. I saw it.
"Q. All right. What happened then?
"A. I got outside, got out the way in the bushes.
"Q. All right. What happened then? What did you see, hear, or do next?
"A. I just seen the car come on down the road. Seemed like it was a flash. I didn't know whether it was a mirror or gun or what it was.
"Q. What did you
"A. I thought it was a gun.
"Q. You thought it was a gun?
"A. After he had threatened me if I come over there
"Q. All right. What did you do beings you thought it was a gun and he had threatened you, what did you do then?
"A. I got in the bushes.
"MR. BRUNSON: Judge, I move to exclude the unresponsive portion of the answer about the threat.
"THE COURT: All right. The jury will consider only that portion of the answer that was responsive to the question, itself.
"BY MR. BRUTKIEWICZ:
"Q. You saw something in the complainant's hand that you thought was a gun?
"A. That's right.
"Q. Now, Clarence, on that road, if that man had a gun, was there any way in the world you could outrun that pistol and the bullet?
"A. Wasn't no way. I mean, coming from this way was a house sitting over there and it was clear over this way and all back this way is clear except for some bushes back over there. And I was caught between two crossroads there, and I had to get out the way. I had to just jump to the side and get in the bush.
"Q. All right.
"A. I didn't have no other way to go.
"Q. All right. Seeing that pistol in his hand, what if anything did you do?
"A. I don't understand.
"Q. Go ahead. You saw the pistol in his hand, and then what happened next?
"A. Well, I just
"MR. BRUNSON: Now, Judge, I'm going to object, again, to Mr. Brutkiewicz; he's testifying.
"THE COURT: Sustained.
"BY MR. BRUTKIEWICZ:
*421 "Q. What did you do? Tell the jury, now, son. Come on now. You're in trouble. Tell the jury what happened.
"A. I got behind the tree and then when the car passed on by, and some kind of way the gun just went off. The car had done passed because the car had done passed me from here to there and the gun just went off after he had done passed me from here to there. The gun went off.
"Q. Now, I ask you whether or not any threats made by Kelly had been communicated to you, told to you?
"A. That's right.
"MR. BRUNSON: I'm going to object I'm going to object.
"THE COURT: All right, sustain the objection.
"MR. BRUTKIEWICZ: Well, it's in the confession, Judge. It's been brought out, the State has brought out in the confession. Now, Judge, it's the pagan law of the State of Alabama. Now, once the State goes into something, the defense has got a right to go into it and the statement that has been introduced which is State Exhibit 3, is evidence of threats. If they bring it out, I have got a right to go into it.
"THE COURT: All right. I have sustained the objection. Proceed."
On appeal the defendant claims error on the part of the trial court in not permitting proof of threats made by the driver of the car against the defendant. Error is also claimed by reason of the refusal of certain written charges requested by the defendant concerning acts done in a fit of sudden passion caused by provocation.
In order for threats to be admissible in aid of self-defense there must first be evidence of self-defense. Holland v. State, 24 Ala.App. 199, 132 So. 601.
The testimony of the defendant as shown above fails to disclose that his actions were in defense of his person. In effect, his position seems to be that he did not fire the shotgun, but if he did do it, it was in self-defense. As has been read above, he states that the gun went off after the car had passed him as he was concealed in the bushes. If such be the improbable case, then all peril to himself passed with the passing of the car, and self-defense would have been out of the question. No proof of self-defense having been put in evidence, the court properly excluded proof of threats.
The same reasoning applied to the refusal of the requested written charges. At best they were abstract in so far as the case under review is concerned. The State's case showed an ambuscade, the defendant claimed an accidental shooting. Under neither version was an act of sudden passion in issue, therefore, there was no need for the court to charge thereon. The trial court in its oral charge took great pains to fully inform the jury as to every element of proof required of the State in order for the defendant to be found guilty of the offense of assault with intent to murder. Numerous written charges requested by the defendant were also given.
From reviewing the record as a whole, we are convinced there was no error on the part of the trial court prejudicial to any substantial rights of the defendant, and the judgment of the circuit court is therefore affirmed.
Affirmed.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612958/ | 282 So. 2d 244 (1973)
Elna S. LOWERY
v.
Louise STINSON, as Executrix of the Estate of Willie Elijah Stinson, Deceased.
SC 415.
Supreme Court of Alabama.
August 30, 1973.
*245 Izas Bahakel, Birmingham, for appellant.
Frank Ellis, Jr., Columbiana, for appellee.
BLOODWORTH, Justice.
This is an appeal from the denial of a claim against the Estate of Willie Elijah Stinson. The claim was filed by the deceased's sister, appellant Elna S. Lowery, for money allegedly loaned by her to the decedent during his lifetime. The widow, Louise Stinson, as executrix of the estate and appellee herein, filed a contest of the claim in Circuit Court of Shelby County, Alabama, in Equity. The court denied the claim. Claimant appeals. We affirm.
Briefly, the facts are as follows. Claimant, Elna S. Lowery, is the sister of the decedent, Dr. Willie Elijah Stinson, who died on July 1, 1971. Claimant presented testimony to the effect that on January 5, and January 11, 1971, Dr. Stinson came to the house of Mrs. Lowery and received a personal check from claimant on each date in the amounts of $6,505.23 and $2,047.70, respectively. According to the testimony of claimant, these checks represented loans to Dr. Stinson which were to be repaid with interest and which were requested by the decedent in these exact amounts. Claimant further testified that the decedent, Dr. Stinson, came to her house some four to six weeks later, after the checks were endorsed and negotiated, and had claimant write on the two checks that they were loans to be paid back at 6% interest. This notation was neither initialed nor signed by Dr. Stinson, but was allegedly witnessed by a Mrs. Fletcher, who had *246 lived off and on with claimant for twenty-five years, who testified to the same.
Contestant on the other hand presented evidence that the two checks given by claimant to the decedent represented a division of assets of two estates in which decedent and claimant were interested and were not loans. The trial court apparently chose to believe this latter explanation of the two checks.
Claimant asserts ten assignments of error on this appeal, but assignments of error (1), (6), (7) and (9) are waived for failure to substantially argue such assignments in brief. Rule 9, Revised Rules of Practice in the Supreme Court, Code of Alabama 1940 (Recompiled 1958), Title 7, Appendix; Stevens v. Thompson, 279 Ala. 232, 184 So. 2d 140 (1966); Thornton v. Tutt, 283 Ala. 72, 214 So. 2d 425 (1968).
Assignments of error numbers (2), (3) and (4) assert error in overruling claimant's objection to the introduction of certain bank records. The thrust of this argument is that such records fail to qualify for the "Business Records" exception to the hearsay rule, in that there was no testimony by contestant's witness Mr. Latham, of the Iron and Steel Workers' Credit Union, that he was personally familiar with the method or "standard operating procedure" used in making the subject records.
Claimant's argument is not well taken. Mr. Latham testified that the credit union kept daily records of deposits, withdrawals, and opening and closing of accounts with the credit union, that such accounts were kept in Mr. Latham's custody and control and under his supervision, that such records were made at the time of the transaction, and that such records were kept and maintained in the ordinary course of business. Such testimony clearly meets the requirements of Section 415 of Title 7, Code of Alabama 1940 (Recompiled 1958):
"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, or event, if it was made in the regular course of any business, and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term, `business' shall include business, profession, occupation, and calling of every kind."
The cases cited by claimant in no way support any additional requirement that the witness testify that he have personal knowledge of the "standard operating procedure" used in compiling such records. Therefore, the lower court's overruling claimant's objection to such records was correct.
Claimant has proceeded in her brief to challenge contestant's introduction of certain records of the First National Bank through a Mr. Lee, but since this is not assigned as error, it is not before this court.
Assignment of error (5) claims error in overruling claimant's objection, and allowing contestant Louise Stinson to testify, to an alleged conversation between the deceased and the claimant in violation of the "Dead Man's Statute," Title 7, § 433, Code of Alabama 1940 (Recompiled 1958).
Section 433 provides in relevant part that no interested party shall be allowed to testify, "as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding * * *."
The record in question indicates it is contestant's testimony as to statements made by claimant in a conversation with *247 the decedent in the presence of contestant, which is attempted to be shown. The record shows that the court carefully limited contestant's testimony to statements made by claimant in the subject conversation. (No statement by the decedent was offered.)
It is unnecessary for this court to decide, however, whether this limitation avoids application of the "Dead Man's Statute" because it appears that the instant case falls within an exception to the "Dead Man's Statute."
In Homewood Dairy Products Co., Inc. v. Robinson, 254 Ala. 197, 48 So. 2d 28 (1950), in a suit on a claim growing out of a contract for the sale of milk, plaintiff was permitted to testify as to conversations with the defendant, deceased at the time of the trial, because the conversations were witnessed by a person associated with the deceased, namely his partner in business. There this court held:
"In the matter here material several states have interpreted their statutes, respectively, which prohibit testimony by an interested witness as to a transaction with or statement by the deceased person under circumstances there stated. The concensus of opinion is that the transaction with or statement by a deceased person is not such within such statute when it was with him and one or more others associated with the deceased in the transaction, for such other one still living may give his version of the transaction, and, therefore, the reason for the exclusion does not exist." [Citations omitted]
"While this Court does not seem to have had the question before it, we think it is a fair construction of our statute, and does not conflict with our holding, that the presence of a disinterested party hearing the transaction does not make the evidence legal if otherwise within the purview of the statute. Southern Natural Gas Co. v. Davidson, 225 Ala. 171(4), 142 So. 63; Frank v. Thompson, 105 Ala. 211, 16 So. 634.
"So that there was no error in respect to the ruling insofar as the question related to the transaction with George and Sam Burrell, because Sam was alive and testified on the trial giving their version of what occurred."
The case at bar should be governed by the same rationale. Contestant was the decedent's wife; she went with the decedent to claimant's house on the occasion in question allegedly to receive the decedent's share of "Papa's account"; she was present when the conversation took place and heard the statements of claimant. Contestant was not a disinterested bystander. Her interests were clearly aligned with those of her husband's in this transaction. Thus, the rationale of Homewood Dairy Products v. Robinson, supra, is satisfiedthe witness was sufficiently associated with the decedent and had a sufficient community of interest with him that we may safely rely upon her to give the decedent's version of the transaction so that the reason for the exclusion does not exist. Therefore, the court's overruling of claimant's objection to contestant's testimony was not erroneous.
Assignment of error (8) claims error in the trial court's sustaining contestant's objection to the following question asked claimant on direct examination:
"Q. All right, that's what I'm asking. Now, there has been some testimony, something about some land that you had wanted to pay your brother for, was there any sort of understanding or agreement, that you would pay your brother, the late Doctor Stinson, any amount of money for any interest in any land?"
This question is clearly leading, and objection to it was properly sustained. The objection was explicitly directed to the form of the question, and the court specifically *248 admonished counsel not to lead his witness in sustaining the objection. Counsel for claimant chose not to rephrase the question. The court was not in error.
In the final assignment of error, claimant complains that the court erred in finding against her and against the great preponderance and weight of the evidence.
A trial court's finding in an equity case upon oral testimony has the effect of a jury's verdict and will not be disturbed unless plainly and palpably wrong. Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Appeal and Error, § 1009(1), Alabama Digest, Vol. 2A.
In the case at bar, there is ample evidence to support the findings of the trial court. There was uncontested evidence that the notations on the checks, indicating that they represented loans, were written by claimant after both checks had been endorsed and negotiated. Contestant presented evidence to the effect that the checks represented a division of two estates in which claimant and the decedent were interested. There was further testimony that there were two deposits to claimant's checking account shortly before these two checks were paid to the decedent; that one check paid to decedent was exactly one-half of one of the recent deposits plus $5,000.00; that claimant had told her nephew on several occasions that she had paid decedent and his wife, the contestant, $5,000.00 for half interest in a parcel of land which had belonged to their father; that the other one of the two deposits was exactly twice the amount of the second check drawn to decedent and which purportedly represented assets of an estate in which they were both interested. Finally, there was testimony by claimant's nephew that claimant had offered him $1,000.00 from her recovery against the estate in this suit if he testified that the checks represented loans. The evidence is ample to support the trial court's final decree denying the claim against the estate.
Let the trial court's decree be affirmed.
Affirmed.
All the Justices concur except COLEMAN, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612977/ | 11 So. 3d 1090 (2009)
In re Raechelle M. VIX.
No. 2008-B-2290.
Supreme Court of Louisiana.
May 15, 2009.
Rehearing Denied June 19, 2009.
*1091 Charles Bennett Plattsmier, G. Fred Ours, Baton Rouge, for applicant.
Richard Peter Massony, Covington, Raechelle Mary Vix, for respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Raechelle M. Vix, an attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
Counts I & IIThe Ashford Matter
In June 2003, Mirodello Ashford hired respondent to appeal his state criminal conviction. Respondent was paid a total of $4,300 in advanced fixed fees for the representation.[1] Thereafter, respondent failed to file a brief on behalf of Mr. Ashford or otherwise proceed with the appeal. She also failed to adequately communicate with her client and refund the unearned fees.
During her May 18, 2004 sworn statement, respondent admitted to neglecting Mr. Ashford's appeal and agreed to refund the unearned fees, with legal interest, within two weeks. Nevertheless, she did not refund the fees and interest, totaling $5,438.02, until June 2007.
The ODC alleged that respondent's conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure *1092 to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.
Counts III & IVThe Benson Matter
In March 2002, Jerone Benson hired respondent to represent him in post-conviction relief proceedings following his state criminal conviction.[2] Mr. Benson paid respondent $2,500 in advanced fixed fees for the representation. Thereafter, respondent failed to file any documents or pleadings with either the district court or court of appeal. She also failed to adequately communicate with her client and refund the unearned fees.
During her May 18, 2004 sworn statement, respondent admitted to neglecting Mr. Benson's legal matter and agreed to refund the unearned fees, with legal interest, within four weeks. Nevertheless, she did not refund the fees and interest, totaling $3,331.15, until June 2007.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Counts v. & VIThe Jarreau Matter
In March 2004, Diane Holm Jarreau hired respondent to represent her son, Jake Ortego, in post-conviction relief proceedings following his state criminal conviction. Ms. Jarreau paid respondent a total of $5,000 in advanced fixed fees for the representation. Thereafter, respondent filed a petition and memorandum but took no further steps to bring the matter to a conclusion. She failed to maintain communication with her client or Ms. Jarreau. She also failed to timely or properly withdraw from the representation. Finally, respondent failed to account for the earned portion of the fee or refund the unearned portion of the fee.
During her June 30, 2005 sworn statement, respondent admitted to the above misconduct and agreed to provide the ODC with certain documentation by July 15, 2005. She also agreed to refund the unearned fees, with legal interest, by July 15, 2005. Nevertheless, respondent did not provide the ODC with the requested documentation. She also did not refund the unearned fees and interest, totaling $6,130.24, until June 2007.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5(f)(5), 1.16(a) (failure to withdraw from the representation of a client), 1.16(d), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Counts VII & VIIIThe Johnson Matter
In May 2005, Lucille Johnson hired respondent to represent her son, Lyndon Johnson, who was challenging his alleged illegal sentence in a state criminal conviction. Ms. Johnson paid respondent $400 towards a $1,000 advanced fixed fee for the representation. Thereafter, respondent failed to maintain proper communication with her client or Ms. Johnson. Thus, Ms. Johnson did not make any further payments. Respondent did not file any pleadings or refund the unearned fee.
The Johnsons filed a disciplinary complaint against respondent, which was forwarded to her in March 2006. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena *1093 to take her sworn statement. Despite receiving the subpoena, respondent failed to appear for the sworn statement.
Respondent refunded the unearned fees and interest, totaling $467, in June 2007.
The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 3.4(a) (unlawfully obstructing another party's access to evidence), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct, as well as Supreme Court Rule XIX, § 9(c) (knowing failure to respond to a lawful demand from a disciplinary authority).
DISCIPLINARY PROCEEDINGS
In 2006, the ODC filed eight counts of formal charges against respondent. Respondent, through counsel, answered the formal charges, denying in part and admitting in part the misconduct alleged by the ODC. Subsequently, in her pre-hearing memorandum, respondent stipulated to the facts alleged in all eight counts of the formal charges. The matter then proceeded to a formal hearing.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the hearing committee made factual findings consistent with the underlying facts above. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.
The committee determined that respondent negligently violated duties owed to her clients and the legal profession. She also knowingly disobeyed a subpoena and failed repeatedly to respond to lawful demands from the ODC. Citing the ABA's Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is a suspension from the practice of law.
The committee found the following aggravating factors are present: a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, deceptive practices during the disciplinary process (failing to keep promises to provide refunds and documents), vulnerability of the victims, substantial experience in the practice of law (admitted 1988), and failure to make restitution.
The committee found the following mitigating factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, and remorse. The committee also noted that respondent has been under considerable stress since the summer of 2003 when her mother became an invalid. Furthermore, respondent's home was damaged during Hurricane Katrina, and she temporarily relocated to Dallas, Texas. She did not timely respond to the formal charges because of severe emotional distress following Katrina, and she is presently living in a FEMA trailer. The committee also found that respondent has now made full restitution. Finally, the committee noted that although respondent is employed with the 24th Judicial District Indigent Defender Board, the misconduct was not associated with that employment, but rather arose out of her private practice.
Under these circumstances, the committee recommended that respondent be suspended from the practice of law for eighteen months, with all but one month deferred. The committee further recommended that following the active portion of the suspension, respondent be placed on supervised probation for two years, subject to the following conditions:
1. Respondent shall attend the Louisiana State Bar Association's Ethics *1094 School within six months of the finality of the court's order of discipline;
2. Respondent is to undergo an evaluation with a mental health care provider and comply with any treatment directives until the ODC is in receipt of a report from her treating psychologist or psychiatrist that said treatment is no longer medically necessary;
3. Respondent is to limit her practice to her salaried position at the Jefferson Parish Indigent Defender Board under the supervision of Richard Tompson, Chief Indigent Defender, or another supervising attorney, who shall report in writing at least once every three months to the ODC regarding respondent's progress and performance during the probationary period;
4. Respondent shall meet with a monitor not less than quarterly to review her files for proper client communication and to ensure that she has an appropriate calendaring and tickler system to allow for diligence in handling cases;
5. Respondent shall timely pay all bar dues and disciplinary assessments and comply with all continuing legal education requirements;
6. Respondent shall refrain from any further violations of the Rules of Professional Conduct; and
7. Respondent shall be responsible for all costs and expenses due to the disciplinary board in connection with these disciplinary proceedings.
The ODC filed an objection to the hearing committee's recommendation.
Disciplinary Board Recommendation
After review, the disciplinary board found that the hearing committee's factual findings are not manifestly erroneous and adopted same. The board determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges, with the exception of the allegation in Count V that she violated Rule 1.16(a) by failing to withdraw from Mr. Ortego's legal matter. The board reasoned that respondent did not violate Rule 1.16(a) because the ODC failed to prove that she was so physically or mentally impaired that she should have withdrawn from the representation of Mr. Ortego.
The board determined that respondent violated duties owed to her clients, the legal profession, the public, and the legal system. The board agreed with the committee that respondent knowingly failed to cooperate with the ODC in its investigations. The board also adopted the committee's finding that respondent acted negligently in failing to adequately represent her clients, reasoning that this misconduct "stemmed in large part from poor management of her private practice, as well as the turmoil she experienced from her mother's illness and post-Katrina problems." Furthermore, the board found that respondent's clients were harmed in that their cases were delayed. Based on the ABA's Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is a suspension.
In aggravation, the board found a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, deceptive practices during the disciplinary process, vulnerability of the victims, and substantial experience in the practice of law. In mitigation, the board found the following factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, and personal or emotional problems.
Turning to the issue of an appropriate sanction, the board cited In re: Turissini, 95-0735 (La.6/2/95), 655 So. 2d 327, and In *1095 re: Beauchamp, 02-1389 (La.6/13/02), 821 So. 2d 1281. The attorney in Turissini was employed by the Orleans Parish Indigent Defender Program. For her failure to communicate with a client, failure to return a client's file upon termination of the representation, and failure to cooperate with the ODC in its investigation, Ms. Turissini was given a fully deferred one year and one day suspension, subject to two years of supervised probation with conditions. In Beauchamp, an attorney who did extensive pro bono work failed to communicate with several clients and failed to expedite litigation in several legal matters. This court accepted a petition for consent discipline and imposed a fully deferred one year and one day suspension, subject to two years of supervised probation with conditions, noting that the misconduct was negligent and stemmed in large part from poor law office management.
Based on the above findings, the board recommended that respondent be suspended for two years, fully deferred, subject to two years of supervised probation with the same conditions suggested by the hearing committee.
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation; however, the court on its own motion docketed the matter for briefing and oral argument in accordance with Supreme Court Rule XIX, § 11(G)(1)(a).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So. 2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So. 2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So. 2d 150.
The record reveals that respondent neglected several legal matters, failed to communicate with her clients, failed to timely refund unearned fees, and failed to cooperate with the ODC in its investigation. As such, she violated Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 8n1(c), and 8.4(a) of the Rules of Professional Conduct.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
We find respondent acted knowingly in failing to adequately represent her clients and in failing to cooperate with the ODC. She violated duties owed to her clients, the legal system, and the legal profession, causing actual harm in the form of delay in her clients' cases. Accordingly, the baseline sanction is a suspension.
The aggravating factors present are a pattern of misconduct, multiple offenses, *1096 bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and substantial experience in the practice of law. The applicable mitigating factors are: absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, character or reputation, and remorse.
Turning to the issue of an appropriate sanction, we agree with the board that respondent's misconduct stemmed from poor management of her private practice while she was dealing with an excessive case load at the indigent defender's office and her mother's health problems. These issues appear to have been resolved. Moreover, no misconduct was reported stemming from respondent's duties as an indigent defender, and she has made full restitution to her clients, including interest.
Because of the knowing nature of her misconduct and the numerous offenses involved in this matter, we will suspend respondent from the practice of law for two years. However, because respondent appears to have resolved the issues that led to the misconduct, we will defer all but three months of the suspension. Following the active portion of the suspension, respondent shall be placed on supervised probation for two years, subject to the conditions recommended by the hearing committee.[3] Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Raechelle M. Vix, Louisiana Bar Roll number 18742, be and she hereby is suspended from the practice of law for a period of two years. All but three months of this suspension shall be deferred, subject to respondent's successful completion of a two-year period of supervised probation governed by the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
TRAYLOR, J., concurs in the finding but dissents from penalty.
NOTES
[1] Mr. Ashford executed a power of attorney authorizing respondent to withdraw $2,300 from his bank account, which she did on June 10, 2003. Mr. Ashford's mother, Morthea Goings, paid respondent an additional $2,000 on June 18, 2003.
[2] Mr. Benson's prior counsel had already filed post-conviction relief proceedings in the state district court, which proceedings were denied.
[3] With respect to the third condition, if respondent's employment with the Jefferson Parish Indigent Defender Board ends, she shall notify the ODC within five days. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612982/ | 282 So. 2d 474 (1973)
Alice Evelyn TITARD et al.
v.
LUMBERMEN'S MUTUAL CASUALTY COMPANY.
No. 52773.
Supreme Court of Louisiana.
August 20, 1973.
Rehearing Denied September 24, 1973.
*475 Jacque B. Pucheu, Eunice, for plaintiffs-applicants.
Davidson, Meaux, Onebane & Donohoe, James J. Davidson, III, Lafayette, Lewis & Lewis, John M. Shaw, Opelousas, for defendant-respondent.
SANDERS, Chief Justice.
Robert N. Batton, Sr. and his wife, Alice Evelyn Titard (Batton) brought this action to recover damages for injuries sustained by Mrs. Batton in a fall at the home of John Edwards in Opelousas, Louisiana. The action was brought directly against Lumbermen's Mutual Casualty Company, Mr. Edward's home-liability carrier. In turn, Lumbermen's joined the City of Opelousas as a third party defendant.
The 27th Judicial District Court rejected the plaintiffs' demand, finding that Mr. Edwards was negligent in failing to warn his guests of areas of darkness created by a power failure, but that this failure to warn was not the proximate cause of the accident. The Third Circuit Court of Appeal affirmed at 264 So. 2d 382, providing only these two paragraphs as an opinion:
"The plaintiffs herein appeal a district court judgment rejecting their demand for damages arising from a slip and fall incident at the home of defendant's insured.
"We have reviewed the evidence and the law and find that the result reached in the district court is correct. Accordingly, the judgment appealed is affirmed at plaintiffs-appellants' costs in both courts."
In Dick v. Phillips, 253 La. 366, 218 So. 2d 299 (1969), this Court held:
"Although it is true that we grant writs only on questions of law, it should be remembered that the law cannot be *476 disassociated from facts, and its proper application in any given instance can only be ascertained by reference to the factual context in which it is sought to be applied. Court of Appeal opinions, therefore, must set forth the salient facts and the law as applied to those facts in order that this court may determine whether an error of law has been committed. La.Const. art. 7, § 11 (1921)."
Inasmuch as the assigned reasons for judgment in this case contain neither findings of fact nor a statement of the legal principles upon which the Court of Appeal reached its decision, we granted certiorari. 262 La. 1166, 266 So. 2d 446 (1972). We now reverse.
The record reflects that Mrs. Batton was injured at the annual social gathering of the St. Landry Parish Bar Association. The event was held at Mr. Edward's home at his invitation and, for the most part, was confined to a pool-patio area which is surrounded by a seven foot high brick wall and lighted, not by electricity, but by flaming torches fueled by a combustible liquid.
Accompanied by Mrs. Ruth Leger, Mrs. Batton arrived at the party about 7 o'clock p. m. At about 11:00 p. m. an electric power failure occurred at the residence. Because of the torch illumination in the patio and the wall around it, neither Mrs. Batton nor her companion knew of the electric failure when they left about thirty minutes later.
Following the same route they had used on arrival, Mrs. Batton and Mrs. Leger walked out along a covered sidewalk which runs between the patio wall and the Edwards home. Some five feet from the patio gate, the walkway makes a 90 turn and goes under the carport. Both sides of the sidewalk in this area are bordered by low flower beds walled in by diagonally seated bricks. These bricks protrude 6 to 8 inches above the level of the sidewalk.
The women had taken only a few steps along this sidewalk when they were confronted with sudden and total darkness. Mrs. Batton placed her hand in Mrs. Leger's. Almost simultaneously, Mrs. Leger stumbled on the brick border and fell, pulling Mrs. Batton down with her by the hand-hold. As Mrs. Batton fell her face struck one of the protruding bricks causing serious injury.
The trial court, on the basis on these facts, concluded that Mr. Edwards was negligent:
"The only area where the Court can find negligence on the part of Mr. Edwards is after his discovery of the power failure. He noticed it; he attempted to correct the situation by checking his multi-break fuse box; he could find no trouble there; he called the personnel of the power supplier to come to his home, to check the power cut-off, which affected part of his premises. They came, checked, went back for a fuse, changed it for himthere being a lapse of about fifty (50) minutes between the discovery of the power failure and its repair. Mr. Edwards knew that he had many guests; the failure occurred about 11:15 P.M.; the front of his residence and the carport area were in darkness; many of his guests, he knew, had come into his patio area from that side of his home and would have to leave via the same route about the time of the power failure, in the dark. This he knew and at no time did he bother to tell any of his guests or warn them of dangers in the darkened area or do anything to illuminate the front of his home. And, in addition, the evidence shows, that there were in use, at the time, some twenty or more torch lights in the patio area which were nonpermanent fixtures and easily movable. These were not operated by electricity but by some can of combustible fluid. He could easily have moved one or two of these torch lights to the front of his residence, during the blackout, and this would have illuminated the darkened area, and provided safety and light for departing guests. Here, he failed completely *477 and this breach of duty could well have been a cause of plaintiff's injuries. She sustained her fall, in the darkened area, in the front of the Edwards home, during this black-out period, after she walked from the lighted patio area, to the darkened carport to sidewalk area. And apparently, her face struck one of the diagonal bricks providing a border around one of his flower beds. So the Court concludes there was fault or negligence on the part of Edwards, after the occurrence of the black-out."
We agree. Although a home owner is no insurer of the safety of his guests, he has the duty of warning them of hazards of which they are unaware or of taking other reasonable precautions to protect them from injury. The shrouding of the exit in darkness created such a hazard. As we held in Foggin v. General Guaranty Ins. Co., 250 La. 347, 195 So. 2d 636 (1967) quoting Savell v. Foster, 149 So. 2d 210 (2nd Cir. 1963):
"The owner, occupant or person in charge of property owes to an invitee.
In the duty of exercising reasonable or ordinary care for his safety and is liable for injury resulting from breach of such duty. This duty includes that of exercising reasonable care to keep the premises in a reasonably safe and suitable condition or of warning invitees....of hidden or concealed perils of which he knows or should know in the exercise of reasonable care, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger."
In the trial court's view, however, the efficient cause of the accident was not this negligence but rather the holding on and pulling down by Mrs. Leger. This was, in the perspective of the original judgment, so unforeseeable as to break the chain of proximate cause.
The Court of Appeal affirmed, though it did not expressly approve this rationale.
Initially, we do not agree that it is unforeseeable for two persons to join hands while traversing a dark walkway to make their exit from residential premises. In so doing, they seek to aid each other in maintaining balance.
Moreover, the duty to warn of the electric failure or to provide available torch lighting is in a large measure directed against the risk of stumbling and falling. The scope of protection of the rule of law includes the risk of such an occurrence involving more than one person. Even a negligent intervention does not always break the chain of causation. As we observed in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So. 2d 821 (1970), on rehearing:
"Where causation in fact is a breach of a duty imposed to protect from the particular risk involved and this breach is an act negligent per se, the mere fact that there is a later and intervening negligent actor who helped to create the particular risk involved will not absolve the first negligent actor from responsibility. This is not to say that intervening negligence can never supersede the original act of negligence so as to relieve the original actor from liability. Dixie Drive It Yourself [System v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962)] recognized that the intervening negligence of another could relieve the original wrongdoer of liability, but it stated that such a theory should not be used to relieve all but the last wrongdoer from liability.
"This does not mean that every consequence of a negligent act of man requires him to respond in damages.... The keys for the solution of the issue of responsibility when there is more than one cause-in-fact of damages are (1) a determination of the exact risk or risks anticipated by imposition of the legal duty which has been breached and (2) the legal or policy considerations which grant excuses from certain consequences *478 which follow an act of negligence. This requires, under the facts and the law of each case and the attendant exigencies, a jurisprudential determination which will implement and make effective our broad codal provisions concerning those who should respond in damages for their faults."
See also Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962).
The foregoing holding is consistent with the generally accepted views as to legal cause. As the Restatement (Second) of Torts (1965) § 442A provides:
"Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause."
The denial of causality in the case before us cannot be squared with these principles. Accordingly, the judgment appealed from is reversed insofar as the liability of Lumbermen's is concerned.
Since Lumbermen's, the third party plaintiff, took no appeal as to the third party demand against the City of Opelousas, the third party demand is not before this Court. See McCoy v. Pacific Coast Fire Insurance Co., 248 La. 389, 178 So. 2d 761 (1965).
In keeping with the practice of this Court, the action shall be remanded to the Third Circuit Court of Appeal to fix damages. See Felt v. Price, 240 La. 966, 126 So. 2d 330 (1961).
For the reasons assigned, the judgment of the Court of Appeal is reversed and judgment is rendered in favor of plaintiffs, Robert Norton Batton, Sr., and Alice Evelyn Titard against Lumbermen's Mutual Casualty Company, defendant, in such sums as may hereafter be fixed. The case is remanded to the Court of Appeal, Third Circuit, for the assessment of damages.
It is further ordered, adjudged, and decreed that all costs be assessed against the defendant, Lumbermen's Mutual Casualty Company.
SUMMERS and DIXON, JJ., concur.
MARCUS, J., dissents with reasons.
MARCUS, Justice (dissenting).
I dissent.
I am of the view that plaintiff was clearly contributorily negligent, which negligence was a proximate cause of the accident. See Curet v. Hiern, 95 So. 2d 699 (La.App. 1957); and Briscoe v. Bailey, 74 So. 2d 770 (La.App.1954). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612992/ | 282 So. 2d 657 (1973)
Andrew M. BEVERLY et al., Appellants,
v.
Division of Beverage of the Department of Business Regulation, the Department of Business Regulation of the State of Florida, et al., Appellees.
No. S-426.
District Court of Appeal of Florida, First District.
September 6, 1973.
Rehearing Denied October 3, 1973.
Thomas F. Woods, of Woods & Johnston, and Carl R. Pennington, Jr., of Pennington & Wilkinson, Tallahassee, for appellants.
Herbert M. Klein, Miami, and J. Riley Davis, Tallahassee, for appellees.
PER CURIAM.
Appellants seek review of an Order of the Circuit Court of Leon County holding that no license to sell alcoholic beverages is presently available for issuance to appellants in Leon County.
Each of the appellants had initially applied to the Beverage Director for the issuance of a license to sell alcoholic beverages in Leon County. The Beverage Director denied the applications on the ground that no such license was available in Leon County. The appellants then joined together and filed a declaratory judgment suit seeking to establish that there is an available license in the County. As noted by the lower court:
"None of the plaintiffs claim that there is more than one license available, but they all contend that there is one, and each feels entitled to that one. So the plaintiffs are working together to establish the availability of one license, however, if they are successful in that endeavor they will then contend among themselves for that one license."
The Circuit Court upheld the position of the Beverage Director and concluded that there is no quota license available at this time for issuance to any of the appellants so as to authorize the operation of a liquor store in Leon County. The plaintiffs below now seek reversal of that Order.
*658 The facts of this cause are not in dispute, and the only issue for our determination is whether the trial court erred in its conclusion that the revocation of a previously existing liquor license rendered said license non-existent in view of a Special Act effective May 2, 1963.
Prior to February 22, 1962, the Skyline Restaurant in Tallahassee was the holder of a validly issued quota liquor license. At that time, the number of licenses which could be issued was limited by general statutory law to one license for each twenty-five hundred residents in the unincorporated areas of Leon County. And, prior to said date, all licenses which could be issued under such quota system had in fact been issued and were outstanding. On February 22, 1962, the "Skyline Restaurant" license was revoked, and no applications for said license were filed before May 2, 1963.[1] On said date, a Special Act, Chapter 63-1561, Acts of 1963, was enacted by the Legislature limiting the issuance of quota liquor licenses in the unincorporated areas of Leon County to one such license for each five thousand inhabitants. This resulted in Leon County being over-quoted, except for Section 3 of said Act which provided as follows:
"The terms and provisions of this Act shall not prevent nor prohibit the continuous renewal of any licenses heretofore issued."
Hence, the pivotal question is whether or not the revoked "Skyline Restaurant" license was an existing, but unissued, license. The appellants contend that the 1963 Special Act did not destroy the availability for reissuance of the remaining quota license in Leon County and that the revoked license is still legally available for reissuance. It is alleged that since said license was available for reissuance prior to the Special Act, it was available after the Act due to Section 3 which "grandfathered in" all existing licenses. Appellants further contend that it was the obvious intention of the Legislature that the number of licenses issued in Leon County would not be reduced, but in essence would be frozen at the then existing number until such time as the population of the county increased. To hold otherwise, assert appellants, would constitute a retroactive application of the Special Act. The mere fact that no individual was desirous of having the unissued license issued to him, contend appellants, should not and could not render such a valid, existing license void.
The Division of Beverage takes the contrary position that to issue appellants a license would be contrary to the present quota limitations imposed upon Leon County by the Special Act of May 2, 1963. It is urged that the obvious purpose of said Act was to effectively limit the number of quota liquor licenses available in the County for many years to come and to reduce the number of liquor stores in proportion to the population if and when a quota license were revoked. Section 3 of the Special Act, asserts appellee, was inserted for the protection of the then holders of valid licenses and was not intended to permit a non-licensee to obtain a license. It is further contended that the Beverage Division Director cannot be compelled to reissue a revoked license and that in view of the Special Act, the revoked "Skyline Restaurant" license is not legally available for reissuance or renewal under the laws of the State of Florida.
It appears to be agreed by all the parties herein, as well as the lower court, that prior to the effective date of the Special Act, the revoked license in question was available for reissuance to some applicant in the discretion of the Beverage Director. Hence, to restate the issue once again, the question for our determination is whether or not the Special Act's savings clause, Section 3 thereof, is applicable to the revoked license.
*659 A careful consideration of the following points has led us to conclude that the revoked "Skyline Restaurant" license is available for reissuance. First of all, we note with particular interest the difference in language between the savings clauses in the 1963 Special Act and the general law prevailing at the same time. The general statutory law provides in part that:
"The limitation upon the number of such licenses to be issued ... shall not apply to existing licenses nor to the renewal or transfer of such licenses but upon the revocation of any existing license no renewal thereof or new license therefor shall be issued contrary to the limitations herein prescribed. F.S. § 561.20(3), F.S.A. (Emphasis supplied.)
Had the position asserted by appellee herein been intended by the Legislature, it would have been a very simple matter for them to insert such language in the Special Act of 1963. Instead, they chose to use the following language:
"The terms and provisions of this act shall not prevent nor prohibit the continuous renewal of any licenses heretofore issued." (Emphasis supplied.)
It is a rule of statutory construction that general and special statutes should be read together and, if possible, harmonized. However, in the event of a conflict, the special statute will prevail in the absence of a clear legislative intent to the contrary. 30 Fla.Jur., "Statutes", § 115. Hence, it is our feeling that the particular language used in Section 3 of the 1963 Special Act refutes appellee's contention that a revoked license cannot be reissued contrary to the quota limitation set forth in said Act. In short, the "continuous renewal of any licenses heretofore issued" refers to revoked licenses, as well as to those licenses which have naturally lapsed or expired.
We think the correct construction of the statute was that made by two Florida Attorney Generals in opinions to the Director of the Beverage Department (treated below) in which was cited the Keating case, as authority, although factual aspects of the case were different.
In Keating v. State, 173 So. 2d 673 (Fla. (1965), in which the primary question was somewhat different from the question involved in the case sub judice, the Supreme Court of Florida did enunciate some law which is applicable in this case, to wit: "... we cannot ... agree with the decision below that the revocation of the license was irrevocably placed beyond recall or modification." Therefore, the trial court was in error when it ruled that said license was "revoked, dead, and no longer exists".
Therefore under the Keating case supra, and the language of the Special Act 63-1561 (H.B. 283) at Section 3, wherein it is provided that this Act shall not prevent nor prohibit the continuous renewal of any licenses heretofore issued, it appears to us, and we so hold, that there was a license available at the time that the appellants made application therefor. We think the proper construction of a statute should be that where, from particular statutory language, an interpretation can be given which would permit an equal enjoyment of benefits, or an equal imposition of burdens, such meaning must be adopted.[2]
We think the construction in line with the benefits and burdens would be one which, when in doubt of Legislative intent, would grant the most benefits. These licenses have been held by our Supreme Court to be valuable property rights, and any one who desires or is otherwise qualified, is entitled to these rights (licenses) as a privilege to engage in this business.
Under the general law applicable to the number of licenses which could be issued in the unincorporated portions of Leon County, if application therefor had been made, it seems to be conceded that if such application had been made between the *660 date of revocation and May 2, 1963, the effective date of the Special Act, the Director could have been forced to issue license to a qualified applicant. If the "quota" license was available prior to May 2, 1963, the mere fact that no application was made within that limited time, does not negate the grandfather clause of 63-1561, Section 3, which authorized the renewal of, as said in Keating supra, or a new license for, any license theretofore issued.
This Court is not called upon to determine whether either or all of the applicants involved in this case are qualified or not. This will be a question for the Director to determine within reasonable discretion.
Furthermore, the appellee's position and the lower court's conclusion that the "Skyline Restaurant" license is revoked, dead and no longer exists is contrary to the provisions of Florida Statutes, §§ 561.32 and 561.58, F.S.A. These sections give the Beverage Director wide discretion in the transference or reissuance of a previously revoked liquor license. The former, § 561.32, provides that the transfer of a license, when revocation or suspension proceedings have been instituted against a licensee, shall be within the discretion of the Division. The latter, § 561.58, pertains to the reissuance of a revoked license for the location of the place of business formerly operated under such revoked license. Said statute provides that the Division may either prohibit or permit such a prior revoked license to be reissued, and moreover, states that "the maximum period of time that any such license shall be prohibited by the division from any such place of business shall be two years from the first day of the succeeding October following such revocation." Also, see Keating v. State, supra. While neither of these statutes are directly applicable to the facts sub judice, they do refute the appellee's position and the lower court's finding that a revoked license is dead and no longer exists. This coupled with the particular language adopted in the 1963 Special Act pertaining to the "continuous renewal of any licenses heretofore issued," and comparing said language with the wording used in the general statutory law, as discussed supra, leads us to conclude that there is an available quota liquor license in Leon County.
As pointed out supra, there is one final consideration which weighs heavily in favor of our conclusion in this case. In response to questions pertaining to this identical license in Leon County, two Attorney Generals of the State of Florida, in separate letters addressed to the Executive Director of the Department of Business Regulation, have opined that the Beverage Department in 1962 had the power, pursuant to F.S. § 561.58, F.S.A., to reissue the license which had been revoked. Since there was no finality to the revocation of the license in 1962, the intervening Special Act reducing the quota of liquor licenses in Leon County would not change the Director's power to reissue this license. This was the opinion of the then Attorney General, Honorable Earl Faircloth, on December 22, 1970; and Attorney General Robert L. Shevin concluded that "Mr. Faircloth's opinion is legally sound" in a letter dated March 19, 1971, in response to questions involving the same revoked "Skyline Restaurant" liquor license.
While the official opinions of the Attorney General of the State of Florida are not legally binding upon the courts of this State, they are entitled to great weight in construing the law of this State. The fact that two different Attorney Generals have reached the same conclusion with respect to the exact issue now before us lends considerable persuasive influence to their opinions and weighs heavily in favor of our conclusion herein. The Attorney General is supposed to be the legal advisor to the Beverage Department also.
For the reasons hereinabove set forth, the order appealed herein is reversed and *661 the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
JOHNSON and SPECTOR, JJ., concur.
WIGGINTON, Acting C.J., dissents.
NOTES
[1] In fact, no application for replacement or renewal of the revoked license was filed until January 4, 1971, when the application of one of the appellants herein was filed.
[2] Schultz v. Gilbert, 300 Ill. App. 417, 20 N.E. 884. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612979/ | 282 So. 2d 913 (1973)
Billy E. CARSON and Betty Carson
v.
EMPLOYERS CASUALTY COMPANY, a corporation.
Civ. 50.
Court of Civil Appeals of Alabama.
May 23, 1973.
Rehearing Denied June 27, 1973.
*915 Culver & Miller, Huntsville, for appellants.
Smith, Johnston, Walker & Morris and Nancy S. Gaines, Huntsville, for appellee.
BRADLEY, Judge.
Judgment was entered by the Circuit Court of Madison County in favor of appellee after a verdict was returned by the jury pursuant to the giving of the general affirmative charge without hypothesis, and this appeal resulted from that judgment. After the appeal was taken but before submission, appellee filed in this court a motion to strike the transcript of the record. Submission here was taken on the motion and the merits of the case.
On the Motion
Appellee's motion to strike the transcript of the record in this court and to affirm the judgment below is premised on the contention that the transcript of the evidence was not timely filed with the Circuit Court Clerk as prescribed by Title 7, Sections 827(1) and 827(1a), Code of Alabama 1940, as Recompiled 1958, and that the time for filing the transcript of the evidence with the Circuit Court Clerk was not extended as provided by Title 7, Section 827(1a), Code of Alabama 1940, as Recompiled 1958.
The record shows that the final judgment was entered on October 21, 1970, and the motion for new trial was overruled on *916 December 3, 1970. Notice of appeal, appeal bond and citation of appeal were filed May 19, 1971. On May 20, 1971 the court reporter was notified of the appeal and requested to prepare the transcript of the evidence.
A thirty day extension for filing the transcript was granted on July 18, 1971; a sixty day extension was granted on August 17, 1971; a sixty day extension was granted on February 15, 1972; and a ninety day extension was requested and granted on April 15, 1972, but said order was not filed with the Clerk until August 16, 1972.
On June 30, 1972 the transcript of the evidence was filed with the Circuit Court Clerk. On July 10, 1972 appellee moved the Circuit Court to strike the transcript of the evidence for the reason that the transcript had not been filed within the time prescribed by law and that there were two periods of time, i. e., October 17, 1971 to February 15, 1972 and April 15, 1972 to July 11, 1972, wherein the Circuit Court had failed to extend the time for filing the transcript.
A hearing was had on this motion, at which time testimony was heard. The substance of the evidence heard was that the court reporter and attorney for appellant had worked closely together in getting the transcript of the evidence together and also in preparing and filing the requests for extensions of time within which to file said transcript with the Circuit Court Clerk; however, the court reporter left Huntsville and went to Mobile. It had been agreed before his departure that the court reporter would file the transcript with the Circuit Court Clerk before April 15, 1972. Shortly before this time, the court reporter was called on the telephone from the office of Circuit Judge Younger, and he assured appellants' attorney that the transcript would be forthcoming shortly. A few days after April 15, 1972 appellants' lawyer requested an extension of time from April 15. The time for filing the transcript was extended for sixty days from April 15, 1972. The order by the trial court granting the extension was not made until sometime after April 15, 1972.
The trial court denied the motion to strike the transcript of the testimony and stated that notice to prepare a transcript had been given to the court reporter, that seasonable extensions of time in which to file the transcript had been given by the trial court, that neither the appellant nor his attorney was at fault for any delay in filing the transcript, and that appellee had not been prejudiced by any delay.
Title 7, Sections 827(1) and 827(1a), Code of Alabama 1940, as Recompiled 1958, govern the filing of the transcript of the evidence with the Circuit Court Clerk by the court reporter where an appeal is taken to the Court of Civil Appeals, and provide, in pertinent part, as follows:
"§ 827(1).... If a party to a cause tried in such court desires to appeal from a judgment rendered, he shall, within five days after he perfects his appeal give notice to the court reporter, in writing, that he desires to appeal and request the evidence to be transcribed. The court reporter shall then promptly transcribe the evidence, ... certify the same and file it with the clerk within sixty days from the date on which the appeal was taken, or within sixty days from the date of the court's ruling on the motion for a new trial, whichever date is later...."
"§ 827(1a). The period of time within which the reporter must file the transcript may be extended by the trial court for cause...."
Appellee, in support of its motion to strike, argues that the above Code sections were not adhered to by the trial court for two reasons: (1) that the extensions were unreasonable and prejudicial, and (2) that the delay in the filing of the transcript of evidence was due to the fault of the appellants or their attorney.
*917 The general rule concerning a failure to file the transcript of the evidence with the Clerk of the Circuit Court within the time allotted by statute and the failure to properly request and file an extension of time for such filing is set out in Johnson v. State, 269 Ala. 1, 111 So. 2d 610.
As we understand the holding in Johnson, the Supreme Court said that the trial court has the right to grant extensions beyond the sixty day limit as provided in Section 827(1), supra, and that there is no limit on the length of the extension except that it must not be unreasonable, and provided that any delay must not be the fault of the appellant or his attorney or result in prejudice to the appellee.
In the instant case the trial court had the power to grant extensions of time for filing the transcript of evidence with the Circuit Court Clerk and the determination of the reasonableness of the length of those extensions was within its discretion. The exercise of such discretion will not be revised on appeal unless it has been abused, and we find no abuse of said discretion.
The next question is whether the delay was due to the fault of the appellants or their attorney, and we find that the evidence amply supports the conclusion of the trial judge that the delay was brought about by the failure of the original court reporter to file the transcript of the testimony.
Has appellee been prejudiced by the delay in the filing of the transcript of the evidence? We think not.
The appellee was the defendant in the trial court and received a directed verdict in its favor. It was not ordered to pay any money and it has not been deprived of a money judgment. We would also point out that no objections to the delay in the filing of the transcript were made until the transcript was filed with the Circuit Clerk.
The motion to strike the transcript of the record in this court and affirm the judgment below is denied.
On the Merits
Appellants filed suit against appellee on an insurance policy issued by Employers Casualty Company, Inc., claiming $10,000 damages as to the value of certain unscheduled personal property claimed to be insured by appellee against loss by fire, which property was alleged to have been destroyed by a fire on to wit January 13, 1963. Appellants also alleged that appellee was given notice of the fire and loss and has refused to pay for said loss under the terms of the policy.
In its answer, appellee denied the allegations of the complaint, and by special plea asserted in its defense that the policy coverage was suspended or restricted by failure of appellants to comply with certain policy provisions, and that suit is barred under the policy by failure of appellants to bring this action within twelve months of the alleged loss. These special pleas are confessed and avoided by way of replication. In rejoinder, appellee denied the allegations of the replication, pled further in short by consent and specially denied some of the specific allegations of the replication.
Issue was joined on these pleadings and trial commenced before a struck jury. The verdict was in favor of appellee as the result of the giving of the general affirmative charge without hypothesis. Judgment was entered pursuant to the verdict.
Appellants have made thiry-seven assignments of error, thirty-six of which are directed to rulings by the trial court on the admissibility of certain evidence, and the thirty-seventh is directed to the giving, on behalf of appellee, of the general affirmative charge without hypothesis.
Under the issues as framed by the pleadings in this case, one of the material elements of the action to be proved by appellants was whether appellants' unscheduled insured property was actually lost in a fire at Huntsville Moving and Storage Company on to wit January 13, 1963. A *918 careful study of the evidence admitted shows appellants' failure to carry their burden of proof as to this issue. Therefore, unless some of the evidence excluded under the rulings assigned as error one through thirty-six is admissible for the purpose of proving that the insured property was stored at Huntsville Moving and Storage Company at the time of the fire, we must conclude that the general affirmative charge without hypothesis was properly given at the request of appellee.
In the case at bar the evidence shows that appellants were in 1961 living in Arab, Alabama in a house owned by them. A homeowners policy on the house and its contents was purchased from appellee through its agent, Charles McDonald. The policy limit on the personal property was $10,000.
In 1962 Mr. Carson accepted a job with RCA and departed shortly thereafter for Ascension Island in the South Atlantic Ocean. During 1962 while on a short visit to Arab, Alabama, Mr. Carson entered into an agreement with Mr. McDonald for the rental of the house and storage of the personal property which was in it.
Mr. McDonald stated that he went through the house, looked at the contents and determined that it was insurable for the amount of the coverage set out in the policy. The policy was issued to the appellants and premiums paid by them for the years 1962 and 1963.
Mr. McDonald testified that appellee had been notified of a loss by appellants.
Mr. McDonald also stated that he believed he went in the appellants' house after they left and there was no furniture there. He rented the house for the appellants shortly after they left Arab. However, he did state that he did not know whether he had notified appellee that the personal property was not in the Carson home in Arab from August 1962 until it was allegedly burned in January 1963.
Mr. Carson testified that he went to Cocoa Beach, Florida and talked to Powell Huggins about his claim for loss of his property. Huggins was an insurance adjuster who represented appellee in an effort to settle appellants' claim.
Mr. Carson testified that the insurance policy he purchased from appellee, through McDonald, on the property in question was cancelled shortly after the alleged fire of January 13, 1963. He said he paid all premiums due up until the time of cancellation and had never been advised of any changes in the policy or policy rates.
Mr. W. E. Pearson, an employee of an independent adjusting firm in Huntsville in 1963 testified that he visited Huntsville Moving and Storage Company in Huntsville while investigating a claim for appellee filed by appellants, and that although he did not see the fire, a fire had occurred there and the building and its contents had been damaged by fire. He stated he looked in the building but did not remember going through it.
He further stated that he received an itemization of property from Huntsville Moving and Storage Company and sent it to appellee. A listing of property from the files of appellee was then shown to him and he stated that he could not say that it was the same list. Neither could he identify the person who gave him the list. Mr. Pearson further stated that he could not say whether or not Mr. Carson's property was in the building of Huntsville Moving and Storage Company at the time of the fire.
Mr. Jeff Smith of Huntsville, attorney for appellee, stated that he had previously represented Mr. Milton Finley, owner of Huntsville Moving and Storage Company in a bankruptcy proceeding and other proceedings. He stated that a Mr. Reed, an employee of Mr. Finley's, gave him some records concerning the storage of Mr. Carson's property in Huntsville Moving and Storage Company. Since Finley's discharge *919 in bankruptcy, the records including these records have been destroyed and there are no records so far as he knows concerning property stored at Huntsville Moving and Storage Company at the time of the fire.
The petition in bankruptcy filed on behalf of Finley showed, among others, the name of Carson as a creditor. The character of the debt was shown as a demand by bailor for stored goods in the amount of $2,000.
James Carson, Billy Carson's brother, stated that on August 30, 1962 he saw household goods being taken out of his brother's house in Arab and being placed in a United Van Lines truck.
Indulging all presumptions in favor of the correctness of the ruling by the trial court on the general affirmative charge which is the subject of assignment of error number thirty-seven, and having searched the record diligently for proof that appellants' insured property was destroyed by fire on "to wit" January 13, 1963, and having found no such proof in the record, we now turn to the thirty-six remaining assignments of error to see whether any such proof was improperly excluded by the trial court.
The questions asked of various witnesses to which objections were sustained were, in the main, an effort by appellants to prove the value of the insured furniture and that the furniture was in Huntsville Moving and Storage Company at the time that warehouse was destroyed by fire on or about January 13, 1963. These questions to which objections were sustained will be grouped for discussion wherever possible.
Assignments of error 1, 2, 3, 5, 11, 33, 35 and 36 involve questions propounded to Billy Carson and Charles McDonald relative to the value of the items of property allegedly lost in a fire at Huntsville Moving and Storage Company. At the time these questions were asked of the witness there was no proof of a loss of the specified property by fire.
Appellants argue that in the absence of market value, they were at liberty to prove other factors of value, such as the value to them. This is true, but in White v. Henry, 255 Ala. 7, 49 So. 2d 779, cited in brief by appellants, the Supreme Court held that such a rule does not relieve the plaintiff of offering evidence showing that he has been damaged and the extent or amount of his loss, since an award cannot be based on speculation.
At the time these questions were asked there was no evidence of damage or the extent or amount of the loss, hence nothing to show that evidence of value would be relevant to the case.
Could, then, this evidence have been admitted subject to the condition that it be connected up later?
According to McElroy on the Law of Evidence in Alabama, Vol. 1, 2nd Ed., Sec. 13.01, p. 12:
"A party does not have the absolute right to introduce evidence of a fact which in the nature of things should be preceded by another fact, ..."
It would then appear that the trial court has some discretion as to the order that the proof will take, and obviously the trial judge thought proof of loss and extent of damage should come before proof of value. Furthermore there was no request to be allowed to offer proof of value subject to its being connected up later in the trial. We find no error here.
Assignment of error 6 is concerned with the refusal of the trial court to allow into evidence a portion of the deposition of Charles McDonald. Specifically the assignment relates to a question propounded to McDonald, which question is asked in compound form. The form of the question was objected to on the taking of the deposition and again on trial. Questions which are compound in form or seek answers to more than one proposition are improper. Glass v. State, 40 Ala.App. 661, *920 120 So. 2d 917; Rogers v. State, 16 Ala. App. 58, 75 So. 264. The trial judge therefore did not err in sustaining the objection to this question.
Assignment of error 7 is concerned with the refusal of the trial court to allow a question which assumes a fact not in evidence at the time that the question was asked. In the sequence in which it is asked, the question with which assignment 7 is concerned assumes that the United Van Lines receipt bearing a signature identified by witness McDonald as being that of his wife was actually the warehouse storage receipt for the insured property. Although this receipt had been identified by Carson as a warehouse receipt, it had not been identified as the storage receipt for the insured property. Furthermore, even if this question had been allowed to be answered, the answer would not introduce evidence that the insured property was in the warehouse of Huntsville Moving and Storage Company at the time of the fire. Questions which assume facts not in evidence are properly excluded. Brannan v. Henry, 142 Ala. 698, 39 So. 92; Resolute Fire Ins. Co. v. O'Rear, 34 Ala.App. 249, 38 So. 2d 616.
Assignment of error 32 is also concerned with a question which assumes a fact not in evidence. Here a question was asked of the witness Pearson which assumes that he had knowledge that the Carsons' property was in the warehouse, when in fact his prior testimony clearly shows that he had no such knowledge. Furthermore, the question calls for a conclusion on the part of the witness that any list he might have received from Huntsville Moving and Storage Company was actually a list of the appellants' property stored there. The question is also a classic example of a leading question. We find no error in this ruling.
Assignments of error 10 and 12 involve questions to Mr. McDonald asking if he knew that the personal property of the Carsons had been moved out of their dwelling and stored at Huntsville Moving and Storage Company. Subsequent to the question that is the subject of assignment 10, Mr. McDonald stated without objection that he visited the Carsons' house shortly after they left town and the furniture was no longer in the house; so, any error that might have been committed in not allowing Mr. McDonald to answer the question the subject of assignment 10 was rendered harmless by the later answer. See Case v. English, 255 Ala. 555, 52 So. 2d 216; Ala. Dig., Vol. 2A, Appeal & Error.
Assignment 12 concerned a question about the witness McDonald's knowledge that certain property of the Carsons was packed and stored. The question was properly disallowed for the witness had stated that he was out of town on the day the Carsons' property was allegedly placed in a United Van Lines truck, and hence was without personal knowledge of that fact. This question was also objectionable since it was propounded as a compound question.
Assignment of error 13 is concerned with four specific rulings by the trial court, each constituting a refusal to admit into evidence appellants' Exhibit # 2, a list of property allegedly taken from the Carsons' house and placed in a United Van Lines truck. The list was mailed to Billy Carson allegedly by Mr. McDonald. None of these rulings constitutes reversible error, since the list is one only of property claimed to have been lost by appellants. There is nowhere in the record any proof connecting this list of furniture to the warehouse at the time of the January 13 fire. Until evidence is introduced that the furniture on the list was destroyed or lost under the terms of the policy sued on, the list or any matter contained therein is irrelevant to the issues in this case.
Here again the trial court has discretion to control the order of the admission of evidence where evidence is subject to being connected up later in the trial.
*921 Assignment 13 relates to four specific rulings of the trial court. The correctness of any of the rulings referred to in assignment 13 precludes our consideration of any other rulings contained therein. Hoefer v. Snellgrove, 288 Ala. 407, 261 So. 2d 431.
As to the remaining rulings assigned as error, there may be several reasons for the correctness of each ruling. However, for the sake of brevity, only one such reason will be discussed here for each such ruling. Note also that although some of the evidence attempted to be admitted here may have been admissible for the purpose of showing negotiations in response to appellee's defense of laches, this defense is irrelevant unless appellants prove loss of the insured property.
Assignments 18, 19, 20, 21 and 22 are attempts to elicit from Carson extrajudicial conversations with Mr. Huggins concerning loss of the insured property. Such conversations when offered to prove the truth of the matters therein stated are inadmissible as hearsay unless we find that some exception to the hearsay rule has been met.
Appellants argue that these conversations are admissible as the declarations of an agent while acting within the line and scope of his employment. However, there is no sufficient proof of Huggins' agency in the present case. The only evidence admitted concerning Huggins' agency at the time that these conversations were attempted to be elicited, were the statements by Carson that Huggins represented himself as agent of the appellee. This evidence standing alone is not enough. Cohn & Goldberg Lumber Co. v. Robbins, 159 Ala. 289, 48 So. 853. Assignments 18, 19, 20, 21 and 22 are therefore without merit.
Assignment of error 28 relates to a question propounded to the witness Pearson seeking to elicit from him the results of his investigation of the claimed loss. Pearson had previously stated that he had no personal knowledge of whether or not the Carsons' property was destroyed as alleged. Thus anything he might have stated in answer to the question would have been a conclusion based on hearsay information. Such testimony would not be proper. Commercial Casualty Ins. Co. v. Lloyd, 243 Ala. 416, 10 So. 2d 292. We know of no exception to this rule which allows an agent employed for the purpose of making an investigation to state his conclusions or opinion reached as a result of such investigation. Furthermore, this question calls for a simple yes or no answer, which answer would shed no light on whether the insured property was actually stored at Huntsville Moving and Storage Company. We conclude that assignment 28 is without merit.
Assignment of error 14 is concerned with the refusal of the trial court to admit into evidence a letter written by Pearson, an agent of appellee, to Carson. Assignments 16 and 17 are concerned with the court's refusal to admit letters written by Huggins, another alleged agent of appellee, to Carson. In all these instances there was neither any authentication of the signatures on the letters nor any proof other than the declarations of Huggins to Carson as testified to by Carson concerning the fact of agency between appellee and Huggins or appellee and Pearson at the time these letters were offered as evidence. Both authentication and proof of agency are necessary as predicates to the admissibility of these letters. American Standard Life Ins. Co. v. Tolliver, 25 Ala. App. 363, 146 So. 625. Therefore the trial court did not err in its rulings in assignments 14, 16 and 17.
Assignments 15, 23, 24 and 25 are concerned with the trial court's refusal to admit carbon copies of letters from Carson to the alleged agents of appellee. Prior to attempts to admit these copies there was no attempt to account for the non-availability of the original letters. The copies *922 were therefore not the best evidence and the trial court committed no error in its refusal to admit them into evidence. See Home Protection of North Alabama v. Whidden, 103 Ala. 203, 15 So. 567. Also, at the time these exhibits were offered, there was no sufficient proof of the agency of either Pearson or Huggins. Without proof of such agency, the exhibits were merely self-serving declarations.
Assignment of error 27 is concerned with the refusal of the trial court to allow into evidence a letter from Pearson to Carson. At the time of the offer Pearson had testified that he had been employed by appellee to investigate and adjust the claim filed by appellants with which we are concerned. Pearson identified the letter as one written by him to Carson.
The declarations of an agent to third parties while acting within the line and scope of his employment are admissible against his principal. See Mutual Sav. Life Ins. Co. v. Hall, 254 Ala. 668, 49 So. 2d 298. Therefore, the trial court possibly erroneously excluded the exhibit, the subject of assignment 27. However, the exhibit contains no admission of the amount or extent of the loss or of the presence of the insured property in the warehouse at the time of the fire. Therefore, any error in the ruling of the trial court with respect to assignment 27 is error without injury.
Assignments 29, 30 and 31 are concerned with the refusal of the trial court to admit into evidence certain letters written to appellee by Pearson, alleged agent of appellee. Although these letters were originals and were authenticated, the statements made by Pearson concerning loss of the Carson's property were admitted by Pearson to be based solely on hearsay. A witness cannot be compelled to state what would amount to a mere conclusion of hearsay. Keith v. State, 15 Ala. App. 129, 72 So. 602. And our Supreme Court has found that the transposing of hearsay into writing does not make it competent evidence. Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545; Ex parte McLendon, 239 Ala. 564, 195 So. 733. The trial court, therefore, did not err in its rulings in these instances.
As for assignments 4, 8, 9, 26 and 34, appellants failed to argue these in brief. We therefore deem them to be waived and will not consider them. Union Oil Co. of California v. Crane, 288 Ala. 173, 258 So. 2d 882; Groves v. Segars, 288 Ala. 376, 261 So. 2d 389; Supreme Court Rule 9(d).
In summary, no reversible error having been shown in assignments one through thirty-six as to the loss, as alleged in the complaint, of appellants' property, no evidence was improperly excluded from the jury; furthermore, we have not found a scintilla of evidence as to this issue in the remainder of the record. To recapitulate, the evidence properly before the jury showed that furniture, furnishings, etc. was taken from appellants' house and placed in a United Van Lines truck. There is no evidence to show where the property was taken or where it was stored, if it was stored. There is evidence in the record that appellants were listed as creditors of the owner of Huntsville Moving and Storage Company in his bankruptcy petition. The relationship was characterized as that of bailor-bailee for personal property in the amount of $2,000. However, there is no indication that said property was the property allegedly insured by appellee and the subject of this lawsuit. There was a complete failure of proof before the court and jury that the household property of appellants insured by appellee was destroyed by fire on or about January 13, 1963 at the Huntsville Moving and Storage Company.
Where there is not a scintilla of evidence in favor of one party to an action, the general affirmative charge is, upon request, due to be given in favor of the opposing party. Harris v. State, 215 *923 Ala. 56, 109 So. 291; Central of Ga. R. Co. v. Isbell, 198 Ala. 469, 73 So. 648. We therefore find assignment of error 37 to be without merit.
There being no reversible error shown to this court, the judgment of the trial court is affirmed.
Affirmed.
WRIGHT, P. J., and HOLMES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612956/ | 282 So. 2d 422 (1973)
STATE of Louisiana
v.
Abe JONES, Jr.
No. 52286.
Supreme Court of Louisiana.
February 19, 1973.
Dissenting Opinion February 21, 1973.
On Rehearing August 20, 1973.
*423 Gravel, Roy & Burnes, James J. Brady, James M. Small, Alexandria, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Edwin O. Ware, III, Dist. Atty., Robert P. Jackson, Alfred B. Shapiro, Asst. Dist. Attys., for plaintiff-appellee.
SANDERS, Justice.
The Grand Jury of Rapides Parish indicted Abe Jones, Jr., for the murder of Roy L. Henderson. After hearing the evidence, the jury returned a verdict of guilty without capital punishment. The trial judge sentenced him to life imprisonment. The defendant has appealed, relying upon 24 bills of exceptions reserved in the trial court. The substantial questions pertain to the limitation of the voir dire examination of jurors, denial of a challenge for cause, and the procedure used for the summoning of tales jurors.
Bills of Exceptions 2 through 7 pertain to the rulings of the trial judge limiting defense counsel's voir dire examination of prospective jurors. Of these, Bills of Exceptions 6 and 7 relate to a juror who was later excused for cause. Since that juror did not serve, the rulings as to his examination were harmless. See LSA-C.Cr.P. Art. 921. Hence, these bills will not be discussed in detail.
BILLS OF EXCEPTIONS 2 and 3
As to prospective juror James H. Farmer, the line of questioning and ruling was as follows:
"QUESTION: I want you to suppose, Mr. Farmer, that Judge Gremillion advises you of the law and that part of the law is not to your liking. You have personal disagreement with it, could you nonetheless apply it?
"ANSWER: Yes.
"QUESTION: And you can say that without reservation, even not knowing what the law is at this point, is that correct?
"ANSWER: Yes.
"QUESTION: I take it then, if he gave you a completely obnoxious statement of the law, which you felt personally was wrong, notwithstanding that fact, you could apply it?
"ANSWER: Yes.
"QUESTION: I want to ask you again. Can you readily say yes to my question before you are advised of what the law is?
"BY MR. JACKSON: Objection.
"BY THE COURT: Sustained."
The examination and ruling as to prospective juror Charles Bonneau, Jr., were similar.
A review of the examination shows that these jurors had testified that they would apply the law as charged by the trial judge, whether they agreed with it or not. This testimony had been repeated several times, in response to defense questions in various forms. The final question, to which objection was sustained, was both argumentative and repetitious.
Article 786 of the Louisiana Code of Criminal Procedure provides that the scope of voir dire examination shall be in the discretion of the Court. In the absence of a clear abuse of that discretion, this Court will not disturb the ruling on appeal. State v. Schoonover, 252 La. 311, 211 So. 2d 273, cert. den. 394 U.S. 931, 89 S. Ct. 1199, 22 L. Ed. 2d 460 (1969); State v. Williams, 230 La. 1059, 89 So. 2d 898 (1956).
*424 In our opinion, the trial judge did not abuse his discretion here.
BILL OF EXCEPTIONS NO. 4
The defendant reserved Bill of Exceptions No. 4 to the following ruling during the examination of prospective juror Rudolph White:
"QUESTION: Mr. White, at the conclusion of the State's and the defense's case, after all of the evidence is heard, Judge Gremillion is going to charge you with what the law is, and he is going to tell you to apply the law to the facts and to the evidence you heard. Now do you think you would be able to apply the law which the judge gives you, even assuming that you personally disagree with the law.
"ANSWER: I sure could.
"QUESTION: Even though you found it personally obnoxious, you could apply it as the Judge told you to apply it, sir?
"ANSWER: I believe in the law, whether I like it or not.
"QUESTION: Then I take it that you believe that Mr. Abe Jones at this point is innocent, is that correct?
"ANSWER: He is presumed innocent.
"QUESTION: Do you presume him to be innocent?
"ANSWER: Yes, sir.
"BY MR. JACKSON: Your Honor, we object to any further questions along this line.
"BY THE COURT: This is the type of question I spoke of earlier. You are in effect asking him to tell you what he knows about the law of innocence. That will not be permitted."
Although the ruling of the trial judge here occurred when there was no pending question, the ruling may be construed as barring further examination relating to the juror's understanding of and reaction to the various rules of law deemed applicable to the case.
We note that the juror had already testified that he would apply the law given to him by the trial judge, whether he agreed with it or not. Under these circumstances, the trial judge did not abuse his discretion in curtailing detailed examination concerning the various legal rules applicable to the case. See State v. Sheppard, 263 La. 379, 268 So. 2d 590 (1972) and the authorities therein cited.
BILL OF EXCEPTIONS NO. 5
The defendant reserved Bill of Exceptions No. 5 to the exclusion of the following defense question addressed to a juror:
"Mr. Juneau, do you believe that if a Grand Jury indicts someone, this man is guilty?"
For the reasons assigned in Bill of Exceptions No. 4, the trial judge did not abuse his discretion here.
BILLS OF EXCEPTIONS NOS. 9 and 10
The defendant reserved Bills of Exceptions Nos. 9 and 10 to the denial of a challenge for cause of Louis O. Edwards, a prospective juror. After the denial of the challenge for cause, the defendant excused the prospective juror with a peremptory challenge.
The rulings were as follows:
"Defense Counsel:
"Q. Mr. Edwards, getting back just for one minute, because of one thing or another, perhaps happened to you during your life, do you feel that if it came down to a policeman saying one thing and an ordinary citizen saying another. The two being in direct conflict, you would be inclained *425 to accept and believe the testimony of the policeman, is that correct.?
"A. I would.
"Defense Counsel: Your Honor, I submit the juror for cause.
"Q. My question to you is this, Mr. Edwards, would you weigh the credibility of each party and rule accordingly, or would you be inclined to accept the testimony of the policeman in the event of a direct conflict?
"A. I would be inclined to go along with the policeman because that in his job he is trainedI would think, to where if they did see a crime he would be more susceptible to get the facts right off hand because he's trained to do that. That's the way I believe, I would be inclined to go along with the policeman because he would seem like to me, just see the facts better than your or I would.
"Q. And by that you mean any fact which he would happen to witness?
"A. Well, any fact he would witness, I mean he would be more susceptible to see it just like it was than I would.
In his Per Curiam, the trial judge states:
"During the examination of prospective juryman, Louis O. Edwards, there was developed by defense counsel what appeared on the face of Edward's testimony that he would believe the policeman in preference to an ordinary citizen. The entire dialogue must be read at which time the only conclusion that logically can be reached is that Mr. Edwards told of the circumstances he would appraise the testimony of such police officer and such a citizen. The ultimate conclusion that can be drawn from his testimony is that he would weigh the testimony of both and with the knowledge that a police officer is trained to observe, be inclined to accord more weight because of that fact."
Only a few cases have dealt with this type of question on voir dire examination. These cases have differed as to the propriety of such questions. The United States Circuit Court of Appeal for the District of Columbia has held that it is reversible error to bar such a question where police testimony represents virtually the entire case for the prosecution. See Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (1964); Sellers v. United States, 106 U.S.App.D.C. 209, 271 F.2d 475 (1959). The First and Fifth Circuits have held that the trial courts did not abuse their discretion in disallowing such questions. See Gorin v. United States, 1st Cir., 313 F.2d 641 (1963), cert. den. 374 U.S. 829, 83 S. Ct. 1870, 10 L. Ed. 2d 1052; United States v. Gassaway, 5th Cir., 456 F.2d 624 (1972); United States v. Jackson, 5th Cir., 448 F.2d 539 (1971).
The issue here is whether or not it was reversible error for the trial judge to deny the challenge for cause, after having allowed the questions and received the answers of the prospective juror.
On questions related to the impartiality of jurors, great weight must be given to the ruling of the trial judge, who sees and hears the prospective juror.
The juror further testified:
"Q Also, Mr. Edwards, during the course of this trial very likely the testimony is going to be, some testimony is going to be given by various members of the Police Department, do you think you would be inclined to give more weight or more credence to the testimony from a policeman merely by virtue of the *426 fact that he is a policeman than you would say to the testimony of an ordinary citizen?
"A Well, I would go along with either one of them, you know, policeman or ordinary citizen, I'd listen to it, you know and get the facts, that's all you can do.
"Q Would you be more inclined to believe the policeman because of the fact that he is a policeman?
"A I would be inclined to believe policemen, his testimony.
"Q And that's because merely you believe that policemen are more inclined to tell the truth than ordinary citizens?
"A Well, I think either one of them would tell the truth, as far as that goes, but a policeman it's more his job you know to get the truth and lots of times in cases well the policeman was there, you know and I believe in the law, I'll put it like that. I will just say that, I believe in the law."
We agree with the trial judge that the main thrust of the prospective juror's answers was that, in weighing the testimony, he would take into account a police officer's training in observing and reporting crime.
In the recent case of State v. Johnson, 263 La. 462, 268 So. 2d 620 (1972), a similar question was presented. In affirming the conviction, we held that a denial of a challenge for cause was not reversible error. See also State v. Dyer, 154 La. 379, 97 So. 563 (1923).
We conclude that the bills of exceptions lack merit.
BILLS OF EXCEPTIONS NOS 18 and 19.
The next substantial question is raised by the overruling of defendant's "Motion For Mistrial and/or Continuance and For Other Relief."
The background of the motion is clearly set forth in the Per Curiam of the trial judge. The Motion for a Mistrial or Continuance is based on the manner in which the Court secured additional tales jurors. At a point in the selection of the jury when nine jurors had been selected, the venire panel was exhausted. In order to fully understand this Motion and the reasons for ruling, consideration must be given to the entire voir dire and what preceded that. In this Parish, the general venire box is made up from names drawn from the rolls of the Registrar of Voters. For a trial of this magnitude one hundred names are drawn from the general venire box. In this particular case, the one hundred original so called were rather quickly exhausted. The Court ordered fifty additional names drawn from the general venire box. These were also exhausted. The Court then ordered the Clerk of Court to prepare fifty additional summons and ordered the Sheriff to serve them on standers-by, that is, picked up on the streets. These were quickly exhausted.
The Court then ordered the Clerk of Court to issue thirty additional summons and ordered the Sheriff to contact by telephone and without discrimination as many of the business places in Alexandria and in the surrounding area as possible in order to have them send into Court people who could serve as jurymen. No discrimination was made and as the evidence indicates, this request was made to business establishments who employ Negroes as well as whites. As a result of this effort, the final three jurymen were chosen, these being Charles Fabian Vandersypen, L. E. Brunson and Harold Gauthier. One alternate was also chosen from this group.
Article 785(D) of the Louisiana Code of Criminal Procedure provides:
"In parishes other than Orleans, the judge may order the summoning of tales jurors from among the bystanders or *427 persons in or about the courthouse, in place of the drawing of tales'jurors."
Article 419 of the Louisiana Code of Criminal Procedure provides that a jury venire shall not be set aside unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.
Defendant contends that the procedure used violates defendant's constitutional rights because it in no way assures that there will be a fair cross-section of the community, especially as to race.
The evidence establishes to our satisfaction that no discrimination, racial or otherwise, was practiced in the selection of the remaining members of the jury. The trial judge noted in his oral reasons overruling the motion that about half of the first group of talesmen were Negroes, the same race as defendant. Moreover, the showing is insufficient to establish fraud, great wrong, or irreparable injury.
In the case of State v. McGuire, 254 La. 560, 225 So. 2d 215 (1969), a somewhat similar procedure was used to summon tales jurors. Affirming the conviction, we stated:
"In his per curiam to the instant bill the trial judge states that the sheriff's office complied with the orders of the court. From our review of the jurisprudence, we find that the venire will not be set aside in the absence of allegations of fraud, wrong, or injury in the drawing and summoning of jurors."
We have reviewed the remaining bills of exceptions. None of them raise a substantial legal question.
For the reasons assigned, the conviction and sentence are affirmed.
BARHAM, J., dissents and assigns reasons.
DIXON, J., dissents.
BARHAM, Justice (dissenting).
Bill of Exceptions No. 5 was taken to the trial judge's exclusion of the following question addressed by defense counsel to a potential juror on voir dire examination: "Mr. Juneau, do you believe that if a Grand Jury indicts someone, this man is guilty?" This bill of exceptions has merit. See my dissents in State v. Richey, 258 La. 1094, 249 So. 2d 143 (1971); State v. Sheppard, 263 La. 379, 268 So. 2d 590 (1972); State v. Crittle, 263 La. 418, 268 So. 2d 604 (1972); State v. Bell, 263 La. 434, 268 So. 2d 610 (1972); and State v. Taylor, La., 282 So. 2d 491 decided January 15, 1973, now pending after the granting of a rehearing.
Under Bills of Exceptions Nos. 9 and 10 the defendant complains that he was entitled to challenge for cause a juror who stated that he would be more inclined to believe a police officer than other witnesses. In my opinion these bills of exceptions are good. See my dissent in State v. Johnson, 263 La. 462, 268 So. 2d 620 (1972).
ON REHEARING
DIXON, Justice.
On rehearing the defendant urged three principal errors.
I.
Bills of Exceptions Numbers 4 and 5 complained of the curtailment of voir dire examination by the defendant. Bill of Exceptions Number 4 was taken when the court sustained an objection to a prospective juror about the presumption of innocence. Bill of Exceptions Number 5 arose from the following question addressed to a prospective juror and the subsequent instruction by the court:
"Mr. Juneau, do you believe that if a grand jury indicts someone this man is guilty?
"By the Court: That is improper, as I've said earlier. We are not going to quiz these people on their knowledge of the law. He comes in here. He's just as *428 innocent of experience with the law as your client is with guilt, and we are not going to permit you to ask him questions about this."
There is a recognized distinction between examining a juror on his knowledge of the law and examining a juror on his ability and willingness to apply a principle of law which has been explained to him. The difference was noted in 1902 in State v. Perioux, 107 La. 601, 31 So. 1016.[1]
Prior to the excluded question, the voir dire examination had disclosed that the prospective juror Juneau had previously served on a grand jury in Rapides Parish. He was asked if grand jury service would affect his ability to serve as a fair and impartial juror. After a few questions about whether Juneau was acquainted with certain police officers, he was asked the question concerning the possible implication of guilt that might flow from a grand jury indictment. In our original opinion, we held that the trial judge did not abuse his discretion in curtailing the voir dire examination, relying on State v. Sheppard, 263 La. 379, 268 So. 2d 590. The State also relies on State v. Richey, 258 La. 1094, 249 So. 2d 143.
In State v. Bell, 263 La. 434, 268 So. 2d 610, we approved a similar curtailment of voir dire examination. On the same day this court handed down State v. Sheppard and State v. Bell, it rendered its opinion in State v. Crittle, 263 La. 418, 268 So. 2d 604. In State v. Crittle, we reversed a conviction when the trial court refused to permit the defense to examine prospective jurors on the subject of the presumption of innocence, relying on State v. Hills, 241 La. 345, 129 So. 2d 12.
Code of Criminal Procedure article 786 announces the right of the court, the State and the defendant to examine prospective jurors and purports to state the scope of the examination:
"The court, the state, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court.... "
On the surface, it might appear that article 786 intended to give the trial judge almost unlimited discretion to control the examination of prospective jurors. However, as indicated in the Official Revision Comment, the predecessor article (former R.S. 15:349) provided that examination of prospective jurors shall be conducted in the manner as now provided by existing laws. But there were no other existing statutes concerning the examination of prospective jurors in criminal cases. In 1925, in a reference to the absence of statutory directions for the selection of a jury, this court *429 said in State v. Roberson, 157 La. 974, 103 So. 283, 287:
"But we prefer to say that since it is not mandatory on the court to select a jury according to any prescribed form, it follows that a jury may be selected in any way that permits the accused to examine each juror touching his qualifications, and to exercise as to such juror his right to challenge for cause, or peremptorily, as the case may be."
In 1926, in State v. Guidry, 160 La. 655, 107 So. 479, this court reversed a conviction when the district judge, under a rule adopted by the district court, conducted the voir dire examination himself, and would not permit examination of the prospective jurors by the lawyers.
Paragraph (d) of the Official Revision Comments refers to State v. Hills, 241 La. 345, 129 So. 2d 12, as if the doctrine of that case qualified the discretion which article 786 seemed to vest in the trial court. State v. Hills contained a full exposition of the scope of voir dire examination in Louisiana. There, a conviction was reversed on rehearing, one reversible error being the prejudicial curtailment of voir dire examination. The court said, at 129 So. 2d 31:
"It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of peremptory challengesince each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. The Constitution itself (La.Const. of 1921, Art. 1, Sec. 10) guarantees to the accused the right to peremptorily challenge jurors, `the number of challenges to be fixed by law;' that number, in the trial of any crime for which the penalty is death or necessarily imprisonment at hard labor, is twelve (R.S. 15:354). The intelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of questionsthe answers to which might be regarded as informative of a juror's attitude and therefore of vital importance to his defense. In State v. Henry, 196 La. 217, 198 So. 910, 915, this Court quoted with approval from 35 C.J. at pages 387, 405 and 406; "`* * * parties have a right to question jurors on their examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge, and * * * it is error for the court to exclude questions which are pertinent for either purpose. * * * The right of peremptory challenge is a substantial right, and its freest exercise should be permitted." * * *'"
The question before us, disapproved by the trial judge, was relevant, germane, and was not only a question on which the defendant might have based a peremptory challenge, but was also a question whose answer concerning the effect of a grand jury indictment might have indicated partiality and might have indicated the need for a challenge for cause.
*430 We therefore conclude that the discretion of the district court in limiting the scope of the examination of prospective jurors is limited by the jurisprudence of this State as it existed at the time of the adoption of the Code of Criminal Procedure of 1966. At that time, as noted in State v. Hills, counsel in criminal cases were allowed a wide latitude in voir dire examination, and "the scope of inquiry is best governed by a liberal discretion on the part of the court."
"The object of examining a juror on his voir dire is to ascertain the state of his mind, in order to find out whether he stands indifferent between the State and the prisoner. He is considered indifferent when he has no bias for or against the prisoner; when he has not formed or expressed an opinion as to the guilt or innocence of the prisoner, after having heard the narrative of the witnesses, and finally, when he entertains no conscientious scruples that would prevent him from carrying the law into effect.
"The object of the law is to select impartial jurors to try the issue between the State and the defendant, and to ascertain that impartiality considerable latitude is allowed both to the prosecution and to the defense in examinations on the voir dire." Marr, The Criminal Jurisprudence of Louisiana, 2d Ed., pp. 689-690, 691 (1923).
Bill of Exceptions Number 5 has merit. Insofar as State v. Richey, State v. Bell and State v. Sheppard are in conflict with the principles expressed herein, they are overruled.
II.
Bills of Exceptions Numbers 9 and 10 complain of the refusal of the district judge to excuse the prospective juror Edwards for cause.
Because it appeared that there would be a direct conflict in the testimony of the accused and a police officer, Edwards was questioned about the relative weight he would attach to the testimony of a policeman merely because he was a policeman. There was a lengthy examination, and the trial judge concluded that Edwards testified that he "would weigh the testimony of both and with the knowledge that a police officer is trained to observe, be inclined to accord more weight because of that fact." Because of the length of the interrogation, it will not be reproduced in its entirety. Nevertheless, excerpts from the questions and answers lead to the conclusion that the juror was not an impartial juror, and that the challenge for cause should have been sustained.
Some of the questions and answers follow:
"Q. Would you be more inclined to believe the policeman because of the fact that he is a policeman?
"A. I would be inclined to believe policemen, his testimony.
"Q. Suppose you have a direct conflict in the testimony, if you have a policeman saying one thing and you have an ordinary citizen, just a man off the streets, saying another thing, do you think you would be more inclined to believe the policeman because of the fact that he is a policeman?
"A. I believe I would."
Two pages farther along this question and answer were repeated, whereupon the defendant challenged the juror for cause, and the challenge was denied by the court.
In subsequent examination, Edwards was asked: "I'd like to know under what circumstances would you place the testimony of an ordinary citizen on an equal par with that of a police officer?" Edwards answered, "Well, it's like I said, I would go along with policemen." Edwards twice more repeated that he would believe the policeman when there was a disagreement *431 between an ordinary citizen and a policeman.
After further argument, the court suggested a manner of interrogating the prospective juror which suggested that Edwards might believe a policeman, whose testimony was in conflict with a layman, about a factual situation observed by both, because the policeman was trained to observe. Nevertheless, upon a question by the district attorney, Edwards reiterated, "In any fact I would go along with the policeman's testimony."
State v. Square, 257 La. 743, 244 So. 2d 200, is inapplicable. State v. Johnson, 263 La. 462, 268 So. 2d 620, is distinguishable. The prospective juror in the Johnson case knew the individual police officer and did not hold a conviction that would require him to accept the testimony of any policeman over that of an ordinary citizen.
III.
Finally, the defendant claims on application for rehearing that we erred in overruling Bills of Exceptions Numbers 18 and 19. These bills were taken when the defendant discovered on voir dire examination of a tales juror that the juror had not been summonsed "from among the bystanders or persons in or about the courthouse" as provided by article 785, subd. D of the Code of Criminal Procedure. The general venire box was composed of names drawn from the rolls of the registrar of voters. One hundred names were drawn from the general venire box. Perhaps half of these were not found, and the original hundred were soon exhausted. Fifty additional names were drawn from the general venire box and were exhausted. The court then ordered the sheriff to obtain thirty tales jurors from bystanders. These prospective jurors were quickly exhausted.
Then, according to the per curiam:
"The Court then ordered the Clerk of Court to issue thirty additional summons and Ordered the Sheriff to contact by telephone without discrimination as many of the business places in Alexandria and in the surrounding area as possible in order to have, them send into Court people who could serve as jurymen. No discrimination was made and as the evidence indicates, this request was made to business establishments who employ Negroes as well as whites. As a result of this effort, the final three jurymen were chosen, these being Charles Fabian Vandersypen, L. E. Brunson and Harold Gauthier. One alternate was also chosen from this group."
The method of summonsing was established at the trial of the defendant's motion for mistrial by the testimony of the sheriff and two deputies who participated in calling the business houses in Alexandria to obtain tales jurors. The defendant objected both to the overruling of his motion for a mistrial and to the refusal of the trial judge to allow him to summons the businessmen who had been telephoned by the sheriff's office. The defendant sought to determine whether there had been discrimination and whether the tales jurors thus obtained represented a cross section of the community. The defendant is black. There were no blacks in the last group of tales jurors who reported, although about half the tales jurors in the first group obtained from bystanders were black.
There were about fifteen persons in the second group of tales jurors obtained. The district judge found as a fact that, from the evidence adduced from the sheriff's office and the clerk of court, no effort was made to limit the tales jurors to whites, and no effort was made to obtain Negroes.
Except for the expressed wish of defense counsel to examine the employers who had been called by the sheriff to send employees who might be willing and able to serve as jurors, there is no indication in the record that any other evidence relative to either discrimination or the failure to obtain a cross section of the community might have been developed.
*432 The record is clear that neither the sheriff nor the clerk of court knew the identity of those who appeared to serve as tales jurors until they actually reported to the sheriff's office. At that time, their names were obtained and inserted in the instanter summons which had been prepared in blank by the clerk.
Of course it is possible for abuses in the selection of tales jurors to creep into the system which allows the judge to order the sheriff to summons talesmen from bystanders and from persons near the courthouse. But no abuse has been shown in this case, and there is no indication in the record that the defense might have uncovered an effort or a system to exclude Negroes from this jury, even if he had been allowed more time to summons and examine additional witnesses. The defendant does not complain that he was denied the time or the right to investigate to determine if there actually existed any additional relevant evidence. In oral argument defense counsel stated ". . . we have simply requested that we be granted time to take additional testimony to see what businesses were called, how the person spoken to by the deputy sheriff chose the persons that were sent up here at the request of their employers to serve as prospective jurors in this matter, how this was determined. we would take evidence to see what percentage of black or Negro persons were employed or available in these particular establishments, also as to what class we are talking about that was called, we know it was the Alexandria area."
The deputies testified that all the businesses in the area had been called. They were cross-examined by the defendant, and all the information that the deputies had as to the identity of the persons they called was available to the defense at the time these witnesses testified. In addition, defense counsel had before him each tales juror whose name was drawn to serve on the jury. On voir dire examination he had the right to make relevant inquiry into the manner of selection of each juror.
A reasonable latitude in voir dire examination will adequately protect the defendant, and enable him to obtain a fair and impartial jury from a cross section of the community.
Selecting tales jurors from bystanders is an emergency measure, seldom used except near the end of jury selection, and then only to prevent delays incumbent upon filling an exhausted venire box and serving jurors who may be found at a point in the district many miles from the courthouse. The mere fact that there were no Negroes in the last group of fifteen tales jurors summonsed does not establish either discrimination or the absence of a cross section of the community on the venire.
For the reasons expressed in sections I. and II. of this opinion, the conviction and sentence are reversed, and the case is remanded for a new trial.
SANDERS, C. J., dissents with written reasons.
SUMMERS and MARCUS, JJ., dissent.
SANDERS, Chief Justice (dissenting).
The selection of a jury in the present case required four days, during which sixty persons were examined as prospective jurors. As I read the voir dire examination, it was fairly designed to constitute an impartial jury.
The majority reverses the conviction because of the exclusion of one question addressed to prospective Juror Juneau, who was later excused by the defense and did not serve at the trial.
In response to defense questions, Juneau testified that he would follow the trial judge's instructions as to the law to be later given to the jury whether he agreed *433 with the law or not; that he had once about five years before, served on the Grand Jury; and that his prior Grand Jury service would not prevent him from being a fair and impartial juror.
The trial judge later excluded the following question on which the reversal is based: "Do you believe that if a Grand Jury indicts someone, this man is guilty?"
In my opinion, the trial judge did not abuse his discretion in ruling out the question. As the trial judge notes in his Per Curiam, the question addressed to a prospective juror, not yet instructed as to the legal effect of an indictment, is a "loaded question," leading in most instances to a "guess" as to what he thinks the law is.
In order to reverse, the majority expressly overrules three relatively recent decisions of this Court dealing with voir dire examination of jurors: State v. Richey, 258 La. 1094, 249 So. 2d 143 (1971); State v. Sheppard, 263 La. 379, 268 So. 2d 590 (1972); State v. Bell, 263 La. 434, 268 So. 2d 610 (1972).
The disposition also seems to conflict with several earlier cases in which the trial judge refused to allow similar questions addressed to a juror, especially State v. Oliver, 247 La. 729, 174 So. 2d 509 (1965) cert. den., 382 U.S. 862, 86 S. Ct. 124, 15 L. Ed. 2d 100 (1965) (question as to whether juror would feel the defendant guilty because he was charged) and State v. Webb, 156 La. 952, 101 So. 338 (1924) (question as to whether juror believed in the right of selfdefense:
In State v. Webb, supra, this Court stated:
". . . It is not permissible for counsel to question jurors as to their individual opinion or belief as to what the law is or ought to be in a given case or under certain circumstances. It is true that the Constitution declares that jurors are the judges of both the law and the facts in a criminal case on the question of the guilt or innocence of the accused party, but this is true with respect to the law only in the sense that they are to accept the law as given to them in the charge by the court and apply it to the facts of the particular case."
In State v. Sheppard, supra, the state of the law governing voir dire examination was summarized as follows:
"Although the authorities are divided, the prevailing view in this country is that examination of jurors as to their knowledge of or reaction to particular phases of the law to be given by the court is impermissible. People v. Modell, 143 Cal. App. 2d 724, 300 P.2d 204 (1956); State v. Bolle, Mo., 201 S.W.2d 158 (1947); State v. Mosier, Mo., 102 S.W.2d 620 (1937); Commonwealth v. Calhoun, 238 Pa. 474, 86 A. 472 (1913); Fugitt v. State, 85 Miss. 86, 37 So. 557 (1904); Duffy v. Carroll, 137 Conn. 51, 75 A.2d 33 (1950); Harrell v. Commonwealth, Ky., 328 S.W.2d 531 (1959); 50 C.J.S. Juries § 275, p. 1043; Annot., 99 A.L.R. 2d 7, 20-23; The State Trial Judge's Book (National Conference of State Trial Judges and the Joint Committee for the Effective Administration of Justice ed. 1965) p. 93; Kennelly and Chapman, The Lawyer's Guide p. 168 (1970)."
I see no reason to retreat from this view, especially when current judicial reform is moving in the direction of expediting voir dire examination as a means of reducing court delays. The ruling was well within the discretion accorded to the trial judge.
For the reasons assigned, I respectfully dissent, adhering fully to the views expressed on original hearing.
NOTES
[1] "It is objectionable for the defense to ask of jurors, sworn on their voir dire, questions like the following:'In a criminal prosecution, as a juror, sworn to try a case and when forming your verdict, to whom would you give the benefit of the doubtthe state or the accused?' `If accepted on this jury, would you give the benefit of any doubt created in your mind by the evidence to the accused and acquit him?' `Would that doubt have to be a very great one, or a reasonable one?' The law requires the trial judge, at the end of the trial, to charge the jury that if a reasonable doubt find lodgment in their minds as to the guilt of the accused, they must give the latter the benefit of the same and acquit, and it is not to be supposed, in advance, that the jury will decline to heed the charge so to be given, or that a juror will refuse to be instructed by the court. In order to test the animus of a juror towards an accused person, it might, perhaps, be permissible for counsel for the defense, first explaining, or having the judge explain, the meaning of `reasonable doubt,' its application to the case, and his duty to acquit in case of the existence of such doubt as to guilt, to ask the juror whether he would give the accused the benefit of such doubt should it arise in his mind. But to permit him, without explanation of the meaning of `reasonable doubt,' and without instruction as to his duty as a juror in respect to the same, to be asked the questions, or any one of them, noted above, would be improper, as tending to confuse and embarrass." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613035/ | 32 Wis. 2d 231 (1966)
IVY, Appellant,
v.
TOWER INSURANCE COMPANY, INC., and another, Respondents.[*]
Supreme Court of Wisconsin.
September 12, 1966.
October 4, 1966.
*233 For the appellant there was a brief and oral argument by H. R. George of Milwaukee.
For the respondents there was a brief by Arnold, Murray & O'Neill of Milwaukee, and oral argument by James T. Murray.
*234 GORDON, J.
The plaintiff offers three principal arguments to convince this court to set aside the verdict of the jury which was upheld by the trial court. Our review of the record requires that we reject each of these contentions and affirm the judgment. This opinion will examine each of the appellant's contentions.
Nonnegligence as a Matter of Law.
The main thrust of this appeal is Mr. Ivy's claim that he was not negligent as a matter of law. In support of this argument, Mr. Ivy points to the uncontradicted fact that the broken concrete flew suddenly under his foot from the wheels of the backhoe tractor. The appellant reasons that since the jury found Mr. Haffner negligent in his operation of the backhoe tractor, it must necessarily follow that the plaintiff "did not have a chance to be negligent."
The difficulty with this contention is that it ignores the fact that the jury may have deemed Mr. Ivy's negligence to have occurred before the concrete flew from the wheel of the backhoe tractor. Thus, the plaintiff chose to walk within six feet of the backhoe tractor, and the jury may have deemed this an act of negligence. This is especially true because Mr. Ivy could have walked to his truck via a safer course; this would have been accomplished by his going around the front of the dump truck.
The defendant suggests that there may also have been negligence on the part of Mr. Ivy in connection with his failure to remove the broken concrete. However, there is no evidence indicating that Mr. Ivy had a responsibility to remove broken concrete while the backhoe tractor was still on the road.
We conclude that the jury's finding that the plaintiff was negligent is supportable insofar as it could properly have been based on Mr. Ivy's path of travel. To assess this negligence at 50 percent may seem severe at first *235 blush. However, the jury may have considered that the defendant's negligence was also slight and, thus, on a comparative basis the jury had a right to treat each of the parties as 50 percent at fault.
The Emergency Rule Instruction.
As a corollary to his claiming that he had no time to avoid the sudden projection of the concrete block, Mr. Ivy urges that the court should have given him the benefit of the emergency rule. See Wis J ICivil, Part I, 1015. The trial court, in our opinion, was correct in not giving such an instruction.
The emergency rule provides that a person confronted with an emergency not caused by his own negligence is not at fault if he takes action as an ordinarily prudent person might if placed in the same position, even if it subsequently appears that he did not choose the wisest course. Schmit v. Sekach (1966), 29 Wis. (2d) 281, 289, 139 N. W. (2d) 88; Crossman v. Gipp (1962), 17 Wis. (2d) 54, 115 N. W. (2d) 547; Marshall v. Colburn (1957), 2 Wis. (2d) 149, 85 N. W. (2d) 815.
The emergency rule is designed to benefit a person in regard to his conduct after he is confronted by an emergency. Thus, even if we find that Mr. Ivy did not help to create the emergency, he would not be entitled to the aid of the emergency rule because the only negligence which might have been charged against him arose prior to the time that the rock was thrown.
We have previously noted that the evidence of negligence on the part of Mr. Ivy related to his precarious path of travel; it was also argued that he may have been negligent by reason of his failure to have removed the concrete debris. Both factors, however, preceded the flight of the concrete block, and therefore the emergency rule was not involved.
*236 Violation of Anti-littering Statute.
Sec. 346.94 (6m), Stats., provides as follows:
"No operator of any vehicle shall permit to be thrown or deposited from such vehicle any type of debris or waste material."
In urging that the defendant violated this statute by permitting the wheel of the backhoe tractor to sling a piece of concrete, the plaintiff is either fairly ingenious or extremely ingenuous. The attempt to apply this antilittering provision to a tort case is somewhat reminiscent of the old chestnut in which the provisions of the Commercial Code were utilized in a paternity suit: If the "maker" cannot be found, the "accommodation endorser" can be held liable.
Interests of Justice.
The plaintiff urges that the assessment of 50 percent of the negligence to him is grossly unfair and that there should be a new trial in the interests of justice. He points to such cases as Matsumato v. Arizona Sand and Rock Co. (1956), 80 Ariz. 232, 295 Pac. (2d) 850, and Schiermeier v. Hoeffken (1941), 309 Ill. App. 250, 33 N. E. (2d) 147, in each of which an injury resulted from an object being projected from the wheel of a vehicle. These cases demonstrate that a jury question may be presented by such an event, but they do not reach the critical problem of the case at bar: Whether upon this record the jury was entitled to find the plaintiff negligent in an equal degree.
We conclude that the verdict is supportable by the evidence, and we perceive no valid basis for rejecting it or ordering a new trial.
By the Court.Judgment affirmed.
NOTES
[*] Motion for rehearing denied, without costs, on November 29, 1966. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613034/ | 11 So. 3d 633 (2009)
L.E.P.S.
v.
R.G.P.
No. CA 08-1349.
Court of Appeal of Louisiana, Third Circuit.
June 3, 2009.
Rehearing Denied June 26, 2009.
Opinion Concurring from Denial of Rehearing June 26, 2009.
Opinion Dissenting from Denial of Rehearing June 26, 2009.
Writ and Stay Denied July 1, 2009.
*635 Richard L. Fewell Jr., Law Office of Richard Fewell, Monroe, LA, for Defendant/Appellee, R.G.P.
James Edward Paxton, Attorney at Law, St. Joseph, LA, for Defendant/Appellee, R.G.P.
Paul A. Lemke, Attorney at Law, Harrisonburg, LA, for Plaintiff/Appellant, L.E.P.S.
Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
GREMILLION, Judge.
The plaintiff, L.E.P.S., appeals the judgment of the trial court in favor of the defendant, R.G.P., naming him the primary domiciliary custodial parent of their triplet daughters.[1] For the following reasons, we reverse and remand for proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
L.E.P.S. and R.G.P. married in April 1988 and divorced in May 1997. Of that union, triplet daughters were born to L.E.P.S. in 1992, via in vitro fertilization. Although the girls are not R.G.P.'s biological children, he is their legal father. Following the divorce, R.G.P. and L.E.P.S. were granted joint custody of the girls with L.E.P.S. being designated the primary domiciliary parent.
In October 1997, R.G.P. filed a motion to amend custody urging that he should be named the primary domiciliary parent. In November 1997, L.E.P.S. filed a rule for contempt and to modify custody urging that R.G.P.'s visitation should be suspended for a variety of reasons including that the children were primarily cared for by R.G.P.'s parents, R.P. and R.G.P., Sr. In February 1998, L.E.P.S. filed a rule for contempt against R.G.P., Sr. for refusing to appear at a deposition. Thereafter, a joint motion to dismiss the rule for contempt was filed following R.G.P., Sr.'s appearance and deposition.
In November 1998, L.E.P.S. married R.F. In September 2002, L.E.P.S. filled a rule for contempt and to fix interim child support and motion to refix hearing on motion to compel concerning the girls' child support award. In December 2002, R.G.P. filed a motion to request additional visitation. L.E.P.S. divorced R.F. in June 2001. Of that union, one child was born in 2000.
In November 2003, R.G.P. filed an objection to relocation of child, urging that L.E.P.S. not be allowed to move the triplets to Slidell, Louisiana. L.E.P.S. responded with a rule for sanctions. The *636 record includes a "Notification of Move" signed by R.G.P. in July 2003, detailing the move and noting that "both parties waive the restriction in the May 29, 1997 Joint Custody Implementation Plan of not being allowed to cohabitate with persons of the opposite sex." L.E.P.S. admitted that she was moving to Slidell to cohabitate with a man to whom she was not yet married. L.E.P.S. later married J.S. in November 2006.
In February 2007, R.G.P. filed an objection to relocation of minor children urging that L.E.P.S. not be allowed to move the children to Otterberg, Germany. He further requested that he be named the primary domiciliary parent. In June 2007, R.G.P. filed a rule for contempt of court, attorney fees, and cost of court. Following a hearing in May 2007, the trial court found that it was not in the children's best interests to relocate to Germany. L.E.P.S. thereafter filed an application for new trial urging that the district court in St. Tammany Parish ruled that L.E.P.S. could move her child, the seven-and-a-half year old half-sister of the triplets, to Germany, and that breaking up the nuclear family would not be in the best interests of the triplets. The Catahoula trial court partially granted L.E.P.S.'s motion for new trial in order to consider the St. Tammany Parish court's relocation ruling regarding the triplets half-sister. The trial court still found that the relocation was not in the triplets' best interests. Thereafter, L.E.P.S. moved back to Jonesville, Louisiana, while her husband remained in Germany to work.
In January 2008, R.G.P. filed a motion to modify visitation and for ex parte order regarding custody exchanges. He desired that his mother be allowed to pick up the girls for custody exchanges and that the custody arrangement be modified so that time was split evenly. Following a hearing the trial court found it would be in the triplets' best interest to modify the previous custody order naming L.E.P.S. the primary domiciliary parent during the school year and R.G.P. the primary domiciliary parent during the summer.
In March 2008, L.E.P.S. filed a petition for custody urging that due to R.G.P.'s substance abuse problems and arrests for Felony Carnal Knowledge of a Juvenile in Tensas Parish and Contributing to the Delinquency of a Minor in Franklin Parish, it would be in the triplets' best interest if she were awarded sole custody of them.
In June 2008, following receipt of a certified letter from L.E.P.S. stating her intent to move the triplets to Yuma, Arizona, R.G.P. filed a motion for temporary restraining order and request for preliminary injunction prohibiting L.E.P.S. from moving the triplets out of Catahoula Parish. In July 2008, L.E.P.S. filed a motion for temporary relocation and a petition to set child support and for judgment of arrearages. Shortly thereafter, R.G.P. filed a rule for contempt of court, attorney fees and cost of court. R.G.P. also filed a motion to consolidate.[2]
Following a July 31, 2008 hearing the trial court found L.E.P.S. in contempt of court for taking the children to Yuma, Arizona against court orders. It further found that it would not be in the best interests of the children to relocate to Yuma, Arizona nor would it be in their best interest if L.E.P.S. were granted sole custody. It awarded L.E.P.S. and R.G.P. joint custody, naming R.G.P. the primary *637 domiciliary parent under the direct supervision of mother until R.G.P.'s pending criminal matters could be resolved. L.E.P.S. now appeals.
ISSUES
L.E.P.S. assigns as error:
1. The trial court's refusal to hear the testimony of Deputy Coleman and R.G.P. concerning his arrest for carnal knowledge of a juvenile and contributing to the delinquency of a juvenile.
2. The trial court's refusal to drug test R.G.P. after assertion and confirmation of the Fifth Amendment privilege against self-incrimination. Additionally, the trial court failed to apply any adverse inference against R.G.P. after he took the Fifth Amendment privilege thirty-one times during testimony.
3. The trial court's grant of joint custody of the minor children with the father designated as domiciliary custodian, subject to supervision by the maternal grandmother.
4. The trial court's failure to grant sole custody of the children to her.
5. The trial court's failure to grant her visitation and failure to follow the statutory mandate of La.R.S. 9:335 in issuing a joint custody implementation plan.
TESTIMONY
The record of this protracted custody dispute includes testimony from various hearing over the years. The following testimony was adduced at the hearing regarding L.E.P.S.'s desire to move the triplets to Germany.
R.G.P. testified that he had been living with his mother in Ferriday for approximately six weeks following a four-wheeler accident in which he broke five ribs and punctured his lung. He stated that he manages a family-owned farm in Tensas Parish. R.G.P. stated that he drinks alcohol sometimes on the weekends. He admitted to taking illegal drugs in the past including methamphetamines, crack, and cocaine for which he was sent to rehab to by the trial court for sixty days in February 2005, following an arrest for possessing drug paraphernalia. At that time, the triplets were thirteen years old. R.G.P. testified that he no longer associates with his former friends who were drug users. R.G.P. further admitted that he arrived at a custody exchange in 2006 too drunk to drive, so he had his ex father-in-law drive the girls.
R.G.P. went on to state that his former girlfriend, with whom he used drugs, became injured when he accidentally shot her in the leg. He stated that at the time the triplets were four years old.
R.G.P. testified that the triplets are active in softball and gymnastics. He stated that he pays $1500 per month in child support and that his mother writes the checks, but he signs them. He further stated that his mother, a former teacher, assists the triplets with any help they need related to school. R.G.P. admitted to signing a document stating that the girls could move to Slidell, but that after talking to his lawyer and mother, he changed his mind because it was "something to do." He further stated that he has lived for the past two years in a camp, owned by his mother, in Tensas Parish. He stated that when the girls visit they stay at his mother's house. R.G.P. admitted to allowing the fourteen-year-old boyfriend of one of his daughters to sleep over at the camp one weekend while the girls were visiting. This triplet later became pregnant by the boy and had a son when she was fourteen years old.
*638 G.E., L.E.P.S.'s father, testified that the triplets have close relationships with he and his wife and with their paternal grandmother.
L.E.P.S. testified that one of the main reasons she divorced R.G.P. was because of his substance abuse problems. She further testified that he shot a gun over her head once and hit her across the back with one of his crutches. She testified that he drank often.
At the February 2008 hearing, V.P. testified that she was comfortable with her mom keeping her infant son, and that she did not think her dad would be able to watch him. She testified that she did not want to do a week-to-week arrangement because she felt it would be too difficult. E.P. testified that she wished for the custody arrangement to stay the same and that she wanted to stay with her mom during the week. S.P. testified to the same.
At the hearing held from July 31 to August 1, 2008, R.G.P. invoked his Fifth Amendment privilege on all questions concerning drug use. L.E.P.S.'s counsel then requested immediate urinalysis drug testing of both parties, which the trial court denied. Counsel further requested that an adverse inference be issued against R.G.P. for refusing to testify. R.G.P. admitted to a continuing association with P.S., the woman he previously used drugs with and accidentally shot in the leg. Again, however, he refused to testify with regard to questions surrounding an arrest for possession of crack cocaine. R.G.P. continued to assert the privilege when questioned about his involvement with a fifteen-year-old-girl and various other issues. He admitted to having past drug problems and an ongoing drug problem. When questioned whether or not he believed the girls would be better off in his custody or L.E.P.S.'s custody he responded, "I don't know." Further, when questioned whether it was he objecting to the relocation or someone else, R.G.P. responded "Both me and my mother." The colloquy continued:
Q: So if you're given custody of these children are you going to raise them, are they going to be in your custody or are they going to be in your mother's custody?
A. Both our custody.
Emmit Coleman, chief investigator of Franklin Parish, testified he investigated a case against R.G.P. in March 2008. He stated that he took a statement from a fifteen-year-old juvenile. The trial court would not allow any questions regarding the substance of that statement.
Deputy Mulvihill with the Concordia Parish Sheriff's Office testified that he knows R.G.P. because of encounters with him due to illegal drug activity. He stated that in May 2008, he entered a home in which R.G.P. and P.S., the gunshot victim, were in a home where narcotics where found. He stated that he issued R.G.P. a citation for possession of drug paraphernalia, specifically a crack cocaine smoking pipe found in his boot.
P.S. testified that she and R.G.P. have had an on-and-off relationship since 1997, and that R.G.P. has an ongoing drug problem. She testified that she has seen him use drugs. She further testified that "L.E.P.S. is a wonderful mother," and that if she had to pick between L.E.P.S. and R.G.P. she would choose L.E.P.S. "by all means."
L.E.P.S. testified that the home she and her husband purchased in Yuma, Arizona, is 3400 square feet with five bedrooms, three bathrooms, and a pool. She discussed the educational opportunities available to the girls in Arizona. L.E.P.S. further testified that besides R.G.P.'s drug use, his mother's interference in their relationship *639 was partially the reason for their divorce. She was of the opinion that R.G.P. is dependent on his mother, that his mother makes all the decisions, and that he has only worked for his mother.
S.P., who was fifteen at the time of this trial, testified that she did not want to go to Arizona because she wanted to stay in Jonesville with her friends and family and graduate from Block High School. She stated that she would prefer to stay with R.P. and her dad. Nevertheless, she testified that L.E.P.S. has been her primary caretaker: the person who takes her to the doctor, buys her clothes, and attends all of her softball games. She stated that although she wants to live with her mother, she does not want to move to Arizona. S.P. further testified that she has seen R.G.P. drunk and that she worries about his problems.
E.P. additionally testified that she does not want to move to Arizona because she wants to finish school at Block and because all of her friends and family are located there. She testified that she would live in Ferriday with her grandmother and dad.
V.P. testified that she would like to finish school at Block. She stated that she would live with her grandmother and her dad if she were allowed to stay here, but that she was not sure if she would live in Ferriday or Jonesville. V.P. was asked if she feels safe when she is with R.P. and R.G.P. to which she responded, "most of the time." She further explained that she can tell sometimes when her dad has been drinking. She stated that her mom and maternal grandmother have taken care of her infant son while she is in school, but that R.P. would take care of him if she stayed.
R.P. testified extensively as to the supervisory role she would have if R.G.P. were awarded custody, which included attending the girls' extracurricular activities, helping with homework, and assisting in the care of V.P.'s son. R.P. admitted to suing L.E.P.S. in the past attempting to gain custody of the girls due to L.E.P.S.'s "moving around." When questioned if her son would be a better custodial parent, R.P. replied, "It depends on what issue it is." She further explained "It's probably about equal." R.P. testified that if R.G.P. were using drugs out of the presence of his daughters, that would not change her opinion that he should be awarded custody. R.P. testified that R.G.P. lives in Newellton in a house she owns and that he is registered to vote in Concordia. She stated R.G.P. recently purchased a house in Jonesville for the purposes of establishing a domicile in the area so that the girls could continue to attend Block high school.
DISCUSSION
In its ruling, the trial court found (emphasis added):
The Court finds that both parents dearly love these children and are dedicated to their well being. The Court also finds that the children have a genuine love for both of their parents and expressed no dissatisfaction as it relates to either parent. The Court finds that the Triplets have been in the Harrisonburg-Jonesville area for the last few years of their life and they seem to have adapted well to that area of the State. The Triplets, in open court, have expressed their ties with the local school, the churches, their families and the extended families of both the Mother and the Father and have expressed this at this hearing as they did at the previous Relocation Rule that their desire is to remain in the Harrisonburg-Jonesville-Ferriday area. The Court is aware that [R.G.P.] has pending criminal matters in other parishes and was made aware of that by the adjustment in the joint *640 custody agreement whereby there was required supervision, by [R.P.] of any visitation that [R.G.P.] had with the Children. The Court also notes that [R.G.P.] has had in the past and may still possibly have a substance abuse problem, however the girls when questioned about this substance abuse problem said that they had never seen [R.G.P.] under the influence of substances other than one time when [R.G.P.] had apparently had too much to drink and allowed his Father-in-law to drive in lieu of himself. The Court does sense that [L.E.P.S.] does not display a willingness and ability to facilitate and encourage the close continuing relationship between the children and other party and Court senses that [L.E.P.S.] may be using the relocation to thwart the relationship of the children and the father.
The Court finds the physical needs and material needs of the Children will be adequately provided by both the Father and the Mother as it relates to these girls. As previously referenced the girls, all three (3), have expressed a desire to stay with their Father and live in the house with their Father, their Paternal Grandmother, [R.P.]. The Court will note that the Children expressed that if they were to move to Yuma, Arizona the only persons they would know there would be their Mother, their Step-father, their Half-sister, and their Step-sisters, however they would have numerous friends and extended families if they were to remain in the Harrisonburg-Jonesville, Catahoula-Concordia Parish area. One of the persons whom they would know in Yuma, Arizona is their Step-Father, [J.S.]. The Court will note that in the previous hearings [J.S.] has not been present for any of the hearings for the Court to know, see or hear from the person that would be a very influential factor in these girls' lives, if relocated to Yuma, Arizona.
Based on the factors as set out by the Legislature in both relocation and custody matters, I find that [L.E.P.S.] has not met her burden of proof to establish that it is in the best interest of the Children that they be relocated to Yuma, Arizona and she has failed to establish that it would in the best interest of the Children for [L.E.P.S.] to have sole custody of these children in lieu of joint custody.
It is therefore the finding of this Court that the relocation of the Triplets is denied and the request of Sole Custody by [L.E.P.S.] is denied. The Parties will be awarded Joint Custody of the Triplets with [R.G.P.] being awarded the domiciliary parent under the direct supervision of [R.P.] his Mother and Paternal Grandmother of these Children until the criminal matters can be resolved. Should [R.G.P.'s] criminal matters be resolved to his detriment the Court would have to, out of necessity, revisit the Custody matters that it has set out.
EVIDENTIARY ISSUES
In this first assignment of error, L.E.P.S. argues that the trial court erred in refusing to admit the testimony of Deputy Coleman and R.G.P. concerning his arrest for carnal knowledge of a juvenile. We agree.
We first note that it is clear that the trial court did indeed consider the pending criminal charges against R.G.P. since it qualified its domiciliary placement with R.G.P. by requiring the supervision of his mother until the criminal matters [could] be resolved. Moreover, R.G.P. admits in his own brief that "these arrests, however, were not beyond the trial court's knowledge," *641 and "the judge admits knowledge of the criminal charges." Thus, although the judge refused to admit the proffered testimony into evidence, he clearly considered it when making his determination. R.G.P. argues that a harmless error standard applies, i.e., the error in failing to admit the proffered testimony into evidence was harmless since the judge considered it. We view the situation differently. The question is not whether he should have considered the evidence; the fact is that he did. The question is whether he abused his discretion in awarding R.G.P. custody in light of all of the evidence including that which he excluded.
Additionally, we find it was error to not admit the evidence into the record. R.G.P.'s arrests are highly relevant to R.G.P.'s moral fitness to parent triplet fifteen year old girls. Although La.Code of Evid. 609(F) generally prohibits the admission of the arrest of a witness in order to attack his credibility, there are some exceptions. Louisiana Code of Evidence article 1101(B) provides for the limited applicability of the rules concerning the admissibility of evidence in child custody cases. Nevertheless, "the specific exclusionary rules and other provisions, however, shall be applied only to the extent that they tend to promote the purposes of the proceeding." Id. "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. La.Code Evid. art. 401. Evidence which is not relevant is not admissible." Id. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence." La.Code Evid. art. 401.
Appellate courts have held that a parent's arrests are relevant to their moral fitness to parent a child. In Fernandez v. Pizzalato, 04-1676 (La.App. 4 Cir. 4/27/05), 902 So. 2d 1112, the mother argued it was error for the trial court to exclude evidence of the father's prior DWI arrests. In finding that the trial court erred in excluding the evidence, the appellate court stated:
In the instant case, the arrest records were to be used ... to show that he had used alcohol and prescription drugs in such a way that he could cause injury to others, including [his daughter], if she were riding in a vehicle with him. This evidence was directly relevant to his the issue of what was in the best interest of [the child.] Therefore, the evidence should have been admitted into evidence and to refuse to allow the evidence to be admitted was legal error on the part of the trial court judge.
Similar to the facts in this case, the appellate court found that although the trial court excluded evidence of the arrests, it knew of Fernandez's arrests, thus it was harmless error to have excluded the evidence.
In Long v. Dossett, 98-1160 (La.App. 3 Cir. 4/28/99), 732 So. 2d 773, writ denied, 99-1377 (La.6/4/99), 745 So. 2d 13, another case involving the father's arrest for DWI, the trial court mentioned that the father's arrest had appeared in the newspaper. The father argued that the arrest was not relevant. On appeal, a panel of this court held:
Given the history of convictions that Appellant has with drinking and driving and the proximity of the arrest to trial, we find that such evidence is very much relevant to the La.Civ.Code art. 134(6) consideration of moral fitness of the parties. Additionally, we emphasize the appropriateness of the lower court's forth-right *642 method of alerting the attorneys of information that had been brought the attention, not only to the judge, but to public at large through publication.
Id. at 786.
In another case before this court, Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So. 2d 1339, writ denied, 97-1939 (La.11/7/97), 703 So. 2d 1272, the mother had been arrested twice for DWI and a third time for DWI, possession of marijuana, and possession of Xanax. On appeal, this court held that there was no error in the trial court's admission of a trooper's testimony concerning an accident at which he was not present.[3] A panel of this court cited La.Code Evid.art. 1101(B)(2) and found that "our jurisprudence has consistently held that whether evidence is relevant and admissible is within the discretion of the trial judge. His ruling will not be disturbed on appeal in the absence of a clear abuse of discretion" (citation omitted). Id. at 1346.
Accordingly, we find the testimony and records concerning R.G.P.'s arrest in March 2008, for carnal knowledge of a juvenile (Tensas Parish) and contributing to the delinquency of a juvenile (Franklin Parish) should have been properly admitted. The fact that R.G.P. was arrested for having sex with a fifteen-year-old girl following a night of mud-riding at his camp, is highly relevant to his moral fitness to parent the triplets. Additionally, his citation in May 2008, for possession of drug paraphernalia was also relevant to his moral fitness.
Even excluding the arrest for carnal knowledge of a juvenile, we still find the evidence overwhelming that it is not in the triplets' best interest that R.G.P. be named their primary domiciliary parent. There is no doubt that R.G.P. has an ongoing drug problem for which he has been in court-ordered rehabilitation that was clearly unsuccessful. There is no doubt that he continues to associate with known drug users. Unlike R.P., the fact that he may not use drugs in front of the triplets does not dissuade us from the belief that this type of behavior is detrimental to his impressionable teenaged daughters nor are we convinced that the effects of his substance abuse issues do not affect his family life. Thus, as we previously mentioned, we find the trial court abused its discretion in considering R.G.P.'s arrests, yet in still finding that it was in the triplets' best interests that they reside with him as domiciliary parent with his mother's supervision.
DRUG TESTING/FIFTH AMENDMENT PRIVILEGE
In this assignment of error, L.E.P.S. argues that the trial court erred in refusing to drug test R.G.P. and failing to apply an adverse inference against him after he took the Fifth Amendment privilege thirty-one times during testimony.
Louisiana Revised Statute 9:331.1 states:
The court for good cause shown may, after a contradictory hearing, order a party in a custody or visitation proceeding to submit to specified drug tests and collection of hair, urine, tissue, and blood samples as required by appropriate testing procedures within a time period set by the court. The refusal to submit to the tests may be taken into consideration by the court. The provisions of R.S. 9:397.2 and 397.3(A), (B), and (C) shall govern the admissibility of the test *643 results. The fact that the court orders a drug test and the results of such test shall be confidential and shall not be admissible in any other proceedings. The court may render judgment for costs of the drug tests against any party or parties, as it may consider equitable.
Although we find that good cause was shown, this issue is rendered moot by the fact that there was no doubt in the record that R.G.P. has an ongoing drug problem. For the same reasons, the issue of the application of a negative inference was not necessary due to the overwhelming evidence that it was not in the children's best interests to be placed in R.G.P.'s custody.
CUSTODY/RELOCATION
Assignments of error numbers three, four, and five all pertain to the trial court's award of joint custody to L.E.P.S. and R.G.P., with R.G.P. being named domiciliary parent subject to his mother's supervision, and the denial of L.E.P.S.'s request to relocate the triplets to Arizona. We note that there is no statutorily mandated visitation schedule in the record in favor of L.E.P.S. as required by La.R.S. 9:335.
On appeal, L.E.P.S. argues that she should have been awarded sole custody and that she proved that relocation is in the triplets' best interest. Having found that the trial court abused it discretion in its custody/relocation determinations and based on our review of the record we find that an award of joint custody with L.E.P.S. being named the primary domiciliary parent would be in the triplets' best interest. Moreover, we find that L.E.P.S. proved that relocation of the triplets to Yuma, Arizona was made in good faith and is in their best interest.
A trial court's determination of child custody is entitled to great weight on appeal and will not be disturbed absent a clear abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So. 2d 756. The trial court shall award custody of children in accordance with their best interests. La.Civ.Code art. 131. The best interests of the child are the paramount consideration of the court. Deason v. Deason, 99-1811 (La.App. 3 Cir. 4/5/00), 759 So. 2d 219. Pursuant to La.Civ.Code art. 134, the factors to be considered when determining the child's best interest include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
*644 (11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
An additional issue is the relocation of the children to Yuma, Arizona. We note at the outset that relocation is governed by its own set of factors that must be considered. This raises the possibility of an interesting scenario where conflicting results could be reached in custody determinations. For example, it could be possible to find that it was in the best interests of a child to be in one parent's custody, yet find that relocation is not. Fortunately, we need not address that issue here. Moreover, we find that factor twelve ("Any other factors affecting the best interest of the child") necessarily includes an overall look at all of the relevant factors.[4] In these particular circumstances, even if relocation is not ideal, it would be outweighed by the fact that the best interests of the child are served by residing with a relocating parent.
Louisiana Revised Statute 9:355.12 lists the factors that shall be considered in a contested relocation:
(1) The nature, quality, extent of involvement, and duration of the of the child's relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or financial obligations to the parent seeking relocation, including child support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
*645 (11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.
Louisiana Revised Statute 9:355.13 sets forth the burden of proof of the relocating parent as follows:
The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child's best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent's general quality of life.
In reviewing the trial court's reasons for ruling and the record as a whole, we have no doubt that it abused its discretion in naming R.G.P. the primary domiciliary parent, subject to his mother's supervision. We find the trial court's written reasons for ruling factually inaccurate, and we furthermore find that it buttresses the argument that it is not in the best interest of the triplets that their father be named the domiciliary parent.
BEST INTERESTS
In considering all of the relevant facts, we find it is in the triplets best interests that joint custody be awarded with L.E.P.S. being named the primary domiciliary parent. Because of the strong ties with their father, paternal grandmother, and maternal grandparents, we decline to award L.E.P.S. sole custody in order that visitation with extended family in the Concordia/Catahoula area can be maintained.
Factor one The triplets, their maternal grandparents, and paternal grandmother, all testified that they have a close relationship. That fact is not in doubt. Further, it is further clear that they love their mother and father. The girls all expressed a desire to remain in their mother's custody; they just did not want to move to Arizona. It is clear that the triplets have a close relationship with all of their extended family.
Factor two We find that L.E.P.S. is in a superior position to give the girls love, affection, and spiritual guidance and to continue the education and rearing of the children. Contrary to the trial court's finding, we could find no testimony by the girls regarding close ties with local churches. R.G.P. did not testify as to the girls educational needs and how he would support them, although his mother did. R.G.P. provided little insight as to how he would parent these children, and again, testified that he did not know who would make the better parent. L.E.P.S., a school teacher, is clearly the more qualified parent in this regard.
Factors three and twelve It is clear that both parties have the financial means to provide the girls with food, clothing, medical care, and other medical needs. However, it is also clear that for the past ten years, L.E.P.S. has been the party who has taken care of all of these needs on a day-to-day basis.
Factors four and five The triplets have resided with their mother as primary domiciliary custodian for more than ten years. R.G.P. has never been the primary domiciliary parent.
*646 Factor eight It is true that the girls are involved in activities in the area and at their school. We note, however, that the girls lived in the Slidell area for a few years until Hurricane Katrina hit, at which time they moved back to the Jonesville area. Thus, it is clear that the girls can make new friends and engage in sports activities wherever they live.
Factor nine Although the trial court should consider the children's wishes in awarding custody, it should not disregard overwhelming evidence that it would not be in their best interest to have their desires come to fruition. A child's wishes may not be in her best interests. See Richardson v. Richardson, 01-0777 (La.App. 1 Cir. 9/28/01), 802 So. 2d 726, writ denied, 01-2884 (La.11/16/01), 802 So. 2d 618 (twelve-year old's desire to remain in Louisiana where his friends and family were located insufficient to show it was not in his best interests to move out of state.) We find this is clearly the case here.
Factor ten The trial court found that L.E.P.S. did not facilitate and encourage a close and continuing relationship between the girls and their father. We disagree and are unable to find any evidence of that in the record. Admittedly, we were not in court to assess witness demeanor. However, the fact that L.E.P.S.'s former mother-in-law has sued her for custody of her children because "she moves around a lot" would certainly lead to a contentious and bitter feeling on L.E.P.S.'s part. Moreover, our cold review of the record leads us to conclude that the custody proceedings are spearheaded by R.P., as opposed to her son. Moreover, this custody issue is between R.G.P. and L.E.P.S., not L.E.P.S. and R.P.
Factor eleven Although the new custody arrangement greatly increases the distance between the two parties, it is clear that the distance will not be a financial hardship for R.G.P.
Factors six and seven Irrespective of all of the other factors, we find that factors six and seven overwhelmingly mitigate in favor of awarding L.E.P.S. custody. We disagree with the trial court's award of custody to a man who admittedly has an ongoing substance abuse problem, who has several criminal investigations pending against him, and who testified in open court that "he's not sure who should get custody" of the girls. Contrary to the trial court's conclusion, one of the triplets even admitted that she worries about her father's drinking and substance abuse issues. R.G.P.'s ongoing substance abuse problems and his arrest for carnal knowledge of a juvenile the same age as his daughters leaves us with no doubt that his moral fitness as a parent is called into question. Again, his ambivalence about the custody of the girls clearly shows that he is not the party pushing for custody of them. Moreover, as an ongoing drug user, his mental and physical health are called into question.
RELOCATION
Good Faith
We find that L.E.P.S. has shown that the relocation was made in good faith. Her husband has a secure job in the Yuma area with the federal government. L.E.P.S. testified that there were no job openings closer to the Catahoula area. She further testified that she will not have to work and will be available to assist her daughters and care for her infant grandson.
Best Interests/La.R.S. 9:355.13 Factors
We have discussed the majority of the 9:355.13 factors above, but make special note of factors six, seven, and eleven. *647 Having reviewed all of the evidence, we find the relocation will enhance both L.E.P.S.'s and the children's lives. The home they will be living in is very large and can easily accommodate the triplets along with their half sister, two step-sisters, and V.P.'s son. L.E.P.S. testified to her husband's salary, which can support the family and allow L.E.P.S. to not work. We find this situation is greatly advantageous over the previous one in which, following Hurricane Katrina, L.E.P.S. was temporarily residing in a two-bedroom rental trailer owned by her father. As to factor seven, R.G.P. did not testify as to why he objected to the relocation. In fact, he was unsure of what would be in the triplets' best interest. Finally, factor eleven weighs heavily in favor of allowing the relocation. It is very clear that R.G.P. has an ongoing substance abuse problem that is has led to severe consequences. It is further clear that rehabilitation has not been successful and that his own daughters worry about his substance abuse issues. For this reason alone, we find that relocating the triplets to a new environment free from these concerns and the behaviors that go along with a parent who has substance abuse issues, would be overwhelmingly in their best interest. Although we decline to discuss the legal ramifications of what was essentially an award of custody to the grandmother in lieu of the mother, we do not find that R.G.P.'s mother's "supervision" mitigates R.G.P.'s total lack of moral fitness and desire to parent these triplets. In this case, the appointment of R.P. as "supervisor" does not qualify as the silver lining to an otherwise dark cloud.
We further note that the triplets will be of majority shortly and will be able to decide for themselves where they would like to reside. In the meantime, we find the opportunities available in Yuma and L.E.P.S.'s continuing stable parental influence would be in their best interests. Accordingly, we award joint custody to L.E.P.S. and R.G.P., subject to his mother's supervision, pending the outcome of the criminal charges against him, with L.E.P.S. being named the primary domiciliary parent. L.E.P.S. further may relocate the children to Yuma, Arizona. We remand this case for a determination of an appropriate visitation schedule noting that the triplets remain with their mother throughout the school year, with an appropriate holiday and summer visitation schedule to be determined by the trial court pursuant to La.R.S. 9:335.
CONCLUSION
The judgment of the trial court awarding the defendant-appellee, R.G.P., primary domiciliary custody subject to the supervision of his mother is hereby reversed. The appellant, L.E.P.S., is hereby named the primary domiciliary parent. Additionally, her request to relocate the children is granted. The trial court is ordered to formulate a summer and holiday custody arrangement pursuant to La.R.S. 9:335. All costs of this appeal are assessed against R.G.P.
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
COOKS, J., concurs in part and dissents in part and assigns written reasons.
PAINTER, J., dissents and assigns written reasons.
COOKS, J., Concur in Part and Dissent in Part.
I concur with the majority ruling naming L.E.P.S. the domiciliary parent, and granting her request to relocate to Arizona. I strongly disagree with the majority decision to award joint custody to *648 L.E.P.S. and R.G.P. Custody should be awarded solely to L.E.P.S. Any visitation with this father should await a hearing after a full evaluation of the father's fitness to visit with his children supervised or otherwise. See La. C.C. art. 136. I would remand with instruction for the trial court to order an evaluation by a qualified expert and thereafter conduct an appropriate hearing.
I have no doubt that the father's persistent drug and alcohol abuse has not helped in his relationship with these children. To the contrary, it has set an extremely bad example for these young girls. Now, to add to that very bad example, these 15 year old girls' forty some year old father is charged with sexual molestation of a 15 year old girl and involving that child with the use of illegal drugs as well, while joy riding with her at his camp where he spends time with his daughters. [Now, we are left to trust his mother to "supervise him" as he visits with his girls, a job she has not been able to do thus far in his life.]
The majority, based on much evidence in the record, correctly finds the father is morally unfit, and points to "overwhelming" evidence that awarding custody to the father is not in the best interest of these young girls. Yet, a few lines later the majority awards him joint custody. The majority's award of joint custody appears nothing more than an effort, albeit well intended, to allow visitation with the grandmother, and to avoid the holding in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). The visitation rights of grandparents are set forth in La. R.S. 9:344. None of the limited circumstances set forth therein which permit an award of visitation to grandparents exist in this case. The father of these children has not died, been incarcerated nor interdicted. Additionally, there is nothing in the record to suggest the mother will not allow the girls to visit their paternal grandmother as willingly done in the past.
PAINTER, J., dissenting.
I respectfully dissent from the majority's opinion reversing the trial court's award of custody of fifteen-year-old triplet daughters to the father, with the father being named domiciliary parent, subject to the mother's supervision. The majority finds that the best interests of the children require that joint custody be awarded with the mother being named the primary domiciliary parent. It is my opinion that reversal is not warranted.
The standard of review in child custody matters has been clearly stated by this court:
The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court's determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La. App. 3 Cir. 5/22/96), 676 So. 2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So. 2d 365.
The burden of proof on a party seeking to modify a prior permanent custody award is dependent on the nature of the underlying custody award.
"When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child."
*649 Bergeron v. Bergeron, 492 So. 2d 1193, 1200 (La.1986). And "there must be a showing of a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order." Id. at 1194. However, as in this case, where the original custody decree is a stipulated judgment (i.e., the parties have consented to a custodial arrangement), the heavy burden of proof enunciated in Bergeron is inapplicable. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir.), 653 So. 2d 48, writ denied, 95-1488 (La.9/22/95), 660 So. 2d 478.
While the mother in this case did not have to meet the Bergeron standard, she still had to show that there was a change in circumstances and that the new custody arrangement would be in the best interest of the children. The trial court noted the triplets desire to remain in the home with their father and paternal grandmother. The trial court also took into consideration the mother's failure to display a willingness to facilitate and encourage any relationship between the triplets and their father. The trial court concluded that the mother tended to use relocation attempts to thwart any relationship between the triplets and their father. Therefore, I find that the mother did not meet her burden of proof and that because of the great weight to which the trial court's judgment is entitled, we cannot reverse its decision under the applicable standard of review.
APPLICATION FOR REHEARING Rehearing denied.
COOKS, J., concurring.
I write this concurring opinion in the denial of this motion for rehearing for the purpose of pointing out the frivolousness of this motion for rehearing and the earlier filed motion for stay in this proceeding. In the filing of the motion for stay, the appellant argued that if this court did not grant an immediate stay of the execution of this court's ruling, the appellee would remove the children from this country. Acting on this assertion, the majority of this panel granted the requested stay, from which ruling I dissented. In the application for rehearing, the appellant has only rehashed the record that was before this court in the original hearing and encourages the majority of this panel to adopt the reasoning of the dissenting opinion that had already been rejected by the majority of this panel. In light of the argument set forth in the application for rehearing, I find that the appellant's counsel's argument on the motion for stay was so baseless that it constitutes a frivolous pleading interposed merely for delay in violation of La.Code Civ.P. art. 863. Therefore, I wholeheartedly agree with the denial of the application for rehearing and would further cast appellant's counsel with mandatory sanctions in accordance with La.Code Civ.P. art. 863(D) for filing the stay request.
PAINTER, J., dissents.
I would grant the rehearing of the original panel and extend the stay an additional 10 days for appeal if the rehearing is denied.
NOTES
[1] Pursuant to Uniform Rules-Courts of Appeal, Rule 5-2, we use initials throughout to protect the identity of the minors.
[2] In January 2008, one of the triplets, then fourteen years old, gave birth to a son. The alleged father, through his mother, sought a determination of filiation and a desire that his son not be moved to Yuma, Arizona. R.G.P. sought to consolidate the alleged father's action with his own to prevent inconsistent rulings.
[3] We are uncertain if the "accident" referred to involved the latest arrest for DWI and possession. It is unclear from the opinion.
[4] In the recent case of Johnson v. Spurlock, 07-0949 (La.App. 5 Cir. 5/27/08), 986 So. 2d 724, writ denied, 08-1400 (La.7/25/08), 986 So. 2d 670, the appellate court found it was error for the trial court to only consider the best interests of the child without a recitation of the La.R.S. 9:355.12 factors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613187/ | 821 So.2d 186 (2001)
BLUE RIBBON HOMES SUPER CENTER, INC.
v.
Kenneth B. BELL and Valerie L. Hill.
1000820.
Supreme Court of Alabama.
November 9, 2001.
*187 Cowin Knowles and E. Hamilton Wilson, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant.
Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellees.
STUART, Justice.
Blue Ribbon Homes Super Center, Inc. ("Blue Ribbon"), a defendant in an action pending in the Hale Circuit Court, appeals from the trial court's denial of its motion to compel arbitration. We reverse and remand with instructions to the trial court to grant Blue Ribbon's motion to compel arbitration.
Procedural Background
On May 5, 1993, Kenneth B. Bell and Valerie L. Hill filed an 11-count complaint in the Hale Circuit Court against Blue Ribbon, a seller of mobile homes, and Crimson Industries, Inc., a mobile-home manufacturer. On June 8, 1999, Blue Ribbon removed the action to the United States district court, alleging that the Hale Circuit Court lacked subject-matter jurisdiction. The removal was made subject to all claims and defenses available to Blue Ribbon and was expressly made subject to Blue Ribbon's right to compel arbitration, pursuant to the Federal Arbitration Act, 9 U.S.C. § 2. Blue Ribbon filed a motion to compel arbitration while the action was pending in federal court. Bell and Hill filed a motion to remand the case to the Hale Circuit Court. After considering Bell and Hill's motion to remand and Blue Ribbon's response to that motion, the United States district court, on August 18, 1999, remanded this action to the Hale Circuit Court.
After the case was remanded, the only motions Blue Ribbon filed sought to dismiss the action and to compel arbitration. Bell and Hill requested the right to engage in discovery regarding the enforceability of the arbitration provision, and Blue Ribbon presumably participated in such discovery. After allowing Bell and Hill multiple continuances to conduct the discovery they had requested, the trial court denied Blue Ribbon's motion to compel arbitration. The trial court's order, entered on December 8, 2000, contained no findings of fact or conclusions of law, and the record reflects that no evidence was presented in opposition to Blue Ribbon's motion to compel arbitration.
Blue Ribbon appeals from the trial court's order denying its motion to compel arbitration. Plaintiffs respond that Blue *188 Ribbon waived its right to compel arbitration by substantially invoking the litigation process.
Factual Background
On May 11, 1995, Bell and Hill purchased a mobile home from Blue Ribbon. Blue Ribbon is located in Alabama. Crimson Industries manufactured the mobile home at its facility in Alabama.
In connection with their purchase of the mobile home, Bell and Hill executed a sales contract. Paragraph 16 of the sales contract provides, in pertinent part:
"16. ARBITRATION AGREEMENT. The parties agree that the Mobile Home sold to Purchaser has been [in] interstate commerce an[d] any complaint between [the] parties is to be settled by binding arbitration. PURCHASER WAIVES ANY RIGHT HE HAS TO COMMENCE AN ACTION OTHER THAN ARBITRATION AGAINST SELLER. Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled under common law arbitration, in accordance with the rules of the American Arbitration Association. The procedure of which is outlined in the arbitration agreement between Blue Ribbon Homes Super Center, Inc. and Purchaser. [Sic.]"
Also as part of their purchase transaction, Bell and Hill executed a stand-alone arbitration agreement with Blue Ribbon. This stand-alone arbitration agreement was entitled "ARBITRATION AGREEMENT BETWEEN BLUE RIBBON HOMES SUPER CENTER, INC. AND KENNETH B. BELL & VALERIE L. HILL"; it provides:
"Any controversy or claim arising out of or relating to that contract, or breach thereof, between Blue Ribbon Homes Super Center, Inc. and KENNETH B. BELL [and] VALERIE L. HILL, dated 5-11-95, shall be settled under common law arbitration in accordance with the rules of the American Arbitration Association.
"Blue Ribbon Homes Super Center, Inc. and Purchaser acknowledge and agree the mobile home sold by Blue Ribbon Super Center, Inc. and purchased by purchaser has been in interstate commerce.
"Either party shall have 60 days from the time the controversy, dispute or difference of opinion arose to make a written demand for arbitration by filing a demand in writing to the other.
"One arbitrator shall be chosen by Blue Ribbon Homes Super Center, Inc. and the other by said purchaser, and an umpire shall be chosen by the two arbitrators before they enter upon arbitration. In the event that either party should fail to choose an arbitrator within 30 days after a written demand by the other to do so, the requesting party shall chose [sic] two arbitrators who shall in turn chose [sic] an umpire before entering arbitration. If the two arbitrators fail to agree upon the selection of an umpire within 30 days following their appointment, each arbitrator shall nominate three candidates within ten days thereafter, two of whom the other shall decline, and the decision shall be made by drawing lots.
"All arbitration hearings and all judicial proceedings to enforce any of the provisions hereof shall take place in Tuscaloosa County, Alabama. The hearing before the arbitration of the matter to be arbitrated shall be at the time and place within said county as is selected by the arbitrators. Notice shall be given and the hearing conducted in accordance with the rules of the American Arbitration Association. The arbitrators shall hear and determine the matter and shall *189 execute and acknowledge their award in writing and deliver a copy thereof to each of the parties by registered or certified mail.
"The decision of the arbitrators shall be final and binding on both parties; but failing to agree, they shall call upon the umpire and the decision of the umpire shall be final and binding upon both parties. The submission of a dispute to the arbitrators, and umpire if necessary, and the rendering of their decision shall be a condition precedent to any right of legal action on the dispute. Judgment upon the final decision of the arbitrators may be entered in any court of competent jurisdiction and such is not appealable. Arbitration in this agreement shall be mandatory and not permissive.
"Each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other expense of the umpire and of the arbitration. In the event two arbitrators are chosen by one party, as provided above, the expenses of the arbitrators, the umpire and the arbitration shall be equally divided between the two parties."
The record before this Court reveals that, although Crimson Industries manufactures its mobile homes within Alabama, it purchases from out-of-state sources products such as carpet, tires, siding, and shingles. Crimson Industries incorporates those products into the mobile homes it manufactures. The record also reveals that Bank America Housing Services provided the financing for Bell and Hill's purchase of the mobile home. Bank America Services is a division of Bank America, FSB (hereinafter "Bank America"), a corporate federal savings bank organized and existing under the laws of the State of Delaware, with its principal place of business in California.
Additionally, the record contains affidavit testimony establishing that, as part of the May 11, 1995, sales transaction with Bell and Hill, Blue Ribbon sold Bell and Hill, in addition to the mobile home, air conditioning units, furniture, straps, anchors, and steps. The affidavits submitted by Blue Ribbon establish that Blue Ribbon purchased these items from out-of-state sources.
Standard of Review
A direct appeal is the proper procedure by which to seek review of a trial court's denial of a motion to compel arbitration. See Southern United Fire Ins. Co. v. Howard, 775 So.2d 156 (Ala. 2000); A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). But see Rule 4(d), Ala. R.App. P., as amended May 10, 2001, effective October 1, 2001. By that amendment, an order either granting or denying a motion to compel arbitration will be reviewed by appeal. This Court reviews de novo a trial court's denial of a motion to compel arbitration. First American Title Ins. Corp. v. Silvernell, 744 So.2d 883, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); and Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).
Discussion
In Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001), this Court held:
"[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. If that party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration."
*190 Here, Blue Ribbon has the initial burden of proof, because it is the party seeking to compel arbitration. Thus, our initial inquiry is whether Blue Ribbon has carried its burden of proof in making a "prima facie showing that an agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce." Ex parte Greenstreet, supra. If Blue Ribbon has met this burden, then the burden shifts to Bell and Hill as the party opposing the motion to compel arbitration. Once the burden has shifted, we consider whether Bell and Hill have established their defense to Blue Ribbon's properly supported motion, i.e., whether Blue Ribbon has waived its right to invoke the parties' arbitration agreement by substantially invoking the litigation process.
Blue Ribbon's Burden of Proof
The record before this Court establishes that an "agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce." Ex parte Greenstreet, supra. We recently held that "[a]n Alabama resident's purchase of a new mobile homeeven one manufactured in Alabamacan be a transaction that substantially affects interstate commerce, and the evidence indicates that the McCrays' purchase of their mobile home was such a transaction." Southern Energy Homes, Inc. v. McCray, 788 So.2d 882, 883 (Ala.2000). In McCray, the evidence before the Court established that, although Southern Energy manufactured mobile homes within Alabama, the funds it used to conduct business came from banking institutions located out of state and many of the parts incorporated into the mobile homes were acquired from suppliers outside of Alabama and were shipped in interstate commerce to Southern Energy's plant in Alabama. Id. at 883 n. 1.
As was the case in McCray, Blue Ribbon presented evidence indicating that Bell and Hill's purchase of the mobile home affected interstate commerce. Affidavits provided by Thomas Deas, Blue Ribbon's president, provide, in pertinent part:[1]
"The transaction [between Blue Ribbon and Bell and Hill] involved interstate commerce in a number of ways, including that the goods which were used in the manufacturing process of the subject mobile home were manufactured in other states and were involved in interstate commerce. In addition, the financing for the purchase of the subject home involved a foreign corporation, whose principal place of business was not located in the State of Alabama."
"The home did not come from the manufacturer with an air conditioning unit. Blue Ribbon Homes sold and installed the air conditioning unit in question. At the time this home was sold to [Bell and Hill], Blue Ribbon Homes purchased the air conditioning units that it installed from Stylecrest Products, Inc., 65 Industrial Court E, Villa Rica, Georgia.
"Blue Ribbon Homes sold Kenneth Bell and Valerie Hill a kitchen table and four chairs, a sofa, chairs, and an end table. At the time of this sale, all furniture items sold by Blue Ribbon Homes were purchased from Lafort Wholesale Furniture, 5250 Fulton Industrial Blvd., Atlanta, Georgia, or F.A. Hulett and Sons in Meridian, Mississippi.
"Blue Ribbon Homes handled the installation and the setup of Kenneth Bell and Valerie Hill's home. At the time this home was sold to Kenneth Bell and *191 Valerie Hill, Blue Ribbon Homes purchased all of the anchors and straps that it used to tie the house down from either Stylecrest Products, Inc. in Villa Rica, Georgia, or from Kaufman Supply in Atlanta, Georgia.
"Kenneth Bell and Valerie Hill's home was sold with steps. At the time the home was sold to Kenneth Bell and Valerie Hill, Blue Ribbon Homes purchased all of its fiberglass steps from Stylecrest Products in Villa Rica, Georgia, or its wood steps from Gene's Step Company, Inc., located at 1079 Beltline Highway N.E., Brookhaven, Mississippi."
Blue Ribbon also presented an affidavit of Larry Wilhite, the former manager of customer service for Bank America, the company that provided the financing for Bell and Hill's purchase of the mobile home; that affidavit states, in pertinent part:
"BankAmerica is a corporate Federal Savings Bank organized and existing under the laws of the state of Delaware, with its principal place of business in San Diego, California."
Finally, testimony from Gary Mize, the human resources director and assistant to the president of Crimson Industries, revealed the following:
"Q: Gary, how may States does Crimson Industries do business in?
"A: As far as I know, 18 states.
"Q: And those are states in which Crimson sells homes directly to retail dealers in 18 different states?
"A: That's right.
". . . .
"Q: And you said earlier that Crimson purchases products for the homes that have to travel to Alabama. What are some of the products that you have to purchase that go into the makeup of manufactured homes that come from out-of-state?
"A: Well, I mentioned earlier carpet. I don't think there's a carpet manufacturer in the State of Alabama. Tires. I'm surewell, we do have tire manufacturers in the state, but I don't think they manufacture home tires.
"Q: Okay.
"A: We use siding on our homes, and I don't think the siding is manufactured in the state. Some of our wood components, themselves, are shipped to us from out-of-state.
"Q: Does Crimson buy
"A: Shingles are made in Mississippi.
". . . .
"Q: And you said earlier that the appliances are manufactured out-of-state and shipped in?
"A: That's right."
We conclude that the evidence in this case indicates that Bell and Hill's purchase of the mobile home was a transaction that substantially affected interstate commerce. Therefore, Blue Ribbon properly supported its motion to compel arbitration and the burden of persuasion shifted to Bell and Hill to oppose that properly supported motion.
Bell and Hill's Burden of Proof
The only opposition Bell and Hill offered to Blue Ribbon's properly supported motion to compel arbitration was their claim that Blue Ribbon had waived its right to compel arbitration by substantially invoking the litigation process. We note that there is a presumption against finding that a party has waived the right to compel arbitration. See Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000); Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102 (Ala.1997). "A party seeking to prove a waiver of a right to arbitrate carries a heavy burden, and the courts will *192 not lightly infer a waiver of the right to compel arbitration." Lee, supra, at 1028-29, citing Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160 (Ala.1998).
In First Family Financial Services, Inc. v. Jackson, 786 So.2d 1121 (Ala.2000), this Court addressed the question whether the defendant in that case had waived its right to compel arbitration. This Court stated:
"We will find a waiver of the right to compel arbitration only when `the party seeking arbitration has so substantially invoked the litigation process that to compel arbitration will substantially prejudice the party opposing it.' Georgia Power Co. v. Partin, 727 So.2d 2, 7 (Ala.1998). In Companion Life Insurance Co. v. Whitesell Manufacturing, Inc., 670 So.2d 897 (Ala.1995), this Court said:
"`Whether a party's participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.'
"670 So.2d at 899."
786 So.2d at 1128. The First Family Court continued:
"The record in this case shows unequivocally that First Family did not substantially invoke the litigation process before it moved to compel arbitration. The first document First Family filed was its motion to compel arbitration. Like the defendant in [Ex parte] Merrill Lynch [Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986)], First Family did not even answer the complaint. The only other documents in the record that First Family filed are its brief in support of its motion to compel arbitration, evidentiary filings also in support of that motion, and its notice of appeal to this Court. Jackson had the heavy burden of proving both that First Family had substantially invoked the litigation process and that he was prejudiced thereby. He did not meet that burden."
Id. (citations and emphasis omitted).
In this case, as in First Family, the record unequivocally shows that Blue Ribbon did not "bespeak[] an intention to abandon the right [of arbitration] in favor of the judicial process." Id. at 1128. In its initial filing, the notice of removal to federal court, Blue Ribbon expressly referenced its right to compel arbitration and, in fact, Blue Ribbon immediately followed the filing of its notice of removal with the filing of a motion to compel arbitration. Cf. Ex parte Hood, 712 So.2d 341 (Ala. 1998) ("`"By [removing the case to federal district court] without at the same time asking the district court for an order to arbitrate, [the defendant] manifested an intention to resolve the dispute through the processes of the federal court."'") (quoting Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 900 (Ala.1995) (emphasis added)). Additionally, the record reflects that the only other documents Blue Ribbon filed in this action pertained to dismissal of the case, to arbitration, or to the filing of an appeal of the trial court's order.
We conclude that Bell and Hill have not met their burden of proving that Blue Ribbon substantially invoked the litigation process. Therefore, we conclude that Blue Ribbon has not waived its right to compel arbitration. Because Bell and Hill have not proven that Blue Ribbon substantially *193 invoked the litigation process, we need not address the element of prejudice.
Blue Ribbon has properly supported its motion to compel arbitration. Bell and Hill have failed to meet their burden of proof in establishing that Blue Ribbon waived its right to compel arbitration by substantially invoking the litigation process. For these reasons, we conclude that the trial court erred in denying Blue Ribbon's motion to compel arbitration. We reverse the trial court's order of December 8, 2000, and remand this case to the trial court for the entry of an order granting Blue Ribbon's motion to compel arbitration.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.
MOORE, C.J., and JOHNSTONE, J., dissent.
JOHNSTONE, Justice (dissenting).
I respectfully dissent. The defendants have not carried their initial burden of proving that the sale of this mobile home to these plaintiffs substantially affected interstate commerce.
The recitations in the agreements that the mobile home "ha[d] been in interstate commerce" did not prove that it had not "come to rest" in Alabama before the sale to the plaintiffs. See Ex parte Kampis, [Ms. 1000099, September 21, 2001] (Ala. 2001).[*] Likewise, for aught that appears in the affidavits, the components incorporated into the mobile home had "come to rest" in Alabama before they were incorporated. Id. That the principal place of business of Bank America Housing Services is in California does not establish that the financing for this purchase came from California. Likewise, the organization and incorporation of Bank America Housing Services under the laws of Delaware does not establish that the financing came from Delaware. Indeed, the defendants studiously avoid saying the financing came from out of state. The contract and transaction that must have substantially affected interstate commerce to support the application of the Federal Arbitration Act is the one between the plaintiffs and the defendants. Other contracts or transactions between the defendants and out-of-state persons or entities are irrelevant.
The record establishes without dispute that this mobile home was manufactured within Alabama and was sold by an Alabama seller to the Alabama resident plaintiffs. This transaction was local, not interstate. Therefore, the Federal Arbitration Act does not govern this case and does not preempt Alabama's statutory prohibition against the specific enforcement of predispute arbitration agreements, § 8-1-41(3), Ala.Code 1975. Therefore, the trial court did not err in denying the motion to compel arbitration.
NOTES
[1] Mr. Deas submitted multiple affidavits in support of Blue Ribbon's motion to compel arbitration. The excerpt quoted above is condensed from two of those affidavits.
[*] Note from the reporter of decisions: On February 8, 2002, the Alabama Supreme Court, on application for rehearing, withdrew its September 21, 2001, opinion and substituted another opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697273/ | [Cite as State v. Knauff, 2014-Ohio-308.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, : Case No. 13CA976
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
TRAVIS KNAUFF, :
RELEASED: 01/28/14
Defendant-Appellant. :
APPEARANCES:
Travis Knauff, Chillicothe, Ohio, pro se appellant.
C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams
County Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
Harsha, J.
{¶1} After being convicted of raping his then five-year-old daughter and
sentenced to life in prison without parole, appellant, Travis Knauff, filed a petition for
postconviction relief. In his petition, Knauff claimed that his conviction and sentence is
void or voidable because his trial counsel did not provide effective assistance of counsel
when he failed to elicit testimony from Knauff’s fiancée that would have explained the
presence of Knauff’s semen and another person’s saliva in a hole in the bedroom floor
of his residence. The trial court dismissed Knauff’s petition without conducting an
evidentiary hearing.
{¶2} The trial court did not abuse its discretion in denying the petition without
conducting a hearing because the purported alternate explanation proffered by Knauff’s
fiancée conflicted with Knauff’s own testimony. Thus, it was within the wide range of
reasonable representation as part of a sound trial strategy for Knauff’s trial counsel to
decide against introducing this evidence at trial. Knauff’s petition for postconviction
Adams App. No. 13CA976 2
relief failed to set forth sufficient operative facts to establish substantive grounds for
relief.
{¶3} Therefore, we overrule Knauff’s assignments of errors and affirm the
judgment of the trial court dismissing his petition for postconviction relief without holding
an evidentiary hearing.
I. FACTS
{¶4} We presented the pertinent facts in Knauff’s direct appeal from his
conviction and merely summarize them in part here. See State v. Knauff, 4th Dist.
Adams No. 10CA900, 2011-Ohio-2725, appeal not accepted for review, 129 Ohio St.3d
1507, 2011-Ohio-5358, 955 N.E.2d 388.
{¶5} Knauff was married to Alisha Knauff, but divorced before the time of the
trial in the underlying case. According to Alisha, their daughter, D.K., accused Knauff of
molesting her at his trailer in Adams County when he had visitation with her.
{¶6} After Alisha contacted the Adams County Sheriff’s Department, a
detective referred D.K. to a clinic at Cincinnati Children’s Hospital for evaluation. A
social worker at the clinic recorded a one-hour interview with D.K. in which she stated
that her father, Knauff, had engaged in sexual conduct with her in his bedroom, his
living room, and in a “forest.” She revealed that she spit Knauff’s “pee” into a hole in his
bedroom floor. A doctor then examined the child, but observed nothing unusual. The
doctor testified that he would not have expected to observe any physical signs of sexual
contact because the incident occurred three months before the examination.
{¶7} The social worker faxed a report of her interview with the child to the
police detective, who obtained and executed search warrants for Knauff’s residence.
Adams App. No. 13CA976 3
The detective removed the portion of the floor containing the hole and a section of pink
insulation underneath the hole. The detective also obtained Knauff’s DNA by swabbing
his mouth. The sheriff’s office sent the evidence and DNA swabs of Knauff and D.K. to
the Ohio Bureau of Criminal Identification (BCI) for analysis.
{¶8} The BCI determined that the insulation seized from beneath the hole in
Knauff’s bedroom contained a combination of semen and amylase, a substance found
in saliva. This sample included a major DNA profile that matched Knauff’s DNA and a
minor DNA profile that could have come from as many as four different contributors.
{¶9} An Adams County grand jury returned an indictment charging Knauff with
one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and
a specification that the victim was less than ten years old. Knauff entered a plea of not
guilty and retained counsel. The case was tried to a jury.
{¶10} Because of her extreme fear, D.K. testified in the judge’s chambers, with
only the judge and the parties’ counsel present, and her testimony was broadcast via
closed-circuit television to the courtroom, where the jurors and Knauff remained. D.K.
testified that Knauff stuck his finger in her “pee pee” and her “butt,” and that she spit his
“pee” in a hole in the floor and the toilet.
{¶11} The state also played the video-recorded forensic interview of the social
worker with the child. In the interview, D.K. described in detail the sexual abuse,
including acts of digital penetration, cunnilingus, and fellatio. She said that Knauff told
her to swallow his “pee,” but that she refused and instead spit it into the hole in his
bedroom floor. D.K. said that the abuse happened a lot and that sometimes other
Adams App. No. 13CA976 4
people were in the trailer during the abuse. She noted that Knauff’s fiancée, Jerrylyn
Younts, was always outside on the porch, smoking cigarettes.
{¶12} The defense presented evidence that included Knauff’s and Younts’s
testimony. Knauff denied that any sexual abuse occurred and claimed that D.K. was a
liar. On cross-examination, Knauff admitted that he did not have a job and stayed at
home during the month of June 2009, when D.K. said the abuse occurred. He did not
dispute that the insulation located beneath the hole in his bedroom floor contained his
semen. On redirect examination, Knauff claimed that he masturbated into the hole after
becoming aroused by seeing his fiancée in the shower. Younts testified that Knauff was
never alone with D.K. when she stayed with them at the trailer.
{¶13} At the conclusion of the trial, the jury found Knauff guilty of rape and the
accompanying specification. The trial court entered a judgment sentencing Knauff on
his conviction to life imprisonment without parole.
{¶14} On appeal, Knauff was represented by different counsel and he argued
that the trial court violated his right of confrontation by allowing the video-recorded
statement of his daughter to be played at trial and by allowing his daughter to testify in
camera rather than in open court. We rejected Knauff’s claims and affirmed the
judgment of the trial court. Knauff, 2011-Ohio-2725.
{¶15} While his direct appeal was pending in this court, Knauff, through yet
another attorney, filed a petition for postconviction relief in the trial court. Knauff
requested that the trial court declare his conviction and sentence to be void or voidable
because his trial counsel did not provide him with effective assistance when counsel
failed to elicit testimony from his fiancée, Younts, regarding an alternative explanation
Adams App. No. 13CA976 5
for the presence of his semen and saliva on the insulation beneath the hole in his
bedroom floor. Attached to Knauff’s petition was an affidavit of Younts in which she
stated that: (1) she had talked with Knauff’s trial counsel several times before and
during the trial; (2) during those conversations, Younts told the attorney that on several
occasions between March and September of 2009, she performed oral sex on Knauff in
his bedroom; (3) on those occasions, Knauff ejaculated in her mouth and she spit the
semen into the hole of the bedroom floor, (4) during the trial, Knauff’s attorney failed to
ask her questions that would have allowed her to testify to these facts, and (5) if she
had been asked to testify to this information, she would have done so. The state filed a
motion to dismiss the petition.
{¶16} The trial court issued a detailed judgment, with findings of fact and
conclusions of law, dismissing the petition without conducting an evidentiary hearing.
The court determined that Knauff’s allegation of ineffective assistance of counsel and
resulting prejudice was not supported by sufficient operative facts to establish
substantive grounds for relief.
II. ASSIGNMENTS OF ERROR
{¶17} This appeal ensued, and Knauff assigns the following errors for our
review:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING POSTCONVICTION RELIEF
BASED UPON APPELLANT’S CLAIM OF INEFFECTIVE ASSISTANCE
OF COUNSEL THEREBY DENYING HIM RIGHT TO COUNSEL
GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION.
SECOND ASSIGNMENT OF ERROR
Adams App. No. 13CA976 6
THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST
FOR A HEARING PURSUANT TO R.C. 2953.21, THEREBY DENYING
HIM DUE PROCESS AND EQUAL PROTECTION OF THE LAW IN
VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION.
III. STANDARD OF REVIEW
{¶18} The postconviction relief process is a collateral civil attack on a criminal
judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279,
281, 714 N.E.2d 905 (1999). Postconviction relief is not a constitutional right; instead, it
is a narrow remedy that gives the petitioner no more rights than those granted by
statute. Id. It is a means to resolve constitutional claims that cannot be addressed on
direct appeal because the evidence supporting the claims is not contained in the record.
State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 8.
{¶19} “[A] trial court’s decision granting or denying a postconviction relief petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a
reviewing court should not overrule the trial court’s finding on a petition for
postconviction relief that is supported by competent and credible evidence.” State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58; Calhoun at 284
(“the [postconviction relief statute] clearly calls for discretion in determining whether to
grant a hearing”); State v. Lewis, 4th Dist. Ross No. 10CA3181, 2011-Ohio-5224, ¶ 8,
quoting State v. Hicks, 4th Dist. Highland No. 09CA15, 2010-Ohio-89, ¶ 10 (“ ‘abuse of
discretion is the most prevalent standard for reviewing the dismissal of a petition for
postconviction relief without a hearing’ ”). A trial court abuses its discretion when its
decision is unreasonable, arbitrary, or unconscionable. Cullen v. State Farm Mut. Auto.
Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 19.
Adams App. No. 13CA976 7
{¶20} A criminal defendant seeking to challenge the conviction through a petition
for postconviction relief is not automatically entitled to an evidentiary hearing. Calhoun,
86 Ohio St.3d at 282, citing State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982).
Before granting an evidentiary hearing, the trial court must consider the petition,
supporting affidavits, documentary evidence, files and records pertaining to the
proceedings against the petitioner, including, but not limited to, the indictment, the
court’s journal entries, the journalized records of the clerk of the court, and the court
reporter’s transcript, to determine whether there are substantive grounds for relief. R.C.
2953.21(C). “Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s
petition for postconviction relief without holding an evidentiary hearing where the
petition, the supporting affidavits, the documentary evidence, the files, and the records
do not demonstrate that petitioner set forth operative facts to establish substantive
grounds for relief.” Calhoun, 86 Ohio St.3d 279, at paragraph two of the syllabus; see
also State v. Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 14, quoting
State v. Bradford, 4th Dist. Ross No. 11CA22, 2012-Ohio-1936, ¶ 10.
IV. LAW AND ANALYSIS
{¶21} Knauff’s assignments of error collectively challenge the trial court’s
judgment dismissing his petition for postconviction relief without holding an evidentiary
hearing. Knauff claims that his petition and the attached affidavit of his fiancée, Younts,
set forth sufficient operative facts to establish grounds for relief—that he was denied the
effective assistance of his trial counsel when he failed to elicit testimony from Younts
providing an alternate explanation for the presence of his semen and another person’s
saliva on insulation beneath the hole in his bedroom floor.
Adams App. No. 13CA976 8
{¶22} Criminal defendants have the constitutional right to counsel, which
includes the right to the effective assistance of counsel. Evitts v. Lucey , 469 U.S. 387,
392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (“we have held that the trial-level right to
counsel, created by the Sixth Amendment and applied to the States through the
Fourteenth Amendment, * * * comprehends the right to effective assistance of counsel”);
Article I, Section 10, Ohio Constitution.
{¶23} To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d
1121, ¶ 113; Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674; State v. Warren, 4th Dist. Ross No. 12CA3324, 2013-Ohio-3542, ¶ 25-26. On the
issue of ineffectiveness, the petitioner has the burden of proof because in Ohio, a
properly licensed attorney is presumed competent. Gondor, 112 Ohio St.3d 377, at ¶
62. Failure to satisfy either part of the test is fatal to an ineffective-assistance claim.
Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶24} For the first part of the test, the deficient performance requires that the
defendant show that counsel’s errors were so serious that counsel was not functioning
as the counsel guaranteed by the Sixth Amendment. Calhoun, 86 Ohio St.3d at 289,
714 N.E.2d 905, citing Strickland at 687. The United States Supreme Court has
emphasized that judicial scrutiny of counsel’s performance is highly deferential,
dependent upon an evaluation from counsel’s perspective at the time the conduct
Adams App. No. 13CA976 9
occurred, and requiring the application of a strong presumption that counsel’s conduct
constituted sound trial strategy, even if ultimately unsuccessful:
Judicial scrutiny of counsel's performance must be highly deferential. It
is all too tempting for a defendant to second-guess counsel's assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable. A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.” There are countless ways to
provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
(Citations omitted.) Strickland, 466 U.S. at 689.
{¶25} Knauff contests his trial counsel’s strategy to not question his fiancée
about him ejaculating in her mouth during sex on several occasions during the pertinent
time and her spitting his semen into the hole in his bedroom floor. “Debatable trial
tactics generally do not constitute a deprivation of effective counsel.” State v. Lang, 129
Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 192. “There are numerous ways to
provide effective assistance of counsel, and debatable trial tactics and strategies do not
constitute a denial of that assistance.” State v. Cloud, 5th Dist. Delaware No.
06CA090068, 2007-Ohio-4241, ¶ 37. Questioning witnesses is manifestly within the
realm of trial strategy, and “we will not question counsel’s strategic decision to engage,
or not to engage, in a particular line of questioning as these decisions are presumed to
be the product of sound trial strategy.” State v. Davis, 12th Dist. Butler No. CA2012-12-
258, ¶ 25 (appeal from judgment dismissing petition for postconviction relief); see also
Adams App. No. 13CA976 10
Cloud at ¶ 37 (“The decision to introduce evidence falls within the realm of trial strategy
and does not rise to the level of deficient performance on these facts”); In the Matter of
Riley, 4th Dist. Washington No. 03CA19, 2003-Ohio-4109, ¶ 21 (“Failing to question
witnesses on cross examination and choosing not to present witnesses fall within the
realm of trial strategy”); State v. Messer-Tomak, 10th Dist. No. 10AP-847, 2011-Ohio-
3700, ¶ 32, quoting State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001)
(“counsel’s decision about whether to call a witness generally ‘falls within the rubric of
trial strategy and will not be second-guessed by a reviewing court’ ”).
{¶26} Knauff’s petition for postconviction relief did not overcome the strong
presumption that his trial counsel’s decision not to elicit the proffered testimony from
Knauff’s fiancée constituted reasonable trial strategy under the facts of the case.
Knauff’s trial counsel provided the jury with an explanation as to why Knauff’s semen
was found on the insulation underneath the hole in his bedroom floor—Knauff’s
testimony that he masturbated into the hole while watching his fiancée shower. In
addition, trial counsel emphasized that the additional DNA found on the insulation in
Knauff’s bedroom did not match the DNA of either Knauff or his daughter.
{¶27} As the trial court detailed in its decision dismissing Knauff’s petition for
postconviction relief, “[t]he fact that defense counsel did not present an alternative
explanation, that [Knauff’s] fiancé[e] has spit his semen into the hole, was clearly a
tactical decision not to present the jury with conflicting explanations offered by [Knauff]
and his fiancé[e], that could potentially undermine [Knauff’s] credibility.” Significantly,
Knauff did not attach his own affidavit to his petition corroborating his fiancée’s account
of their sexual conduct during the period in question. Nor does he suggest on appeal
Adams App. No. 13CA976 11
that he would have confirmed her alternative explanation, even though he presumably
would have witnessed the events specified in his fiancée’s affidavit.
{¶28} Moreover, although Knauff claims on appeal that if his counsel had elicited
this testimony from his fiancée, any conflict could have been avoided by not calling
Knauff to testify, his trial counsel could have justifiably determined that Knauff’s
testimony to defend himself against his daughter’s allegations was crucial to his
defense. See State v. Huber, 8th Dist. No. 98128, 2013-Ohio-97, ¶ 9 (“A decision
regarding whether to call a defendant to testify on his own behalf during the course of
trial is a matter of trial strategy”).
{¶29} Finally, trial counsel could have reasonably concluded that presenting the
evidence proffered by Knauff’s fiancée would also have caused more harm because it
would establish Knauff’s sexual practice to ejaculate in the mouths of persons with
whom he engaged in sex with, thereby corroborating his daughter’s testimony
concerning his rape of her.
{¶30} Under these circumstances, Knauff did not present sufficient operative
facts to establish that his trial counsel’s performance was deficient for failing to question
his fiancée about spitting his semen into the hole in the bedroom floor. Thus, the trial
court did not act in an unreasonable, arbitrary, or unconscionable manner by dismissing
Knauff’s petition for postconviction relief without holding an evidentiary hearing.
V. CONCLUSION
{¶31} Therefore, we overrule Knauff’s assignments of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Adams App. No. 13CA976 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1613080/ | 821 So. 2d 1222 (2002)
Jessica SHEARON, Appellant,
v.
Shaun SULLIVAN and Kathleen Sullivan, Appellees.
No. 1D01-2676.
District Court of Appeal of Florida, First District.
July 26, 2002.
*1223 William L. Sundberg, of Sundberg & Hessman, P.A., Tallahassee, for Appellant.
Jennifer C. Worden and Michael T. Callahan, of Callahan Law Firm, Tallahassee, for Appellees.
BROWNING, J.
The genesis of this litigation was an October 1998 accident in Tallahassee in which an automobile driven by then 17-year-old Jessica Shearon (Appellant) was struck by a pickup truck owned by Shaun Sullivan and driven by his daughter, Kathleen Sullivan (Appellees). Appellant contends that the trial court abused its discretion, inter alia, by striking the testimony of her treating neurologist regarding future medical care and costs. We reverse and remand for a new trial. White v. Westlund, 624 So. 2d 1148 (Fla. 4th DCA 1993) (noting that whether plaintiff has satisfied burden of proving future medical treatment is reasonably necessary is jury issue if supported by competent evidence, and whatever qualification is placed on expert's opinion goes to weight, not admissibility, of opinion); Vitt v. Ryder Truck Rentals, Inc., 340 So. 2d 962 (Fla. 3d DCA 1976).
Appellant's complaint alleged that as a result of Appellees' negligence, she had suffered the full panoply of damages available to personal-injury plaintiffs. Although Kathleen Sullivan admitted some fault for exiting a shopping center parking lot and pulling into Appellant's lane, the evidence conflicted as to whether Appellant had worn a seat belt at the time of the accident. The jury found negligence on the part of Appellant and Appellees, respectively 45 per cent and 55 per cent, which was a legal cause of the loss, injury, or damage to Appellant. Appellant was found to have sustained a permanent injury within a reasonable degree of medical probability as a result of the accident. The jury awarded Appellant $10,887.52 for past medical expenses; $2,675.00 for future medical expenses, over five years; $600.00 for past non-economic damages; and zero for future non-economic damages.
Appellant treated with a chiropractor, Dr. Jenkins, and with a neurologist, Dr. Martin, for her neck injuries. Her chiropractor testified within a reasonable degree of medical probability that the future costs of Appellant's chiropractic care would be $500.00-$600.00 a year for the next five years, i.e., a $2,500.00-$3,000.00 total. The chiropractor's testimony supports the jury's award of $2,675.00 for future medical expenses, over a five-year period. Appellant argues that the jury was wrongly denied the opportunity to hear the treating neurologist's testimony regarding future medical care and costs, and that if Dr. Martin's excluded testimony had been admitted into evidence, it is more than likely that the award for future medical expenses would have been larger.
Evidence was presented that Appellant's life expectancy at the time of trial was 60.4 years. In his pretrial videotaped deposition for use at trial, Dr. Martin, who is board-certified in neurology, testified within a reasonable degree of medical probability that Appellant would need future medical care for her injuries. Within a reasonable degree of medical probability, he opined also that Appellant's future medical prescription costs would be about *1224 $80.00 a month, or almost $30,000.00 over a 30 year period. The doctor opined that Appellant would continue to have pain that restricts certain activities of daily living, and would continue to require some type of medication on an intermittent basis for an indefinite period, possibly for life. Noting that Appellant continued to experience significant pain more than two years after the accident, Dr. Martin expected Appellant to have neck pain for the rest of her life. He opined that because Appellant was still young and could be expected to live longer than 30 more years, the future costs of medication would be "fairly high" even for the intermittent use of medications over a lifetime. Within a reasonable degree of medical probability, Dr. Martin opined that Appellant suffered a permanent injury from her October 1998 automobile accident. He assigned Appellant a 5 per cent permanent whole-body disability under the applicable medical guidelines. While acknowledging that Appellant would not necessarily be treating with him, Dr. Martin testified that "someone" would need to monitor her medication and "keep track" of her. Assuming that Appellant continued treating with him, the doctor opined within a reasonable degree of medical probability that Appellant would be seen every 3-4 months, at a charge of $55.00-$70.00 per visit, barring aggravating factors like complications, side effects, or ineffectiveness in the medication regimen. He opined that patients taking narcotics need to be monitored to assure there is no problem with addiction or depression.
When questioned on cross-examination during the deposition about his opinion that Appellant's neck pain will continue for her lifetime, Dr. Martin characterized "a reasonable degree of medical probability" as "a 51-per cent standard." He acknowledged that such a standard allows a 49 per cent chance that Appellant will not experience neck pain for the rest of her life. However, accounting for his understanding that Appellant's pain had continued for more than two years since the accident, the doctor opined that the odds of Appellant's continuing to have neck pain are probably greater than 51 per cent but less than 100 per cent. When asked how long a patient remains on the synthetic narcotic Vicodin, Dr. Martin replied there is no "typical" time. Some patients with acute injuries are on it for 6-8 weeks, whereas other patients with chronic, stable pain syndrome are on the drug indefinitely. The doctor opined it is only "a possibility," not a certainty, that Appellant will be prescribed Vicodin for life. When the witness was asked what "percentage of possibility" existed that Appellant would be taking Vicodin for the next 30 years, Appellant's attorney objected to the form of the question and said "it's speculative." The witness answered: "It's a possibility. It's very speculative." He testified that Appellant had told him she had tried to get off the medication but really could not function well without it. Dr. Martin never retracted his initial statements that Appellant's future medical care and costs will be necessary to a reasonable degree of medical probability, and Appellant's counsel "rehabilitated" this witness on redirect examination.
At a pretrial hearing, Appellees' attorney objected to the admission into evidence of certain portions of Dr. Martin's deposition regarding future medical treatment and future medical costs alleged to be merely "speculative or based on less than probability." Specifically, Appellees' counsel referred to the neurologist's opinion that Appellant would incur medical prescription costs of almost $30,000.00 over 30 years. Counsel cross-referenced Dr. Martin's other testimony opining that Appellant would require some type of *1225 medication intermittently for an indefinite period, possibly for life. Counsel referred also to the doctor's opinion that whether Appellant would be taking Vicodin for 30 years was very speculative. In response, Appellant's lawyer asserted that the real issue governing the testimony in question is not its admissibility, but the weight to be accorded it by the jury. White, 624 So.2d at 1148. Appellees' attorney replied that Dr. Martin's challenged testimony concerning future medical treatment and future medical costs did not satisfy the requisite "standard of probability." Having heard argument of counsel, the trial court announced that the challenged portions of Dr. Martin's deposition would not be admitted into evidence. During the trial, Dr. Martin's deposition, without the portions stricken by the trial court at the behest of Appellees' lawyer, was read to the jury. To preserve the issue, Appellant's counsel proffered Dr. Martin's excluded testimony regarding the need for future medical care and the cost of future medications. After Appellant's attorney completed his proffer, the trial court stated:
Thatif that's what y'all presented to me the other day, then I made a mistake. That is admissible. You asked him, within a reasonable degree of medical probability, $80 a month. I remember some qualifications of that.
In response, Appellees' counsel argued that Dr. Martin's testimony had been "qualified severely" on cross-examination when the witness referred to certain medical possibilities. The trial court agreed with Appellees' counsel and reiterated its decision to exclude the challenged portions of the deposition for being speculative and not probative.
The standard of review of a trial court's exclusion of evidence is abuse of discretion. Geldreich v. State, 763 So. 2d 1114 (Fla. 4th DCA 1999). Thus, as the reviewing court, we employ the "reasonableness test" to determine whether the trial court abused its discretion by excluding certain portions of Dr. Martin's testimony dealing with future medical care and expenses. Allstate Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla.1998). It is a longstanding principle that only those future medical expenses that are "reasonably certain to be incurred" are recoverable. Loftin v. Wilson, 67 So. 2d 185, 188 (Fla. 1953); Sullivan v. Price, 386 So. 2d 241, 244 (Fla.1980) (holding that expert medical testimony is not required as prerequisite for jury instruction on future damages, and instruction was appropriate where jury could have concluded "with reasonable certainty" that consequences of injury would continue into future based on uncontradicted evidence of nature of injury, its duration, victim's job demotion, and victim's lack of recovery at time of trial); White, 624 So.2d at 1150. "From this, it follows that a recovery of future medical expenses cannot be grounded on the mere `possibility' that certain treatment `might' be obtained in the future." Id. Thus, where "there is sufficient evidence from which a jury could infer a need for future medical treatment with reasonable certainty, an award of future medical expenses is proper." Id. at 1150-51.
Applying these rules of law to the instant trial, we conclude, in the words of the Fourth District Court, that where Dr. Martin opined on direct examination that future medical care and costs would be necessary to a reasonable degree of medical probability, then "whatever qualification [wa]s placed on the opinion ... goes to the weight of the opinion, and not its admissibility." Id. at 1151 (emphasis in original). As a basis for seeking to exclude the testimony in question, Appellees' attorney relied on some of Dr. Martin's testimony on cross-examination *1226 acknowledging that future medical care usually, if not always, involves some uncertainty. Although the trial court acknowledged on the record, after the proffer, that the testimony of Dr. Martin in question was admissible, and that the court's exclusionary ruling was "a mistake," the court nevertheless seems to have been swayed ultimately by Appellees' argument that the expert had qualified his views on cross-examination to the point where his opinions about future medical care and expenses, considered as a whole, were merely speculative. Given the record before us, including the fact that Appellant's counsel "rehabilitated" Dr. Martin on redirect examination of the issue of future medical care and expenses, we conclude that the trial court's exclusion of this evidence is unsupported by any reasonable view of the issue before it. The jury should have been allowed to hear, and weigh, Dr. Martin's testimony concerning future medical care and expenses. Id.
Appellant correctly distinguishes the facts in several other decisions cited by Appellees in which speculative testimony was excluded and, significantly, there appears not to have been any other evidence from which a jury could find a reasonable certainty of future medical expenses. See, e.g., Gup v. Cook, 549 So. 2d 1081 (Fla. 1st DCA 1989), quashed in part, 585 So. 2d 926 (Fla.1991); 3-M Corp. v. Brown, 475 So. 2d 994 (Fla. 1st DCA 1985); Crosby v. Fleming & Sons, Inc., 447 So. 2d 347 (Fla. 1st DCA 1984). Appellant contends that her case was severely prejudiced, in that if the trial court had not erroneously excluded the testimony in question, it is more than likely that the jury would have awarded more than $2,675.00 for future medical expenses, over a five-year period. We agree that the exclusion of Dr. Martin's testimony constitutes an abuse of discretion compelling a reversal and remand for a new trial. In light of our holding on this issue, we decline to address Appellant's other issues on appeal.
We REVERSE and REMAND for a new trial.
MINER and PADOVANO, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613083/ | 821 So. 2d 3 (2002)
CITY OF EUNICE
v.
Earlyn CARRIER.
No. 01-1184.
Court of Appeal of Louisiana, Third Circuit.
February 20, 2002.
Opinion Granting Rehearing in Part May 1, 2002.
*5 Christopher Richard Philipp, Attorney at Law, Lafayette, LA, Counsel for Plaintiff/Appellee City of Eunice, Louisiana.
Michael W. Robinson, Pucheu, Pucheu & Robinson, Eunice, LA, Counsel for Defendant/Appellant Earlyn Carrier.
Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
WOODARD, Judge.
In this workers' compensation case, the employee, Mr. Earlyn Carrier, appealed the WCJ's finding that he forfeited benefits, pursuant to La.R.S. 23:1208.1, for his failure to list a previous injury on his pre-employment medical history questionnaire. We reverse.
* * * * *
Mr. Carrier began working for the City of Eunice (the City) May 25, 1995. Prior to that, he worked for DeBarge's Grocery Store, for which he handled sacks of crawfish. While lifting one, he was injured and diagnosed as having thoracic outlet syndrome, which mimics neck injuries. Subsequently, he underwent thoracic outlet surgery and fully recovered. Thereafter, he applied to the City of Eunice for a truck-driving job.
*6 Before beginning that employment, he completed the City's medical history form in which he was asked to "list all injuries you have had (either on or off the job)." He answered "thoracic outlet." In March 1996, nearly one year after beginning his employment, he ruptured a disc in his neck while moving a large corrugated pipe. The City paid for cervical surgery and indemnity benefits until he returned to work, this time as a street sweeper. Although he performed his assigned duties, he suffered frequent pain and experienced difficulty doing his job because he had not fully recovered.
On November 17, 1997, while moving big chunks of concrete, he, substantially, aggravated his neck condition to the point that he became totally disabled again. He experienced severe depression, had suicidal ideations, and was admitted to Lake Charles Memorial Hospital for inpatient treatment.
On or about February 28, 1998, the City began frequent surveillance of him. The surveillance provided video coverage of him walking, opening the hood of his truck, washing it with a hand wand, spray painting, sanding, bending, stooping, turning his neck, talking on a telephone that was held between his cheek and shoulder, and lifting several small items and placing them in the rear of his truck and driving.
Subsequently, the City sought to terminate benefits based upon its perception that he was able to return to work and earn 90% of his previous wages. It also suggested that there were grounds for dismissing his claim, altogether, pursuant to La.R.S. 23:1208.1. The City suggested that Section 1208.1 should be applied because Mr. Carrier did not specifically state in the pre-employment questionnaire that he had difficulty with his neck and that he later ruptured a disc in his neck while working for the City.
At the time of trial, the City was paying him SEBs at his full rate of $735.08 per month. Additionally, starting in May of 2001, he began receiving $705.00 per month in Social Security disability benefits. At trial, the WCJ, without assigning reasons, ruled in the City's favor. The WCJ ruled that La.R.S. 23:1208.1 completely barred his claim and that he was able to return to work, earning 90% of his previous wages. Mr. Carrier appeals.
REASONS FOR JUDGMENT
He argues that the WCJ erred in not issuing reasons for judgment. According to La.Code Civ.P. art. 1917, in a non-jury case, the court shall give its reasons for judgment when the request is made no later than ten days after it signs the judgment. Since, Mr. Carrier never requested reasons for judgment, the WCJ was not obligated to issue them.
STANDARD OF REVIEW
It is well settled that a court of appeal may not set aside a WCJ's finding of fact in the absence of manifest error or unless it is clearly wrong.[1] When determinations are based on the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.[2] Where there are two permissible views of the evidence, the factfinder's choice between them cannot be *7 manifestly erroneous or clearly wrong.[3] If the WCJ's findings are reasonable in light of the entire record, we may not reverse, even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently.[4]
FRAUD: La.R.S. 23:1208.1
In the case sub judice, it appears that the WCJ ruled that Mr. Carrier had forfeited his rights to benefits under La.R.S. 23:1208.1 because of his failure to state that he had experienced many previous difficulties with his neck.
There are three component parts to establishing a Section 1208.1 violation: (1) untruthfulness; (2) prejudice; and (3) notice.
Furthermore, the claimant must do more than simply provide untruthful answers before forfeiting benefits. The employer must also prove that the untruthful statements were prejudicial to it and that it provided the employee with statutory notice. La.R.S. 23:1208.1 applies when an employee is dishonest on an employer's medical questionnaire before the accident or injury.[5] In Resweber v. Haroil Const. Co.,[6] the supreme court concluded that the legislature imposed forfeiture under La.R.S. 23:1208.1 strictly for when the employer suffers prejudice. An employer is prejudiced only when the false statement "directly relates to the medical condition for which a claim is made or affects the employer's ability to receive reimbursement from the second injury fund."[7] An untruthful statement on the questionnaire regarding a preexisting condition, may be prejudicial to the employer's ability to recover from a second injury fund.[8]
The employer may obtain medical information from the employee about preexisting conditions. By reviewing the information provided on the medical history questionnaire, the employer may determine if he has hired a worker with a permanent partial disability for second injury fund purposes.[9] Permanent partial disability is statutorily defined as "any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become injured."[10]
Because statutory forfeiture is a harsh remedy, its application must be strictly construed. La.R.S. 23:1208.1 provides:
Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury *8 fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker's compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.
(Emphasis added.)
Moreover, in Wise v. J.E. Merit Constr., Inc., the Louisiana Supreme Court stated:[11]
A work injury subsequent to a known permanent partial disability qualifies an employer to seek reimbursement for worker's compensation benefits from a statutorily designated "Second Injury Fund" under certain circumstances. A claimant's untruthful statement regarding his permanent partial disability which prejudices his employer's ability to seek reimbursement from the fund gives rise to an affirmative defense under La.R.S. 23:1208.1, whereby the injured employee forfeits all compensation benefits.
Thus, forfeiture should occur under narrow circumstances. "There must be an untruthful statement; prejudice to the employer; and compliance with the notice requirements of the statute. An employer has the burden of proving each element within the statute. The lack of any one of the elements is fatal to an employer's avoidance of liability."[12]
Regarding truthfulness, in the instant case, the medical history questionnaire listed thirty conditions, which La. R.S. 23:1378(7) presumes to be disabling. It requested that Mr. Carrier "list all injuries you have had (either on or off the job)." He was to place an "X" in the space next to any of them that he might have suffered. He answered that he had previously suffered from thoracic outlet syndrome and responded affirmatively to whether he had lost work due to an injury. These answers were true. Moreover, because the questions did not ask him deny having any of the medical conditions, under Wise, the Louisiana Supreme Court found that an employer could not meet its burden of showing that the employee made a false statement. It elaborated that "a survey of cases indicates that an employee/applicant had failed to answer truthfully only when he clearly indicated `no' on the employer's questionnaire, denying the existence of a known medical condition."[13]
Furthermore, when he indicated that he suffered from thoracic outlet syndrome, the City could have questioned him regarding the injury to gain further information and resolve any misunderstanding.
The decision in this case turns on whether Mr. Carrier's failure to list a previous cervical disc injury was intentional untruthfulness. When questioned about his previous injuries, he truthfully disclosed the diagnosis, thoracic outlet syndrome, that his most recent physician had told him. Had he been asked to list the diagnosis of every doctor he had seen, perhaps, he would have listed multiple neck injuries such as a ruptured cervical disc. However, Drs. Moore and Kober changed his diagnosis in 1994. Furthermore, he was not asked to discuss the symptoms that he experienced, which included neck pain. In addition, he responded affirmatively to whether he had lost work due to an injury. There is nothing in the record to suggest *9 that he was trying to be deceitful, anything but that. If his intentions were to conceal the truth, it is logical to presume that he would not have listed any previous condition, since he had no way to predict an injury and of what kind. He simply responded according to what he understood the question to be. Accordingly, we find that Mr. Carrier did not intend to be untruthful.
In order to fulfill the prejudice requirement, the City had to establish proof that he did not disclose a condition that made it, either, inevitable or very likely that he would rupture a cervical disc.[14] Neither the doctors' depositions nor the medical records establish the proof necessary to support the employer's claim. Moreover, there are no statements found in the record that Mr. Carrier's prior neck injury (later diagnosed as thoracic outlet syndrome) made it inevitable, or at the very least, more likely, that he would rupture a disc in his neck almost one year after going to work for the City.[15] Therefore, the City has failed to meet its burden of proof on this element, as well.
The City, also, alleged that Mr. Carrier's failure to disclose his prior injury prejudiced it by depriving it of the opportunity to receive Second Injury Fund reimbursement. The employer bore the burden of convincing the court of this.
The third statutory requirement of La.R.S. 23:1208.1 provides that the employer must advise the employee of the consequences to answer truthfully in "bold faced block lettering of no less than ten point type." The medical history questionnaire does not meet the requirement because, rather than conforming to the bold face block lettering requirement, the notification was in 10-point type and was only underlined.
The City is required to prove all three elements, which La.R.S. 23:1208.1 requires, but has failed to prove even one. Thus, forfeiture is inappropriate.
Accordingly, we reverse.
CONCLUSION
For the foregoing reasons, forfeiture under La.R.S. 23:1208.1 is not warranted. We reverse the WCJ's judgment and remand to the Office of Workers' Compensation for further proceedings, consistent with this opinion.
REVERSED.
REHEARING GRANTED IN PART
WOODARD, Judge.
This rehearing is granted for the limited purpose of clarifying this court's previous judgment.
The WCJ's finding that Mr. Carrier was capable of returning to work and earning at least 90% of his average weekly wage was based upon the WCJ's perception that Mr. Carrier had been fraudulent about the claim.
This court reversed the finding of fraud and remanded the case to the WCJ for further proceedings regarding the remaining issue. The remaining issue is whether or not Mr. Carrier is entitled to SEBs.
NOTES
[1] Arceneaux, 365 So. 2d 1330.
[2] Canter v. Koehring, 283 So. 2d 716 (La. 1973), quoting Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989).
[3] Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978).
[4] Lyons v. Bechtel Corp. & AIU N. American, Inc., 00-364 (La.App. 3 Cir. 12/27/00); 788 So. 2d 34.
[5] Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So. 2d 7.
[6] Id.
[7] La.R.S. 23:1208.1.
[8] Resweber, 660 So. 2d 7.
[9] Wise v. J.E. Merit Constrs., Inc., 97-684 (La.1/21/1998); 707 So. 2d 1214.
[10] La.R.S. 23:1378(F).
[11] 707 So.2d at 1217.
[12] Id. at 1218.
[13] Id. at 1219.
[14] Id.
[15] Williams v. Holly Hill Nursing Home, 93-557 (La.App. 3 Cir. 3/30/94); 640 So. 2d 383, writ denied, 94-1134 (La.7/1/94), 641 So. 2d 208. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613097/ | 11 So. 3d 745 (2009)
Jincy Lynn RYDER, et al.
v.
Dane DARBY, et al.
No. 09-122.
Court of Appeal of Louisiana, Third Circuit.
June 3, 2009.
*746 David C. Laborde, Bradley G. Frizzell, The LaBorde Law Firm, Lafayette, Louisiana, for Plaintiffs/Appellants, Jincy Lynn Ryder, Lisa Guidry.
Richard J. Petre, Jr., Onebane Law Firm, Lafayette, Louisiana, for Defendant/Appellee, Colony Insurance Company.
Byron A. Richie, Richie, Richie & Oberle, L.L.P., Shreveport, Louisiana, for Defendant Appellee, Dane Darby.
Charles C. Garrison, Caffery, Oubre, Campbell & Garrison, New Iberia, Louisiana, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
Joseph P. Hebert, Liskow & Lewis, Lafayette, Louisiana, for Defendant/Appellee, Smoker Friendly of Southern Louisiana, LLC.
W. Glenn Soileau, Attorney at Law, Breaux Bridge, Louisiana, for Plaintiffs/Appellees, Elizabeth Stelly (in consolidated case), Frederick Stelly (in consolidated case).
Michael G. Gee, Porteous, Hainkel and Johnson, L.L.P., Thibodaux, Louisiana, for Defendants/Appellees, Mr. & Mrs. Charles Foster.
Leah B. Guilbeau, Attorney at Law, Lafayette, Louisiana, for Defendant/Appellee, State Farm Mutual Auto Insurance Company.
James P. Doherty, Frederick Law Firm, Lafayette, Louisiana, for Defendants/Appellees, Kristen Renee Olivier Imperial Fire and Casualty Insurance Company.
John Michael Morrow, Morrow, Gates & Morrow, Opelousas, Louisiana, for Defendant/Appellee, Louisiana State Farm.
Jill McGee, In Proper Person, Breaux Bridge, Louisiana, Plaintiff/Appellee.
Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
SULLIVAN, Judge.
Plaintiffs, Jincy Ryder and her mother, Lisa Guidry, appeal the trial court's grant of summary judgment in favor of defendant, Colony Insurance Company (Colony), and the resulting dismissal of their claims against it. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Ryder was injured on August 20, 2005, when the driver of a vehicle in which she and several of her friends was riding ran a stop sign, entered a ditch, and struck an embankment off of Louisiana Highway 347 in St. Martin Parish. The driver of the vehicle, Dane Darby, was twenty years old on the date of the accident. As a result of the accident, Ryder sustained severe facial and head injuries and had to undergo multiple reconstructive surgeries.
A petition for damages was filed by Ryder and Guidry on January 27, 2006.[1] Therein, plaintiffs alleged that Darby was intoxicated at the time of the accident. They claimed that early in the evening of the accident, Darby had purchased vodka and other alcoholic beverages through a drive-through window at D & M Leger *747 Holding, Inc. d/b/a Smoker Friendly of Henderson (Smoker Friendly), which he consumed and distributed to the passengers in the vehicle. Thereafter, Darby drove to the home of Mr. and Mrs. Charles Foster, where a party was being hosted by the Fosters' minor son. According to the petition, Darby and his passengers were served alcohol at the party. The accident occurred after Darby and his passengers left the party. Included in the named defendants were Smoker Friendly and its alleged liability insurer, Colony.[2] Plaintiffs asserted that a legal cause of the accident was Smoker Friendly's negligence in having served alcoholic beverages to Darby when it knew or should have known that he was a minor.
Colony filed a motion for summary judgment seeking dismissal from the suit based on the "liquor liability exclusion" contained in the policy that it had issued to Smoker Friendly. Plaintiffs opposed the motion, arguing that an amending endorsement attached to the policy expanded the coverage afforded under the policy. Colony then filed a reply memorandum wherein it argued that the amending endorsement simply imposed another condition that needed to be met for coverage to attach, and that even if all four of the conditions were met, the policy did not provide coverage if any of the exclusions applied. Following a hearing, the trial court granted Colony's motion for summary judgment and dismissed plaintiffs' claims against it with prejudice at plaintiffs' cost. Plaintiffs now appeal, asserting that the trial court erred in granting summary judgment in favor of Colony because there is coverage under the Colony insurance policy.
DISCUSSION
Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So. 2d 730. A motion for summary judgment will 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.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action. . . ." La.Code Civ.P. art. 966(A)(2).
The supreme court set out the framework for interpreting insurance coverage questions in Succession of Fannaly v. Lafayette Insurance Co., 01-1144, 01-1343, 01-1355, 01-1360, pp. 3-4 (La.1/15/02), 805 So. 2d 1134, 1137 (emphasis added) (citations omitted):
An insurance policy is an aleatory, nominate contract subject to the general rules of contract interpretation as set forth in our civil code. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer.
In ascertaining the common intent of the insured and insurer, courts begin their analysis with a review of the words in the insurance contract. Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. *748 Moreover, an insurance contract is construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions.
In Jessop v. City of Alexandria, 03-1500, p. 2 (La.App. 3 Cir 3/31/04), 871 So. 2d 1140, 1142-43, writ denied, 04-1529 (La.10/1/04), 883 So. 2d 991 (quoting Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 8/20/03), 859 So. 2d 159, 162, writ denied, 03-2643 (La.12/12/03), 860 So. 2d 1159 (citations omitted)), this court noted that:
Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy's terms. Summary judgment declaring a lack of coverage under an insurance policy may be rendered only if there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded.
In Boudreaux v. Siarc, Inc., 97-1067, p. 2 (La.App. 5 Cir. 4/15/98), 714 So. 2d 49, 50, writ denied, 98-1556 (La.9/18/98), 724 So. 2d 744, the court noted:
State law protects merchants from liability for selling alcohol to persons over the legal age to purchase it. La. R.S. 9:2800.1 provides for limitation of liability for loss connected with sale, serving, or furnishing of alcoholic beverages to a person over the age for the lawful purchase thereof. The legislative intent is to make clear that "the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person." La. R.S. 9:2800.1(A).
That law does not protect persons selling alcohol to minors, however. See Hopkins v. Sovereign Fire & Cas. Ins. Co., 626 So. 2d 880 (La.App. 3 Cir.1993), writ denied 93-2958 (La.3/11/94), 634 So. 2d 402, and 94-0154 (La.3/11/94), 634 So. 2d 390.
The Colony Policy
The policy issued by Colony to Smoker Friendly was a commercial general liability and commercial property policy. The Colony policy provided as follows:
SECTION 1 COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.
. . . .
b. This insurance applies to "bodily injury" and "property damage" only if:
*749 (1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period; and
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section II Who is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period.
An amending endorsement attached to the policy states, in pertinent part:
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
BUSINESS DESCRIPTION: TOBACCO PRODUCTS STORES
A SECTION I COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 1. Insuring Agreement, b. is amended and the following is added:
(4) The "bodily injury" or "property damage" is caused by or results from the business described in the Schedule.
The "Insuring Agreement" is followed by an "Exclusions" section which provides that:
This insurance does not apply to:
. . . .
c. Liquor Liability
"Bodily injury" or "property damage" for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.
Did the Colony policy provide coverage for plaintiffs' damages?
In their appellant brief, the plaintiffs admit that "[g]iven that [liquor liability] exclusion in isolation, the District Court would have been correct in granting summary judgment." Plaintiffs further acknowledge that "Louisiana courts have held that such a broad exclusion precluded coverage for any liability for causing or contributing to the intoxication of any person or for furnishing alcoholic beverages to persons under the legal drinking age." Nevertheless, plaintiffs submit that the amending endorsement attached to the policy extends coverage to activities associated with the insured's business description, that of a tobacco products store. Plaintiffs argue that "[w]ere the endorsement *750 not intended to extend coverage as such, its inclusion in the policy would be useless and redundant." Attached to plaintiffs' opposition to summary judgment is an affidavit from plaintiff, Lisa Guidry, a resident of Henderson who is familiar with the Smoker Friendly store where Darby was allegedly able to purchase alcohol in this case. Therein, Guidry stated that since the time it began doing business at that location Smoker Friendly has sold alcohol products. Because the sale of alcohol fell within Smoker Friendly's business description, plaintiffs argue that the Colony policy should provide coverage for their injuries because those injuries arose out of Smoker Friendly's sale of alcohol.
For purposes of its summary judgment motion, Smoker Friendly did not deny that it was in the business of selling alcohol, nor did it deny that one of its employees sold alcohol to Darby on the date in question. Rather, it argues that coverage is not afforded under the policy because of the liquor liability exclusion. Smoker Friendly contends that "plaintiffs' interpretation of the policy would result in coverage for all damages resulting from the described business of [a] tobacco products store, would write out of the policy every exclusion, and would lead to absurd results." Smoker Friendly argues that such an interpretation ignores the architecture of the policy, the intent of the parties, and the general rules for interpreting insurance policies. It further submits that the purpose of the endorsement was to limit coverage, not to enlarge coverage to include any damages resulting from the business of operating a tobacco products store.
The trial court ruled that the Colony policy did not provide coverage for plaintiffs' damages. We have performed a de novo review of the evidence submitted in conjunction with the insurance coverage question at issue herein and, we, too, find that summary judgment was properly granted in favor of Colony because it succeeded in pointing out that Plaintiffs would not be able to meet their burden of proof at trial with regard to coverage under the Colony policy for any liability on the part of Smoker Friendly. Under Plaintiffs' theory, the exclusions listed in the Colony policy after the coverage section would be completely ignored. Plaintiffs' interpretation of the policy is simply unreasonable and would lead to absurd results that were not contemplated by Smoker Friendly and Colony when the policy was confected.
DECREE
For the foregoing reasons, we affirm the October 3, 2007 judgment of the trial court granting summary judgment in favor of Colony Insurance Company and dismissing the claims against it by plaintiffs, Jincy Ryder and Lisa Guidry, with prejudice. All costs of this appeal are assessed against plaintiffs.
AFFIRMED.
NOTES
[1] Although Ms. Ryder was only sixteen years old at the time of the accident, the petition alleged that she was fully emancipated.
[2] Although the petition named ABC Insurance Company as the insurer of Smoker Friendly, plaintiffs later amended to substitute Colony as the correct insurer of that entity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613086/ | 513 F. Supp. 2d 107 (2007)
CORESTAR INTERNATIONAL PTE. LTD, Plaintiff/Counter Defendant,
v.
LPB COMMUNICATIONS, INC., Dominick Spadea and Thomas Spadea, Defendants/Counter Claimant.
Civil Action No. 05-5850(NLH).
United States District Court, D. New Jersey.
May 10, 2007.
*108 *109 Paul A. Mainardi, Esquire, Brown and Connery, Westmont, NJ, for Plaintiff.
Joseph D. Dinoto, Esquire, Cherry Hill, NJ, for Defendants.
OPINION
HILLMAN, District Judge.
This matter has come before the Court on Defendants' motion for summary judgment and Plaintiff's cross-motion for summary judgment. For the reasons expressed below, the parties' motions will be granted in part and denied in part.
BACKGROUND
This case involves a dispute over Plaintiff Corestar International's purchase of shortwave radio transmitters and amplifier modules from Defendant LPB Communications ("LPB"). In the beginning of February 2005, Corestar International ("Corestar"), a company based in Singapore, inquired about purchasing seven 10kw shortwave transmitters from LPB, a company based in Camden, New Jersey. Through email communications, the parties discussed the purchase price and terms of delivery. During their negotiations, Corestar inquired whether LPB could "stick to the old price," meaning whether LPB could price its transmitters based on the 2004 price list rather than the new 2005 price list, and whether LPB could "deliver the transmitters in a reasonable time frame." (Pl.'s Ex. A at P001.) LPB replied that it would have to "look at the numbers" about the pricing, and stated that regarding the delivery, the earliest that the transmitters would be ready was the middle of April or early May, with a delivery capacity of two transmitters a month. (Id.)
*110 On February 12, 2005, LPB sent Corestar an email with the following terms: "Selling cost to you = $48,996 each (based on a 7 transmitter order) 75% pre-pay[,] 25% Balance of each transmitter at shipping[.] Delivery schedule 2 transmitters per month. Shipping cost your side." (Id. at P008.) LPB also stated that a formal quote would be forthcoming.
On February 16, 2005, LPB emailed Corestar a formal quotation. The quotation was dated February 15, 2005 and contained the following relevant terms:
Product: 10kW short-wave transmitter Price: $46,995 each, Quantity 7 = "325,465
VALIDITY OF QUOTE: 30 Days, subject to confirmation there after. Quote # 103591
Delivery Schedule: Two transmitters per month starting June 30, 2005 (earlier permitted)
PAYMENT TERMS: Pre-payment 75% of-full order value Balance to be prorated against shipments
(Pl.'s Ex. B.) The quotation also contained two fine-print provisions:
Prices are for transmitters as listed below, F.O.B. Camden, New Jersey, USA in U.S. Dollars. Acceptance of the Conditions Governing Quotations is automatic on issuance of a Purchase Order or Contract for any equipment offered by LPB Communications, Inc.
CONDITIONS: The price and terms on the quotation are not subject to verbal changes or other agreements unless approved in writing by the Seller. All quotations and agreements are contingent upon availability of materials and all other causes beyond our control. Prices quoted are based on this quote in its entirety. Terms inconsistent with those stated herein which may appear on the Purchaser's formal order will not be binding on the Seller.
(Id.)
On February 17, 2005, Corestar emailed LPB its purchase order. The purchase order included a reference to quotation number 103591, and contained the following relevant terms:
LPB 10KW SOLID STATE SW TRANSMITTER 7 set 46,995.00 328,965.00[1] . . .
EACH TX TO BE LABELED CLEARLY WITH
FREQ & STATION NAME ON CRATE
SPECIAL WOODEN CRATES PACKING
2 TX PER MONTH FROM JUNE OR EARLIER
LAST SHIPMENT BY O1 AUGUST
Remarks: Voltage is 220V unless stated otherwise above 75% DEPOSIT, BALANCE PRORATED
(Pl.'s Ex. B.) The purchase order also contained a fine-print provision:
Goods will not be accepted unless our Purchase Order Reference is quoted. Goods supplied must be in accordance with quality and quantity specified. We reserve the right to cancel this order if materials are not delivered within the time specified and according to specification.
(Id.)
Corestar's email accompanying the purchase order also stated that it wanted to further clarify the payment and delivery terms: "We will pay a 75% deposit (US$244098.75) by Monday[.] The balance *111 of US$81366.25 is to be paid when the 6th tx is ready. Trust that this is okay. Kindly ensure that the transmitters are labeled (sic) clearly with frequency and station name. We also hope to receive all the transmitters by 1 August and would like to ship the last 3 transmitters together. Thanks and look forward to your reply." (Pl.'s Ex. A at P0010.)
That same day, LPB sent an email acknowledging receipt of Corestar's email and purchase order. It stated that it would let LPB know when it received the money transfer, and it would "get the ball rolling immediately on procurement activities for this project." (Id.) The email also agreed to Corestar's statement of further clarification on the payment and delivery terms "Ok to points below." (Id.) It ended the email with, "Thank you [a]gain for this excellent order and for your prompt actions." (Id.)
On March 31, 2005, Corestar emailed LPB-, asking whether LPB could move up delivery of the first two transmitters and include three transmitters in the second shipment because Corestar's customer needed his transmitters "urgently." (Id. at P0015.) Corestar also asked for a quotation on 28 700w short wave amplifier modules. (Id.) On April 2, 2005, LPB replied, providing a quote for the amplifier modules. (Id.) LPB did not address Corestar's request for expedited shipment of the transmitters.
On April 5, 2005, Corestar sent another email to LPB asking about the delivery schedule for the transmitters. (Id. at P0017.) Later that same day, LPB replied, stating that it was "still confident for June shipments and will do anything . . . to expedite." (Id. at P0020.) In an April 8, 2005 email, LPB stated, "regarding accelerating the schedule[,] while we will do everything possible it will be difficult to be sure to move the schedule up." (Id. at P0021.)
On April 12, 2005, Corestar emailed LPB its purchase order for twenty-eight amplifiers totaling $28,644.00. On its purchase order, which used the same form as the purchase order for the transmitters, Corestar stated that the amplifiers were to be shipped with the transmitters. (Pl.'s Ex. D.) LPB acknowledged the order in an email, stating, "All is `right' with it. Yes, we will make sure to deliver[] amps with transmitter shipments." (Pl.'s Ex. A at P0027.) Payment in full was made the next day via wire transfer. (Pl.'s Ex. D.)
A couple weeks later on May 3, 2005, Corestar again asked LPB whether LPB would be able to "pull off a miracle" and have an early shipment of the first transmitter. LPB replied, "No miracle yet. I am trying however." (Pl.'s Ex. A at P0026.) A few weeks later, on May 24, 2005, Corestar sent LPB, which apparently had not been able to expedite shipping, another email asking for the status on the shipments of the transmitters, and whether LPB would be able to comply with the originally-agreed-upon schedule. (Id. at P0033.) LPB responded that "things have not gone as planned," due to production of transmitters for the government, as well as one of its lead engineer's medical emergency. (Id.) LPB stated that it was "working around this problem but it is having an impact on our best plans." (Id.) Corestar replied that it needed the transmitters by the end of June because it "already specified a definite delivery date" to its customer and "would face penalties" if the transmitters were not shipped on time. (Id. at P0032-33.) LPB responded that its "best hopes" would be to ship one transmitter by the end of June. (Id. at P0032.)
On June 14, 2005, Corestar notified LPB that its customer was concerned about the *112 delivery of the transmitters, and asked for an update. (Id. at P0031.) The next day, LPB responded with "not so good news." LPB explained that the government transmitters must be finished before Corestar's, and that shipment of Corestar's transmitters "look improbable for June," but are "certainly" expected to ship "at least one in July if not two." (Id.) Corestar replied on July 21, and related that it was "sorely disappointed." Corestar stated that it had paid the seventy-five percent deposit in February "in the expectation that LPB will meet the agreed delivery schedule." (Id.) Corestar further explained that it made a business commitment to its customer and was "liable to deliver the goods as agreed. (Id.) Corestar requested the current time frame for delivery and needed "to know that best and worst case scenario." (Id.)
In the days following that email, Corestar attempted to contact LPB again via telephone and email, and LPB responded on July 1, 2005. LPB responded that it was "still difficult to confirm the actual schedule." (Id. at P0030.) It explained that its "problem from the beginning" was "getting the two transmitters . . . for the government out of here." (Id.) LPB acknowledged that it could not give Corestar a definite delivery schedule, but it would try to do so the next week. (Id.)
On July 19, 2005, Corestar emailed LPB and implored LPB to provide a delivery schedule. (Id. at P0035.) LPB replied the next day, stating, in part,
I apologize for not replying more promptly to you. It is always difficult to reply when the news is not as good as it should be. Frankly, the delay to ship the first Department of the Navy transmitter and the fact that we are working on the second of two for that order has, delayed our work on your order. Cutting to the key point I am 6 weeks away from delivering your first transmitter (best scenario). Now the background. Yes we are late. The government transmitters are special custom transmitters and were ordered long before your transmitters. I truly expected that we could finish these transmitters as early as March but technical issues and material delays delayed our effort.
(Id, at P0040-41.) Corestar replied that LPB "took 75% deposit telling us that with that upfront money, we will not experience this problem we are discussing. . . . I guess we can only implore that you do your best as our money is already there with you." (Id. at P0040.)
On August 11, 2005, Corestar emailed LPB and informed it that it is in "dire straits" because its "dealer is in jail due to the inability to delivery the goods as promised and we have a responsibility towards his family in solving this problem." (Id. at P0065.) It also stated, "According to your quotation and our purchase order, delivery was to be scheduled 2 transmitters/month starting from June. However, it is now August and we still don't have a firm delivery date. This is despite our 75% deposit in Feb when we placed the order! It is great that LPB is doing well and securing many government tenders. However, if you were not able to deliver according to your offer, our order should not have been accepted. In accepting our deposit, you now owe us some due care & accountability." (Id.) Corestar then asked for a solution "urgently." (Id.)
By August 16, 2005 Corestar proposed a new delivery, schedule as per a telephone conversation between the parties on August 11. Corestar proposed that the first transmitter be shipped the first week of September, the second and third be shipped the first week of October, the fourth and fifth be shipped the first week of November, and the final two transmitters *113 be shipped the first week of December. (Id. at P0063.) On August 19, 2005, LPB replied that "your schedule is OK for me. . . . Do you still need something formal from me?" (Id.) LPB then provided a letter "confirming a schedule for the delivery" of the transmitters. It changed Corestar's proposed schedule by providing for shipment of one transmitter in the second week of September, October and November, and two transmitters in the second week of December and January. (Id.) LPB concluded that it has "confidence in this schedule, this is manufacturing and there are no guarantees, just our promise to make every effort to meet this schedule and or improve on it." (Id.)
Corestar replied on August 22, 2005 and questioned why the schedule proposed in LPB's letter was different from the one LPB confirmed on August 17, as well as different from the schedule originally agreed upon. (Id. at P0067.) Corestar further questioned why "[w]ith every week; you are giving us a worse schedule without explaining why it is taking more than 5 months to build just 1 transmitter." (Id.)
After numerous email exchanges on the status of the shipment of the first transmitter, Corestar emailed LPB on September 8, 2005 stating that it was "imperative that the transmitter is shipped by 12 September from the factory. Any other delay will cause Corestar and our customer more problems." (Id. at P0082.) That evening; LPB responded that "the 12th will not happen" and that the earliest it could be shipped was September 16. (Id.) After days of more emails back and forth between the parties Corestar imploring that the transmitter be shipped and LPB explaining the difficulties it was facing on September 21, 2005 Corestar sent LPB an email expressing how LPB's inability to ship any transmitters has "created chaos" in its business and has "totally ruined all goodwill" that it has "painstakingly built up over the years." (Id. at P0092.) It expressed that the third delivery schedule LPB provided in its August 19, 2005 letter was "unacceptable," and based on even the second revised schedule, LPB would have had nine months to complete the order, which is "way beyond industry norm." (Id.) Corestar requested a firm delivery schedule by September 23, and informed LPB that it and its customer would be coming to visit the factory in the following week. (Id.)
Through even more email communications and LPB's failure to deliver the first transmitter, Corestar sent an email to LPB recapping the situation as it currently stood, and proposed a solution for a resolution. Corestar stated,
"At present, this is where we are and they are the, facts:
1. LPB isolate in delivering the first set of our SW transmitter order by about 4 months. Balance order remains at 06 sets.
2. LPB currently has complete transmitter parts to build another 3 sets of SW transmitters.
3. LPB does not have the capability to complete building and testing the balance of our 06 sets transmitter order in fashionable time.
4. LPB is unable to confirm a definite delivery date for these balance 06 units."
(Id. at P0108.)
As a solution, Corestar proposed that: 1) LPB sell it three sets of parts so that it could hire someone to assemble the transmitters; 2) LPB continue to build the fifth transmitter with a firm shipment by mid-November; 3) let Corestar cancel the other two transmitters; and 4) LPB "remit back" the balance of Corestar's deposit. (Id.)
*114 LPB replied that Corestar was not entirely correct on its first four points. (Id. at P00107.) LPB stated, "We are late in our delivery, but that is a fact of building custom transmitters and is a risk our customers bear from time to time when placing orders." (Id.) LPB also stated that it would be able to build all the transmitters. (Id.)
Corestar responded that it did not doubt LPB's ability to build the transmitters, only that it could not build them in the time frame initially agreed upon, and that the delay in shipping is "more than reasonable time for any manufacturer to be late." (Id. at P00106.) Corestar also disagreed with LPB's statement that "customers need to bear the risk of late delivery especially when the delivery schedule was set by you in your proforma invoice/offer to us in Feb 05. Further, we have already absorbed more than 3 months of delay (& worry) despite our constant followup . . . isn't that more risk than we should take?" (Id.)
On September 27, 2005, the first transmitter was shipped. (Id. at P00111.) Between that time and October 1, 2005, Corestar emailed LPB about its upcoming visit to LPB's factory without reply, but on October 1, LPB cancelled their meeting. It also proposed a fourth shipping schedule of the second transmitter to be shipped in November 2005, and then one transmitter shipped every six weeks after that. (Id. at P00121.)
Later that same day, the chairman and CEO of LPB, Defendant Dominick Spadea, emailed Corestar the following, in relevant part:
I am very sorry we have to meet under these circumstances of you[r] unhappiness with the delivery of your product from LPB. However, I believe it is important to remind you that LPB has been in business for over forty years. We area major supplier of quality products to the U.S. Government and the world wide commercial market.
I must tell you that in my long experience in business working with customers I have never know[n] such unprofessional behavior or bullying tactics that your company has used against my company or it[ ]s employees. It saddens me very much that our fine relationship has come to this.
George Kuchmas is a dedicated and competent professional manager. . . . [Y]ou must realize that he is doing everything he can to build your SW products in as timely manner as is possible. If in his judgment the schedule is what he has communicated to you it is, then you must accept this.
. . .
In the mean time, however, you should understand that your tactics are unprofessional and insulting to me. Under our contract you have no right to come to our plant uninvited to "investigate" our production processes. And while I appreciate the problems you are having with our delivery, this gives you no special rights to harass `our employees, meet with our former owners as a way to pressure us, demand different ways to make the product, or try scare tactics of showing up uninvited. These tactics are not and will not ever be acceptable to me.
Your choices under the contract are as follows:
1. Accept the latest delivery terms and the original production methods and stop the unprofessional pressure that doesn't help you at all.
2. Cancell [sic] the contract and lose your deposit.
3. Enter into serious and respectful negotiations with me when I return. Either *115 a new delivery time period based on information I find after I return to the plant on Oct 10; some change in LPB production method . . .; or some form of reimbursement of unexpected expenses that have been incurred by you for our tardy delivery. I am open to anything to [] calm the waters and achieve customer satisfaction first and formost [sic].
(Id. at P00123-24.)
Corestar replied on October 3, 2005, stating that it Was "utterly disappointed & upset by your condescending emails," and stated that "it is our greatest desire to reach an URGENT resolution as time is of the essence right now." (Id. at P00126.)
The emails documenting the parties' communications stops here in the record before the Court. According to Corestar, on October 15, 2005, its customer received the transmitter shipped by LPB, but the customer determined that it was unsatisfactory because cables were missing and the back panel was not included. (Tan Cert. ¶¶ 38-39.) Corestar fixed the transmitter, and the customer paid for it, but the customer cancelled its order for the remaining six transmitters. (Id. ¶ 39.) When Corestar's customer cancelled its order due to the extensive delays, Corestar "exercised its contractual rights" and cancelled its order with LPB. (Id. ¶ 40.) Corestar also demanded return of its deposit for the transmitters and its entire payment for the amplifier modules. (Id.) LPB refused to refund Corestar any of its money. (Id.) LPB's reason for not refunding Corestar its deposit for the transmitters and amplifier modules was that its deposit was non-refundable, and that Corestar's cancellation of the contract was a unilateral cancellation without cause. (Def.'s Statement of Facts ¶¶ 21, 29.)
Because LPB refused to refund Corestar its payment for the transmitters and amplifiers, it filed the instant action against LPB, claiming that LPB breached the contract. It also claims that LPB and the individual defendants, Dominick Spadea and Thomas Spadea, committed fraud, violated the New Jersey Consumer Fraud Act, have unlawfully retained Corestar's money, have unlawfully converted Corestar's property into its own, and that a constructive trust should be implemented to protect Corestar's money. LPB filed a counterclaim, claiming that Corestar breached the contract and owes the full balance quoted for the original transmitters, as well as additional monetary damages for injuries to reputation and business. Both parties have moved for summary judgment.
DISCUSSION
The lengthy recitation of the facts of this case has been, necessary to resolve the main issues before the Court: 1) did LPB and Corestar have a contract, 2) what are the terms of the contract, and 3) did either party breach the contract. Once these three issues have been resolved, Corestar's additional claims can be addressed.
I. The Parties' Breach of Contract Claims
1. Did LPB and Corestar have a contract?
LPB argues that it is entitled to summary judgment because Corestar has not provided any evidence that a contract existed between the parties, and, because there is no contract, there can be no breach of contract. This argument is completely untenable. The law does not require the execution of a single document entitled "Contract" in order for there to be a contractual relationship between two parties. See Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96, 107-08 (3d Cir.1986) (holding that a contract need not *116 be a single document). As Corestar points out, but for the contract for the sale, purchase and delivery of transmitters and amplifiers, Corestar would not have paid $272,742.75 to LPB. To hold otherwise would mean that Corestar's payments to LPB were gratuitous gifts.
Further illustrating the absurdity of this argument is LPB's own counterclaim for breach of contract. It not only explicitly acknowledges the existence of a contract, it claims that Corestar unilaterally breached the contract, and seeks enforcement of the contract in its favor. Corestar cannot be held to have cancelled, and LPB cannot seek enforcement of, an agreement that LPB declares does not exist. Moreover, in addition to its affirmative claims, LPB's own admissions clearly establish that a contract existed between the parties. LPB employee George Kuchmas and LPB chairman and CEO Dominick Spadea both repeatedly refer to "the contract."
At the most basic level, a contract consists of an offer, acceptance and consideration. In, the case here, where merchants are contracting for the sale of goods, whether there is a contract, and what constitutes the contract, is governed by the Uniform Commercial Code, as enacted in New Jersey, N.J. Stat. Ann. 12A:1-101 to 9-710.[2] The UCC provides "a comprehensive system for determining the rights and duties of buyers and sellers with respect to contracts for the sale of goods," and it sets forth the seller's and buyer's exclusive remedies in the event of breach. Spring Motors Distrib., Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660, 665 (1985).[3]
Specifically, section 2-207 applies here, and directs a two-step analysis to determine first whether there is a contract between the parties, and second to determine the terms of the contract. Known as the provision that deals with the "battle of the forms," section 2-207 provides,
(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
N.J. Stat. Ann. 12A:2-207.
With regard to whether a contract has been formed, section 2-207(1) governs the analysis. LPB sent Corestar a quotation for seven transmitters and Corestar returned *117 a confirming purchase order.[4] Even though Corestar's purchase order contained "terms additional to or different from" LPB's quotation, it was a "definite and seasonable expression of acceptance" because it was not "expressly made conditional on assent to the additional or different terms." Thus, based on UCC section 2-207(1), as well as LPB's own admissions, a contract between LPB and Corestar was formed.[5] The next step, then, is to determine the precise terms of that contract.
2. What are the terms of the contract between Corestar and LPB?
`When the parties' conduct establishes a contract, but the parties have failed to adopt expressly a particular writing as the terms of their agreement, and the writings exchanged by the parties do not agree," N.J. Stat. Ann. 12A:2-207(2) determines the terms of the contract.[6]Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91, 98 (3d Cir.1991); see also Olefins Trading, Inc. v. Han Yang Chem Corp., 9 F.3d 282, 287-88 (3d Cir.1993) ("Section 2-207 of the UCC is designed to prescribe, by law, what non-negotiated terms are to be considered a part of a contract not to exclude those terms specifically negotiated and agreed upon.").
Here, the essential elements of the contract the price, quantity, delivery schedule, and shipment terms are identical on both documents. It is only the fine-print terms on Corestar's purchase order that differ from LPB's quotation. LPB's fine print provides,
CONDITIONS: The price and terms on the quotation are not subject to verbal changes or other agreements unless approved in writing by the Seller. All quotations and agreements ate contingent upon availability of materials and all other causes beyond our control. Prices quoted are based on this quote in its entirety. Terms inconsistent with those stated herein which may appear on the Purchaser's formal order will not be binding on the Seller.
In contrast, the fine print on Corestar's purchase order provides,
Goods will not be accepted unless our Purchase Order Reference is quoted. *118 Goods supplied must be in accordance with quality and quantity specified. We reserve the right to cancel this order if materials are not delivered within the time specified and according to specification.
The terms in Corestar's purchase order are considered part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(a) Whether the LPB's offer expressly limits acceptance to the terms of its offer
LPB's quotation provides that "the price and terms on the quotation are not subject to verbal changes or other agreements unless approved in writing by the Seller." This term does not expressly limit acceptance to the terms of LPB's offer, but instead prohibits changes to the terms. Implicitly, this term allows a buyer to add additional terms as long as they do not change the terms.
LPB's quotation also provides that "[t]erms inconsistent with those stated herein which may appear on the Purchaser's formal order will not be binding on the Seller." This term also does not expressly limit the acceptance of its offer to its terms; rather, it only excludes additional terms that are inconsistent with its offer, which is addressed in subsection (b).
(b) Whether Corestar's fine print terms materially alter LPB's offer
In order to determine whether Corestar's terms "materially alter" the terms of LBP's offer, each new term must be considered. Corestar's first two additional terms state, "Goods will not be accepted unless our Purchase Order Reference is quoted. Goods supplied must be in accordance with quality and quantity specified." These terms do not materially alter LPB's offer, and, even considering LPB's fine-print term that prohibits inconsistent additional terms, they are completely consistent with LPB's offer.
Corestar's third additional term states, "We reserve the right to cancel this order if materials are not delivered within the time specified and according to specification." This term also does not materially alter LPB's offer. LPB's quotation provides the specification for the transmitters as well as the delivery schedule. Nowhere on LPB's quotation does it state that a buyer cannot cancel the contract if materials are not delivered on time and according to specification. Furthermore, by LPB providing a shipment schedule and specifications on its quotation, Corestar's additional term concerning the shipment schedule and specifications is not inconsistent with the terms of LPB's offer. Consequently, none of Corestar's additional terms materially alter LPB's offer.
(c) Whether LPB notified Corestar of its objection to Corestar's additional terms
There is no evidence in the record to demonstrate that LPB notified Corestar of its objection to the additional terms on Corestar's purchase order, either prior to receiving the order or within a reasonable time after receiving the order. As a result, the terms of the parties' contract include the fine-print terms on both LPB's quotation and Corestar's purchase order.
3. Did either party breach the contract?
Based on the terms of the contract, Corestar argues that it was entitled to cancel the order for the transmitters because they were not delivered within the time specified and according to specification. Corestar also argues that it is entitled *119 to, at a minimum, the refund of its deposit for the transmitters. LPB contends, however, that Corestar's deposit for the transmitters is non-refundable because it is LPB's policy and practice that all deposits are non-refundable, and Corestar was aware that its deposit was non-refundable because of its past dealings with LPB. LPB also contends that Corestar is liable for breach of contract when it cancelled the order because it was aware that all schedules were, tentative as is standard in the industry. Additionally, LPB contends that the clause in its quotation "All agreements are contingent upon availability of materials and all other causes beyond our control absolves it from any culpability for its delays.
As a primary matter, it must be noted that neither LPB's alleged non-refundable-deposit policy, nor its all-schedules-are-tentative policy, are contained in LPB's quotation. Rather, LPB appears to be contending that these terms are part of the contract based on the parties' course of dealing and usage of trade. UCC section 1-205 governs course of dealing and usage of trade. Course of dealing is defined as "a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct." N.J. Stat. Ann. 12A:1-205(1). Usage of trade is defined as "any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question." Id. at 1-205(2). Course of dealing and usage of trade "give particular meaning to and supplement or qualify terms of an agreement," and the "express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other." Id. at 1-205(3), (4). When such construction is unreasonable, however, "express terms control both course of dealing and usage of trade and course of dealing controls usage of trade." Id. at 1-205(4).
The UCC does not explain which party has the burden of proof to establish course of dealing or usage' of trade, but "`courts are likely to impose the burden of proof on the party who seeks to benefit from evidence of course of dealing, trade usage, or course of performance.[7]'" Kunststoffwerk Alfred Huber v. R.J. Dick, Inc., 621 F.2d 560, 564 (3d Cir.1980) (quoting J. White & R. Summers, Uniform Commercial Code. § 3-3, at 88 (1972)). This view is consistent with the standard for summary judgment, where LPB, as the non-moving party on Corestar's motion for judgment in its favor, has the burden to identify specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Here, not only do the express terms of the contract refute LPB's alleged non-refundable deposit and all-schedules-are-tentative policies, LPB has not submitted any proof that these policies were a known course of performance between the parties or standard "industry practices. First, with regard to the non-refundable deposit policy, LPB claims that Corestar "was aware of the Defendant's policy and practice that all deposits are nonrefundable, because it had dealt with Defendant LPB Communication on prior occasions." *120 (Def.'s Statement of Facts ¶ 21.) LPB, however, has not submitted any proof that Corestar was aware of the policy during the execution and performance of the transmitters contract, and it has not submitted any evidence that Corestar was aware of the policy during its previous transactions. Because LPB has the burden of proving that a course of dealing existed between the parties, and because a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements, Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001), LPB's contention that Corestar's seventy-five percent deposit was nonrefundable must fail and not be considered part of the contract.
Second, with regard to usage of trade, Corestar argues that LPB has failed to provide any proof that it is standard industry practice that specifically-defined schedules for shipment are always tentative. The UCC requires that the "existence and scope of such a usage are to be proved as facts." N.J. Stat. Ann. 12A:1-205(2). Again, other than its own unsupported assertions, LPB has not submitted any proof of its claim that all shipment dates, even ones specifically set forth in the contract, are tentative in the transmitter building industry. Consequently, LPB's contention that Corestar should have been aware of the industry practice that the dates for shipment are always tentative fails as well. Indeed, to regard LPB's position as true that a seller of transmitters never has an obligation to ship its goods by the agreed-upon shipment date would prevent a buyer from ever bringing an action to enforce agreed-upon contract terms regarding delivery.
Correspondingly, LPB argues that the clause in its quotation, that "all agreements are contingent upon availability of. materials and all other causes beyond our control," prevents Corestar from arguing that the shipping delays breached the parties' agreement. This argument is untenable for numerous reasons. First, LPB's use of its force majeure[8] clause to excuse its failure to comply with the delivery schedule is misplaced. In order to use a force majeure clause as an excuse for nonperformance, LPB's reason for non-performance must have been beyond its control and not due to any fault or negligence of its own. See Gulf Oil Corp. v. Federal Energy Regulatory Commission, 706 F.2d 444 (3d Cir.1983), cert. denied, 464 U.S. 1038, 104 S. Ct. 698, 79 L. Ed. 2d 164 (1984). LPB has the burden of proof, as well as a duty to show what action was taken to perform the contract, regardless of the occurrence of the excuse. Id.
The evidence on the record overwhelmingly demonstrates that LPB's delays were not beyond its control, and were arguably due to its own mismanagement. As admitted on numerous occasions by LPB, its main failure to comply with the delivery schedule was its focus on its government contracts. From as early as March 29, 2005, which was just a few weeks after the parties entered into the transmitters contract, LPB was aware of both its commitment to its government contracts and to Corestar. (See Pl.'s Ex. A at P0014, Email from George Kuchmas to Corrina Tan) ("We are quite busy finishing *121 up two 10kw Frequency Agile transmitters for the U.S. government and then we are on to your project, so we have become quite busy, and that is a good thing!").
Again, on April 5, 2005, LPB informed Corestar that it "first needed to get the two"- government transmitters "out of here," and that "these transmitters are slightly behind schedule but going well." (Id. at P0020.) Then, on July 1, 2005, a day after the first two transmitters should have shipped, LPB explained that its "problem from the beginning [was] getting the two frequency agile transmitters for the government out of here." (Id. at P0030.) By the end of July, LPB admitted that its delay on the government transmitters delayed work on Corestar's transmitters, and that the government transmitters were "special custom transmitters . . . ordered long before your transmitters." LPB also stated that it did not have any concern about the transmitters technically, "it's just a capacity matter and we are working on this." (Id. at P0040.) It was not until August 12, 2005 when LPB informed Corestar that it was "stopping all work on the government transmitter to work . . . fully" on Corestar's transmitters. (Id. at P0064.)
As simply stated by Corestar in an email to LPB, "It is great that LPB is doing well and securing many government tenders[;] however, if you were not able to deliver according to your offer, our order should not have been accepted." (Id. at P0065.) Because LPB proposed the schedule, it was not beyond LPB's control to assess its current orders to determine whether it would be able to meet its shipment schedule for Corestar's order. Additionally, as early as three months before the first two transmitters were due to Corestar, LPB knew of Corestar's need to have the transmitters delivered on schedule, and at the same time recognized its delays with the government contract. This situation is not one protected by a. force majeure clause.
LPB's use of its force majeure clause to excuse its delays is also untenable for the same reasons expressed above regarding LPB's professed usage in trade argument. The shipment schedule for the transmitters was decided by LPB and specified in its quotation. Corestar agreed to this schedule, reaffirmed it in its purchase order, and relied upon it for, its own contracts with its dealers. LPB should not be able to propose a specific schedule for shipment and at the same time include a contract term that serves as an absolute defense to any delay.[9]
Next, considering its other contingency clause that "all agreements are contingent upon availability of materials" LPB has not presented any evidence that its delay in complying with the shipment schedule was due to the unavailability of materials for the transmitters. In contrast, Corestar has submitted evidence *122 that LPB did have the parts to build the transmitters. When Corestar expressed the "facts" of the situation of the late delivery, it stated that LPB had the complete transmitter parts to build another three sets of transmitters, but it did not have the capability to complete the transmitters-in the timely fashion. (Pl.'s Ex. A at P00108.) LPB replied to that contention, and stated, "We are late in our delivery . . . but [w]e will be able to build your entire order." (Id. at P00107.) LPB has not pointed to any evidence in the record to indicate that it experienced delays clue to materials for Corestar's transmitters. Consequently, LPB's reliance on this term in the parties' contract does not absolve it of its late shipment.
Looking at the express language of the parties' contract, Corestar bargained for a specific delivery schedule, and paid a seventy-five percent deposit in consideration of that schedule. LPB argues, however, that if Corestar "wished firm delivery dates for the transmitters and modules, then it had the obligation to establish firm contractual provisions regarding same and to require specific provisions pursuant to New Jersey law allowing it to cancel the contract in the event that these firm delivery dates were not complied with by" LPB. (Def.'s Reply at 18.) Corestar, however, did just that: it relied on the shipment schedule proposed by LPB, and it included a contractual term in its purchase order expressly allowing it to cancel an order if the transmitters were not delivered within the time specified and according to specification. LPB's argument is more applicable to itself: if it wanted the delivery dates to be tentative, it should have (1) provided a provision to that effect in its quotation, and/or (2) objected to Corestar's provision in its purchase order.
Because LPB has not submitted any evidence establishing course of dealing or usage of trade, the express terms of the contract control. The express terms provide (1) that Corestar was permitted to cancel the contract if the transmitters were not delivered within the time specified and according to specification, and (2) all agreements are contingent upon availability of materials and all other causes beyond LPB's control. Interpreting these two provisions in harmony, Corestar's cancellation clause would not be unenforceable if LPB's delinquent shipment of the transmitters was due to problems with materials or for reasons out of its control. As demonstrated above, however, because LPB has not provided any evidence that its failure to deliver the transmitters was due to the unavailability of materials or for reasons out of its control, LPB's provision is not enforceable, and Corestar's cancellation provision is.
In holding that Corestar's cancellation provision is enforceable, Corestar was permitted to cancel the contract for two reasons: (1) if the transmitters were not delivered within the time specified, and (2) if the transmitters were not made according to specification. Corestar cancelled the contract after the shipment of the first transmitter on September 27, 2005, which was three months after the contract date.[10] Corestar contends that the transmitter was faulty, but LPB denies this claim, and Corestar does not provide any proof that it *123 was defective, other than its own assertions. Thus, summary judgment cannot be entered in Corestar's favor that it was entitled to cancel the contract under the second termination reason.[11]
Corestar has submitted substantial proof, however, that the transmitters were not delivered within the time specified.[12] Consequently, because LPB failed to comply with terms of the transmitters contract, and, thus, breached the contract, Corestar was permitted to treat the contract as broken. As such, Corestar is entitled to damages.
A similar, yet more simple, analysis applies to the parties' contract for the amplifier modules. On April 2, 2005, LPB provided Corestar with a quote for 28 amplifier modules. On April 12, 2005, Corestar sent LPB its purchase order, which contained the same fine-print provisions as for the transmitters order. The purchase order stated that the amplifiers were to be shipped with the transmitters. LPB sent an email confirmation that the order was correct and that it would make sure that the amplifiers were delivered with the transmitters. The next day, Corestar paid the entire contract price in full. LPB did not ship an amplifier with the first transmitter it shipped at the end of September, and it never shipped any amplifiers thereafter.
It does not appear from the record that LPB prepared a formal quotation as it did for the transmitters order, and, therefore, the fine-print terms in its standard quotation do not expressly apply to this amplifier contract. Even if, however, the amplifier contract did contain the same terms as the transmitter contract, LPB breached *124 this contract as well. Further, even if Corestar's payment-in-full constituted a deposit, as argued by LPB, for the same reasons expressed above, Corestar's "deposit" was not non-refundable.
Consequently, summary judgment as to LPB's liability for breach of contract must be entered in favor of Corestar on its breach of contract claim, and against LPB on its counterclaim. The parties- will be directed in the accompanying Order as to a schedule for filing supplemental briefing regarding damages.
II. Corestar's Additional Claims
In addition to its breach of contract claim, Corestar has alleged that LPB has committed fraud, violated the New Jersey Consumer Fraud Act, has unlawfully retained Corestar's money, has unlawfully converted Corestar's property into its own, and that it is an involuntary trustee of Corestar's money. LPB opposes Corestar's motion for summary judgment on these claims on the basis that since there is no breach of contract, these claims must also fail. Because it has been already held that LPB did breach the parties' contracts for the transmitters and amplifiers, LPB's argument is unavailing. It must be determined, however, whether the UCC permits Corestar's additional claims, and if so, whether "the facts specified in or in connection with the motion entitle the moving party to judgment as a matter of law." Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (discussing the standard for summary judgment when a motion is in effect unopposed).
The UCC provides,
Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.
N.J. Stat. Ann. 12A:1-103; see also 1-103 Comment ("This listing given in this section is merely illustrative; no listing could be exhaustive.").
The Court of Appeals for the Third Circuit has interpreted this provision as providing "the UCC does not displace the common law of tort as it affects parties in their commercial dealings except insofar as reliance on the common law would thwart the purposes of the code." New Jersey Bank, N.A. v. Bradford Sec. Operations, 690 F.2d 339, 346 (3d Cir.1982). Thus, Corestar may pursue claims in addition to its breach of contract claim as long as they do not conflict with the UCC.
A. Fraud
Corestar claims that LPB[13] "knowingly made or caused to be made material misrepresentations to Corestar in that LPB would be able to' manufacture and deliver" the transmitters and amplifier modules according to the schedule. (Compl.¶¶ 43-44.) Corestar also claims that LPB "knowingly made said representations in order to fraudulently induce Corestar to advance $272,742.75 so that LPB could utilize said funds to pay its creditors and capitalize other projects unrelated to Corestar." (Id. ¶ 46.) With these assertions, it appears that Corestar is claiming fraudulent misrepresentation and fraudulent inducement.
*125 The UCC permits a party to assert a claim for fraudulent misrepresentation and fraudulent inducement in addition to its UCC-covered breach of contract claim. See Coastal Group, Inc. v. Dryvit Systems, Inc., 274 N.J.Super. 171, 643 A.2d 649, 652 (1994) (citation omitted) ("Thus, an action based on facts showing fraudulent conduct or material misrepresentation may be redressed by an action [in tort] for fraud or [a contract action for] nonfraudulent breach, and there, is no need to elect."). To sustain a cause of action for fraudulent misrepresentation under New Jersey law, the following elements must be proven:
(1) a material misrepresentation of a presently existing or past fact; (2) made with knowledge of its falsity by the person making the misrepresentation; (3) intent that the misrepresentation be relied upon; (4) reliance on the misrepresentation, and (5) damage to the party who relied on the misrepresentation.
First Valley Leasing, Inc. v. Goushy, 795 F. Supp. 693, 701 (D.N.J.1992) (citing Jewish Center of Sussex County v. Whale, 86 N.J. 619, 432 A.2d 521 (1981)) (other citations omitted). The elements are the same for a claim for fraudulent inducement. Jewish Center, 432 A.2d at 524.
The Court is unable to determine as a matter of law that LPB made its promise of a certain delivery schedule with knowledge of its falsity, or that it continued to knowingly misrepresent when the first transmitter was to be delivered. The record clearly demonstrates that LPB did not comply with the delivery schedule it created, but there is no definitive evidence that LPB knew of the falsity of the schedule and that it intended "to obtain an undue advantage therefrom." Id.
In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence. Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.2004). Instead, the non-moving party's evidence "`is to be believed and all justifiable inferences are to be drawn in his favor.'" Id. (quoting Anderson, 477 U.S. at 255, 106 S. Ct. 2505). Even though LPB has not submitted any specific evidence refuting Corestar's allegation, LPB has denied that it fraudulently misrepresented the delivery schedule, and contends that Corestar "was aware that the Defendant was a small company who frequently experienced delays in delivery." (Def.'s Reply at 22.) In order to determine whether LPB committed this alleged fraud, the Court would need to weigh the evidence and determine the parties' credibility. Because the Court is not permitted to do so, summary judgment on Corestar's fraud claim must be denied at this time.
B. New Jersey Consumer Fraud Act
The New Jersey courts have held that a claim under the New Jersey Consumer Fraud Act (CFA) may be maintained in addition to a breach of contract claim that is governed by the UCC. Coastal Group, Inc. v. Dryvit Systems, Inc., 274 N.J.Super. 171, 643 A.2d 649, 653 (1994)(discussing Dreier Co., Inc. v. Unitronix Corp., 218 N.J.Super. 260, 527 A.2d 875 (1986)); Hundred East Credit Corp. v. Eric Schuster Corp., 212 N.J.Super. 350, 515 A.2d 246, 248 (1986), cert. denied, 526 A.2d 146 (N.J.1986) ("Nothing in [the] statutory language suggests that the Act is inapplicable to the sale of merchandise for use in business operations. To the contrary, the language on its face makes the Act applicable to all sales of `merchandise' without regard to its intended use or the nature of the buyer. And a corporation or other business entity is a `person' entitled to sue under the Act.").
*126 The elements of a CFA claim are: (1) unlawful conduct by the defendant; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship`between the defendant's unlawful conduct and the plaintiff's ascertainable loss. Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 464, 462-63 (1994). The New Jersey Supreme Court in Cox explained what constitutes "unlawful conduct":
To violate the Act, a person must commit an "unlawful practice" as defined in the legislation. Unlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations. The first two are found in the language of N.J.S.A. 56:8-2, and the third is based on regulations enacted under N.J.S.A. 56:8-4. A practice can be unlawful even if no person was in fact misled or deceived thereby. The capacity to mislead is the prime ingredient of all types of consumer fraud.
When the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element and the plaintiff need not prove that the defendant intended to commit an unlawful act. However, when the alleged consumer fraud consists of an omission, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element of the fraud.
. . .
The third category of unlawful acts consists of violations of specific regulations promulgated under the Act. In those instances, intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations. The parties subject to the regulations are assumed to be familiar with them, so that any violation of the regulations, regardless of intent or moral culpability, constitutes a violation of the Act.
Id. (internal citations omitted).
Corestar argues that it has provided evidence that LPB committed an affirmative "unlawful act" of fraud when it never indicated that it "would be unable to adhere to the delivery schedule provided by LPB and agreed to by Corestar because it knew that Corestar would submit a deposit." (Pl.'s Reply at 8.) Corestar also argues that "LPB continuously advised Corestar that it was purchasing materials and parts and it was working on Corestar's order, knowing that it would not deliver on time." (Id.)
In order to prevail on its CFA claim, Corestar needs to prove that LPB committed an affirmative "unlawful act" it does not need to prove that LPB intended to commit an unlawful act. As explained by the court in Cox, "[b]ecause any breach of . . . contract is unfair to the non-breaching party, the law permits that party to recoup remedial damages in an action on the contract; however, by providing that a court should treble those damages and should award attorneys' fees and costs, the Legislature must have intended that substantial aggravating circumstances be present in addition to the breach." Id. at 462. Thus, LPB's alleged unlawful conduct must be more than it having breached the parties' contract. By Corestar arguing that LPB's unlawful conduct is its fraud, however, the Court is required to determine whether LPB committed fraud, which, as discussed above, the Court is unable to do at this time. As a result, Corestar's motion for summary judgment on its CFA must also be denied.
C. Unjust Enrichment
Corestar has also asserted a claim for unjust enrichment for LPB's retention of Corestar's funds. Under New Jersey *127 law, "to establish unjust enrichment, a plaintiff must show both that defendant received a benefit and that retention of that benefit without payment would be unjust." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 641 A.2d 519, 526 (1994). Recovery under a theory of unjust enrichment is not appropriate, however, when a valid, unrescinded contract governs the rights of the parties. Van Orman v. American Ins. Co., 680 F.2d 301, 310 (3d Cir.1982); see also Moser v. Milner Hotels, 6 N.J. 278, 78 A.2d 393, 394 (1951). Thus, because it has already been determined that a valid, unrescinded contract exists between the parties, Corestar cannot maintain a claim for unjust enrichment, and summary judgment must be entered in favor of LPB on this claim.
D. Conversion
Corestar also claims that "LPB has converted Corestar's funds by retaining them after it breached the contract." (Pl.'s Reply at 9.) The elements of common law conversion under New Jersey law are (1) the existence of property, (2) the right to immediate possession thereof belonging to plaintiff, and (3) the wrongful interference with that right by defendant. Carton v. Choice Point, 450 F. Supp. 2d 489, 501 (D.N.J.2006) (citation omitted).
Even though Corestar's successful breach of contract claim entitles it to damages, that does not mean that Corestar has the "right to immediate possession" of all its monies paid to LPB. Indeed, in its supplemental papers regarding damages, LPB may argue that it is entitled to remuneration for the one transmitter it shipped, albeit reduced, perhaps, by Corestar's possible claim of its expenses in correcting the allegedly faulty transmitter. Regardless, however, of LPB's position regarding damages, because Corestar may not be entitled to complete reimbursement of its funds paid to LPB, Corestar cannot maintain a claim for conversion. Consequently, LPB is entitled to summary judgment on this claim as well.
E. Constructive Trust
Corestar also seeks a declaration that LPB holds a constructive trust for the benefit of Corestar. A constructive trust may be imposed where the failure to do so will result in unjust enrichment. D'Ippolito v. Castoro, 51 N.J. 584, 242 A.2d 617, 619 (1968). "Generally all that is required to impose a constructive trust is a finding that there was some wrongful act, usually, though not limited to, fraud, mistake, undue influence . . . which has resulted in a transfer of property." Id.
Here, because Corestar cannot maintain a claim for unjust enrichment, and because no finding has been made that LPB committed fraud, Corestar's request for a declaration that LPB is maintaining a constructive trust for Corestar's benefit cannot be entered at this time.
III. Corestar's Claims against Individual Defendants
Corestar has asserted all its claims except for breach of contract against Dominick Spadea, Chairman and CEO of LPB, and Thomas Spadea, President and shareholder of LPB. In order for personal liability to attach to the individual defendants, Corestar must "pierce the corporate veil," which courts generally will not do absent fraud or injustice. See Lyon v. Barrett, 89 N.J. 294, 445 A.2d 1153, 1156 (1982). Personal liability will only be imposed if it is demonstrated that the officer or director disregarded the corporate form and "utilize[d] the corporation as a vehicle for committing equitable or legal fraud." Marascio v. Campanella, 298 N.J.Super. 491, 689 A.2d 852, 858 (1997).
*128 Corestar has presented no evidence that either Spadea acted in any capacity other than as Chairman or President of LPB. Consequently, the individual defendants are entitled summary judgment in their favor on all of Corestar's claims against them.
IV. Conclusion
For the reasons expressed above, Corestar is entitled to summary judgment on its breach of contract claim as to LPB's liability, and on LPB's breach of contract counterclaim. LPB is entitled to summary judgment in its favor on Corestar's claims for unjust enrichment and conversion. The individual defendants are entitled to summary judgment on all of Corestar's claims against them. Summary judgment is denied as to Corestar's fraud, New Jersey Consumer Fraud Act, and constructive trust claims. Thus, the remaining issues for adjudication in this case are Corestar's damages for `LPB's breach of contract and Corestar's fraud, CFA, and constructive trust claims. An appropriate Order will be entered.
NOTES
[1] The purchase order lists the name and frequency of each transmitter. This information is not relevant to the dispute.
[2] LPB and Corestar are "merchants" as described by N.J. Stat. Ann. 12A:2-104 and the transmitters and amplifiers are "goods" as described by N.J. Stat. Ann. 12A:2-105.
[3] Neither party appears to dispute that New Jersey law applies.
[4] A separate analysis of the contract for amplifier modules is discussed on pages 34-35.
[5] The Uniform Commercial UCC requires that for the sale of goods for the price of $500 or more, a contract is not enforceable unless "there is some writing sufficient to indicate that a contract for the sale has been made between the parties." N.J.S.A. 12A:2-201(1). The writing must also be "signed by the party against whom enforcement is sought," and it must specify a quantity. Id. If, "within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received." Id. at 2-201(2).
This section deals solely with the question of whether a contract exists which is enforceable in the face of a statute of frauds defense. It has no application to a situation where a contract does exist and the dispute goes only to the terms of that contract. See Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91, 97 (3d Cir.1991) (noting that "courts have typically treated the questions of formation and interpretation as separate from the question of when the contract becomes enforceable). Here, because LPB has not raised a statute of frauds defense, and a contract does exist, this section is inapplicable."
[6] Section 2-207(1) applies to both additional and different terms. Section 2-207(2), however, only applies to additional terms. This distinction is not of importance here. Cf. Richardson v. Union Carbide Industrial Gases, Inc., 347 N.J.Super. 524, 790 A.2d 962, 967-68 (2002) (explaining the differing approaches taken by various courts to settle the question of the difference between "additional" and "different").
[7] "Course of performance" is inapplicable here because it refers to actions with respect to the contract taken after the contract has formed. Step Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91, 104 n. 40 (3d Cir.1991). LPB only refers to the parties' past interactions.
[8] Force majeure is, "An event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars)." Black's Law Dictionary (8th ed.2004). A force majeure clause is, "A contractual provision allocating the risk if performance becomes impossible or impracticable, esp. as a result of an event or effect that the parties could not have anticipated or controlled." Id.
[9] This clause may also be unconscionable under N.J. Stat. Ann. 12A:2-302, which provides, "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result." The Comment to this UCC section instructs, "The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract." Because, however, the Court must hear evidence to decide this question, see section 2-302(2), and because LPB's clause is unenforceable for other reasons, the Court will refrain from determining whether the clause is unconscionable under this UCC section.
[10] LPB argues that Corestar breached the contract when it failed to pay the remaining twenty-five percent of the total contract price when the first transmitter shipped, as was stated on LPB's quotation. Corestar argues that LPB agreed to Corestar paying the remaining twenty-five percent upon shipment of the sixth transmitter. This issue does not need to be decided, however, because LPB breached the contract first by failing to deliver the first transmitter on time.
[11] Along with most other UCC provisions discussed in this opinion, the parties also do not discuss the effect of N.J. Stat. Ann. 12A:2-607, which concerns a buyer's duty to notify the seller of receipt of a non-conforming good prior to cancellation of the contract. The buyer is precluded from any remedy if the buyer did not notify the seller of the breach within a reasonable time after the buyer discovered the non-conformity. N.J. Stat. Ann. 12A:2-607(3)(a). The burden is on the buyer to establish any breach with respect to the goods accepted. Id. 2-607(4).
There is no evidence in the record demonstrating whether Corestar notified LPB of the non-conforming transmitter after Corestar's customer received it on October 15, 2005. Because, however, Corestar's cancellation of the contract was permitted for delays in shipping in addition to defective goods, this issue becomes one for damages.
[12] Even without this cancellation clause, the UCC provides a remedy for buyers in Corestar's position. UCC section 2-609
rests on the recognition of the fact that the essential purpose of a contract between commercial men is actual performance and they do not bargain merely for a promise, or for a promise plus the right to win a law suit and that a continuing sense of reliance and security that the promised performance will be forthcoming when due, is an important feature of the bargain. If either the willingness or the ability of a party to perform declines materially between the time of contracting and the time for performance, the other party is threatened with the loss of a substantial part of what he has bargained for. . . . [A] buyer who believes that the seller's deliveries have become uncertain cannot safely wait for the due date of performance when he has been buying to assure himself of materials for his current manufacturing or to replenish his stock of merchandise.
N.J. Stat. Ann. 12A:2-609 (Comment). Under this provision, a buyer (1) is permitted to suspend his own performance and any preparation therefor, with excuse for any resulting necessary delay, until the situation has been clarified; (2) is given the right to require adequate assurance that the other party's performance will be duly forthcoming; and (3) can treat the contract as broken if his reasonable grounds for insecurity are not cleared up within a reasonable time. Id. This section merges these three principles of law and commercial practice into a single theory of general application to all sales agreements looking to future performance. Id.
[13] Corestar asserts this claim, as well as all of its additional claims, against the individual defendants, Dominick Spadea and Thomas Spadea. Whether Corestar can maintain these claims against the individual defendants is addressed below. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613106/ | 11 So. 3d 1012 (2009)
Judah HUNGERMAN, Appellant,
v.
NATIONWIDE MUTUAL FIRE INSURANCE CO., Appellee.
No. 2D08-2353.
District Court of Appeal of Florida, Second District.
July 10, 2009.
Ralph P. Richard of Law Office of Ralph P. Richard, Fort Myers, for Appellant.
Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
SILBERMAN, Judge.
Judah Hungerman appeals a final declaratory judgment entered in favor of Nationwide Mutual Fire Insurance Company. He challenges the circuit court's determination that he must submit to an examination under oath, that he must produce records to Nationwide, and that Nationwide is entitled to reserve its rights under the applicable insurance policy. We affirm.
Hungerman was involved in a motor vehicle accident on July 20, 2006. He made a claim for personal injury protection (PIP) benefits under a policy issued by Nationwide to Hungerman's employer. Nationwide paid Hungerman PIP benefits until he exhausted that coverage. Nationwide then sought to take Hungerman's examination under oath (EUO) and to obtain a release for medical records in order to investigate its potential liability under the uninsured motorist (UM) provisions of the policy. In April 2007, Nationwide sent a letter to Hungerman reiterating its need to investigate and indicating that the investigation was subject to Nationwide's right to later deny coverage.
In July 2007, Hungerman filed a declaratory judgment action against Nationwide. He alleged that because he had not made a written claim to Nationwide under the UM portion of the policy, he was not obligated to submit to an EUO and Nationwide had no basis to reserve its rights. He also requested an order directing Nationwide to "cease and desist in sending its harassing and unauthorized letters" and requested an award of attorney's fees. Hungerman filed a motion for summary judgment, to which Nationwide responded. At the hearing on the motion, Hungerman acknowledged that the case involved interpretation *1013 of the insurance policy. He argued that because there were no disputed factual issues, summary judgment should be entered either in his or Nationwide's favor, resolving the legal issues.
Following the hearing, the circuit court entered two orders, one denying Hungerman's request for judgment in his favor and the other constituting a final judgment in Nationwide's favor. The court determined that Hungerman was an "insured driver" under the policy; that the policy provided, among other types of coverage, PIP and UM coverage; and that even in the absence of a separate written claim by Hungerman for UM coverage, the policy provisions obligated Hungerman to submit to an EUO and to produce records and permitted Nationwide to reserve its rights.
Our review of the circuit court's interpretation of the subject policy is de novo. See Amica Mut. Ins. Co. v. Drummond, 970 So. 2d 456, 459 (Fla. 2d DCA 2007). We conclude that the circuit court did not err in its interpretation of the policy language and its determination of Hungerman's obligations and Nationwide's rights under the policy. As to Hungerman's contention that Nationwide's conduct (seeking an EUO and medical records and reserving its rights) constituted harassment and was unauthorized, the record does not establish that Nationwide failed to abide by the reasonableness provisions set forth in its policy or that it engaged in unfair claim settlement practices. See §§ 624.155(1)(a)(1), 626.9541(1)(i), Fla. Stat. (2007). Accordingly, we affirm the final judgment in all respects.
Affirmed.
NORTHCUTT and LaROSE, JJ., Concur. | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.