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https://www.courtlistener.com/api/rest/v3/opinions/1919967/ | 660 So. 2d 313 (1995)
Robert James WALKER, Petitioner,
v.
Honorable E. Randolph BENTLEY, as Circuit Judge of the Tenth Judicial Circuit, Respondent.
No. 95-01084.
District Court of Appeal of Florida, Second District.
August 30, 1995.
*315 James Marion Moorman, Public Defender, and Howard L. Dimmig, II, Assistant Public Defender, Bartow, for petitioner.
Thomas C. MacDonald, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for respondent.
LAZZARA, Judge.
The petitioner, Robert James Walker, seeks a writ of prohibition restraining the respondent circuit judge from exercising jurisdiction in an indirect criminal contempt proceeding initiated to punish him for an alleged violation of a domestic violence injunction issued pursuant to section 741.30, Florida Statutes (Supp. 1994). He contends that the provisions of section 741.30(8)(a), Florida Statutes (Supp. 1994), specifically limit the respondent's jurisdiction to the use of civil contempt to enforce compliance with such an injunction. Because this statute purports to divest the respondent of the jurisdiction to use the power of indirect criminal contempt, prohibition is the appropriate remedy. See Department of Agric. & Consumer Servs. v. Bonanno, 568 So. 2d 24 (Fla. 1990). Accordingly, we have jurisdiction.
We deny the writ because, as will be discussed, the legislature has no authority under the doctrine of the separation of powers embodied in article II, section 3 of the Florida *316 Constitution, to limit the jurisdiction of a circuit court in the exercise of its constitutionally inherent power of contempt. Furthermore, although we construe section 741.30(8)(a) in a manner consistent with the constitution, we certify two questions of great public importance regarding its interpretation and constitutionality.
ANALYSIS OF DOMESTIC VIOLENCE LEGISLATION
In 1984, the legislature substantially revised section 741.30, Florida Statutes (1983), by creating a simplified, expedited procedure for obtaining from a circuit court an injunction for protection against domestic violence. See Ch. 84-343, § 10, at 1987-1990, Laws of Fla. (codified at section 741.30, Fla. Stat. (Supp. 1984)). Such an injunction could now "be obtained directly, quickly, without an attorney's help, and at little monetary cost." Office of State Attorney v. Parrotino, 628 So. 2d 1097, 1099 (Fla. 1993). The legislature also provided that the court issuing the injunction was required to enforce compliance through "contempt proceedings." § 741.30(9)(a), Fla. Stat. (Supp. 1984).
In 1986, the legislature again amended the statute by providing that the court issuing the injunction "shall enforce" compliance through "civil or indirect criminal contempt proceedings." See Ch. 86-264, § 1, at 1973, Laws of Fla. (codified at § 741.30(9)(a), Fla. Stat. (Supp. 1986)). It also created a statute which criminalized specifically defined willful violations of a domestic injunction and provided that the penalty for such a violation was to be in addition to any penalty imposed for contempt. See Ch. 86-264, § 2, at 1974, Laws of Fla. (codified at § 741.31, Fla. Stat. (Supp. 1986)).
During the 1994 legislative session, the legislature again revised the statutes relating to domestic violence. See Ch. 94-134, §§ 1-6, at 384-391, Laws of Fla. The revised statutes took effect July 1, 1994, and apply to offenses committed on or after that date. See Ch. 94-134, § 36, at 405, Laws of Fla.[1]
In making these revisions, the legislature specifically determined that domestic violence was to "be treated as an illegal act rather than a private matter, and for that reason, indirect criminal contempt may no longer be used to enforce compliance with injunctions for protection against domestic violence." § 741.2901(2), Fla. Stat. (Supp. 1994) (revision underscored). To effectuate this policy change, it provided that "[t]he state attorney in each circuit shall adopt a pro-prosecution policy for acts of domestic violence[]" and that "[t]he filing, nonfiling, or diversion of criminal charges shall be determined ... over the objection of the victim, if necessary." Id. (revision underscored). The legislature also expanded the incidents giving rise to a criminal prosecution for violating a domestic violence injunction and increased the penalty for such a violation from a misdemeanor of the second degree to a misdemeanor of the first degree. Compare § 741.31, Fla. Stat. (1993) with § 741.31, Fla. Stat. (Supp. 1994). It eliminated, however, the provision that the penalty for such a criminal violation was to be in addition to any penalty imposed through contempt proceedings. Id.
With respect to the judiciary's role in the enforcement process, the legislature manifested a clear intent that a circuit court could now only "[e]nforce, through a civil contempt proceeding, a violation of an injunction for protection against domestic violence which is not a criminal violation under s. 741.31." § 741.2902(2)(g), Fla. Stat. (Supp. 1994). It substantively codified this intent in section 741.30(8)(a), which provides in part that "[t]he court shall enforce, through a civil contempt proceeding, a violation of an injunction for protection which is not a criminal violation under s. 741.31." (Emphasis added.) This revision purported to divest the circuit courts of their previous statutory authority to use an indirect criminal contempt proceeding as one of the methods to enforce compliance with any violation of a domestic violence injunction. See § 741.30(9)(a), Fla. Stat. (1993).[2]
*317 We glean from these revisions the legislature's clear intent to prosecute and punish substantive violations of domestic violence injunctions through traditional means of criminal prosecution in the county courts rather than through the use of indirect criminal contempt proceedings by the circuit courts that issue the injunctions. We also perceive the legislature's intent to limit circuit courts to the use of civil contempt as the means of punishing violations that do not fall within the criminal ambit of section 741.31. See In re Report of the Comm'n on Family Courts, 646 So. 2d 178, 180 (Fla. 1994). While such a legislative approach to combat an ongoing societal problem may be laudable, we conclude that to the extent it infringes on the time-honored and well-recognized constitutional authority of a circuit court to punish by indirect criminal contempt an intentional violation of a court order, it violates the doctrine of the separation of powers embodied in article II, section 3 of the Florida Constitution. Our conclusion is based on the following analysis.
PRELIMINARY COMMENTS
We initially note that in In re Report, the Florida Supreme Court addressed the "administrative Frankenstein" created by chapter 94-134, pointing out that "it has placed the violation of some provisions of domestic injunctions in the jurisdiction of the criminal division of county courts while the violations of other provisions in the injunction remain in the family law divisions of the circuit courts." 646 So. 2d at 180. One interesting aspect noted by the court was the possibility that the circuit court judge who issued the injunction may have to appear as a prosecution witness in the county court criminal proceeding. Significantly, although not addressing the issue, the court foresaw that "[a] separation of powers issue exists as to whether the legislature has the authority to completely eliminate the judicial power of indirect criminal contempt to punish those who violate judicial orders." Id. at n. 1.
The legislature may have foreseen this separation of powers problem because, in the recently concluded 1995 session, it once again purported to restore the criminal contempt power to a circuit court to enforce a violation of a domestic injunction occurring on or after July 1, 1995. See Ch. 95-195, § 5, at 1400, Laws of Fla. Notwithstanding this legislative change of mind, however, the separation of powers issue inherent in section 741.30(8)(a), Florida Statutes (Supp. 1994), remains viable for offenses, such as petitioner's, occurring between July 1, 1994, and July 1, 1995. Accordingly, the doctrine of mootness does not preclude us from addressing that issue in this case because our decision will not only affect the rights of the petitioner, it will also affect a significant number of other individuals who occupy the same status as petitioner, thereby determining a question of great public importance in the realm of a pressing social problem. See State v. Kinner, 398 So. 2d 1360 (Fla. 1981).
CONTEMPT POWER ANALYSIS
We begin our substantive analysis by noting that many years ago the Florida Supreme Court made it clear that under the power vested in the judicial branch of government by article V, section 1 of the Florida Constitution, courts of this state "are by the law protected from insult and interference, for the purpose of giving them their due weight and authority in performing their judicial functions in the interest of orderly government." Ex parte Earman, 85 Fla. 297, 313, 95 So. 755, 760 (1923). Thus, it concluded that under our constitutional form of government, the judiciary has the "inherent power by due course of law to appropriately punish by fine or imprisonment or otherwise, any contempt that in law constitutes an offense against the authority and dignity of a court or judicial officer in the performance of judicial functions." Id. (emphasis added). The court then defined the various species of contempt punishable by this "inherent power" to be "direct or indirect or constructive, or criminal or civil, according *318 to their essential nature." Id. (emphasis added).
Under Earman, therefore, circuit courts established under the provisions of article V of the Florida Constitution have inherent constitutional authority to invoke the power of indirect criminal contempt under appropriate circumstances. Of course, in invoking this power in the modern era, courts must now strictly comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840 governing the prosecution of indirect criminal contempts,[3] as well as scrupulously afford the alleged contemnor the full panoply of constitutionally mandated protections applicable to criminal proceedings. See, e.g., International Union, United Mine Workers of America v. Bagwell, ___ U.S. ___, ___-___, 114 S. Ct. 2552, 2556-2557, 129 L. Ed. 2d 642 (1994); Aaron v. State, 284 So. 2d 673, 677 (Fla. 1973).
The supreme court subsequently observed that the power to punish for contempt exists independently of any statutory grant of authority as essential to the execution and maintenance of judicial authority. Ducksworth v. Boyer, 125 So. 2d 844, 845 (Fla. 1960); see also In re Hayes, 72 Fla. 558, 568, 73 So. 362, 365 (1916) (recognizing inherent power of supreme court, independent of statutory authority, to punish for contempt of court). The court later determined, in reliance on Earman and Ducksworth, that a juvenile court had the inherent authority to invoke its power of indirect criminal contempt to punish a juvenile for willful disobedience of its order. R.M.P. v. Jones, 419 So. 2d 618, 620 (Fla. 1982), receded from on other grounds, A.A. v. Rolle, 604 So. 2d 813 (Fla. 1992); see also T.D.L. v. Chinault, 570 So. 2d 1335, 1337 (Fla. 2d DCA 1990), approved, 604 So. 2d 813 (Fla. 1992) (inherent power of court to punish for contempt not extinguished because offender is a juvenile).
More important, in State ex rel. Franks v. Clark, 46 So. 2d 488 (Fla. 1950), the court made it abundantly clear that because the legislature has statutorily conferred the general power of contempt on the judiciary does not mean it has the corresponding authority to later withdraw that power. As the court stated:
We take notice of [section 38.22, Florida Statutes (1949)] but do not construe it inasmuch as we are able to uphold the order without the benefit of the legislative act. A grant of power to a court is tempting but the acknowledgment of it presupposes the authority to withdraw same.
46 So.2d at 489.[4]See also A.A. v. Rolle, 604 So. 2d 813, 820 (Overton, J., dissenting) (legislature without authority to eliminate inherent power of contempt from constitutionally created circuit court).
In view of this analysis, it is readily apparent that although the legislature at one point purported to vest the circuit courts with the power of indirect criminal contempt to enforce compliance with a domestic violence injunction, its attempt to do so constituted mere statutory surplusage because such courts already had the inherent constitutional authority, independent of any specific statutory grant, to invoke this power for willful disobedience of any of their orders. It follows, therefore, that the legislature had no authority at a later point to withdraw the power of indirect criminal contempt because a power the legislature cannot confer in the first instance cannot be taken away. See State ex rel. Franks v. Clark, 46 So. 2d 488; see also M.C. Dransfield, Annotation, Legislative Power to Abridge, Limit, or Regulate Power of Courts with Respect to Contempts, 121 A.L.R. 215, 216 (1939) (stating general rule "that the legislature cannot abridge or destroy the judicial power to punish for contempt, since a power which the legislature does not give, it cannot take away."). Accordingly, the respondent's use of section 741.30 as the sole basis for issuing the injunction did not limit him to the use of the species of contempt provided for in the statute because, as noted, the legislature had no *319 authority in the first instance to control the type of contempt to be used in enforcing compliance with such an injunction.
We are aware, however, that early in Florida's history the supreme court recognized the legislature's authority, for the protection of personal liberty, to limit and restrict the "omnipotent" common law powers of the courts in terms of the punishment to be imposed for the class of contempts described as punitive in character. Ex parte Edwards, 11 Fla. 174, 186 (1867).[5] In continuing recognition of this concept, the court, relying on Edwards, recently held that "the sanctions to be used by the courts in punishing contempt may properly be limited by statute." A.A. v. Rolle, 604 So. 2d 813, 815 (Fla. 1992) (emphasis in original). In reaching this conclusion, however, it carefully pointed out that the issue to be decided was not the inherent power of a court to adjudicate for contempt, but how and to what extent the legislature intended the contempt to be punished. Thus, the court continued to adhere to the fundamental proposition that courts have inherent power to make a finding of contempt. Id.[6]
We construe Edwards and Rolle to mean that the legislature has the authority to prescribe the punishment a court may impose after it exercises its inherent power of contempt. We do not construe them to hold, however, that it has the authority to bar the use of the contempt power altogether. We perceive, in that regard, a substantive difference between the legislature's authority to determine the sanctions to be imposed for contempt and a circuit court's inherent constitutional power to determine the species of contempt it chooses to use to enforce its orders and vindicate its authority. We conclude, therefore, that the legislature's authority to restrict the sanctions which courts may impose after a finding of contempt does not give it the concomitant authority to completely eliminate the power itself. See State ex rel. Franks v. Clark, 46 So. 2d 488.
We note that Florida is not alone in espousing this fundamental doctrine. Other states with constitutionally created courts also recognize this concept. See, e.g., State ex rel. Oregon State Bar v. Lenske, 243 Or. 477, 495, 407 P.2d 250, 256 (Or. 1965) (and cases and authorities cited) (holding that "the power of a constitutionally established court to punish for contempt may be regulated within reasonable bounds by the legislature but not to the extent that the court's power is substantially impaired or destroyed."), cert. denied, 384 U.S. 943, 86 S. Ct. 1460, 16 L. Ed. 2d 541 (1966) (emphasis added). Significantly, even in the federal system, where the inferior courts are established by Congress,[7] the United States Supreme Court recently reaffirmed that "while the exercise of the contempt power is subject to reasonable regulation, `the attributes which inhere in that power and are inseparable from it can neither be abrogated nor rendered practically inoperative.'" Young v. United States ex rel. Vuitton Fils S.A., 481 U.S. 787, 799, 107 S. Ct. 2124, 2133, 95 L. Ed. 2d 740 (1987) (quoting Michaelson v. United States, 266 U.S. 42, 66, 45 S. Ct. 18, 20, 69 L. Ed. 162 (1924)) (emphasis added).
Finally, the fact that the legislature has created criminal sanctions for specifically-defined violations of a domestic injunction does not deprive a circuit court of its inherent power to punish these same violations by indirect criminal contempt. We find support for this conclusion in Baumgartner v. Joughin, 105 Fla. 335, 341, 141 So. 185, rehearing denied, 107 Fla. 858, 143 So. 436 (1932), in which the facts clearly demonstrate that the defendant was found in indirect criminal contempt for jury tampering and sentenced to a term of imprisonment. In denying the *320 petition for writ of habeas corpus, the court stated:
The fact, also, that jury tampering is by statute (Comp.Gen.Laws 1927 § 7483) made an indictable offense, for which the accused may be prosecuted criminally, does not deprive the court of its inherent power to punish the guilty party for contempt.
105 Fla. at 341, 141 So. at 188 (emphasis added). We recognize, however, that given the judicial evolution in the law since Baumgartner, the Double Jeopardy Clause may now prohibit the imposition of dual punishments in such a factual setting. See United States v. Dixon, ___ U.S. ___, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
SEPARATION OF POWERS ANALYSIS
Against this backdrop, we note the fundamental proposition espoused in this state that "`the courts have authority to do things that are absolutely essential to the performance of their judicial functions[.]'" Makemson v. Martin County, 491 So. 2d 1109, 1113 (Fla. 1986), cert. denied, 479 U.S. 1043, 107 S. Ct. 908, 93 L. Ed. 2d 857 (1987) (quoting Rose v. Palm Beach County, 361 So. 2d 135, 137 (Fla. 1978)). An essential corollary to the preservation of this judicial authority is the principle that "[a]ny legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional." Simmons v. State, 160 Fla. 626, 628, 36 So. 2d 207, 208 (Fla. 1948) (quoting 11 Am.Jur. 908). These precepts have their genesis in the doctrine of the separation of powers, which has as its goal the preservation of the inherent powers of the three branches of government and the prevention of one branch from infringing on the powers of the others to the detriment of our system of constitutional rule. Daniels v. State Rd. Dep't, 170 So. 2d 846 (Fla. 1964).
The citizens of this state have expressly codified this doctrine in article II, section 3 of the Florida Constitution, thereby adopting one of the doctrine's fundamental prohibitions that "no branch may encroach upon the powers of another." Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260, 264 (Fla. 1991). To achieve this constitutional goal of separation of governmental powers, the courts of this state are charged with diligently safeguarding the powers vested in one branch from encroachment by another. Pepper v. Pepper, 66 So. 2d 280 (Fla. 1953).
Given our analysis of the law of contempt in conjunction with this constitutional framework, we conclude that the legislature's attempt by the use of the word "shall" in section 741.30(8)(a), to limit the judiciary's authority to civil contempt proceedings for the enforcement of domestic violence injunctions contravenes article II, section 3 of the Florida Constitution. Such a restriction, if given mandatory effect, would constitute an unconstitutional infringement on a court's inherent power, historically rooted in our constitution, to carry out the judicial function of punishing by indirect criminal contempt an individual who has intentionally violated an order of the court. See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); see also Fernandez v. Kellner, 55 So. 2d 793 (Fla. 1951) (court's power and authority to punish by contempt a willful violation of an injunction cannot be questioned), appeal dismissed, 344 U.S. 802, 73 S. Ct. 40, 97 L. Ed. 625 (1952).
CONSTITUTIONAL ANALYSIS OF SECTION 741.30(8)(a), FLORIDA STATUTES (SUPP. 1994)
We are mindful, however, of the basic principles of statutory analysis that we are to presume that the legislature intended to enact a constitutionally valid law and that we have a duty to interpret a statute so that it withstands constitutional scrutiny. E.g., State v. Deese, 495 So. 2d 286 (Fla. 2d DCA 1986). At first blush, such a task seems insurmountable because the legislature has manifested a clear intent within the context of the revised statutory scheme to ascribe a mandatory connotation to the use of the word "shall" in section 740.30(8)(a). See, e.g., S.R. v. State, 346 So. 2d 1018 (Fla. 1977). Thus, although we recognize our duty to give effect to the legislature's intent, nevertheless, to uphold the constitutionality of the statute, we must look to the rule of law that when the legislature uses the word "shall" in prescribing the action of a court in a field of operation where the legislature has no authority to *321 act, the word is to be interpreted as permissive or directory, rather than mandatory. Rich v. Ryals, 212 So. 2d 641 (Fla. 1968); Simmons, 160 Fla. 626, 36 So. 2d 207.
In reliance on this principle, we conclude that the legislature's use of the word "shall" in section 741.30(8)(a), Florida Statutes (Supp. 1994), must be interpreted to mean "may" and, as such, is merely directory. See State ex rel. Harrington v. Genung, 300 So. 2d 271 (Fla. 2d DCA 1974). Given this interpretation, we specifically hold that a circuit court has the inherent authority, if it so chooses in its discretion, to enforce compliance with a domestic violence injunction issued pursuant to section 741.30, Florida Statutes (Supp. 1994), by means of an indirect criminal contempt proceeding. We further hold that the fact the alleged violation of the injunction may also constitute a criminal offense under section 741.31, Florida Statutes (Supp. 1994), does not preclude the use of the power of indirect criminal contempt. In making this determination, however, the court must be mindful of the implications of the Double Jeopardy Clause. See, e.g., Hernandez v. State, 624 So. 2d 782 (Fla. 2d DCA 1993).
CONCLUDING COMMENTS AND CERTIFIED QUESTIONS
Like the supreme court, we too "recognize the extreme importance of having domestic violence issues addressed in an expeditious, efficient, and deliberative manner[] [and] ... do not want these important issues to become bogged down in an administrative morass[,]" which may be occurring as a consequence of the 1994 statutory revisions. In re Report of Comm'n on Family Courts, 646 So.2d at 182. Accordingly, because our decision has statewide significance in an area involving how to best address one of the most serious problems confronting our society violence within the domestic context we certify the following questions of great public importance:
IS THE WORD "SHALL" AS USED IN SECTION 741.30(8)(a), FLORIDA STATUTES (SUPP. 1994), TO BE INTERPRETED AS MANDATORY RATHER THAN AS PERMISSIVE OR DIRECTORY?
IF INTERPRETED AS MANDATORY, IS SECTION 741.30(8)(a), FLORIDA STATUTES (SUPP. 1994), AN UNCONSTITUTIONAL ENCROACHMENT ON THE CONTEMPT POWER OF THE JUDICIARY IN VIOLATION OF ARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION?
Petition denied. Questions certified.
FULMER, J., concurs specially with opinion.
ALTENBERND, A.C.J., dissents with opinion.
FULMER, Judge, concurring specially.
Although I find the reasoning and weight of authority set forth in the dissent persuasive, I concur with Judge Lazzara because I believe the statute that we are examining reached too far and imposed an impermissible restriction on the inherent power of the court.
If all violations of domestic violence injunctions were criminal offenses, I would be inclined to concur with Judge Altenbernd because I agree that the legislature is not barred by the separation of powers doctrine from substituting one sanction available to punish conduct falling within the definition of indirect criminal contempt for another. I would also be inclined to agree that the courts should defer to the legislative scheme created by chapter 94-134, Laws of Florida, for dealing with domestic violence. After all, the legislature created this specialized injunctive relief in response to the growing problem of domestic violence in our communities. It is only because of the legislature's response to the pleas for help that the courts have become active in addressing the needs of victims and families involved in abusive relationships. Both branches of government are now working together to solve this societal problem. Nevertheless, even though I agree that the legislative branch is best equipped to debate and decide public policy issues, I believe the question we are addressing is one of separation of powers, not one of public policy.
*322 I am sure that the legislature did not intend to create a separation of powers question when it amended the statutes relating to domestic violence during the 1994 session. The declaration of intent language set forth in section 741.2901(2), Florida Statutes (Supp. 1994), makes it clear that the focus of the amendment was, understandably, on threats and acts of violence. However, the provision that "indirect criminal contempt may no longer be used to enforce compliance with injunctions for protection against domestic violence" applies not only to violations that would now be deemed misdemeanor offenses, but also to non-criminal violations as well. This legislative intent is implemented in section 741.30(8)(a), Florida Statutes (Supp. 1994), which provides in part that "[t]he court shall enforce, through a civil contempt proceeding, a violation of an injunction for protection which is not a criminal violation under s. 741.31." Herein lies the separation of powers problem that most concerns me.
Domestic violence injunctions are typically orders that both command certain acts (e.g., leave the residence; pay child support; attend counseling) as well as forbid others (e.g., have no contact of any kind with the petitioner; do not go on or near the residence or place of employment of the petitioner). Civil contempt may only be used to coerce compliance with a specific directive in a court order. It may not be used to punish past violations. See Bagwell, ___ U.S. ___, 114 S. Ct. 2552. Thus, the only violations of domestic violence injunctions that may be addressed by the use of civil contempt are those where a required act has not been performed, such as a failure to participate in court-ordered counseling.
Even in those cases where civil contempt could be lawfully used, it would rarely provide realistic sanctions. I suspect that few judges would incarcerate a party in order to coerce attendance at counseling if the incarceration would cause a loss of employment that would then result in the termination of child support payments. A civil contempt fine would be useful only if it really coerced compliance. Based on my experience as a trial judge, I do not believe the imposition of a daily fine would even be available in many cases to coerce compliance because most of the parties who appear in court for enforcement proceedings have a limited ability to pay such a fine and purge themselves of the contempt. Of course, if they do not have the present ability to pay the fine imposed, the fine becomes punitive and unlawful. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). Even in those cases where financial ability is not a factor, the use of coercive fines would require the implementation of yet another enforcement program that would severely impact the already burgeoning caseloads of the judiciary.
Finally, and perhaps more important, the most common violations of domestic violence injunctions are those where prohibited acts are committed and not those where a compelled act has not been performed. Civil contempt is not available to sanction such violations. A general prohibition against future acts (e.g., have no contact of any kind) does not lend itself to enforcement through civil contempt since no single act, or the cessation of a single act, can demonstrate compliance and thereby operate as the purge that is required in all civil contempt coercive sanctions. See Bagwell, ___ U.S. ___, 114 S. Ct. 2552.
Thus, as a result of the 1994 amendments, no sanction is available to punish the offender who violates a domestic violence injunction by committing a prohibited non-criminal act. In the circuit court, I found that this type of violation was a large and significant class of cases. For example, I saw many partners in abusive relationships who were terrified or tormented by receiving a greeting card or letter in the mail that would otherwise appear harmless or even loving. Even though such communication may be prohibited as part of a domestic violence injunction, an intentional violation of this provision does not constitute a criminal offense under the 1994 statute. Therefore, no criminal prosecution is available and civil contempt offers no sanction to punish this past wrongdoing. By removing the criminal contempt sanction, the legislature eliminated the only means of punishing these violations which often signal the continuation or escalation of abusive behavior. *323 Eliminating the ability of the court to punish such non-criminal violations with criminal contempt sanctions not only impinges upon the inherent power of the court, but also actually undermines the protective purpose of the legislation. This supposedly unintended result may be part of the reason that the legislature again amended the statute in 1995 to restore the court's use of criminal contempt as an available sanction against violations of domestic violence injunctions. The recent amendments also add the very types of previously non-criminal acts that are so often the basis of the violations to the list of acts that are now deemed a misdemeanor.[8]
I do appreciate the fact that at common law the contempt powers were much more narrow than the contempt powers exercised in the courts of modern America. And, I am tempted by Judge Altenbernd's suggestion that we should be most cautious about invoking our inherent powers to safeguard a contempt power that is not expressly recognized in our constitution and that did not exist at common law. Nevertheless, because the indirect criminal contempt power of our circuit courts does not derive from the legislature, it may not be totally removed by the legislature. Michaelson v. United States ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry., 266 U.S. 42, 45 S. Ct. 18, 69 L. Ed. 162 (1924); Ex parte Earman, 85 Fla. 297, 95 So. 755 (1923). Unlike the legislation involved in Rolle, the 1994 amendments do not just prescribe "how and to what extent the courts may punish criminal conduct, including contempt." Id. at 815. Rather, they purport to remove the authority of the court to use indirect criminal contempt to punish any violation of a domestic violation injunction. Therefore, I concur with Judge Lazzara because I believe the legislature is without authority to eliminate the inherent power of indirect criminal contempt which our constitutionally created circuit courts possess.
ALTENBERND, Acting Chief Judge, dissenting.
The majority opinion is well researched and persuasively presented.[9] Nevertheless, I would grant this petition and issue a writ of prohibition. Domestic violence in our homes and on the streets of our communities is a serious social problem, but it is one within the overlapping constitutional domain of the legislature and the judiciary. Indirect criminal contempt is not an express constitutional power granted to the judiciary, but rather an implied power. As a result, the courts must honor this unambiguous statute unless the legislature's action unquestionably deprives the courts of a contempt power essential to the existence of the judicial branch or to the orderly administration of justice. I agree that the legislature used poor judgment when it revised the enforcement procedures for this statutory injunction. Poor judgment is not unconstitutional. During this one-year experiment, the legislature's enforcement mechanism for misconduct outside the courtroom did not deprive the courts of any essential power. See In re Robinson, 117 N.C. 533, 23 S.E. 453 (1895) (upholding statutory limitations on indirect contempt because such power was not "absolutely essential" to the judiciary).
I. A CLEAR INTRUSION INTO AN ESSENTIAL JUDICIAL POWER MUST EXIST BEFORE A COURT INVOKES SEPARATION OF POWERS AS A SWORD AGAINST THE LEGISLATURE IN A DOMAIN SHARED BY BOTH
A clear violation of the constitutional provisions dividing the powers of government into departments should be checked and *324 remedied; but where a reasonable doubt exists as to the constitutionality of a statute conferring power, authority, and duties upon officers, the legislative will should be enforced by the courts to secure orderly government and in deference to the Legislature, whose action is presumed to be within its powers, and whose lawmaking discretion within its powers is not reviewable by the courts.
State v. Atlantic Coast Line R.R. Co., 56 Fla. 617, 47 So. 969 (1908). See also State v. Johnson, 345 So. 2d 1069 (Fla. 1977); 16 Am.Jur.2d Constitutional Law §§ 297-299 (1979).
In this case, the legislature did not confer added power to the circuit court, but rather conferred additional power to the county court and limited a power of the circuit court. Even in this context, we should defer to the will of the legislature unless this allocation of power violates separation of powers beyond a reasonable doubt.
Separation of powers is not a doctrine comparable to res judicata, respondeat superior, or other well-established rules used to determine the outcome of a lawsuit. It is a political doctrine applicable to all three branches of government.
At the bottom of our problem lies the doctrine of the separation of powers. That doctrine embodies cautions against tyranny in government through undue concentration of power. The environment of the Constitution, the debates at Philadelphia, the writings in support of the adoption of the Constitution, unite in proof that the true meaning which lies behind "the separation of powers" is fear of the absorption of one of the three branches of government by another. As a principle of statesmanship the practical demands of government preclude its doctrinaire application. The latitude with which the doctrine must be observed in a work-a-day world was steadily insisted upon by those shrewd men of the world who framed the Constitution and by the statesman who became the great Chief Justice.
....
In a word, we are dealing with what Sir Henry Maine, following Madison, calls a "political doctrine," and not a technical rule of law. Nor has it been treated by the Supreme Court as a technical legal doctrine. From the beginning that Court has refused to draw abstract, analytical lines of separation and has recognized necessary areas of interaction.
Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in "Inferior" Federal Courts A Study in Separation of Powers, 37 Harv. L.Rev. 1010, 1012-14 (1924).
Although Justice Frankfurter was discussing separation of powers under the United States Constitution, I see no reason to conclude that the Floridians who expressly included separation of powers within our state constitution were less shrewd or less practical. This constitutional clause serves the major political purpose of deterring undue concentration of power in any one branch of government.[10] As discussed by Professor Tribe, the objective is to balance the "independence and integrity of one branch" against "the interdependence without which independence can become domination." Laurence H. Tribe, American Constitutional Law § 2-2 (2d ed. 1988).
Most of the Florida precedent discussing separation of powers concerns the allocation of power between the legislative and executive branches of government. When the judiciary arbitrates such a separation of powers dispute, it performs its usual task of constitutional judicial review. By contrast, when the judiciary invokes the separation of powers doctrine to declare that the legislative or executive branch is powerless to alter a judicial function, it performs the same review but with a vested interest. This conflict of interest may be unavoidable, but it should compel courts to proceed with great caution and conservatism. In this political context, if there is any reasonable doubt concerning the constitutionality of legislation *325 that curbs judicial power, then judges should defer to the wisdom of the elected representatives. If the judiciary can honor the policy of the legislature with no substantial harm to its existence or operation, then it should not override the duly enacted policy or change a clear legislative "shall" into a judicial "may."
II. THE PUNISHMENT FOR VIOLATIONS OF THESE STATUTORY INJUNCTIONS IS AN OVERLAPPING CONSTITUTIONAL DOMAIN
The prevention and deterrence of domestic violence in places other than the courtroom are not matters exclusively within the powers of either the judicial or legislative branch of government. The overlap of power in this case has several dimensions.
First, the legislature created the injunction for protection against domestic violence because the existing judicial injunctive remedies were too slow and cumbersome to combat this social problem. The courts may have alternative nonstatutory theories upon which an injunction could be entered in some of these cases, allowing for enforcement through indirect criminal contempt. But if the court's order relies upon a statutory basis for an injunction, I see no constitutional reason why the court cannot limit its penalties to those mandated by statute.
Second, the legislature obviously has constitutional authority to enact statutes defining criminal offenses. The restrictions in chapter 94-134 prevent problems of double jeopardy. See Dixon, ___ U.S. ___, 113 S. Ct. 2849, 125 L. Ed. 2d 556; Fierro v. State, 653 So. 2d 447 (Fla. 1st DCA 1995); State v. Miranda, 644 So. 2d 342 (Fla. 2d DCA 1994); Richardson v. Lewis, 639 So. 2d 1098 (Fla. 2d DCA 1994); Hernandez, 624 So. 2d 782. The 1994 amendments established first-degree misdemeanors to punish a broad spectrum of acts that violate the statutory injunction.[11] There is a legitimate concern that a circuit court judge who exercises indirect criminal contempt authority could bar a county court judge from subsequently punishing the misdemeanor. The legislature has decided that a person whose conduct is a serious violation of a domestic violence injunction should have a criminal record. Such a conviction would clearly establish a "prior record" on any subsequent guidelines scoresheet. These decisions fall within the legislative domain. If its penalty structure is not perfect or should include more crimes, we should trust the legislature to change it.
Third, the judicial concept of indirect criminal contempt overlaps with legislative and executive functions. Indirect criminal contempt allows a judge considerable flexibility in deciding the elements of an offense against a victim for acts occurring outside the presence of the judge. The judge also determines who should be prosecuted, and then tries, convicts, and punishes. I do not suggest that this combination of legislative, executive, and judicial functions is prohibited by article II, section 3, of the Florida Constitution. See Johnson, 345 So. 2d 1069. Nevertheless, if separation of powers is intended to discourage a concentration of power in one branch, this political doctrine should discourage the avoidable use of indirect criminal contempt when the legislature provides alternative criminal and civil remedies. See Edward M. Dangel, Contempt, § 42A (1939).
III. IN A SEPARATION OF POWERS ANALYSIS, "INHERENT POWERS" MUST BE LIMITED TO ESSENTIAL POWERS
Article V of the Florida Constitution expressly creates many judicial functions the *326 legislature cannot limit or regulate. For example, the legislature cannot assume the power given to the supreme court in article V, section 2, to adopt rules of practice and procedure. See Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730 (Fla. 1991). Likewise, the power to discipline lawyers that was deemed an inherent contempt power in State ex rel. Oregon State Bar v. Lenske, 407 P.2d 250, is an express power in article V, section 15, of the Florida Constitution.
No constitutional provision expressly gives circuit courts the power of indirect criminal contempt. As a result, we are forced in this case to delve into the judiciary's "inherent powers." With a smile, one might suggest that these are the powers that we judges would have included in the constitution if it had been our job to write it. Because it was not our job, we should tread even more cautiously when invoking the separation of powers doctrine to exclude an inherent power from legislative regulation in an overlapping domain.
The phrase "inherent power" or "inherent judicial power" seems to have at least two distinct definitions for use in two different applications. There are times when courts need to exercise power but can find no express authority in the statutes or constitution. In these circumstances, courts invoke an inherent power "reasonably necessary for the administration of justice." See, e.g., State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183 (1943). The supreme court drew upon this definition of "inherent power" to establish the integrated bar. Petition of Florida State Bar Ass'n, 40 So. 2d 902 (Fla. 1949); see also State, Dep't of Health & Rehab. Servs. v. Hollis, 439 So. 2d 947 (Fla. 1st DCA 1983). I fully agree that courts have certain inherent powers that arise from their very existence as constitutional institutions.
The fact that courts have "reasonably necessary" powers implied in the constitution does not automatically forbid the legislature from regulating or limiting those implicit powers. See e.g., State ex rel. Robeson v. Oregon State Bar, 291 Or. 505, 632 P.2d 1255 (1981). A Florida court has the "reasonably necessary" inherent power to sanction for disobedience of its orders, but "it is beyond question that the legislature has the power to determine how and to what extent the courts may punish criminal conduct, including contempt." A.A. v. Rolle, 604 So.2d at 815.
Thus, the issue in this case is not resolved by the "reasonably necessary" definition of "inherent power." Instead, it involves a more restrictive definition. There are cases that define "inherent powers" to include powers that are "essential" to the court's existence or to the due administration of justice. In re Robinson, 117 N.C. 533, 23 S.E. 453 (1895); Ex parte Wetzel, 243 Ala. 130, 8 So. 2d 824 (1942); 21 C.J.S. Courts § 31 (1990). This is the scope of the judiciary's "inherent powers" that should be employed when evaluating the checks and balances between the legislature and the courts. The judiciary should rarely, if ever, find a need to shield its inherent powers from duly enacted legislation unless the legislation threatens to undermine the existence of the court or its due administration of justice. I am not convinced that the majority opinion has employed this narrower definition of inherent powers.
IV. ALTHOUGH INDIRECT CRIMINAL CONTEMPT IS A REASONABLY NECESSARY POWER OF THE COURTS, IT IS NOT AN ESSENTIAL POWER IN THIS CONTEXT
The majority opinion admits that the legislature can define a penalty for contempt, but apparently rules that the legislature cannot eliminate the court's ability to impose any type of contempt under any circumstance. I am inclined to agree that the legislature cannot eliminate the court's power to find a direct contempt. I am not convinced that the legislature is powerless to limit findings of indirect contempt, at least in the context of domestic violence injunctions. Indirect criminal contempt is not an essential judicial power in this context for at least three reasons.
First, indirect criminal contempt is sufficiently similar to typical criminal law that the legislature should have the constitutional power to substitute criminal offenses for indirect criminal contempt to address specific *327 problems. Conduct outside the courtroom is typically regulated by criminal statutes enacted by the legislature. Only rarely is such conduct a challenge to the authority and dignity of the court. As a result, it is easier for a permissible constitutional overlap of the two branches to occur in the context of an indirect contempt than with direct contempt. In North Carolina, for example, an enactment in 1871 that eliminated certain judicial power over contempt was approved in cases of indirect or constructive contempt, but not approved in cases of direct contempt. See In re Robinson, 23 S.E. 453; Ex parte Schenck, 65 N.C. 353 (1871) (quoted in Ex parte McCown, 139 N.C. 95, 51 S.E. 957 (1905)).
Second, a violation of this statutory injunction is more in the nature of traditional indirect civil contempt than indirect criminal contempt. "Indirect" contempt is "an act done, not in the presence of a court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge." Ex parte Earman, 95 So. at 760. "Civil" contempt "consists in failing to do something ordered to be done by a court or judge in a civil case for the benefit of the opposing party therein." Id. This is in contrast to "criminal" contempt, which is "conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge or in doing a duly forbidden act." Id.
There is no question that these statutory injunctions normally result in "indirect" violations. While it can be argued that an act of domestic violence is directed against the authority and dignity of the court, such act is normally directed against the opposing party for whose benefit the injunction has been entered by a judge in a civil proceeding. The judge receives, at most, a glancing blow in these domestic battles. The legislature should be authorized to treat such violations as matters of civil contempt because these violations best fit within that legal category.
Third, the legislature has not eliminated all penalties for violations of these statutory orders. Concerning criminal penalties, the legislature has merely determined that these cases should be filed and litigated in a county criminal court and not in a circuit civil court. Indeed, it may be possible for the circuit judge simply to act as a county judge. See, e.g., Bollinger v. Honorable Geoffrey D. Cohen, 656 So. 2d 205 (Fla. 4th DCA), review dismissed, 660 So. 2d 712 (Fla. 1995). The court's existence and its due administration of justice are not threatened by a statute that simply moves the proceeding to a different room in the courthouse.
Moreover, the statute does not prevent the use of indirect criminal contempt for orders entered in addition to or subsequent to the statutory injunction. It does not deprive the court of direct criminal contempt for misconduct in the presence of the judge. It applies to only one specific order that is designed to accomplish a particular legislative goal.
The legislature did not deprive the courts of civil contempt remedies. The power to impose compensatory fines should not be underestimated. Equally important, civil coercive fines, assessed for every day of noncompliance, are still available to compel actions required by the statutory injunction. See Habie v. Habie, 654 So. 2d 1293 (Fla. 4th DCA 1995).[12] Admittedly, it is more difficult to use jail as a sanction in civil contempt, particularly for some aspects of these injunctions, but the sanction can still be used in appropriate cases.[13] It is difficult for me to accept that when the legislature created new criminal offenses in county court and preserved a significant civil penalty for use by the circuit court, it deprived the courts of a constitutionally essential power.
*328 I recognize that the supreme court in Ducksworth described punishment for contempt as an inherent judicial power. It did so in a case of civil contempt. If the legislature can constitutionally eliminate incarceration for juveniles who commit direct contempt of court, I find it hard to explain how the legislature violates separation of powers by proscribing incarceration for adults who commit indirect contempt in this context. See A.A. v. Rolle, 604 So. 2d 813.
V. THE CONFUSION CREATED BY NONREFUNDABLE CIVIL FINES
At the same time that the legislature restricted the circuit court's contempt penalties, it created nonrefundable civil monetary assessments. The relevant portion of chapter 94-134, Laws of Florida, states:
(8)(9)(a) The court shall enforce, through a civil or indirect criminal contempt proceeding, a violation of an injunction for protection which is not a criminal violation under s. 741.31. The court may enforce the respondent's compliance with the injunction by imposing a monetary assessment. The clerk of the court shall collect and receive such assessments. On a monthly basis, the clerk shall transfer the moneys collected pursuant to this paragraph to the State Treasury for deposit in the Displaced Homemaker Trust Fund established in s. 410.30 proceedings compliance by the respondent with the injunction, which enforcement may include the imposition of a fine. Any such fine shall be collected and disbursed to the trust fund establish in s. 741.01.
The legislature passed this provision based on Johnson v. Bednar, 573 So. 2d 822 (Fla. 1991), which expressly permits such coercive assessments in civil contempt. If Bednar is correct, then Judge Fulmer's legitimate concerns for the effective enforcement of these injunctions should not be a major factor in this discussion.
The United States Supreme Court's decision in Bagwell may have implicitly overruled the portion of Bednar that authorizes these nonrefundable monetary assessments. See Marc Rohr, Revisiting Florida's Law of Civil Contempt, Fla.B.J., May 1995, at 22. This court must follow Bednar until the Florida Supreme Court determines its viability after Bagwell. If the supreme court recedes from Bednar, then at least a portion of the above-quoted 1994 amendment would probably be unconstitutional because it includes a nonrefundable civil fine. If it declares the entire subsection of the statute unconstitutional for this reason, then presumably the law would return to the pre-amendment condition and circuit courts would have indirect criminal contempt power. See Henderson v. Antonacci, 62 So. 2d 5 (Fla. 1952). Thus, despite the extensive discussion of separation of powers both in the majority opinion and in this dissent, the supreme court may have the option to avoid the separation of powers issue and reinstate indirect criminal contempt for a much simpler reason.
NOTES
[1] Because the basis of the motion for contempt in this case was an incident occurring after July 1, 1994, the revised statutory scheme applies to the proceeding pending before the respondent.
[2] Such legislative action seems curiously ironic in light of the expressed intent to treat domestic violence as an affront to public law. Traditionally, one of the well-recognized purposes of criminal contempt proceedings is "to punish conduct offensive to the public in violation of a court order." Adirim v. City of Miami, 348 So. 2d 1226, 1227 (Fla. 3d DCA 1977) (emphasis added).
[3] See, e.g., Giles v. Renew, 639 So. 2d 701 (Fla. 2d DCA 1994) (failure to comply with rule 3.840 fundamental error).
[4] It is obvious from the facts of Clark that the petitioner Franks was adjudged in indirect criminal contempt for jury tampering and sentenced to a term of incarceration without a purge provision.
[5] Edwards was found in contempt for violating a temporary restraining order and incarcerated, subject to a purge provision. He sought a writ of habeas corpus, contending that his length of imprisonment had exceeded the thirty day incarcerative sanction then prescribed by the legislature for contempt.
[6] As previously noted, Rolle receded from R.M.P. v. Jones, 419 So. 2d 618, but only "to the extent that it may suggest conflict with the established principle that the legislature is responsible for determining the punishment for crimes." 604 So. 2d at 815, n. 7.
[7] U.S. Const. art I, § 8, cl. 9; art. III, § 1.
[8] Section 741.31(4)(e), Florida Statutes (1995), now provides that a person who violates a domestic violence injunction by "[t]elephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact through a third party" is guilty of a misdemeanor of the first degree.
[9] I concur in the certified questions. Although this statute had a short duration, the majority's opinion will allow citizens throughout Florida to be prosecuted for indirect criminal contempt despite a statute expressly forbidding such prosecutions. As explained in the last section of this dissent, the supreme court also needs to clarify whether Florida courts are permitted to impose nonrefundable monetary assessments in civil contempt proceedings.
[10] See also 16 Am.Jur.2d Constitutional Law § 296 (1979); John E. Nowak, et al., Constitutional Law 135-37 (2d ed. 1983).
[11] 741.31 Violation of an injunction for protection against domestic violence. A person who willfully violates an injunction for protection against domestic violence, issued pursuant to s. 741.30, by:
(1) Refusing to vacate the dwelling that the parties share;
(2) Returning to the dwelling or the property that the parties share;
(3) Committing an act of domestic violence against the petitioner; or
(4) Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner, coupled with an apparent ability to do so, and through doing some act that creates a well-founded fear that such violence is imminent is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
[12] For example, a spouse who refused to participate in treatment could be fined $100 every day until he or she actually participated.
[13] A trial judge may be able to jail a spouse who refused to participate in treatment until the spouse was willing to comply. Likewise, a spouse with ability to pay temporary support, who refused to pay, could be jailed until he or she complied with the support provision of the injunction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613132/ | 821 So.2d 663 (2002)
Jammy Leo PORTER, et al., Plaintiffs-Appellees
v.
Clarence William PORTER, Defendant-Appellant.
No. 36,007-CA.
Court of Appeal of Louisiana, Second Circuit.
June 12, 2002.
*664 James A. Hobbs, West Monroe, for Appellant.
*665 Herring & Downs, L.L.C., Charles E. Herring, Jr., Bastrop, for Appellee.
Before GASKINS, CARAWAY and DREW, JJ.
GASKINS, J.
The defendant, Clarence William "Bill" Porter, appeals from a trial court judgment rejecting his claim to revoke donations to his son, Clyde Woodrow "Butch" Porter, and his grandson, Jammy Leo Porter, due to ingratitude and cruel treatment. The plaintiffs, Jammy Leo Porter, Butch Porter, and Porter, Porter and Porter d.b.a. W.K. Porter & Sons House Moving, answered the appeal. They claim that the trial court erred in finding that there was no partnership, in dissolving a temporary restraining order (TRO) and denying a preliminary injunction against the defendant, and in failing to award damages in favor of the partnership and plaintiffs for breach of the defendant's fiduciary obligation. They also seek damages and attorney fees under the Unfair Trade Practices and Consumer Protection Act. For the following reasons, we affirm the trial court judgment.
FACTS
W.K. Porter & Sons House Moving was established in 1945 by the defendant's father. After he died, the defendant and his brother W.L. "Buck" Porter, continued to operate the business. The defendant's son, Butch, began helping in the business when he was 10 or 11 years old and began working full time when he was a teenager. Butch is illiterate, but can sign his name. In 1991, Bill became ill and could not continue with the physical labor required in the business.[1] Butch was not able to run the business by himself. Jammy, Butch's son, was in the armed forces and stationed overseas during the Gulf War. A hardship discharge was obtained for Jammy and he returned to help his father and grandfather in the family business. The parties lived in close proximity to each another. As found by the trial court, the parties worked hard, drank beer, and were abusive to each other.
Bill, Butch, and Jammy worked together from 1991 until 1998. Bill bid jobs and supervised, Butch did manual labor, and Jammy did welding, equipment repair, and manual labor. The parties lived out of a common bank account in the name of C.W. Porter d.b.a. W.K. Porter and Sons House Moving Contractor. Bill eventually added Jammy as a signatory to the account. Butch and Jammy were each given about $100 per week and Bill also paid their utilities and private school tuition for Jammy's children.
Bill developed pulmonary problems requiring surgery and he thought that he might not survive the illness. On November 11, 1998, he donated all his interest in the tools, equipment, and other items used in the house moving business to Butch and Jammy. He donated 51% to Jammy and 49% to Butch. He also donated to Jammy a 10.2 acre tract of land on which the business was located, reserving the usufruct. Butch and Jammy understood that it was Bill's intention to give the family business to them.
Sometime after the donation, Bill thought that Jammy was drinking too much and feared that he might write large checks because he had access to the defendant's *666 bank account. Bill described an incident in which he broke up a loud party with drinking at Jammy's house. Jammy claimed that he and friends were merely watching a video in Jammy's house when Bill burst in and insisted that Jammy's guests leave. Shortly thereafter, Bill removed Jammy as a signatory to the bank account. Bill also withdrew a large amount of money from the account. These events led to a falling-out among the parties. The defendant sought to reclaim the items donated to the plaintiffs and to keep them off the donated property. Local law enforcement personnel were called by each of the parties on several occasions. Relations between the parties deteriorated, giving rise to the present lawsuit.
On November 21, 2000, Jammy, Butch, and "Porter, Porter, and Porter d.b.a. W.K. Porter & Sons House Movers" filed suit against Bill. The plaintiffs alleged that the parties had a partnership, although the agreement was not reduced to writing. They claimed that Bill breached his fiduciary duty to the partnership and converted partnership assets. They cited the donations by Bill and alleged that they thought he was donating his interest in the partnership and its assets to them. They alleged that beginning on November 16, 2000, Bill removed Jammy as a signatory on the business bank account, removed equipment, took control of the phone listing, intercepted business messages, referred business to competitors, cut off the electricity to the business, interfered with the partnership and its customers, and lodged false criminal complaints with the Morehouse Parish Sheriffs Office. According to the plaintiffs, the defendant violated the provisions of the Unfair Trade Practices and Consumer Protection Law contained in La. R.S. 51:1401 et seq., when he competed against the partnership business. They claimed damages to the partnership and the partners and asked for reasonable attorney fees. They also sought a TRO and a preliminary injunction. The trial court issued the TRO on November 21, 2000, prohibiting the defendant from disposing of, concealing, alienating, or encumbering property belonging to or used by the house moving business or individually by Jammy or Butch. Bill was also prohibited from intercepting phone calls to the business and from removing telephone lines and taped phone messages made to the business. The defendant was precluded from referring customer calls to competitors, from withdrawing funds from the company bank account, from denying Jammy and Butch access to partnership records, from interfering in the day-to-day operation of the business and from cutting off utilities to the business. On December 12, 2000, the defendant filed an answer and reconventional demand. He claimed that there was no partnership and that the bank account in question was his personal account. In his reconventional demand, he sought to revoke the donations made to the plaintiffs. He claimed that he was seriously ill in 1998 and was pressured by the plaintiffs to make the donations. He alleged that after the donations, the plaintiffs were ungrateful and treated him cruelly, providing grounds to revoke the donations.
Trial on this matter was held April 16-18, 2001 and May 18, 2001. According to the trial court, the first issue was whether there was a partnership or a sole proprietorship. The court concluded that there was no partnership. Although partnership income tax returns were filed showing that each party owned a 1/3 interest in the business, the court stated that income tax returns are entitled to some evidentiary weight, but are not dispositive of whether there is a partnership. The court found that the defendant never had any intention of forming a partnership with the plaintiffs. *667 There were no discussions in this regard between the parties. The defendant made all the decisions about the business. The court found that donations of real property and equipment were not made to the partnership. Real property cannot be contributed to a partnership that is not formed by a written partnership agreement. Finding that there was no partnership, the trial court dissolved the TRO and denied the plaintiffs' request for an injunction. It also dismissed all of the plaintiffs' other claims. With no discussion of its reasoning, the trial court found that the defendant failed to prove his right, by a preponderance of the evidence, to revoke the donations on grounds of cruel treatment or grievous injury. Accordingly, Bill's claims against the plaintiffs were dismissed. On August 27, 2001, judgment was filed by the trial court, dismissing all of the parties' claims. The defendant appealed and the plaintiffs answered the appeal.
STANDARD OF REVIEW
An appellate court may not set aside a trial court's or jury's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).
A reviewing court must do more than simply review the record for evidence which supports or controverts the trial court's findings. It must review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Also, the reviewing court must ascertain whether the fact finder's conclusions were reasonable. Even when an appellate court may feel that its own evaluations are more reasonable than the fact finder's, reasonable determination and inferences of fact should not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The appellate court's disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990).
Where there are two permissive views of evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Department of Transportation and Development, supra; Lewis v. State, Through Department of Transportation and Development, 94-2370 (La.4/21/95), 654 So.2d 311.
REVOCATION OF DONATIONS
The defendant appealed the trial court judgment, arguing that the trial court erred in failing to revoke the donations to the plaintiffs on grounds of ingratitude and cruel treatment. This argument is without merit.
A donation inter vivos may be revoked on account of ingratitude of the donee. La. C.C. art. 1559(1). Ingratitude can take place only in three cases: (1) if the donee has attempted to take the life of the donor; (2) the donee has been guilty of cruel treatment, crimes or grievous injuries against the donor, or (3) the donee has refused the donor food when the donor was in distress. La. C.C. art. 1560; Whitman v. Whitman, 31,814 (La.App.2d Cir.3/31/99), 730 So.2d 1048.
Grievous injuries sufficient to revoke a donation have been defined as any act naturally offensive to the donor. Perry v. Perry, 507 So.2d 881 (La.App. 4th Cir.1987), writ denied, 512 So.2d 465 (La. 1987). The jurisprudence has held that cruel treatment or grievous injury sufficient to revoke a gratuitous donation may include adultery by a spouse, seizing property *668 belonging to a parent, filing suit against a parent alleging criminal activity, and slandering the memory of the donor. Perry v. Perry, supra; Spruiell v. Ludwig, 568 So.2d 133 (La.App. 5th Cir.1990), writ denied, 573 So.2d 1117 (La.1991); Sanders v. Sanders, 33,865 (La.App.2d Cir.9/27/00), 768 So.2d 739; Whitman v. Whitman, supra; Succession of McDonald, 154 La. 1, 97 So. 262 (1923).
The defendant cited six different acts of cruelty engaged in by the plaintiffs which he claims were sufficient to revoke the donations:
1. Filing suit and getting a TRO to prevent the defendant from pursuing his livelihood.
2. Making threats to beat the defendant.
3. Taking the defendant's truck, briefcase and checkbook and refusing to return the checkbook as of the date of trial.
4. Accusing the defendant of theft and attempting to have him arrested.
5. Drawing a weapon on a person thought to be the defendant.
6. Intentionally running into a truck occupied by the defendant.
Lawsuit
According to the defendant, the plaintiffs' action in filing suit and obtaining a TRO effectively prevented him from pursuing a livelihood. He claims that this is sufficient evidence of ingratitude to revoke the donations. The defendant cites Perry v. Perry, supra, in which a son obtained a judgment against his father and then seized the father's personal movable property in satisfaction of the judgment. That action was held to be sufficient for the revocation of a donation by the father to the son.[2] The defendant claims that the TRO in this case was analogous to the seizure in Perry.
The plaintiffs counter that Bill donated all the equipment and property used in the house moving business to them and they thought they were business partners. They deny that they excluded Bill from participation in the business or from pursuing a livelihood. Rather, it was the defendant who terminated his relationship with the plaintiffs and set about to damage the plaintiffs' business endeavors. The plaintiffs argue that it was Bill who, after making the donations, sought to reclaim donated property and to exclude Jammy and Butch from working in the business. They cited the defendant's numerous actions in shutting off utilities, cutting phone lines, denying access to funds and taking previously donated property. They argue that the suit was filed to protect the business and the plaintiffs' livelihood.
Threats
The defendant claims that Butch threatened to beat him if he caught him setting foot on his property again. Apparently the property where Butch lives is owned by Bill, but Butch has a usufruct. According to Butch, he did curse at his father, but only after being provoked by Bill coming to his house and looking in the windows. Butch testified that cursing at each other was the norm in their family.
*669 The record shows that the parties' normal conversational style was to speak to each other in rough language. According to Jimmy Leshawn West, Bill "cussed all the time. That Porter's language cussing."
William Gorman testified that cursing was normal for the Porters. He stated, "I'll put it this way. I wouldn't talk to my father the way they do you know but they do that all the time." Mr. Gorman said, "I've heard Butch tell his daddy that if he didn't get the hell out of the way he's [going to] run over him.... I've heard Mr. Bill turn around and tell Butch that he ought to take that jack bar and knock his brains out but that's just the way they talk to one another...." According to Mr. Gorman, he never interpreted any of the exchanges to convey a serious threat.
Taking of Truck
The defendant claims that Jammy and Butch took his personal truck away from him. He contends that his guns, checkbook and briefcase were in the truck. He asserts that he had to call the sheriffs office to get the truck returned. He claims that the checkbook and briefcase were never returned. Jammy testified that he took the truck because he believed it belonged to the business. The truck had lights on top and W.K. Porter and Sons signs on each side. He returned the vehicle when asked to do so by the local sheriffs office.
Theft Accusations
On November 22, 2000, the plaintiffs contacted the local sheriffs office, contending that Bill was taking property from the business. This concerned a load of tires that the defendant claims were given to him. Deputy Jeffrey Woodall was dispatched to the scene. He was shown the TRO and was also shown where telephone wires had allegedly been pulled out of the wall by Bill. Bill stated that he was not going to abide by the TRO. The deputy started to arrest the defendant and then realized that he had not yet been served with the TRO.
Gun
The defendant claims that Jammy pointed a gun at Jimmy Leshawn West, thinking that he was the defendant. Mr. West testified that after the trouble started between the parties, he went to Jammy's house around 4:00 a.m. one morning to inquire about a hunting stand. Jammy greeted him holding a pistol, but did not point it at Mr. West. According to Mr. West, Jammy thought he was Bill. When asked why Jammy would arm himself when he thought his visitor was his grandfather, Mr. West replied that Bill had already shot one person and "you never know what he'll do."
According to the defendant, he once shot his nephew when the boy got into a car and ran into the defendant's new vehicle several times. Bill shot into the door of the nephew's vehicle. The boy got out of the car and approached the defendant. At that point, Bill shot him in the chest at a range of three feet with a .38 caliber weapon that he still carries. The boy did not die and Bill claimed that they are now friends. The defendant also stated that the grand jury declined to indict him for any offense arising from that incident.
Tractor Incident
The defendant claims that Butch struck the defendant's truck with a tractor or a forklift. In his testimony at trial, Bill stated that Butch "rammed me about four more times at close distance. Picked up on it and liked to turn the truck over."
Deputy Woodall testified that on December 12, 2000, Butch and Jammy asked sheriffs deputies to come to the Porter property while they moved some equipment. Butch was driving a forklift or *670 tractor. Bill moved his truck into the path of the tractor, causing Butch to hit the truck. Butch could not have avoided the impact. However, Butch then backed up and hit the truck again. Deputy Woodall stated that Butch was very upset. Bill then approached Deputy Woodall from behind and pushed him. The deputy pushed the defendant off and sent him to the other side of the property.
Jammy testified that Bill drove his truck into the path of the tractor. He began laughing and Butch hit him again. Bill got out of the truck, bumped the deputy and stuck his finger in Jammy's face.
Butch testified that Bill drove his truck into the path of the tractor and then started laughing. Butch lost his temper and hit the truck again.
Discussion
The record shows that before the present difficulties, the parties were on good terms. Witnesses testified that Bill had commented to customers that he was proud of his son and grandson. Butch and Jammy took care of Bill during his illnesses and worked diligently in the family business for numerous years. Although the various witnesses testified about the rough language and lifestyle common to the parties, it appears that they were supportive of each other.
Under ordinary circumstances, the instances alleged by the defendant would appear, at first blush, to demonstrate ingratitude by the plaintiffs. In light of the unusual family dynamics present in this case, we find that the trial court did not err in finding otherwise. Based upon the facts peculiar to this case, the incidents complained of do not rise to the level of cruel treatment evidenced by the facts in Perry v. Perry, supra, in which the actions by the offending donee amounted to unjustified harassment of the donor. See also Sanders v. Sanders, supra.
Similarly, in Spruiell v. Ludwig, supra, the court held that the filing of a shareholders' derivative suit by a daughter against her mother was not sufficient grounds for revocation of a donation for ingratitude. However, the daughter's reconventional demand raising unfounded criminal charges was held to be sufficient evidence of ingratitude to revoke the mother's donations. The court found that the daughter and her children sought to obtain more of the family property for themselves. The court also noted that the trial court had been deeply moved by the sincerity of the mother's testimony and conversely by the insincerity of the daughter's testimony.
As in Spruiell v. Ludwig, supra, the trial court in the present case had the advantage of seeing and hearing the parties. The trial court was obviously impressed with the sincerity of the plaintiffs. In each instance, the alleged cruel treatment was provoked in large part by the defendant. The actions of the plaintiffs were not offensive measures, but were largely defensive measures aimed at preservation of life, livelihood and property. They were not committed maliciously or in total disregard for the well-being of the defendant.[3] We find that the trial court was not manifestly erroneous or clearly wrong in finding that the plaintiffs' actions did not constitute cruel treatment or grievous injury sufficient to revoke the donations. *671 This holding is strictly limited to the facts present in this case.
EXISTENCE OF PARTNERSHIP
In their answer to the appeal, the plaintiffs claim that the trial court erred in finding that there was no partnership between the parties, that the defendant had no intention of forming a partnership and that there was never any discussion between the parties in this regard. This argument is without merit.
A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. La. C.C. art. 2801. Each partner participates equally in profits, commercial benefits, and losses of the partnership, unless the partners have agreed otherwise. The same rule applies to the distribution of assets, but in the absence of contrary agreement, contributions to capital are restored to each partner according to the contribution made. La. C.C. art. 2803.
To establish the existence of a partnership without a written agreement, the plaintiff has the burden of proving that (1) the alleged partners mutually agreed to form a partnership and to participate in the profits which would accrue from the business in determined proportions; (2) they agreed to share in the losses as well as the profits of the partnership; and (3) the property or stock of the enterprise formed a community of goods in which each party has a proprietary interest. The prerequisites for establishing a partnership are that both parties intend to have a business relationship between them and that the relationship has all the major characteristics of a partnership. LaRocca v. Bailey, XXXX-XXXX (La.App. 3d Cir.11/7/01), 799 So.2d 1263; Butler v. Sudderth, XXXX-XXXX (La.App. 5th Cir.4/24/01), 784 So.2d 125, writ denied, XXXX-XXXX (La.10/5/01), 799 So.2d 485; Johnson v. Antoine, 98-1285 (La.App. 5th Cir.5/19/99), 735 So.2d 856. These criteria require findings of fact. Medline Industries, Inc. v. All-Med Supply & Equipment, 94-1504 (La.App. 1st Cir.4/7/95), 653 So.2d 830.
The plaintiffs argue that they thought that they had a partnership with the defendant. Butch Porter testified that whenever he asked his father for more money, he was told that the money was for his part of the business. He testified that his contribution to the partnership was his labor. In 1998 when Bill donated the equipment to Butch and Jammy, Butch testified that he thought he already owned part of the equipment.
Jammy Porter testified that he returned from the Army to help with the family business and that his grandfather promised that the business would be his someday. He claimed that he lived off unemployment for six months and then received $100-$150 per week from the business. At the time of the equipment donation in 1998, Jammy claims that Bill had already told him that Jammy was a partner in the business. According to Jammy, Bill contributed labor to the partnership when he was able to do so and also contributed the use of the equipment.
Jammy testified that the business bank account was in the name of C.W. Porter d.b.a. W.K. Porter and Sons House Moving Contractor. Business expenses were paid out of this account as well as the living expenses of Bill, Butch, and Jammy.
In support of their claim that the business was a partnership, the plaintiffs called the company accountant, Neal Adams. Mr. Adams testified that he had *672 been doing a partnership tax return for the business since 1985. According to the tax return in 1997, Butch and Bill were partners. In 1998, Jammy was added to the return as a partner, at Bill's request, with each holding a 1/3 interest. In 1999, Jammy's individual tax return showed income from the partnership. No salaries were paid by the business. Mr. Adams testified that he understood that the parties operated as a partnership. He also stated that there were no articles of partnership for the business. Mr. Adams testified that many times in dealing with family businesses, he filed partnership tax returns when asked to do so by the family without any written showing that a partnership existed.
Charles Burns of the Mer Rouge State Bank testified that the bank account at issue in this case was opened in 1995 by Bill Porter. Bill was originally the only signatory on the account and later Jammy was added. Jammy was deleted as a signatory on November 6, 2000. Although Bill testified that he had been hearing rumors that Jammy was going to have him removed from the account, Mr. Burns stated that because the account was opened by Bill, Jammy could not have removed Bill. The account was in Bill's name d.b.a. W.K. Porter and Sons House Moving Contractor.
In its reasons for judgment, the trial court found that Bill never intended to form a partnership with the plaintiffs. He merely brought his son and grandson into the family business as his father had done with him. It was Bill's intention that Butch and Jammy take over the business when Bill died. Both plaintiffs understood this. The court noted that Butch did not participate in the management of the business. He provided only physical labor. The court found that Bill made all the decisions about the business and that he "ruled the roost."
We do not find that the trial court's finding was manifestly erroneous or clearly wrong. As noted by the court, the filing of a partnership tax return may be entitled to some evidentiary weight for determining if a business is a partnership, but is not dispositive. Smith v. Scott, 26,849 (La.App.2d Cir.5/10/95), 655 So.2d 582, writ denied, 95-1450 (La.9/22/95), 660 So.2d 475; Labat v. Labat, 232 La. 627, 95 So.2d 129 (1957). See and compare Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989). In the instant case, there is no showing that Bill Porter intended to form a partnership with Butch and Jammy. Bill owned that equipment and land that he donated in 1998 to the plaintiffs. Also, the donations were made to Butch and Jammy individually and not to the partnership. If the defendant thought he had a partnership with the plaintiffs and the equipment and land used in the business belonged to the partnership, the donation by an individual to other individuals would not have been valid.
Bill was in charge of the business, determining what jobs would be done, what hours would be worked and what amounts would be paid to the plaintiffs. Further, the bank account used for the business was in Bill's name and he had the right to decide who to include or exclude as a signatory. For several years, the defendant was the only person with access to those funds. Although a partnership tax return was filed for the business, Bill never treated Butch or Jammy as partners. While the plaintiffs may have thought they were partners with the defendant, there is no showing that the defendant ever intended to form a partnership with them. In order to establish the existence of a partnership without a writing, there must be a *673 showing that all the parties intended such a relationship.
Accordingly, we affirm the trial court judgment finding that the plaintiffs failed to prove that a partnership existed in this case. Because there was no partnership, we also affirm the court's action in vacating the TRO, refusing the preliminary injunction, and denying the plaintiffs' claims for unfair trade practices.
CONCLUSION
For the reasons stated above, we affirm the trial court judgment dismissing the claims of the plaintiffs, Jammy Leo Porter and Clyde W. Porter, based upon a finding that the parties did not have a partnership. We also affirm the trial court judgment dismissing the claims of the defendant, Clarence William Porter, based upon a finding of insufficient evidence of ingratitude to revoke the donations made by the defendant to the plaintiffs. Costs in this court are assessed one-half to the plaintiffs, Jammy Porter and Clyde W. Porter, and one-half to the defendant, Clarence William Porter.
AFFIRMED.
NOTES
[1] Apparently, Buck was still involved in the business, but in 1993, he withdrew and set up Bastrop House Movers for his son, Ralph. According to Bill's trial testimony, he and Buck had a dispute over the ownership of their father's business which is the subject of ongoing litigation. Also, Ralph Porter testified that Bill once filed a lawsuit against him for invasion of privacy, claiming that Ralph was videotaping Bill's house.
[2] In Perry v. Perry, supra, the father had given the son a substantial amount of stock in a corporation to finance his law practice. The son sold the stock back to the corporation, with the father signing a guarantee. The son was paid a lump sum of $150,000 for the stock, then $5,000 per month for approximately seven years. The corporation then took bankruptcy. The son sued on the guarantee and receiving a judgment in the amount of $163,249.28 against the father. To execute on the judgment, the son had personal items of his parents seized, including jewelry, furniture and appliances.
[3] The plaintiffs also contend that the donations were remunerative and not subject to revocation. They claim that the donations were made for the years of work they did at below minimum wage, on the promise that some day the business would belong to them. Because we find that the incidents complained of do not support a revocation of the donations, we do not reach a discussion of this argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613210/ | 513 F.Supp. 314 (1980)
Kathryn STODDARD et al., Plaintiffs,
v.
LING-TEMCO-VOUGHT, INC., et al., Defendants.
No. CV-72-1294-PGH.
United States District Court, C. D. California.
March 26, 1980.
On Motion to Dismiss April 14, 1980.
On Motion to Dismiss Complaints of Intervenor October 17, 1980.
On Assessment of Prejudgment Interest January 19, 1981.
On Further Motion to Dismiss Complaints of Intervenor January 27, 1981.
*315 *316 *317 James J. McCarthy, Magana, Cathcart & McCarthy, Los Angeles, Cal., for Theriault, 72-1294, Burnett, 73-1290, McGinn, 73-1291, Blanchard, 73-1292, Ditto, 73-1293, and Unsderfer, 73-1294.
Robert S. Morris, San Bernardino, Cal., for Ashland, 72-1319.
Gerald V. Barron, Hoge, Fenton, Jones & Appel, Monterey, Cal., John H. Miltner, Honolulu, Hawaii, for Page, 73-1318, Rose, 73-1319, Reinhart, 73-1320, Myles, 73-1321, and Weimer, 73-1322.
Joan Celia Lavine, Los Angeles, Cal., for intervenors Hoar, 72-1294, and Slagle 72-1294.
Robert C. Packard, William T. Delhagen, Kirtland & Packard, Los Angeles, Cal., for defendants Ling-Temco-Vought, et al.
James Stotter, II, Asst. U. S. Atty., Los Angeles, Cal., for defendant United States.
ORDER
HATFIELD, District Judge.
IT IS HEREBY ADJUDGED AND ORDERED as follows:
1. There is no right to a jury trial in this case, and trial shall be by the court with an advisory jury.
2. Strict products liability, including the defense of assumption of risk as set forth in Section 402A, Restatement of Torts 2d, comment n. is applicable in this lawsuit.
3. Res Ipsa Loquitur is applicable under the facts as alleged by plaintiffs, as against both the United States and against LTV, et al. The burden of proving the elements of res ipsa loquitur is on the plaintiffs.
4. In exercise of the court's power to control the order of proof to avoid unnecessary delay at trial, the parties shall first present all of their evidence on res ipsa loquitur. If the court, as trier of fact, should determine res ipsa loquitur to be applicable under the facts proven and to have been not sufficiently rebutted or explained by one or all defendants, the court shall find liability at that stage of the trial. If the court finds that the res ipsa loquitur inference either does not apply under the facts proven by plaintiffs or has been sufficiently explained or rebutted by the evidence introduced by defendants, the trial shall then proceed with evidence as to strict products liability and specific acts of negligence.
5. Texas Workers Compensation settlements by Hoar, Blanchard and Ditto are a bar to those plaintiffs' actions against defendants LTV Aerospace Corporation and Vought Corporation, but are not a bar to their actions against the United States or any of the other named corporate defendants.
6. The lawsuits of plaintiff-intervenors Hoar and Slagle shall be bifurcated from and tried subsequently to the trials of the remaining plaintiffs. In the event that the first trial results in a finding of liability against any or all of the defendants, plaintiffs Hoar and Slagle may at that time *318 argue the applicability of the doctrine of collateral estoppel against the defendants.
7. In the exercise of this court's discretion, prejudgment interest will be assessed to any damage award plaintiffs may receive.
8. The issues of liability shall be bifurcated from and determined prior to the issue of damages.
The Court shall follow this order with a memorandum of law setting forth the reasons for its rulings.
MEMORANDUM
On Motion to Dismiss
In these consolidated actions, plaintiff personal representatives have brought suit against defendants United States and Ling-Temco-Vought, Inc., et al., for the aircrash death of plaintiffs' decedents. The parties have sought the court's ruling on several motions to dismiss and evidentiary motions. This memorandum sets forth the court's reasons for its previously filed order and rulings on those motions.
I. TYPE OF ACTION
These are fourteen (14) consolidated wrongful death actions arising out of an aircraft crash which occurred on June 13, 1971, when a U. S. Air Force C-135B aircraft crashed into the Pacific Ocean about 700 miles southwest of Hawaii. Everyone on board the plane crew and passengers died in the crash. Plaintiffs are the personal representatives of the estates of fourteen (14) of the persons who died in the crash. The corporations which modified the aircraft before its ill-fated mission are defendants in all the actions, and will hereinafter be referred to as "LTV, et al.", or as the "corporate defendants". The United States is defendant in five of the actions.
All of the suits against defendant corporations are founded upon the Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 761 et seq.
Plaintiff Margaret Metcalf, for the estates of decedents Blanchard and Ditto, has alleged jurisdiction against the United States based both on the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680 and Suits in Admiralty Act, 46 U.S.C. § 741. Plaintiff Charlotte Ashland, for the estate of Donald Ashland, has alleged jurisdiction against the United States under DOHSA. Plaintiffs Twila Hoar, for the estate of Dean Hoar, and Henry Slagle, for the estate of Edward Slagle, have alleged jurisdiction against the United States under both the FTCA and DOHSA. The plaintiffs who brought suit under the FTCA claim that the FTCA is applicable because the alleged negligence took place when the plane was modified in Texas, rather than when the plane crashed in the Pacific Ocean.
The court cannot accept these plaintiffs' argument. First, "... a tort is deemed to occur at the place where injury is sustained regardless of the place of origin of the negligent act." Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 965 (6th Cir. 1967); Accord, Oppen v. Aetna Ins. Co., 485 F.2d 252, 256 (9th Cir. 1973). Before the plane crashed, killing plaintiffs' decedents, the alleged elements of "... a duty, an act or failure to act in violation of the duty, and negligence were outstanding, but no tort was then in being; it was no more than a potentiality or threat." Sides v. Richard Machine Works, Inc., 406 F.2d 445 (4th Cir. 1969). Thus, under the facts as alleged by plaintiffs, this was a tort that accrued on the high seas rather than a tort that accrued in Texas. DOHSA, rather than FTCA is the proper statute upon which this action may be brought.
Defendant United States additionally and correctly points out that 28 U.S.C. § 2680(d) makes the FTCA inapplicable in all cases where a plaintiff has a right of action in admiralty. See, Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). Here, plaintiffs have a right of action, in admiralty, under DOHSA for "the death of a person ... caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league *319 from the shore of any State ... of the United States...." 46 U.S.C. § 761. The Suits in Admiralty Act, 46 U.S.C. §§ 741-752, gives this court jurisdiction over the DOHSA claims against the United States. Roberts v. United States, supra, 498 F.2d at 526.
II. RIGHT TO JURY
Defendant LTV, et al., as well as plaintiffs in seven of the consolidated cases, have moved for a trial by jury. Defendant United States, as well as plaintiffs in the remaining seven of the consolidated cases, have waived a jury and contend that the parties have no right to a jury trial in these actions.
DOHSA cases are suits for damages "in admiralty". 46 U.S.C. § 761. The parties in an admiralty lawsuit have neither a Constitutional right nor a right under the Federal Rules of Civil Procedure to a trial by jury. See, Rule 38(e), F.R.Civ.P.; Peace v. Fidalgo Island Packing Co., 419 F.2d 371, 371 (9th Cir. 1969); Frederickson v. Luedtke Construction Co., 427 F.Supp. 1309, 1317 (W.D.Mich.1977).
There being no right to a jury trial in cases cognizable only in admiralty, the motions for jury trial are denied. See, McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir. 1972). Upon the motion of defendants LTV, et al., however, this court shall exercise its discretion under Rule 39(c), F.R.Civ.P. to try these actions with an advisory jury.
III. STRICT PRODUCTS LIABILITY
The corporate defendants have submitted a trial brief in which they claim that strict products liability is inapplicable to the facts of this case. The corporate defendants modified a Boeing Aircraft Company airplane for a secret Air Force mission. The corporate defendants altered the nose of the aircraft, installed eleven windows on the starboard side of the plane, and, to house and conceal a radar antenna, designed and installed a fairing structure on top of the forward section of the plane's fuselage. The corporate defendants characterize their role as providers of a service, rather than sellers of a product for which strict products liability would be applicable.
Strict products liability, as expressed in the Restatement of Torts 2d, § 402A, is applicable in admiralty cases in the Ninth Circuit. Pan-Alaska Fisheries, Inc. v. Marine Construction and Design Co., 565 F.2d 1129, 1135 (9th Cir. 1977). The corporate defendants claim, however, that, regardless of the applicability of strict products liability in an appropriate case, the doctrine does not apply under the facts of this case.
The corporate defendants state that the airplane modification did not involve a mass-produced product, introduced into the stream of commerce, which caused injury to an unwary consumer. Because this was a unique modification of an airplane, and the work was performed for the U.S. Air Force, rather than for the average consumer, the corporate defendants conclude that § 402A is inapplicable. The court disagrees.
Although the vast majority of products liability cases involve consumers injured by mass-produced products that were introduced into the stream of commerce, the language of § 402A is by no means solely confined to such transactions:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered *320 into any contractual relation with the seller.
Restatement of Torts 2d, § 402A.
The definitions, explanations and policy reasons for application of strict products liability, as set forth in the comments to § 402A, clearly apply to the airplane modification involved in this case. "[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance may be maintained." Rest. Torts 2d, § 402A, Comment c. The corporate defendants, and not plaintiffs' decedents, are the ones who could best provide liability insurance, as a cost of production, for injuries caused by a defectively modified plane.
The corporate defendants miss the point when they argue in their brief that "LTV contracted with the USAF, who can hardly be characterized as a consumer who is defenseless and otherwise needs the protection of the law of strict liability in tort." Whatever appeal this reasoning might have in a strict products liability action brought against the corporate defendants by the Air Force, it is irrelevant where the injured users or consumers were Air Force employees and passengers on the plane.
... It is not even necessary that the consumer have purchased the product at all. He may be a member of the family of the final purchaser or his employee ... `user' includes those who are passively enjoying the benefit of the product, as in the case of passengers in automobiles or airplanes....
Rest. Torts 2d, § 402A, Comment 1.
The corporate defendants' argument that they provided a professional service rather than sold a product is unconvincing. The courts indeed have held that strict products liability does not apply to professional services, even when a product is used incident to the service. See, W. Prosser, THE LAW OF TORTS (4th Ed. 1971) p. 679, and cases cited therein. The rationale of this rule is that when a person visits, for example, a doctor or a dentist, he bargains not for a product, but for a treatment or professional opinion, with no guarantee of a cure or a correct diagnosis. See, Newmark v. Gimble's, Inc., 54 N.J. 585, 258 A.2d 697, 702-703 (1969).
This case represents a contrast to the professional service rule. The Air Force surely did select the corporate defendants for their professional skill in modifying the airplane. But unlike the doctor's or dentist's patients, plaintiffs' decedents had a right to expect more than that the corporate defendants had used good judgment in arriving at a professional opinion. The plaintiffs' decedents, rather, had a right to rely on the corporate defendants having delivered the Air Force a plane that would not crash into the sea.
The Air Force delivered to the corporate defendants a product, a United States Air Force C-135 aircraft. The corporate defendants returned to the Air Force a structurally modified C-135 aircraft, a substantially different product. Strict products liability is applicable in this case, regardless of the uniqueness of the product sold. See, Rawlings v. D. M. Oliver, Inc., 97 Cal. App.3d 890, 159 Cal.Rptr. 119 (1979).
Assumption of risk is available as a defense here. Rest. Torts 2d, § 402A is the "expression of the theory of strict products liability" applied in admiralty cases in the Ninth Circuit. See, Pan-Alaska Fisheries, Inc., supra, 565 F.2d at 1135. Assumption of risk is available as an affirmative defense under § 402A, but only "[i]f the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product...." Rest. Torts 2d, § 402A, Comment "n". Whether the defense is applicable to these consolidated cases is a question of fact to be determined at trial.
IV. APPLICABILITY OF RES IPSA LOQUITUR
It is well settled that the doctrine of res ipsa loquitur is applicable to Death on the High Seas Act cases. See, Cox v. Northwest Airlines, Inc., 379 F.2d 893 (7th *321 Cir. 1967); Blumenthal v. U. S., 189 F.Supp. 439, aff'd. 306 F.2d 16 (3rd Cir. 1962); Dugas v. National Aircraft Corp., 310 F.Supp. 21 (Pa.1970) aff'd. and vacated in part 438 F.2d 1386, remand D.C., 340 F.Supp. 324; Trihey v. Transocean Air Lines, 255 F.2d 824 (9th Cir. 1958); Haasman v. Pacific Alaska Air Express, 100 F.Supp. 1 (D.C.D. Alaska 1951); Des Marais v. Beckman, 198 F.2d 550 (9th Cir. 1952).
The doctrine of res ipsa loquitur is essentially as follows:
When a thing which causes injury, without fault of the injured person, is shown to be under exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having control uses proper care, then the injury arose from defendant's want of care.
M. Shain, Res Ipsa Loquitur Presumptions and Burden of Proof (1945).
The principle is more fully set forth in Section 328D, Restatement of Torts 2d. It is the principle as stated in the Restatement which will be controlling here. See, also, Hubschman v. Antilles Airboats, Inc., 440 F.Supp. 828, 853 (D.C. Virgin Islands 1977). Before an inference of defendants' negligence can be made under the doctrine it is plaintiffs' burden to establish the elements.
Under normal operations and circumstances an airplane crash into the ocean does not ordinarily occur unless someone has been negligent. The happening of the accident and corresponding injury was such as in the ordinary course of things would not occur if the one having control had used proper care.
Defendants have adopted a very narrow view as to satisfying the so-called element of exclusive control. It is the position of defendants LTV, et al., that this aircraft was in the exclusive control of the United States Air Force. However, as will be shown, where several parties share control and assume joint responsibility for the injurious instrumentality, both are subject to the doctrine of res ipsa loquitur. Under the facts presently pleaded here, the principle would apply as against both LTV, et al., and the United States. Plaintiffs allege that the fatal instrumentality, a United States Air Force C-135B aircraft, was significantly modified by defendants LTV, et al., at the specific direction of the United States. Modification included major structural changes to the frame and body and installation of major electronic equipment on the airplane. Prior to the modification the airplane had logged 11,061 flight hours without major problems. After 38.2 flight hours and approximately two weeks from the time of modification, however, the airplane crashed killing all on board. Plaintiffs further allege, among other things, faulty design, construction, inspection and testing of the aircraft by both the United States and LTV contractors during and after the modification.
Res ipsa loquitur has been applied to multiple defendants. Colditz v. Eastern Airlines, Inc., 329 F.Supp. 691 (D.C.N.Y.1971); Zentz v. Coca Cola Bottling Co. of Fresno, 39 Cal.2d 436, 247 P.2d 344, 349 (1952); Becker v. American Airlines, Inc., 200 F.Supp. 839 (S.D.N.Y.1961).
If it can be shown that there was joint responsibility for the safe operation of this aircraft neither defendant need have exclusive control. See, 2 Restatement of Torts 2d, Comment "g". The doctrine may still be suitable where it is shown that one defendant had control over the instrumentality but later relinquished control to another. Becker v. American Airlines, Inc., supra; Southern Arizona York Refrigeration Co. v. Bush Mfg. Co., 331 F.2d 1 (9th Cir. 1964); Colditz v. Eastern Airlines, Inc., 329 F.Supp. 691 (D.C.N.Y.1971). In Colditz the court in speaking of the application of res ipsa to two airline defendants charged with negligence for a midair collision states:
The second condition of invoking res ipsa loquitur is commonly referred to as the requirement that defendant have `exclusive control' over the injuring instrumentality. But the terminology, `exclusive control', overstates the principle that the greater probabilities must point to the *322 defendant as the responsible agent. [citations omitted] Thus `exclusive control' has been expanded to encompass multiple defendants who are charged by law with joint responsibility for the instrumentality of injury. Id. at 693.
LTV, et al., and the United States are the only parties arguably responsible for the accident[1] since other defendant parties to this lawsuit have apparently been exonerated. Neither the United States nor LTV can escape the application of res ipsa loquitur under a narrow interpretation of the `exclusive control' requirement. The facts as presently alleged suggest that defendants LTV, et al., and the United States are both subject to the doctrine. Nevertheless, if there is sufficient doubt as to control, that question can become one for the jury or trier of fact. Northwest Airlines, Inc. v. Rowe, 226 F.2d 365 (8th Cir. 1955) cited with approval Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 47 N.W.2d 180 (1951).
Defendants LTV, et al., cite various air crash cases where for one reason or another the court found that res ipsa loquitur didn't apply to one of the multiple defendants. See, Dugas v. National Aircraft Corporation, 310 F.Supp. 21 (Pa.1970); Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th Cir. 1977); Hubschman v. Antilles Airboats, Inc., 440 F.Supp. 828 (D.C. Virgin Islands 1977). In all these cases the doctrine was applied against the owner/operator or the pilot/operator but not against other parties such as manufacturers. While the cases cited are distinguishable factually here, the court does not quarrel with the propositions espoused therein. To recap, if the proof establishes that LTV, et al., did not contribute to any of the causative factors for this crash, the court will rule as a matter of law that the elements of res ipsa loquitur have not been met as to LTV, et al., and the inference of negligence shall not be drawn.
As it now stands, however, the facts as alleged by plaintiffs are sufficient to go forward with the evidence to meet the requirements of the res ipsa loquitur doctrine as against all defendants.
V. BIFURCATION OF PROOF
As part of this court's continuing effort to expedite this action as much as possible, the court has decided to structure the presentation of evidence. The order of proof or the manner in which evidence is introduced is a matter resting in the sound discretion of the court. Pennington v. United Mine Workers of America, 325 F.2d 804, 817 (6th Cir. 1963), rev'd. on other grnds., 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Flintkote Co. v. Lysfjord, 246 F.2d 368, 378 (9th Cir. 1957), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957); McVey v. Phillips Petroleum Co., 288 F.2d 53, 54 (5th Cir. 1961); See also, 88 C.J.S. Trial § 96.
In the instant case, the parties shall first present all of their evidence based on the principle of res ipsa loquitur. The procedural effect is that if the court should determine res ipsa loquitur is applicable under the facts proven and to have been not sufficiently rebutted or explained by one or all defendants, the court shall find liability at that stage of the trial. However, if the court finds that the res ipsa loquitur inference either does not apply under the facts proven, or has been adequately explained or rebutted by evidence introduced by defendants, then the trial shall proceed with evidence as to strict products liability as set forth in § 402A, and specific acts of negligence.
Defendants LTV, et al., argue that structuring the order of proof in this manner would "stack the deck" in favor of the plaintiffs. The essence of LTV's position is that it would be prejudicial to require defendants to put on their entire case in chief after plaintiffs present their proof on res ipsa loquitur only to be exposed once again *323 to further trial on specific acts of negligence, if liability is not found under res ipsa. In short, the procedure may give plaintiffs two attempts to prove the issue of negligence.
Defendants contend that it is inherently unfair to deny them the opportunity to hear and cross-examine all of plaintiffs' witnesses and examine all of plaintiffs' documentary proof before being put to the burden of going forward with its evidence.
Defendant LTV, et al., further argues that as a general rule a plaintiff may not withhold affirmative evidence until after the defendant has presented his case in chief. Bates v. Newman, 121 Cal.App.2d 800, 264 P.2d 197, 201 (1953); Lipman v. Ashburn, 106 Cal.App.2d 616, 235 P.2d 627 (1951). While the court does not argue with defendant LTV's proposition here, I am of the opinion the procedure adopted for this case is amply justified by the possibility of reducing materially the amount of time necessary to try this case.
While there might be a slight deprivation of a subtle trial tactical advantage here, the goal as I've stated before is to find the truth and do justice in the most expeditious and economical manner possible. The court is of the opinion that the procedure outlined above is the best way to achieve these goals.
Defendants are not prejudiced or put in an unfair position. It does not seem anymore unfair than the normal use of special interrogatories with a jury. For unusual or complex cases a judge may send the jury out to find a specific fact. The fact may be crucial to proceeding further with the trial; in fact it may dispose of liability at that stage of the trial. Murdock Acceptance Corp. v. Wagnon, 587 F.2d 764 (5th Cir. 1979) is instructive on this point. There the court in an effort to save time submitted the case to the jury in multiple evidentiary sections. Special interrogatories were used to determine various issues of fact wherein a certain finding had the potential of precluding further evidence and ending the trial at that point. In addition to the special interrogatories, arguments were made to the jury, and instructions were read by the court at the conclusion of each evidentiary submission. The trial court's procedure was challenged on appeal but was upheld as a valid regulation of trial procedure in accordance with Rule 42(b). The Court of Appeals per curiam stated:
The trial court recognized that it was unusual to try a jury case by multiple presentations of evidence, arguments to the jury, and charges by the court. However, Rule 42(b) of the Federal Rules of Civil Procedure provides for the separate trial of any claim for expedition and economy. Id. at 767.
Corporate defendants asserted distinction of res ipsa loquitur as an evidentiary principle from an issue of law or fact has more significance in theory than in substance. While this court recognizes that application of res ipsa loquitur is strictly speaking a principle of evidence, Siebrand v. Gossnell, 234 F.2d 81, 87 (9th Cir. 1956), it is sufficiently analogous to a factual or legal claim wherein the rationale for allowing separation under Rule 42(b) would be appropriate. The doctrine of res ipsa loquitur merely attempts to establish the fact of defendant's negligence. It is that negligence which bridges the gap between the act or omission by the defendant and the injury suffered by plaintiff. The doctrine supplies the fact of defendant's negligence.
The procedure I intend to follow in this trial would first allow the issue of negligence to be established by res ipsa, and if the proof as a matter of law fails there, then the issue of negligence may be established, if it can, by specific negligent acts. The court does not agree with the corporate defendants' contention that this trial procedure would cause defendants substantial prejudice.
As to defendants' argument that it is unfair to deny them the opportunity to examine plaintiffs' witnesses and documentary proof before going forward with their evidence, the federal rules of discovery are designed to give parties knowledge of all relevant facts before going to trial, thereby preventing surprise. Shelak v. White Motor *324 Co., 581 F.2d 1155 (5th Cir. 1978); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It must be assumed here that the parties have been diligently working for their clients' cause for the last eight years or so and shouldn't on the eve of trial be unaware of what the witnesses or documents might say or contain. The discovery rules were precisely designed to prevent a "trial by ambush". Proper use of the discovery rules eliminates any claims of prejudice defendants might have here.
Finally, there is nothing unusual or prejudicial in plaintiffs being allowed two attempts to establish negligence on the part of defendants. It is well settled that a plaintiff may pursue alternate theories of liability. In Blumenthal v. U. S., supra, 189 F.Supp. at 447, the court held:
The application of the doctrine of res ipsa loquitur does not preclude libelant's proof of specific negligent acts and omissions. It is now well settled that in pursuing alternate theories of liability the libellants do not prejudice their reliance upon the doctrine of res ipsa loquitur. [citations omitted]
Defendants' arguments for not adopting the trial procedure as stated above is unconvincing at this time. Should defendants discover a more convincing argument, they may renew this issue at the final pretrial conference. For the moment, however, I intend to order the procedure of this trial in the manner set forth in the accompanying order.
VI. WORKMEN'S COMPENSATION ACT
Defendants, LTV, et al., have moved to dismiss the claims of plaintiff Metcalf, as special administratrix of the estates of Rolla Blanchard and Charles Ditto, and plaintiff Hoar, as executrix of the estate of Dean Hoar. These plaintiffs have collected Texas Workmen's Compensation benefits for the deaths of their decedents based on the plane crash which is the subject of these lawsuits. LTV, et al., assert that these workmen's compensation settlements were these plaintiffs' exclusive remedy against all of the corporate defendants named in these lawsuits.
Plaintiffs' decedents, Blanchard, Ditto and Hoar, were all employees of LTV Aerospace Corporation at the time of their deaths. LTV Aerospace Corporation was a Texas corporation covered by a Texas Workmen's Compensation insurance policy. Defendant LTV Aerospace Corporation and the other named corporate defendants performed the aircraft modification work, which is the subject of these lawsuits, in the state of Texas. The heirs of Blanchard, Ditto and Hoar claimed and collected Texas Workmen's Compensation death benefits for the deaths of their respective decedents. The workmen's compensation benefits were paid pursuant to the direction of the Texas Industrial Accident Board.
Under Texas law, workmen's compensation provides a worker with his exclusive remedy against his employer for work-related injuries. See, Tex.Rev.Stat.Ann. art. 8306, § 3. "The (Texas Workmen's Compensation) Act prescribes the only remedy; its exclusive features abrogate the right to resort to the admiralty court which otherwise would exist." Miller's Indemnity Underwriters v. Braud, 270 U.S. 59, 65, 46 S.Ct. 194, 195, 70 L.Ed. 470 (1926). The Act applies even where, as here, the employees covered by Texas Workmen's Compensation were fatally "injured out of the State of Texas". Tex.Rev.Stat.Ann. art. 8306, § 19.
Workers' compensation, to the exclusion of any recovery rights available under DOHSA, provides the workers' sole remedy against the employer if, as here, a decedent's employment is non-maritime, the decedent is covered by a state workmen's compensation law which is in full force and effect, the decedent is not covered by a federal workmen's compensation act, and the state act contains an exclusive remedy provision. King v. Pan American World Airways, 270 F.2d 355 (9th Cir. 1959), cert. denied, 362 U.S. 928, 80 S.Ct. 753, 4 L.Ed.2d 746 (1960); see also, Miller's Indemnity Underwriters v. Braud, supra. Summary judgment therefore shall be entered for decedents' employer, defendant LTV Aerospace *325 Corporation.[2] Summary judgment also shall be entered for defendant Vought Corporation; LTV Aerospace Corporation has since the accident changed its corporate name to Vought Corporation.
Although Texas law makes workmen's compensation the workers' exclusive remedy against their employers, the Workmen's Compensation Act nonetheless allows the injured worker to bring suit against third parties. Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1975); Watson v. Glens Falls Ins. Co., 505 S.W.2d 793, 796 (Tex.S.Ct.1974).
The remaining corporate defendants are Ling-Temco-Vought, Inc. (which later changed its corporate name to the LTV Corporation, another defendant here) and LTV Electrosystems, Inc. (which later changed its corporate name to E-Systems, Inc., also a defendant herein). These defendants assert that they are not true third parties. Both when the airplane was modified and later, when the plane crashed, Ling-Temco-Vought, Inc. (hereinafter "LTV, Inc."), was the parent corporation and LTV Aerospace Corporation and LTV Electrosystems, Incorporated were LTV, Inc.'s subsidiary corporations. These defendants urge that the court should thus view all of the named defendant corporations as the employer of Hoar, Blanchard and Ditto. The corporate defendants emphasize that all of the named corporations were covered under one Workmen's Compensation Insurance Policy.
Contrary to the implication in the corporate defendants' brief[3], the vast weight of authority is that an injured employee of a subsidiary corporation, who is estopped under an exclusive remedy provision in his state's workers' compensation act from suing his employer, may nonetheless bring a third-party claim against the subsidiary's parent or sibling corporation. See, e. g., *326 Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 661-663 (6th Cir. 1979); O'Brien v. Grumman Corp., 475 F.Supp. 284, 290-293 (S.D.N.Y.1979), and cases cited therein. Coverage of both parent and subsidiary corporations under the same workers' compensation insurance policy has little, if any, relevance to the issue of whether the parent corporation is the subsidiary corporation worker's employer. O'Brien v. Grumman Corp., supra, 475 F.Supp. at 292; Latham v. Technar, Inc., 390 F.Supp. 1031 (E.D.Tenn. 1974); but see, Goldberg v. Context Industries, Inc., 362 So.2d 974, 975 (Fla.Ct.App. 1978).
As in this case, an issue in Boggs v. Blue Diamond Coal Co., supra, was "whether a multi-unit corporate enterprise should be viewed as a single `employer' for purposes of liability and benefits under the workmen's compensation statute." Boggs, supra, 590 F.2d at 661. The Kentucky courts, like the Texas courts, never had addressed this issue. The court in Boggs, therefore, looked to the general principle of Kentucky corporation law that parent and subsidiary corporations are separate legal entities whose separateness should not be disregarded except when the corporate device is used to defraud creditors or for some other illegal purpose. The Boggs court concluded that corporations which divide their business enterprise into separate parent and subsidiary corporations may not avoid the consequences of that separate corporate structure and claim that the corporations are but one employer for workmen's compensation purposes.
... [A] business enterprise has a range of choice in controlling its own corporate structure. But reciprocal obligations arise as a result of the choice it makes. The owners may take advantage of the benefits of dividing the business into separate corporate parts, but principles of reciprocity require that courts also recognize the separate identities of the enterprises when sued by an injured employee.
Boggs v. Blue Diamond Coal Co., supra, 590 F.2d at 662.
Texas, like Kentucky, follows the general rule of corporation law that, absent exceptional circumstances, parent and subsidiary corporations shall be recognized as separate entities. Under Texas law, even where a parent corporation owns all of the stock of a subsidiary or has the same directors or officers as the subsidiary, or exercises control over the subsidiary, the general rule is that the corporations are still separate and distinct legal entities. These factors, without more,[4] are insufficient under Texas law to establish an agency relationship or to make the parent liable for the acts of the subsidiary. See, e. g., Walker v. Newgent, 583 F.2d 163, 167 (5th Cir. 1978); Reul v. Sahara Hotel, 372 F.Supp. 995, 998 (S.D.Tex.1974); Mortgage & Trust, Inc. v. Bonner & Co., 572 S.W.2d 344, 348 (Tex.Civ. App.1978, writ refused). Because the corporate defendants have taken advantage of Texas law which recognizes parent and subsidiary corporations as separate legal entities, principles of reciprocity require that they also be viewed as separate entities when sued by the personal representatives of deceased employees. Boggs, supra.
In cases which involved covenants not to compete rather than workmen's compensation, the Texas courts have relied on the aforementioned principles of corporation law in holding that workers employed by a parent corporation will be deemed to be the employees of the parent corporation only, and not also the employees of the subsidiary corporation. The subsidiary or affiliated corporation, rather, is deemed to be "another and different employer." Wright Hydraulics, Inc. v. Womack Machine Supply Co., 482 S.W.2d 34, 36 (Tex.Civ.App.1972); see also, Rimes v. Club Corporation of *327 America, 542 S.W.2d 909, 912 (Tex.Civ.App. 1976). The same reasoning supports the holding that, under the Texas Workmen's Compensation Law, parent and affiliated corporations are not the joint employer of a subsidiary corporation employee.
Based upon general principles of Texas corporation law, as well as upon the Texas "covenant not to compete" cases and the nearly uniform holdings of courts faced with the same issue under similar state workers' compensation laws, this court holds that decedents Hoar, Blanchard and Ditto were employees of LTV Aerospace Corporation only. The remaining corporate defendants (except Vought Corporation, as LTV Aerospace Corporation is now named), as separate corporate entities, were not the decedents' employer under the Texas Workmen's Compensation Act. These remaining corporate defendants are therefore third parties against which plaintiffs may bring suit.
VII. BIFURCATION OF INTERVENORS
Rule 42(b) F.R.Civ.P. allows this court to order a separate trial of any claim or claims and of any separate issue or issues. It is well settled that a trial judge has the right within his discretion to order separate trials in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy. Moss v. Associated Transport, Inc., 344 F.2d 23 (6th Cir. 1965); In Re Paris Air Crash of March 3, 1974, 69 F.R.D. 310 (C.D.Cal.1975); Kisteneff v. Tiernan, 514 F.2d 896, 897 (1st Cir. 1975). The separate trials rule is a matter of the court's discretion in shaping the procedure of the trial. See, 9 Wright and Miller, §§ 2387-2389 wherein it quotes from 39 Minn.L.Rev. 743, 762-763:
On the whole the separate trial has proved a very flexible and useful instrument for preventing confusion, avoiding prejudice and providing a convenient method of disposing of litigation as fairly and quickly as possible. The rule serves its purpose in modern pleading.
The principal goal of Rule 42(b) is efficient judicial administration. LoCicero v. Humble Oil & Ref. Co., 52 F.R.D. 28, 30 (D.C.La.1971).
In the instant case the court must weigh whether one trial or separate trials will best serve the convenience of the parties and the court, avoid prejudice, and minimize expense and delay. Also taken into consideration is whether the procedure is more likely to result in a just final disposition of the litigation. Here, the court has concluded after due consideration of these factors that a separate trial would be appropriate for plaintiffs in intervention.
It is evident from the pretrial hearing conducted on January 16, 1980, that counsel for plaintiffs Hoar and Slagle intend to pursue a trial strategy somewhat different from the remaining 12 plaintiffs. For instance, counsel for Hoar and Slagle does not agree with counsel for the remaining plaintiffs on the identity and corporate interrelationship of defendants LTV, et al. See Tr. p. 108. Additionally, plaintiffs Hoar and Slagle indicate they may proceed on an intentional tort theory of recovery. Tr. p. 107. This is also unique to these plaintiffs.
Moreover, plaintiffs-in-intervention have several legal issues peculiar only to them. They include the issues of timely application for permissive joinder and the class certification/decertification issue.
It is both unnecessary and unwarranted to delay this action any longer. Plaintiffs other than Hoar and Slagle have agreed to the issues and claims and for the most part the trial strategy. I conclude that the most expeditious and convenient manner of proceeding with this action is to bifurcate for the purposes of trial Hoar and Slagle from the remaining plaintiffs. Ordering separate trials for these plaintiffs will eliminate what would otherwise be an extended trial. My principal goal in regulating the procedure of this trial is efficient judicial administration.
Nearly nine years have gone by from the crash of this airplane until trial. For the families of the innocent decedents that *328 amount of time is inexcusable. It is the duty of this court to separate out those claims, issues and parties which will result in the speediest relief to the plaintiffs. To date there has been far too much unnecessary delay, inconvenience and costs related to this case.
In sum, not only does counsel for plaintiffs Hoar and Slagle intend to pursue a trial strategy somewhat different from the other 12 plaintiffs, there are several issues and claims raised by plaintiffs Hoar and Slagle which are quite apart from the issues raised by the remaining 12 plaintiffs.
The court does not intend to delay this trial in any manner for any period of time to consider those issues.
Separate trial for these plaintiffs meets the alternative requirements of Rule 42(b). Separate trials will be in furtherance of convenience, be conducive to expedition and economy and is the best way to "... secure the just, speedy, and inexpensive determination ..." of the lawsuit. Rule 1, F.R. Civ.P. Therefore, the claims and issues brought by plaintiffs Hoar and Slagle against defendants LTV, et al., be, and hereby are, separated from the claims of the remaining plaintiffs. The motion to dismiss plaintiffs-in-intervention is hereby denied at this time.
VIII. SEPARATION OF LIABILITY FROM DAMAGES
Ordering separate trials on liability and damages is firmly within the discretion of the court. In Re Master Key Antitrust Litigation, 528 F.2d 5, 14 (2nd Cir. 1975); Moss v. Associated Transport, Inc., 344 F.2d 23 (6th Cir. 1965). Where the issues of liability and damages are distinct and separate it is certainly not improper to conduct separate trials. Defendants LTV, et al., agree that in the interest of judicial economy the issues of liability should be bifurcated from the issue of damages. However, they argue that the same jury should be used to decide both issues. LTV, et al., bases its argument upon the contention that the liability and damage issues are inextricably intertwined. Contrary to the position of defendants LTV, et al., however, it does not appear to me at this point that the liability issue is entwined to any great degree with the issue of damages.
The actions are premised basically on a wrongful death theory. All plaintiffs were killed when the airplane crashed. The evidence used to prove liability would not, in my opinion, need to be used to prove damages. Nor is there any likelihood of prejudice to either side by the decision to bifurcate these issues.
The two issues are bifurcated in order to achieve the goals of convenience, expedition and economy. United States v. International Business Machines Corp., 60 F.R.D. 654 (S.D.N.Y.1973); Kisteneff v. Tiernan, 514 F.2d 896 (5th Cir. 1975); see, generally 9 Wright & Miller, Fed.Prac. & Pro.: Civil § 2390.
IX. PRE-JUDGMENT INTEREST
If the court finds any or all defendants to be liable in any or all of these consolidated cases, pre-judgment interest shall be assessed to the damages awarded. The court finds no "peculiar circumstances" to except these cases from the general rule that pre-judgment interest will normally be assessed in admiralty cases. See, Grace Line, Inc. v. Todd Shipyards Corp., 500 F.2d 361, 366 (9th Cir. 1974).
MEMORANDUM
On Motion To Dismiss Complaints of Intervenors
Before the court in these consolidated wrongful death actions is the motion of defendant United States of America to dismiss the complaints of intervenors Hoar and Slagle. Jurisdiction vests in this court under the Suits in Admiralty Act, 46 U.S.C. § 741.
The procedural history of these cases, as it relates to the pending motion, is set forth by defendant United States in its brief.
These are wrongful death actions against the United States and others arising out of the alleged death of plaintiffs' decedents in *329 an airplane accident on the high seas on June 13, 1971. Suit was filed against the United States in June, 1972 by plaintiff Ashland. On June 12, 1973, one day before the running of the statute, the court issued an order certifying the consolidated cases as a class action. In July, 1976, the court decertified the class action, and plaintiffs Hoar and Slagle filed motions to intervene in the consolidated actions. The motions were granted.
Defendant, United States of America, in December, 1976, filed a motion to dismiss the complaints of plaintiffs in intervention Hoar and Slagle, CV-72-1294, on the ground that the United States had not waived its sovereign immunity because the actions were time barred. United States District Judge Albert Lee Stephens, on September 1, 1977, dismissed the action against the United States as to Hoar and Slagle, holding that the plaintiffs were time barred. On May 1, 1978, Judge Stephens reconsidered his earlier order dismissing the United States and amended the order allowing Hoar and Slagle to amend their complaints to assert jurisdiction under the Suits in Admiralty Act. Judge Stephens stated that the amendment would relate back to the time of the "filed amended complaint," apparently meaning the court's certification of the class action one day before the running of the statute of limitations and a relation back to the date of June 12, 1973.
Subsequent to his May 1, 1978 order allowing Hoar and Slagle to amend their complaints so as to relate back to June 12, 1973, Judge Stephens recused himself from the consolidated cases. Thereafter, I (United States District Judge Paul G. Hatfield) was appointed to try these cases.
I have studied the renewed motion of defendant United States to dismiss the intervenors' complaints for failure to file within the two year statute of limitations of the Suits in Admiralty Act. The United States has cited no new significant cases or changes in the law on this subject that have developed since Judge Stephens issued his May 1, 1978 order. I shall not reverse Judge Stephens' ruling.
I was assigned as the district judge to try these cases. I do not sit in review of Judge Stephens' prior rulings as an appellate court. Judge Stephens, in his September 1, 1977 and May 1, 1978 orders, thoroughly considered the issues in this motion to dismiss. First Judge Stephens decided that the actions of the intervenors were barred by the two year statute. On reconsideration, Judge Stephens ruled that the statute of limitations was tolled for the intervenors during the pendency of the class action, relying on American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1973).
The United States argues that two grounds distinguish these cases from American Pipe: (1) American Pipe was not an action against the United States; (2) American Pipe was not an action based on the Suits in Admiralty Act. Other courts, however, have applied American Pipe to toll statutes or limitations in suits against the United States. See, e. g., Ashland Oil Co. v. Phillips Petroleum Co., 554 F.2d 381 (10th Cir. 1975), cert. denied, 434 U.S. 921 and 968, 98 S.Ct. 396 and 513, 54 L.Ed.2d 278 and 456 (1977) (court tolled "whatever statute may be applicable"); Jimenez v. Weinberger, 523 F.2d 689 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976) (court tolled 42 U.S.C. § 405(g) statute of limitations of Social Security Act); Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974) (court tolled Federal Tort Claims Act statute of limitations); Barrett v. United States Civil Service Commission, 439 F.Supp. 216 (D.D.C.1977) (court tolled statute of limitations in Title VII action).
The question of whether American Pipe should also be applied in suits against the United States where jurisdiction is based upon the Suits in Admiralty Act is a difficult question which Judge Stephens thoroughly considered, and then reconsidered. It is the province of an appellate court and not this court to pass on the correctness of Judge Stephens' ruling on this close question.
*330 The United States' renewed motion to dismiss shall be denied. An appropriate order shall issue.
MEMORANDUM
On Assessment of Prejudgment Interest
In a memorandum filed on April 14, 1980 in these consolidated Death on the High Seas Act ("DOHSA") actions, this court ruled that pre-judgment interest would be assessed to any damages awarded against defendants. After trial before an advisory jury in April and May, 1980, this court found both defendant United States and defendants LTV, et al., liable on the claims remaining against them. In this memorandum, the court sets forth its reasons for assessing the pre-judgment interest on damage awards against defendants LTV, et al., at eight percent (8%) per annum, compounded annually, from June 13, 1971, the date that plaintiffs' decedents died in the plane crash.
DOHSA cases are suits for damages "in admiralty". 46 U.S.C. § 761. The allowance of pre-judgment interest in admiralty cases "rests with the trial court's sound discretion...." Williamson v. Western Pacific Dredging Corp., 441 F.2d 65, 67 (9th Cir. 1971), cert. denied, 404 U.S. 851, 92 S.Ct. 90, 30 L.Ed.2d 91 (1971). Despite the request of defendants LTV, et al., (the "corporate defendants"), for the court to reconsider its order that pre-judgment interest will be assessed, these defendants have not pointed to, and the court has found, no "peculiar circumstances" to except these cases from the rule that pre-judgment interest normally will be assessed in admiralty cases. See, Grace Line, Inc. v. Todd Shipyards Corp., 500 F.2d 361, 366 (9th Cir. 1974).
This court, therefore, now must determine the rate of pre-judgment interest and from what date it shall be assessed. These tasks are made quite simple as to defendant United States. 46 U.S.C. §§ 743 and 745 provide that pre-judgment interest on damages awarded against the United States shall be limited to four percent (4%) per annum from the date that the plaintiffs filed their suits.
No statute, however, sets the rate of pre-judgment interest and the date from which such interest shall be assessed in DOHSA actions against defendants other than the United States. Those determinations, rather, are matters entrusted to the court's discretion. The corporate defendants assert that, in the interest of uniformity and fairness, the court should assess no more than the same four percent (4%) per annum pre-judgment interest against the corporate defendants that it assessed against the United States.
It is basic hornbook law that the United States enjoys sovereign immunity from suit, except to the extent it consents to be sued. See, United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607, 613 (1980). The four percent (4%) per annum pre-judgment interest ceiling of 46 U.S.C. §§ 743 and 745 is merely a statutory limitation on the waiver of sovereign immunity.
The corporate defendants, however, are not similarly situated to the United States. See, Complaint of Sincere Navigation Corp., 447 F.Supp. 672, 676 (E.D.La.1978) (four percent interest maximum statutory interest awarded for damages owed by United States; six percent interest awarded to United States on cross-claim against Sincere). The corporate defendants are not sovereigns who are immune from suit except to the extent they consent to be sued. Congress did not by statute limit the amount of pre-judgment interest which may be assessed against private defendants in DOHSA actions, and thereby left this calculation to the discretion of the trial court. In exercising this discretion to set an equitable rate of pre-judgment interest, the unfairness would not be in setting different rates of pre-judgment interest against the United States and private party defendants; inequity would result rather from depriving plaintiffs of the full pre-judgment interest to which the court deems them entitled because of the fortuitous circumstance that the United States is also a party defendant.
*331 Because the court does not feel bound to set the rate of pre-judgment interest on damages against the corporate defendants at four percent (4%) per annum, the court must determine what rate should be assessed. Pre-judgment interest, no less than damages, is an element of recovery in DOHSA suits which must be "... a fair and just compensation for the pecuniary loss ..." sustained by the heirs of plaintiffs' decedents. 46 U.S.C. § 762. The Ninth Circuit Court of Appeals, in several early breach of contract cases, assessed pre-judgment interest in admiralty at a rate identical to the forum state's statutory post-judgment interest rate. See, H. Liebes & Co. v. Klengenberg, 23 F.2d 611, 615 (9th Cir. 1928), cert. denied, 277 U.S. 596, 48 S.Ct. 559, 72 L.Ed. 1006 (1928); Rotterdamsche Lloyd v. Gosho Co., 298 F. 443 (9th Cir. 1924), cert. denied, 266 U.S. 621, 45 S.Ct. 99, 69 L.Ed. 472 (1924); Steamship Wellesley Co. v. C. A. Hooper & Co., 185 F. 733 (9th Cir. 1911) (applied California seven percent statutory interest rate).
These early cases, while not expressly overruled, have been ignored by the Ninth Circuit in an admiralty case brought not for breach of contract, but for personal injuries. The court, in Sauers v. Alaska Barge and Transport Inc., 600 F.2d 238 (9th Cir. 1979), did assess pre-judgment interest at a rate identical to the statutory rate of the forum state (eight percent set by court identical to the eight percent set by Rev.Code of Wash., § 4.56.110). The Sauers court, however, in setting the pre-judgment interest at eight percent, made no mention of the early cases and made no mention of the Washington statutory rate. The court, rather, assessed pre-judgment interest at eight percent per annum in "... the interests of justice and the best interests of the parties." Sauers v. Alaska Barge and Transport, Inc., supra, 600 F.2d at 248.
The issue thus is what rate of pre-judgment interest will provide the decedents' heirs with a fair and just compensation and be in the interests of justice. The plane crash which is the subject of this lawsuit occurred on June 13, 1971. Courts in admiralty cases since that date have assessed pre-judgment interest at rates ranging from four percent to 12 percent per annum.[1] This court will follow the lead of the Ninth Circuit Court of Appeals in Sauers, supra, and award eight percent per annum pre-judgment interest on the damage award, compounded annually. See also, Sea-Land Service, Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532, 534 (W.D. Wash.1977) (awarded eight percent per annum pre-judgment interest, because a lesser rate over the years 1968-1977 would deny the plaintiff full restitution).
The corporate defendants also request that pre-judgment interest only be awarded from the dates that the complaints were filed, since defendants did not cause any such delay in the filing of the complaints. This argument, however, is specious. Pre-judgment interest in DOHSA cases is not an element of punitive damages assessed only against a defendant who uses delay tactics. Pre-judgment interest, rather, is assessed pursuant to the statutory mandate that plaintiffs in DOHSA actions receive fair and just compensation for the pecuniary loss sustained by the heirs of the decedents. Defendants had the use of the death award money during the period between the plane crash and the filing of the complaints, and are now "... in poor position to complain when required to pay interest on it." First National Bank of Chicago v. Material Service Corp., 597 F.2d 1110, 1121 (7th Cir. 1979). This court, therefore, *332 in these consolidated DOHSA actions shall award pre-judgment interest from June 13, 1971, the date of plaintiffs' decedents' deaths.[2]Accord, Dugas v. National Aircraft Corp., 438 F.2d 1386, 1392 n.11 (3d Cir. 1971); National Airlines, Inc. v. Stiles, 268 F.2d 400, 405-06 (5th Cir. 1959), cert. denied, 361 U.S. 885, 80 S.Ct. 157, 4 L.Ed.2d 121 (1959).
An appropriate order shall issue.
MEMORANDUM
On Further Motion To Dismiss Complaints of Intervenors
Defendants LTV, et al. (the "corporate defendants") have moved to dismiss the complaints-in-intervention of plaintiff-intervenors Hoar and Slagle (the "intervenors"). The parties have briefed the issues, and the matter is ripe for adjudication.
I.
FACTS
On June 13, 1971, an aircraft modified by the corporate defendants for the United States Air Force crashed into the Pacific Ocean, killing all persons on board. The Death on the High Seas Act ("DOHSA") has a two year statute of limitations. 46 U.S.C. § 763. Actions on behalf of the heirs of twelve of the persons killed in the crash were filed prior to the June 13, 1973 expiration of the statute of limitations. On June 12, 1973, one day prior to the expiration of the two year DOHSA statute of limitations, United States District Judge Albert Lee Stephens, Jr. sua sponte certified the twelve actions as a class action. No party had moved for class certification, and Judge Stephens certified the class without holding a hearing on the matter or giving prior notice to the parties.
On the motion of the corporate defendants, Judge Stephens later decertified the class. Judge Stephens cited two decisions in which the Ninth Circuit Court of Appeals held that Rule 23, F.R.Civ.P. does not permit certification of a class whose members assert independent tort claims for damages only, arising out of the same occurrence.[1] Judge Stephens made his order decertifying the class effective July 29, 1976.
On July 29, 1976, the Slagle claimants filed notice of their motion for leave to intervene in the twelve consolidated, but now decertified, DOHSA cases. On July 30, 1976, the Hoar claimants filed notice of their motion to intervene. The corporate defendants filed their opposition to the motions for leave to intervene, and Judge Stephens held a hearing on the motions. Judge Stephens, on August 23, 1976, granted the Hoar and Slagle motions to intervene, without addressing the effect of the statute of limitations on the intervenors' claims.
Subsequent to his order granting the Hoar and Slagle motions to intervene, Judge Stephens recused himself from the consolidated cases. United States District Judge Paul G. Hatfield was appointed to try the consolidated actions. The corporate defendants thereafter filed this motion to dismiss the complaints of intervenors Hoar and Slagle as barred by the statute of limitations.
The key question presented in the corporate defendants' motion to dismiss is whether the DOHSA statute of limitations was tolled during the time that the cases *333 were certified as a class action. If the statute were tolled during the pendency of the class action, the intervenors' actions were timely filed. If, however, the pendency of the class action did not toll the running of the statute, the complaints in intervention filed more than five years after the plane crash could be barred by the two year DOHSA statute of limitations.
II.
EXISTENCE OF A CLASS ACTION
The corporate defendants assert that the procedure whereby the court certified the class exceeded the powers of the court, making its certification ruling a nullity. If a class action never existed, it could not effectively toll the statute of limitations for intervenors.
The court agrees that not all the procedural requirements of Rule 23, F.R.Civ.P. were met in the June 12, 1973 class certification. The court did find that the consolidated cases met all the Rule 23(a), F.R. Civ.P. prerequisites for class certification. The class certification order, however, was issued by the court sua sponte without granting parties prior notice or any opportunity to be heard on the issue. While nothing in Rule 23 specifically prohibits sua sponte class certification by the court, the language of the rule relates to class actions maintained upon the request of the parties.[2]
Despite the unusual procedure used to certify the class, the cases nonetheless proceeded as a valid class action, for the purpose of tolling the statute of limitations, from the date that the court issued its certification order until the date that the court's decertification order became effective. The corporate defendants claim that the court's failure to comply with Rule 23 including certifying a class where none was sought deprived the court of its power to create a class action. This court disagrees.
Rule 23 is a rule of civil procedure, not a rule of jurisdiction.[3] Congress, through statutes, gives the federal courts jurisdiction. The Federal Rules of Civil Procedure, including Rule 23, F.R.Civ.P., were promulgated by the Supreme Court and not by Congress. These rules do not affect the jurisdiction of the federal courts. See, Rule 82, F.R.Civ.P.; 28 U.S.C. § 2072; Brennan v. Silvergate District Lodge No. 50, 503 F.2d 800, 804 (9th Cir. 1974). Noncompliance with Rule 23, F.R.Civ.P., or with any other rule, may indeed be reversible error on appeal; but noncompliance with Rule 23 does not deprive the court of its jurisdiction or power to certify a class.[4]Cf., Jimenez v. Weinberger, 523 F.2d 689, 698 (7th Cir. 1975) (court did not exceed its jurisdiction by granting class relief through failing to comply with Rule 23(c)(1)).
Moreover, the corporate defendants' argument, if accepted, would eviscerate the judicial economy principles behind the class *334 action statute of limitations tolling rule of American Pipe Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Certification of a class by a federal district judge is notice to the world that the lawsuits are proceeding as a class action and that the statute of limitations is tolled for all class members during the pendency of the class action. Under the corporate defendants' approach, however, anytime a potential intervenor had the slightest doubt whether a judge had correctly applied all the procedural requirements of Rule 23, F.R.Civ.P., he would be forced to file a motion to intervene to protect his claim. As the court discusses, infra, this is precisely the result that the Supreme Court in American Pipe hoped to avoid.
III.
TOLLING OF THE STATUTE OF LIMITATIONS
The corporate defendants next argue that, even if a class action existed, it did not toll the two year DOHSA statute of limitations for intervenors Hoar and Slagle.
The Supreme Court has held that "... the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 776, 38 L.Ed.2d 713 (1974) (footnote omitted). The pendency of the class action in these consolidated cases would have tolled the DOHSA two-year statute of limitations so as to make timely the Hoar and Slagle motions to intervene. The corporate defendants nonetheless claim that, for two reasons, the class action should not have tolled the statute of limitations for intervenors Hoar and Slagle.
First, the corporate defendants argue that intervenors Hoar and Slagle did not actually rely on the existence of the class action. This assertion, even if accepted as true, however, would not bar the intervenors' actions.
We think no different [tolling] standard should apply to those members of the class who did not rely on the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit.
American Pipe & Construction Co. v. Utah, supra, 414 U.S. at 551, 94 S.Ct. at 765.
Second, the corporate defendants argue that American Pipe is inapplicable to these facts. In addition to their previously rejected argument that there was no valid class action in these cases, the corporate defendants argue that American Pipe applies only when class certification is denied due to a failure to meet the numerosity requirement of Rule 23(a)(1), F.R.Civ.P. and that applying American Pipe in these cases would result in unfairness to the corporate defendants.
Class certification in American Pipe was denied due to a failure to satisfy the requirement of Rule 23(a)(1) that the class be "... so numerous that joinder of all members is impracticable...." See, American Pipe, supra, 414 U.S. at 543, 94 S.Ct. at 761. The rationale behind the American Pipe statute of limitations tolling rule, however, is by no means confined to cases wherein class certification is denied for lack of numerosity.
The central consideration in American Pipe, rather, was to promote efficiency and economy of litigation by making it unnecessary for unnamed class members to file duplicative motions or to intervene during the pendency of motions for class certification.
The reasoning of the American Pipe opinion requires that its doctrine be applied in situations beyond the particular facts presented in that case.... Assuming that the defendant receives fair notice of the nature of the intervenors' claims, this rationale would not seem to depend on the specific ground on which class certification was denied in American Pipe.... *335 McCarthy v. Kleindienst, 562 F.2d 1269, 1272 (D.C.Cir.1977) (class certification denied for untimeliness and lack of typicality). See also, cases cited by the court in McCarthy v. Kleindienst, supra, 562 F.2d at 1274.
The broad tolling principle of American Pipe is no less applicable where, as here, the class, originally certified, was later decertified on a basis other than lack of numerosity. See, Haas v. Pittsburgh National Bank, 526 F.2d 1083, 1097 (3d Cir. 1975) (American Pipe applied where district court decertified the class because the named plaintiff was not a proper class representative).
Nor is it unfair to defendants to toll the statute of limitations in these cases. The corporate defendants claim that, because none of the twelve original plaintiffs filed a class action complaint, the corporate defendants were not put on notice of the number and generic identities of potential plaintiffs in the class. In his order certifying the class, however, Judge Stephens stated that the government had supplied the court with a list of all those on board the plane, that 24 civilian and military personnel were on board the plane, that all 24 died in the crash, and that the cause of death was identical for each. The decedents of intervenors Hoar and Slagle were two of those 24 persons on board that LTV-modified airplane.
When Judge Stephens filed his class certification order, the corporate defendants had "... the essential information necessary to determine both the subject matter and size of the prospective litigation...." American Pipe, supra, 414 U.S. at 555, 94 S.Ct. at 767.
The corporate defendants' motion to dismiss the intervenors' complaints as barred by the statute of limitations shall be denied. An appropriate order shall issue.
NOTES
[1] I do not mean to imply here that defendants are without resort to explain this crash by pointing to someone or something which in fact caused the fatal accident. Defendants LTV, et al., and the United States are in a far better position than are plaintiffs to present evidence explaining the crash so as to refute an inference that the negligence of the defendants caused the plane to crash and kill all on board.
[2] Because, in ruling on the corporate defendants' motion, the court considered matters outside the pleadings defendants' workmen's compensation insurance policy and the workmen's compensation settlements of plaintiffs' decedents defendants' motion to dismiss is treated as one for summary judgment. See, Rule 12(b), F.R.Civ.P.; Solinger v. A & M Records, Inc., 586 F.2d 1304, 1308 (9th Cir. 1978), cert. denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979).
[3] The corporate defendants claim that parent and subsidiary corporations should be treated as one employer for workmen's compensation purposes. These defendants cite one case and one case only as direct authority on this proposition. The court in the cited case, Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla.Ct. App.1978) (per curiam), found, "[a]fter a careful examination of the record", but without disclosing what facts in the record it was relying upon, that the parent and subsidiary corporations were joint employers of the injured worker under the Florida Workmen's Compensation Act.
As this court discusses infra, however, several courts other than the Florida Court of Appeals have addressed this issue. The overwhelming weight of authority is that parent and subsidiary corporations, absent exceptional circumstances not present here, are separate entities which will not be treated as the joint employer of an injured worker. The court in O'Brien v. Grumman Corp., 475 F.Supp. 284 (S.D.N.Y. 1979) followed this majority rule, citing three federal court cases and four state court cases as supporting authority. The O'Brien court discussed the Goldberg case as a "brief per curiam opinion without citation to any precedent or authority", and as the only case it had discovered which had held contra to the general rule. See, O'Brien, supra, 475 F.Supp. at 292.
While not violative of the letter of the Code of Professional Responsibility, the corporate defendants' attorneys' citation to only the aberrant case which supported their argument and their concurrent failure to disclose and discuss state and federal court decisions contrary to their position, certainly violated the spirit of the Code and ill-served their duty as officers of the court. This court believed that the corporate defendants' attorneys' citation to only the one case supporting their position was an implied representation that these attorneys knew of no adverse authority. If these attorneys' failure to cite the majority rule was a knowing omission, the court does not appreciate counsels' lack of candor. See, ABA Opinion 280 (1949). In the unlikely event (considering the otherwise excellent research, analysis and argument of the attorneys for the corporate defendants on all the other issues in this case) that the failure to cite the majority rule was due to the fact that counsel found only the one cited Florida case, the court does not appreciate counsel's lack of diligence. See also, United States v. State Bd. of Equalization, 450 F.Supp. 1030, 1037 n.6 (N.D.Cal.1978).
[4] The separateness of the parent and subsidiary corporations is disregarded when their corporate relationship "... `is used to defeat public convenience, justify wrongs, such as violation of anti-trust laws, protect fraud, or defend crime.'" Norton v. Integral Corp., 584 S.W.2d 932, 935 (Tex.Civ.App.1979) (citation omitted). The corporate defendants herein, however, neither claim that this exception is applicable to the issues in this case nor assert that the quoted exception described the purpose of their own parent-subsidiary corporate relationship.
[1] See, e. g., Sauers v. Alaska Barge and Transport, Inc., 600 F.2d 238, 248 (9th Cir. 1979) (eight percent); Complaint of M/V Vulcan, 553 F.2d 489, 491 (5th Cir. 1977) (per curiam), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977) (12 percent, a rate equivalent to the injured party's cost of borrowing); Norfolk Shipping and Drydock v. M/y LaBelle Simone, 537 F.2d 1201 (4th Cir. 1976) (12 percent); Federal Barge Lines, Inc. v. Republic Marine, Inc., 472 F.Supp. 371 (E.D.Mo.1979), aff'd., 616 F.2d 372 (8th Cir. 1980) (ten percent, court looked to prime rate); Sea-Land Service, Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532, 534 (W.D.Wash.1977) (eight percent, court looked to prime rate); Chute v. United States, 466 F.Supp. 61, 70 (D.Mass.1978) (four percent).
[2] The court in Sauers v. Alaska Barge and Transport, Inc., 600 F.2d 238, 248 (9th Cir. 1979) allowed pre-judgment interest not from the date of the plaintiff's injuries, but from the date plaintiff filed his complaint. Sauers was a case brought by the plaintiff in admiralty for personal injuries and was not a DOHSA action. The court did not explain why it awarded interest only from the date the complaint was filed and did not state that this was a rule to be followed in awarding pre-judgment interest in all admiralty cases. Indeed, the general rule in this circuit is that interest in admiralty cases is allowed from the date of injury. See, The President Madison, 91 F.2d 835, 845-847 (9th Cir. 1937).
[1] McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976); LaMar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973).
[2] Rule 23(a), F.R.Civ.P. provides that "[o]ne or more members of a class may sue or be sued as representative parties...." Rule 23(c)(1) refers to "... an action brought as a class action...."
[3] Courts have tried cases as class actions, in the interest of judicial efficiency and economy, long before the adoption of Rule 23, F.R.Civ.P. See, 7 Wright and Miller, Federal Practice and Procedure: Civil § 1751 (1972), citing, e. g., How v. Tenants of Bromsgrove, 1 Vern. 22, 23 Eng.Rep. 277 (Ct.Ch.1681); West v. Randall, 29 Fed.Cas. No. 17, 424 (C.C.D.R.I.1820).
[4] The Supreme Court long ago spoke of this procedural rules-jurisdiction distinction. The appellant in Venner v. Great Northern Railway, 209 U.S. 24, 28 S.Ct. 328, 52 L.Ed. 666 (1908), argued that noncompliance with the predecessor rule to Rule 23.1, F.R.Civ.P. (shareholder derivative actions) deprived the federal court of jurisdiction. The Supreme Court responded as follows:
... It is argued that a compliance with that rule is essential to the jurisdiction, and that a controversy of the general nature contemplated by the rule is beyond the jurisdiction of the Circuit Court, unless the plaintiff shows the existence of all the facts which the rule makes indispensable to his success in the suit. But this argument overlooks the purpose and nature of the rule.... Neither the rule nor the decision from which it was derived deals with the question of the jurisdiction of the courts, but only prescribes the manner in which the jurisdiction shall be exercised....
Venner v. Great Northern Railway, supra, 209 U.S. at 33-34, 28 S.Ct. at 330-331. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/147677/ | 607 F.3d 1346 (2010)
David Wyatt JONES, Petitioner-Appellant,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Florida Attorney General, Respondents-Appellees.
No. 10-11497.
United States Court of Appeals, Eleventh Circuit.
June 2, 2010.
*1347 Harry Philip Brody (Court-Appointed), H. Brody, P.A., Sarasota, FL, for Jones.
Meredith Charbula, Ronald Alan Lathan, Jr., Tallahassee, FL, for Respondents-Appellees.
Before BLACK, PRYOR and MARTIN, Circuit Judges.
PRYOR, Circuit Judge:
David Wyatt Jones is a Florida inmate sentenced to death who seeks a certificate of appealability to appeal the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. Jones has failed to make a substantial showing of the denial of a constitutional right. We deny his application for a certificate of appealability.
*1348 I. BACKGROUND
A jury convicted Jones of the robbery, kidnapping, and murder of Lori McRae. Jones v. State (Jones I), 748 So. 2d 1012, 1016 (Fla.1999). The evidence at trial proved that Jones abducted McRae from a parking lot early on the morning of January 31, 1995, strangled her to death, and, over the next two days, attempted more than 100 times to withdraw cash from several automated teller machines using McRae's bank card. Jones netted $600. Id. The police arrested Jones on February 1 because he was driving McRae's Chevy Blazer near a teller machine that they had been monitoring. Id. Twenty days later, Jones confessed to murdering McRae and directed police to the field in which he had dumped her body. Id.
At the penalty phase, Jones presented mitigation evidence. Jones presented lay and expert testimony regarding his addiction to crack cocaine and how this addiction affected his brain and behavior. Jones v. State (Jones II), 949 So. 2d 1021, 1026 (Fla.2006). He also offered testimony regarding his childhood and his adult life before he began abusing crack cocaine. Id.
The jury recommended a sentence of death by a vote of nine to three, and the trial court accepted the recommendation. Id. The trial court found four aggravating circumstances: Jones committed the murder during the course of a robbery and kidnapping; Jones had a prior conviction of a violent felony (murder); the murder was especially heinous, atrocious, or cruel; and Jones committed the murder to avoid arrest. Id. at 1026 n. 2. The trial court also found and gave some weight to two statutory mitigators: Jones's ability to appreciate the criminality of his conduct was substantially impaired, and Jones committed the murder while under the influence of extreme mental or emotional disturbance. Id. The trial court also accorded some weight to three nonstatutory mitigators: Jones was addicted to crack cocaine; Jones was the father of a teenage son, and he was a hard worker who provided for his family when he was not abusing drugs; and records of Jones's incarceration after his arrest for the murder of McRae proved that he had suffered a "psychotic episode." Id. (internal quotation marks omitted).
Jones raised numerous arguments in his direct appeal, only one of which is relevant to his application for a certificate of appealability: Jones argued that the "prosecution introduced irrelevant evidence suggesting that [he] harbored a racial prejudice against African-Americans." Jones I, 748 So.2d at 1022. Jones argued that the trial judge should not have permitted Detective Parker to testify that, in a post-arrest interview, Jones explained several scratches on his face by stating that he had been robbed by two "niggers." Id. Jones also argued that the trial judge should not have permitted two witnesses, who testified that Jones approached them about having McRae's Blazer cleaned in the days after the abduction, to identify Jones by a distinctive spider web tattoo on his elbow. Jones contended that the jurors would associate his tattoo with white supremacist activity. Id. at 1023. The Florida Supreme Court rejected all of Jones's arguments in a thorough opinion.
In June 2001, Jones filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and argued numerous grounds for relief, and three of the arguments that Jones raised in his motion are relevant to this appeal. First, Jones argued that his trial attorneys were ineffective for failing to object to the presentation of evidence and argument that he sexually assaulted McRae before killing her. Jones contended that this evidence *1349 was inadmissible because the state did not charge a sexual assault. Second, Jones argued that his trial attorneys were ineffective for failing to object to the evidence that suggested that he had a racial bias. Third, Jones argued that his attorneys were ineffective for failing to investigate and present mental health mitigation evidence. In support of his third claim, Jones offered the testimony of Dr. Jonathan Lipman, an expert in neuropharmacology. Dr. Lipman examined Jones after Jones's trial and concluded that Jones was "constitutionally vulnerable to experiencing the psychosis producing effect of cocaine and other stimulants" and that Jones's abuse of crack cocaine may have aggravated an underlying "psychosis spectrum disorder" that was "probably schizoaffective." The trial court rejected each of Jones's claims on the merits. The Florida Supreme Court affirmed in another thorough opinion. Jones II, 949 So. 2d 1021.
In March 2007, Jones filed a petition for a writ of habeas corpus in the district court. Jones alleged fifteen grounds for relief, two of which were claims of ineffective assistance of trial and appellate counsel with multiple subparts. The district court denied the petition. Jones v. McNeil, No. 3:07-cv-146-J-32, 2010 WL 893816 (M.D.Fla. Mar. 9, 2010). The district court also denied Jones a certificate of appealability. Id.
II. STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY
This Court will issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 326, 123 S. Ct. 1029, 1034, 154 L. Ed. 2d 931 (2003). "Where, as here, the Antiterrorism and Effective Death Penalty Act (`AEDPA') applies, [w]e look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason." Lott v. Att'y Gen., Fla., 594 F.3d 1296, 1301 (11th Cir.2010) (alteration in original) (internal quotation marks omitted).
III. DISCUSSION
Jones's application does not identify by number the grounds stated in the district court about which jurists of reason could differ, but construed in the light of the record and his petition for a writ of habeas corpus, cf. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998), Jones's application requests a certificate of appealability on four grounds. Jones argues, first, that his trial attorneys were ineffective for not objecting to evidence and argument that he sexually assaulted McRae; second, that his trial attorneys were ineffective for not trying to exclude evidence that Jones used a racial slur in a post-arrest interview and has a tattoo of a spider web that he says is associated with white supremacist activity; third, that the state employed a strategy of injecting race into his trial; and fourth, that his trial attorneys were ineffective for failing to investigate and present mental health mitigation evidence during the penalty phase of his trial. Jones also asserts that he "does not waive the appealability of any claim raised in the habeas proceeding" and urges us to "issue a Certificate of Appealability as to every ground and claim made *1350 in the proceeding." We conclude that Jones has not made a substantial showing of the denial of a constitutional right as to any of the four grounds that he specifically argues in his application and that he has waived any right to a certificate of appealability as to all other grounds.
A. Ground One: Ineffective Assistance Regarding Evidence of Sexual Assault
Jones argues that "trial counsel should have objected to the State's presentation of evidence and argument that he committed a rape or sexual battery on the victim." Jones contends that the lower courts "conclude[d] that the State's conduct was not objectionable and that[ ] essentially did not occur." Jones's only legal argument, which he does not support with citations of authority, is a conclusion: "Certainly, reasonable jurists might differ on this issue." We reject this argument.
The Florida Supreme Court ruled that Jones's attorneys made a reasonable tactical decision not to object to the evidence, but to argue instead that the evidence did not support an inference of a sexual assault:
Jones provides no support for his contention that the State's presentation of evidence of the physical condition of McRae's body was objectionable. Evidence of the condition of the victim's body as found by the police was clearly relevant.
Further, [trial counsel] Buzzell testified that defense counsel were aware that the State believed that the evidence supported the inference of a sexual assault and that the defense strategy was to expose the weaknesses in the State's theory. On cross-examination of serologist Diane Hanson, defense counsel elicited testimony that a presumptive test for the presence of semen on an area of Jones' jeans came back negative. Defense counsel also elicited testimony from the medical examiner that the condition of the victim's clothes suggested that she had been dragged to the area where she was found, and testimony from McRae's husband that at times McRae did not wear underwear with her jeans. Counsel's strategic decision to rebut the State's suggestion of a possible sexual assault on cross-examination, rather than object to the evidence, cannot be considered unreasonable under the circumstances of this case.
In addition, Jones does not identify specifically which comments in the prosecutor's opening statements and closing arguments were objectionable. We assume Jones is referring to the prosecutor's opening statements regarding the condition of McRae's body and the closing argument that McRae's shoes may have been off because Jones wanted her pants off. However, these comments were not improper. By referring to the way in which McRae's body was found, the prosecutor was merely outlining "what he in good faith expected to be established by the evidence presented at trial," which is the purpose of opening statements.... In closing argument, the prosecutor appropriately pointed to an inference that "may reasonably be drawn from the evidence." Moreover, the prosecutor did not tell the jury that McRae had been sexually assaulted. Accordingly, the trial counsel's failure to object was not deficient performance and the trial court did not err in denying this claim for relief.
Jones II, 949 So.2d at 1031-32 (citations omitted).
Jurists of reason could not debate the decision of the district court to deny relief on this ground. The record supports the finding that Jones's attorneys made the *1351 tactical decision described by the Florida Supreme Court, and it is not debatable that the ruling of that court was a reasonable application of clearly established federal law.
B. Ground Two: Ineffective Assistance Regarding Evidence of Racial Bias
In the last numbered paragraph of his application, Jones obliquely references the argument in his petition that his attorneys were ineffective for failing to object to evidence that Jones used a racial slur in a post-arrest interview and has a tattoo that he says jurors would associate with white supremacist activity. Jones does not explain why the decision of the district court to deny relief on this ground is arguably wrong. We cannot see why it is.
As an initial matter, we agree with the district court that Jones is not procedurally barred from raising this claim in federal court. On the appeal of the denial of Jones's motion under Rule 3.850, the Florida Supreme Court rejected this claim of ineffective assistance of counsel as "procedurally barred" because Jones's "allegation of ineffective assistance of counsel is merely a variant of the issues [of the admissibility of the evidence] raised on direct appeal." Id. at 1033. The Florida Supreme Court did not employ a state procedural rule to avoid deciding Jones's claim on the merits; it only declined to reconsider its prior ruling on an issue that it found determinative of the claim of ineffective assistance of counsel. See Grossman v. McDonough, 466 F.3d 1325, 1348 (11th Cir.2006). The "refusal to re-adjudicate this issue on the merits a second time does not bar federal habeas review." Green v. Nelson, 595 F.3d 1245, 1249 n. 1 (11th Cir.2010).
On direct appeal, the Florida Supreme Court had decided that the trial court did not err in admitting either the evidence that Jones used a racial slur (and that, if it had, the error was harmless) or the evidence of Jones's spider web tattoo:
In this case the jury was informed that Jones used a racial slur when he first gave his version of events to explain the scratches on his face in an attempt to deny his involvement in the murder. The detective did not repeat the racial slur but only indicated that a racial slur was used. Therefore, in this case we do not agree that the comments constituted impermissible appeals to the biases or prejudices of the jurors.
....
... [I]n this case, we do not find that there was any attempt to inject race as an issue in the trial, or an impermissible appeal to bias and prejudice. We further note that Jones was a white male charged with murdering a white female. In addition, the actual racial slur was not used before the jury and the comment was not repeated or subsequently highlighted. Based on the foregoing, we find that even if the admission of this reference to Jones using a racial slur was error, it was harmless beyond a reasonable doubt.
Defendant also argues in this point on appeal that the prosecutor elicited improperly prejudicial testimony that the defendant had a spider web tattoo on his elbow, allegedly associated with white supremacist gang activity. The only evidence regarding the tattoo during the trial was elicited from ... [two] witnesses [who] testified that they noticed Jones' distinctive spider web tattoo at the time they encountered him [when he attempted to have the interior of McRae's Blazer cleaned], and Jones was asked to display this tattoo for the jury.
There was no suggestion ever made to the jury by the State that the spider *1352 web tattoo was linked to racism, and it was only referred to before the jury as a distinctive characteristic assisting the witnesses in identifying the defendant. Accordingly, we find no error in the admission of this testimony.
Jones I, 748 So.2d at 1023 (citations omitted).
Jurists of reason would not debate the decision of the district court to deny relief on this ground. Again the record supports the description of the evidence by the Florida Supreme Court, and it is not debatable that the Florida Supreme Court reasonably applied clearly established federal law.
C. Ground Three: State Strategy of Using Race to Inflame the Jury
Jones argues that the "lower courts have not, in [his] estimation, persuasively addressed [his] contention that the State utilized an explicit strategy of seeking to inflame the jury for the purpose of obtaining the death recommendation." Jones cites the testimony regarding his spider web tattoo and Detective Parker's testimony that Jones used a racial slur in a post-arrest interview. He does not, however, cite any legal authority in support of this argument. Jones's application for a certificate of appealability is unclear, but we construe this argument as referring to the claim in his petition that the state trial court should have excluded all evidence of his alleged racial bias. Jones does not explain how the introduction of this evidence violated his constitutional rights.
No reasonable jurist could debate the decision of the district court to deny relief on this ground. In the district court, Jones argued that the "United States Supreme Court has held that risk of racial prejudice affecting the outcome of a criminal justice process is unacceptable and must be guarded against" and cited two decisions in support of that general proposition. See McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986). These authorities do not even hint that the decision of the Florida Supreme Court to deny Jones relief on this ground was an unreasonable application of clearly established federal law.
D. Ground Four: Ineffective Assistance Regarding Mental Health Mitigation Evidence
Jones argues that his trial attorneys were ineffective because they "should have presented available mental-health mitigation." Jones's application summarizes the testimony of Dr. Lipman and states that "reasonable jurists could differ on the question[ ] of whether such powerful and extensive mitigation should have been presented for the jury's consideration." Jones's only legal argument that his attorneys performed ineffectively is that the Supreme Court "has repeatedly stated that, under Hitchcock[ v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987),] and Lockett[ v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978),] the jury should know the person they are being asked to sentence to death." Jones has not established that he is entitled to a certificate of appealability on this ground.
The Florida Supreme Court rejected this claim of ineffective assistance of counsel because Jones's attorneys investigated his mental health, they presented expert testimony regarding his mental functioning and drug addiction, and the trial court found mitigation:
This is not a case in which trial counsel failed to conduct any meaningful investigation into mitigation. Defense attorneys Buzzell and Chipperfield both recounted their investigation into mental *1353 health mitigation. Indeed, Buzzell stated that the defense team spent substantial time on this issue. Additionally, the trial record establishes that Jones' mental health and serious cocaine addiction were major themes in this case. As this Court noted on direct appeal, counsel presented the testimony of two experts during the penalty phase:
Defense counsel also called Drew Edwards to testify as an expert in the penalty-phase proceedings. Edwards offered his testimony as an expert regarding the effect of cocaine on the brain. Edwards testified that Jones was a crack addict, suffering from these symptoms. Edwards made clear that he did not believe addiction to cocaine is an excuse for crime, yet he admitted that a cocaine addict would suffer impairment of his ability to conform his conduct to the requirements of the law. Edwards testified that despite his addiction, Jones would have always known the difference between right and wrong.
Another defense expert testified that Jones has an I.Q. of 78, placing him between the fifth and ninth percentiles of the population. The expert testified that standardized tests revealed that Jones had little ability to control his impulses, but admitted that his motivation to get the right answer during his testing appeared to "vary." She opined that he was able to conform his conduct to the requirements of the law, "provided he's not impaired in some other way."
Jones, 748 So.2d at 1017.
Although Jones acknowledges that trial counsel did pursue mental health mitigation, he argues that trial counsel did not adequately investigate, prepare, and present evidence on this issue. We disagree. This is not a case where a mental health defense was considered and then summarily rejected. Rather, mental health mitigation was vigorously pursued, the jury was instructed on statutory mitigation, and the trial court found mitigation .... Accordingly, trial counsel's performance regarding the presentation of mitigation was not deficient....
Jones II, 949 So.2d at 1035.
The record supports the description by the Florida Supreme Court of the mental health defense presented by Jones's attorneys, and reasonable jurists would not debate the decision of the district court to deny relief on this ground. It is not debatable that the Florida Supreme Court reasonably applied clearly established federal law.
E. Waiver of Grounds Not Argued in the Application
Jones has waived the right to a certificate of appealability on every other ground stated in the state and district courts. Jones's application for a certificate of appealability comprises eight pages, twenty-four numbered paragraphs, two summary citations of Supreme Court precedent, and conclusory statements like, "Certainly, reasonable jurists might differ on this issue." We have overlooked these deficiencies and construed Jones's application as arguing specifically for a certificate on four of the grounds he stated in the state and district courts, but we will not entertain the possibility of granting a certificate of appealability on any other ground because Jones does not provide facts, legal arguments, or citations of authority that explain why he is entitled to a certificate on those other grounds.
We have repeatedly required litigants to identify errors and provide arguments about their entitlement to relief. This rule means that a litigant who fails in *1354 his initial brief even to allege an error waives the right to relief based upon that allegation. See, e.g., United States v. Magluta, 418 F.3d 1166, 1185 (11th Cir.2005). It also means that we will not grant relief based upon an allegation raised where a litigant "fail[s] to elaborate or provide any citation of authority in support of the ... allegation." Flanigan's Enters., Inc. v. Fulton County, 242 F.3d 976, 987 n. 16 (11th Cir.2001). We have not treated petitioners seeking writs of habeas corpus any differently from other litigants. See Philmore v. McNeil, 575 F.3d 1251, 1259 & n. 2 (11th Cir.2009); Isaacs v. Head, 300 F.3d 1232, 1253 n. 6 (11th Cir.2002).
This rule applies with equal force to petitioners seeking a certificate of appealability. In Pardo v. Secretary, Florida Department of Corrections, we held that because Pardo had not argued that his attorney was ineffective for agreeing to try several murder counts in a single trial in his application for a certificate of appealability he had "waived the issue in this court." 587 F.3d 1093, 1103 (11th Cir. 2009). Several of our sister circuits have also applied this rule about waiver to applications for certificates of appealability. See Ortiz v. Quarterman, 509 F.3d 214, 215 (5th Cir.2007); United States v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003); Beatty v. United States, 293 F.3d 627, 632-33 (2d Cir.2002).
The rules and statute that govern writs of habeas corpus and certificates of appealability, as well as our local rules, support our application of the waiver rule in this setting. By rule, in the district court, a petition for a writ of habeas corpus must "specify all the grounds for relief available to the petitioner." Rules Governing § 2254 Cases, Rule 2(c). Moreover, no court may issue a certificate of appealability unless "the applicant has made a substantial showing of the denial of a constitutional right" and the certificate itself "shall indicate which specific issue or issues satisfy" that standard. 28 U.S.C. § 2253(c)(2), (3). We agree with the Second Circuit that this rule and statute "contemplate a specific identification of the grounds claimed to warrant relief" in the application for a certificate of appealability. Beatty, 293 F.3d at 632. Our local rules also support this conclusion. Federal Rule of Appellate Procedure 27 requires that every motion "state with particularity the grounds for the motion ... and the legal argument necessary to support it," Fed. R.App. P. 27(a)(2)(A), and our local rules identify an application for a certificate of appealability as a motion. See 11th Cir. R. 27-1(d)(2) (listing an application for a certificate of appealability as a motion upon which a single judge is authorized to act). Eleventh Circuit Rule 22-2, which provides that applications for a certificate of appealability may be as long as a principal brief filed in an ordinary appeal, further supports requiring applicants to specifically identify arguably meritorious issues and provide legal arguments. See 11th Cir. R. 22-2. Rule 22-2 prevents litigants from attributing absent or undeveloped arguments to a lack of room to argue.
We will not permit Jones to apply for a certificate of appealability without identifying and explaining the claims that he believes to be arguably meritorious. "Requiring that all claims be raised ... is no more burdensome for a petitioner requesting a [certificate of appealability] than it is for a party on direct review, where the waiver doctrine is routinely applied." Brewer v. Quarterman, 475 F.3d 253, 256 (5th Cir.2006). Moreover, a "prisoner who has unsuccessfully tendered numerous claims to a district court will often sensibly focus his appellate efforts on the one or two claims he considers most promising." Beatty, 293 F.3d at 632.
*1355 IV. CONCLUSION
Jones's application for a Certificate of Appealability is DENIED. | 01-03-2023 | 06-02-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1613236/ | 23 So. 3d 122 (2009)
GRATZ
v.
LYNCH.
No. 3D09-3287.
District Court of Appeal of Florida, Third District.
December 28, 2009.
Decision Without Published Opinion Mandamus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613532/ | 488 N.W.2d 848 (1992)
STATE of Minnesota, Respondent,
v.
Roxanne Denise BROWN, Appellant.
No. C4-91-305.
Court of Appeals of Minnesota.
September 8, 1992.
Review Granted October 28, 1992.
*849 Hubert H. Humphrey III, Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, Wyman A. Nelson, Wright County Atty., Buffalo, for respondent.
John M. Stuart, State Public Defender, Scott G. Swanson, Asst. State Public Defender, Minneapolis, for appellant.
Considered and decided by SCHUMACHER, P.J., and KLAPHAKE and DAVIES, JJ.
OPINION
KLAPHAKE, Judge.
Appellant Roxanne Denise Brown alleged that prosecutorial misconduct denied her a fair trial. This court affirmed the conviction in an unpublished opinion. State v. Brown, No. C4-91-305, 1991 WL 271489 (Minn.App. Dec. 24, 1991), pet. for rev. granted in part, denied in part (Minn. Feb. 27, 1992). The Minnesota Supreme Court denied Brown's petition for review on all counts addressed in this court's opinion, but remanded the case to this court to decide an additional issue whether the trial court had prejudicially erred by allowing certain cross-examination questions. We conclude that the trial court prejudicially erred and thus reverse Brown's conviction and remand the case for a new trial.
FACTS
In September 1989, a two-year-old child was rushed to the hospital after her mother, appellant Roxanne Brown, called 911 for emergency assistance. When the ambulance arrived, the child was unresponsive and very near death. Doctors at Monticello-Big Lake Hospital and later at Minneapolis Children's Hospital diagnosed major bruising throughout the child's body, lacerations, collapsed veins due to lack of cardiovascular fluids, and a completely transected duodenum which required immediate surgery. According to Dr. Steven Kurachek, the duodenum injury was life-threatening and could not have occurred more than 48 hours before the emergency procedures.
Deputy Sheriff Gary Reitan investigated the assault. He initially spoke with Brown and her live-in boyfriend, Kurt Kluever, who both stated the child had been injured by falling out of bed onto a plastic toy. *850 After Reitan told Brown and Kluever that Dr. Kurachek had discounted their explanation for the injuries, Kluever admitted to injuring the child and was arrested.
The child was placed in foster care under county protection while she recovered. The court directed Brown to undergo psychological and chemical dependency evaluations before she could visit the child. Brown did not submit to the evaluations and did not visit the child based upon the advice of an attorney who represented Brown's family on some civil matters. The attorney advised Brown not to submit to the evaluations because they might incriminate her if charges were brought against her stemming from the assault.
On February 16, 1990, just before Kluever's trial was to begin, Brown gave a statement to Reitan. Reitan did not immediately arrest Brown, but read her the Miranda warning before taking her statement. Brown admitted responsibility for the child's injuries, stating she could not let Kluever take the blame for what she had done. Brown said Kluever had taken the blame because she was pregnant with his baby and he did not want the baby taken from her. Brown also told several family members she had injured the child.
Brown testified at Kluever's trial, incriminating herself. Brown stated that after she took lysergic acid diethylamide (LSD), she became frustrated with the child and hit her twice. She testified Kluever took the blame because she was pregnant, and stated there was "no doubt" in her mind that she was responsible for the child's injuries. Kluever was acquitted, and Brown was arrested and charged with the crime.
At trial, Brown testified on her own behalf. Brown testified Kluever began to abuse her physically just before his trial. She stated that she perjured herself at Kluever's trial because Kluever threatened to leave, and she hoped her testimony would exculpate him and convince him to stay with her. Brown testified she had not assaulted the child, but that Kluever must have, and stated she was asleep during the assault. Brown also testified Kluever told her the child had fallen out of bed onto a toy.
At the conclusion of Brown's direct testimony, the following exchange took place:
Q: Do you love your child?
A: Yes, very much.
Q: Would you ever do anything like that to her?
A: No.
Believing this testimony "opened the door wide" as to Brown's feelings and actions toward the child, the prosecutor cross-examined Brown about her behavior towards the child after the assault. Defense counsel objected to questions about Brown's failure to visit the child in foster care. After a discussion of the matter out of the presence of the jury, during which it was apparent that Brown did not visit the child as a consequence of following advice of counsel, the court allowed the following cross-examination:
Q: Have you visited with [the child] since she has been in foster care, in the custody of Wright County Human Services?
A: Since she has been in foster care I have not seen her.
Q: Why is it that you have not seen her?
A: Because I had psychological and chemical dependency evaluations that I had to do before I could have visitation with her.
Q: And you have not had those * * * evaluations, have you?
A: No.
Q: And why not?
A: It was I was under advised by my lawyer not to have them because in my criminal case that was regarded to this could be held against me in court.
The jury returned a guilty verdict and Brown appealed, alleging that prosecutorial misconduct denied her a fair trial. Attempting to establish the cumulative effect of many instances of prosecutorial misconduct, Brown categorized the above-referenced *851 questions as prosecutorial misconduct.
This court reasoned that the cross-examination questions did not constitute misconduct because the prosecutor disclosed to the court what she wished to ask Brown, and the trial court allowed her to ask about the evaluations. State v. Brown, No. C4-91-305, 1991 WL 271489 (Minn.App. Dec. 24, 1991), pet. for rev. granted in part, denied in part (Minn. Feb. 27, 1992). This court also determined that the instances of improper prosecutorial conduct did not mislead the jury where the evidence against Brown, including her confessions, was strong. Id.
Brown filed a petition for further review, again alleging only that prosecutorial misconduct had denied her a fair trial. On February 27, 1992, the supreme court issued an order denying her petition "with respect to the issues addressed by the court of appeals in its opinion" but granting her petition
with respect to the issue raised in the court of appeals but not addressed in its opinion, specifically whether the trial court prejudicially erred in allowing the prosecutor to cross-examine defendant concerning her failure to visit her daughter and the reasons therefor.
(Emphasis added). The supreme court remanded the case to this court to decide the issue.
ISSUE
Did the cross-examination questioning violate Brown's constitutional right against self-incrimination?
ANALYSIS
In order to properly analyze the alleged violation of Brown's constitutional rights, we must first categorize the objectionable testimony. On cross-examination, the prosecutor elicited testimony about Brown's pre-arrest, pre-Miranda silence upon the advice of her counsel. Brown had not yet been charged with any crime arising from the incident, the attorney who advised her to remain silent was retained for assistance on a civil matter, and the questions did not relate directly to the crime charged.
In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that a defendant's silence following the Miranda advisory cannot be used for impeachment purposes. The Court reasoned the Miranda warning carried an implicit assurance that a defendant's silence "will carry no penalty" and will not be "used to impeach an explanation subsequently offered at trial." Id. 426 U.S. at 618, 96 S.Ct. at 2245. The Court has also ruled, however, that a prosecutor may use pre-Miranda silence to impeach a defendant's testimony at trial without violating the federal Constitution. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982); Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980).
In Jenkins, the Supreme Court stated:
[I]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility.
447 U.S. at 238, 100 S.Ct. at 2129. The Court's decision in Fletcher went a step further, allowing a defendant's post-arrest (but pre-Miranda) silence to be used as impeachment evidence. 455 U.S. at 607, 102 S.Ct. at 1312. Although Jenkins and Fletcher recognized the implicit assurances of the Miranda warning, neither case involved a defendant who had remained silent upon the advice of counsel. See id. 455 U.S. at 606-07, 102 S.Ct. at 1311-12; Jenkins, 447 U.S. at 239-40, 100 S.Ct. at 2130. Therefore, the precise issue raised in this appeal has not been decided by the Supreme Court.
While it is uncertain whether Brown's Fifth Amendment right against self-incrimination was violated under current federal law, we believe the Minnesota Constitution, Article I, Section 7 extends her right against self-incrimination beyond minimal federal constitutional guarantees. *852 The seminal Minnesota case discussing admissibility of counseled, pre-Miranda silence as impeachment evidence is State v. Billups, 264 N.W.2d 137 (Minn.1978). In Billups, the Minnesota Supreme Court analyzed the United States Supreme Court's holding in Doyle, and determined no practical difference existed between counsel, pre-Miranda silence and post-Miranda silence. Id. at 139. The court therefore held that using a defendant's counseled silence for impeachment purposes is constitutionally prohibited. Id. Regarding counseled silence, the court stated:
There is probably no greater reason for one given a Miranda warning to remain silent as to exculpatory evidence than there is for one who is warned to remain silent by his attorney.
Id.
Here, the evidence shows Brown asserted her right against self-incrimination when she chose not to submit to the psychological and chemical dependency evaluations prior to being allowed visitation with the child. She asserted this right under the advice of counsel before receiving the Miranda warning. Under these circumstances and consistent with Billups, we believe the questions asked during cross-examination violated Brown's rights under the Minnesota Constitution.
When reviewing constitutional error, we must independently evaluate the evidence to determine whether it was harmless beyond a reasonable doubt. See State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988). In making this determination, we must look to the record as a whole. Id.
Although we agree that there was strong evidence against Brown, the improperly elicited testimony was potentially very prejudicial. Brown had not been charged with a crime, yet her attorney advised her not to submit to the evaluations for fear she could incriminate herself. The jury could have inferred that Brown's own attorney believed she was guilty of criminal conduct, even though the police at that time did not. The likelihood that this inference significantly influenced the jury verdict is too real to ignore. Additionally, there was significant misconduct by the prosecutor, particularly several remarks during closing argument. See State v. Brown, No. C4-91-305, 1991 WL 271489 (Minn.App. Dec. 24, 1991), pet. for rev. granted in part, denied in part (Minn. Feb. 27, 1992). In light of the constitutional error, which may have been compounded by the prosecutor's remarks, we conclude Brown was denied a fair trial.
Brown also contends the trial court made evidentiary errors in allowing the cross-examination questions. In light of our decision we decline to address this issue.
DECISION
Cross-examination eliciting Brown's attorney-counseled silence violated her state constitutional right against self-incrimination.
Reversed and remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2575477/ | 98 F. Supp. 2d 1223 (2000)
Nanette BLAIR, Plaintiff,
v.
ALL STARS SPORTS CABARET, All Stars Denver, L.P., W.C.C. Acquisitions, Inc., a Colorado corporation; Lowrie Management, LLLP; Lawrence Ballani and Troy Lowrie, Defendants.
No. CIV.A. 99-K-49.
United States District Court, D. Colorado.
June 14, 2000.
Darold W. Kilmer, Mari Newman, Miller, Lane, Killmer & Greisen, LLP, Denver, CO, for Plaintiff.
*1224 Michael Krieger, Krieger Hale & Mulcahy, Englewood, CO, for Defendants.
ORDER
KANE, Senior District Judge.
On May 17, 2000, Blair filed a Notice of Supreme Court Decision on Constitutionality of the Violence Against Women Act, informing the court of the recent decision of United States v. Morrison, ___ U.S. ___, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). In Morrison, a five to four majority held Congress lacked authority to enact the civil remedies provision of the Violence Against Women Act, codified at 42 U.S.C. § 13981, under either § 8 of the Commerce Clause or § 5 of the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for § 13981. This decision impacts the claims extant in the instant action.
The court ordered Blair on or before June, 15, 2000 to show cause, if any, in writing why an order in the terms below should not enter. On June 7, 2000, Blair responded to the order to show cause stating that she could think of no reason why, given the decision in Morrison, the court should not enter such order. Accordingly,
IT IS ORDERED THAT:
(1) The Memorandum Opinion and Order of March 6, 2000 is VACATED insofar as it granted summary judgment against Ballani on the Second Claim for Relief for gender-motivated violence under 42 U.S.C. § 13981;
(2) Blair's Motion for Partial Summary Judgment is DENIED insofar as it seeks judgment against the Corporate Defendants on the Second Claim for Relief for gender-motivated violence under 42 U.S.C. § 13981;
(3) The Second Claim for Relief for gender-motivated violence under 42 U.S.C. § 13981 is DISMISSED and the case shall proceed on the remaining claims for (1) sexual harassment in violation of Title VII against the corporate defendants; (3) negligent hiring, supervision and retention against all Defendants except Ballani; (6) false imprisonment against Ballani; (7) outrageous conduct against all Defendants; and (8) invasion of privacy; intrusion upon seclusion against Ballani. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460684/ | 254 P.3d 751 (2011)
242 Or. App. 518
STATE
v.
TICE.
A142522
Court of Appeals of Oregon.
April 20, 2011.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613167/ | HARBERT L. IRVINE AND WINNIE M. IRVINE
v.
LLOYD E. CAMP, MONROE STREET BAPTIST CHURCH AND ABC INSURANCE COMPANY.
No. 2008 CA 2284.
Court of Appeals of Louisiana, First Circuit.
June 17, 2009.
Not Designated for Publication
RAYMOND C. BURKART, Jr., KATHERINE O. BURKART, Attorneys for Plaintiffs/Appellants Harbert L. Irvine and Winnie M. Irvine.
JAMES M. BENSON, MICHAEL J. TARLETON, RHONDA J. THOMAS, Attorneys for Defendants/Appellees, Lloyd E. Camp, Monroe Street, Baptist Church and GuideOne, Mutual Insurance Company.
Before PETTIGREW, McDONALD, HUGHES, JJ.
McDONALD, J.
Harbert L. Irvine and Winnie M. Irvine filed suit for damages against the pastor of their church, Lloyd E. Camp, the Monroe Street Baptist Church, and ABC Insurance Company, its liability insurer, after Mrs. Irvine was injured following an incident at the church between her and Mr. Camp. Mrs. Irvine, 64 years old, was a volunteer organist and flower arranger for the church. She was summoned to the church by Mr. Camp and instructed to open the flower room for the fire inspector. Mr. and Mrs. Irvine had recently changed the locks to the flower room and kept the only keys themselves. Mrs. Irvine and Mr. Camp began arguing. Mrs. Irvine asserted in her suit that as she was standing in the doorway of Mr. Camp's office he pushed her violently across the hallway into the other wall, causing injury. Mr. Camp, who has diabetic retinopathy and limited vision in one eye, testified that Mrs. Irvine aggressively backed him into his office while yelling at him, that she struck him near his eyes, and that he had raised his hands to protect his good eye when his hands came into contact with her.
After a trial on the merits, which included testimony from Mrs. Irvine, Mr. Irvine, Mr. Camp and several witnesses who were at the church, including a fire marshal, the jury found that Mr. Camp made physical contact with Mrs. Irvine and that she was injured from this contact. Further, the jury found that Mrs. Irvine's injuries were caused 75% by her and 25% by Mr. Camp. The jury awarded damages to Mrs. Irvine in the amount of $20,000.00 for past medical bills; zero for future medical bills; $24,000.00 for past pain and suffering; zero for future pain and suffering; and zero for loss of enjoyment of life; for a total of $44,000.00 in damages, reduced by her 75% fault. The jury found that Mr. Irvine did not suffer any loss of consortium from the injuries to his wife.
Mr. and Mrs. Irvine filed a motion for judgment notwithstanding the verdict and additur and a motion for a new trial, and for expert witness fees and assessment of costs. The motion for judgment notwithstanding the verdict and the motion for new trial were both denied. The trial court granted the assessment of costs in the amount $12,805.63, to be paid by Mr. Camp and the Monroe Street Baptist Church.
Mr. and Mrs. Irvine are appealing the judgment, asserting that the trial court: erred in apportioning 75% of the fault to Mrs. Irvine and only 25% to Mr. Camp; erred in failing to award Mrs. Irvine the full amount of her past medical expenses; erred in failing to reasonably and adequately compensate Mrs. Irvine for her past pain and suffering; erred in failing to award Mrs. Irvine any damages for future medical expenses, future pain and suffering, and loss of enjoyment of life; erred in failing to award Mr. Irvine damages for loss of consortium; and erred in failing to grant the motion for judgment notwithstanding the verdict, or alternatively, the motion for a new trial.
Assignment of error number one asserts that the jury erred in its assessment of fault. The jury listened to the testimony of numerous witnesses and ultimately found Mrs. Irvine 75% at fault for the incident and Mr. Camp 25% at fault for the incident. After a thorough review of the evidence, including all of the witness testimony to the incident, we find no manifest error in that determination of fault.
Assignment of error number two asserts that the jury erred in failing to award the full amount of Mrs. Irvine's past medical expenses. A thorough review of the evidence shows that while Mrs. Irvine was injured in the altercation, she also had preexisting injuries, and she suffered injuries in a later fall at Home Depot. We cannot say that the damages awarded, $20,000.00, were so low as to be manifestly erroneous.
Assignment of error number three asserts that the jury failed to adequately compensate Mrs. Irvine for past pain and suffering. The jury awarded Mrs. Irvine $24,000.00 for past pain and suffering. After a review of the record, we cannot say that the jury manifestly erred in awarding $24,000.00 for past pain and suffering.
Assignment of error number four asserts that the jury erred in failing to award Mrs. Irvine any damages for future medical expenses, future pain and suffering, and loss of enjoyment of life. After a review of the record, we cannot say the jury manifestly erred in declining to award damages for future medical expenses, future pain and suffering, and loss of enjoyment of life.
Assignment of error number five asserts that the jury erred in failing to award Mr. Irvine any amount for loss of consortium. There was testimony in the record from Mr. and Mrs. Irvine to support the claim for loss of consortium. Again, the jury did not find that all of her injuries were the result of this incident. However, we do find that some loss of consortium should be awarded under the circumstances of this case. Thus, we amend the judgment to award Mr. Irvine $5,000.00 for loss of consortium, subject to previous allocation of fault.
The sixth assignment of error asserts that the trial court erred in failing to grant the motion for judgment notwithstanding the verdict, or alternatively, the motion for new trial. We find no error in the trial court's denial of the motion for judgment notwithstanding the verdict and denial of the motion for new trial.
Thus, for the foregoing reasons, we amend the judgment to award Mr. Irvine $5,000.00 for loss of consortium, and as amended, the judgment is affirmed. Costs are assessed against Mr. Camp and the Monroe Street Baptist Church. This opinion is issued in compliance with the Uniform Rules-Courts of Appeal, Rule 2-16.1.B.
AMENDED AND AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613176/ | 11 So.3d 724 (2009)
SUCCESSION OF GEORGE COLLETT.
No. 09-70.
Court of Appeal of Louisiana, Third Circuit.
June 3, 2009.
William Daniel Dyess, Dyess Law Firm, LLC, Many, LA, for Other Appellants-Naomi Ruth Collett Ebarb and Mary Lou Collett Dayhuff.
Charles David Soileau, Many, LA, for Other Appellee-Marjorie L. Collett.
*725 Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
THIBODEAUX, Chief Judge.
Appellants, Mary Lou Collett Dayhuff and Naomi Ruth Collett Ebarb, claim that the trial court erred in its interpretation of their father's testament, thereby depriving Dayhuff and Ebarb of their portion of his estate. The testament, which pre-dated the abolition of forced heirship, left the forced portion of his estate to his children. Reasoning that the law in effect at the time of George Collett's death governed the succession rights of the parties, the trial court determined that one hundred percent of George Collett's estate belonged to Dayhuff and Ebarb's mother, Marjorie Collett. For the following reasons, we affirm.
I.
ISSUE
We shall consider whether the testator's children, who were not forced heirs at the time of the testator's death, are entitled to the forced portion, where the testator wrote his will prior to the abolition of forced heirship and died after the legislature repealed a transitional provision that guided interpretation of wills written prior to the abolition, and where the testator bequeathed the forced portion to his children and the disposable portion to his wife.
II.
FACTS
George Collett died testate on August 14, 2007. His widow and three children of their marriage survived him. At the time of George Collett's death, none of his children was a forced heir within the meaning of La.Civ.Code art. 1493.
In his April 28, 1988 testament, George Collett bequeathed to Marjorie Collett "the disposable portion of all of the property" of which he died possessed, "of any kind, whether movable or immovable, wherever located." George Collett next bequeathed to his three children "the forced portion of the property" of which he died possessed, "of whatever nature, and wherever the same is located, share and share alike, subject to the lifetime usufruct in favor of Marjorie L. Collett."
During the probate proceedings, two of George and Marjorie Collett's children Dayhuff and Ebarbclaimed entitlement to the forced portion of George Collett's estate. Dayhuff and Ebarb argued that George Collett's intent, at the time he wrote the will, was to bequeath the forced portion of his estate to his children. Dayhuff and Ebarb also argued that Louisiana Supreme Court jurisprudence applying the now-repealed transitional provision, La. R.S. 9:2501, should govern this case. The trial court reasoned that the proper interpretation of the will involved application of Louisiana law in effect at the time of the testator's death. Because at the time of George Collett's death forced heirship was abolished, the trial court ruled that the disposable portion bequeathed to Marjorie Collett was one hundred percent of George Collett's estate. This appeal followed.
III.
STANDARD OF REVIEW
When a court interprets a will, the court's function is to determine and carry out the intention of the testator. Adams v. Willis, 00-589 (La.App. 3 Cir. 11/2/00), 777 So.2d 5, writ denied, 00-3289 (La.2/2/01), 784 So.2d 7. If the will is not ambiguous, it must be carried out according to its written terms, without reference to the external information. Id. Here, the *726 parties did not argue that the will was ambiguous. Thus, we shall determine George Collett's intent from the language of his testament. Interpretation of an instrument's language is a question of law that this court reviews to determine whether the trial court was legally correct. Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645.
IV.
LAW AND DISCUSSION
Over the last two decades there have been many changes in the law of forced heirship, and the following is a brief overview that is relevant here. The Louisiana constitution was amended in 1995 to abolish forced heirship with an exception for children who were the age of twenty three or younger, or who were permanently disabled at the time of the testator's death. In re Succession of Boyter, 99-761 (La.1/7/00), 756 So.2d 1122. The legislature also enacted a transitional statute, La.R.S. 9:2501,[1] that specified rules by which the courts should interpret the testaments written prior to the change to ascertain the testator's intent. Boyter, 756 So.2d 1122. Prior to its repeal in 2001, the Louisiana Supreme Court held that the 1996 version of La.R.S. 9:2501 was a mandatory statute applicable to all successions where a person executed a will before January 1, 1996 and died after December 31, 1995. Boyter, 756 So.2d 1122.
By Act 560 of the Regular Session of 2001, effective June 22, 2001, the Louisiana legislature repealed La.R.S. 9:2501 and included in La.Civ.Code art. 870 a provision that "[t]estate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the decedent's death." The legislature also added that
[w]hen a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator's intent in the interpretation of a legacy or other testamentary provision.
La.Civ.Code art. 1611.
Dayhuff and Ebarb's argument is two-fold. First, they argue that the facts in this case and the facts in Boyter, where the supreme court declared La.R.S. 9:2501 mandatory, are similar. Thus, Dayhuff and Ebarb argue that we should apply Boyter here, which leads to their inheriting the forced portion of George Collett's estate. *727 Second, Dayhuff and Ebarb maintain that George Collett's inclusion of the language regarding the forced portion in his testament manifested his intent to leave something to his children. Thus, because the testator's intent is paramount, Dayhuff and Ebarb assert that this court should award them the forced portion of the estate.
Dayhuff and Ebarb's first argument turns on its head our long-cherished legal principle that no law can survive the reasons on which it was founded. The existence of La.R.S. 9:2501 was the reason for the Boyter decision. By the time George Collett died, the legislature repealed La. R.S. 9:2501. Therefore, the supreme court's application of the now-repealed statute in Boyter has no consequence in this case.
We also find without merit the contention that George Collett manifested a specific desire to leave a portion of his estate to his children by stating that he wished to leave the forced portion to them. George Collett's testament employed terminology that has legal meaning. Thus, instead of using a numerical value, such as one-half or some other fraction or portion of the estate, which would indeed signify a desire to leave something to the children, the testament used legal terms, i.e., "forced portion" and "disposable portion." What is "forced portion" and what is "disposable portion" is to be decided according to the law in effect on the date of the testator's death. See La.Civ.Code art. 870. At the time of George Collett's death, his estate had no forced portion.
Finally, we conclude that even though the legal effect of the terms George Collett used in his testament has changed after his execution of the testament, Dayhuff and Ebarb are not entitled to any portion of his estate. The change in the legal effect of the terms used in the testament is only one of several factors our courts consider when they try to ascertain the testator's intentions. The legislature's use of the permissive "may" instead of the mandatory "shall" when it suggested in La.Civ. Code art. 1611 that the courts may consider the law at the time of the testament's execution if the legal effect of the testament's terms changed, supports this proposition.
Yet, even this factor is in favor of Marjorie Collett. Contrary to Dayhuff and Ebarb's assertions that George Collett's reference to the forced portion in his will signifies his intent to leave them a portion of his estate, George Collett's use of this legal phraseology manifests his desire to leave his children only that which the law required him to leave, whatever the law may be at the time of his death. Had George Collett, in fact, wanted to leave his children some portion of his estate and not simply that which the law required him to leave, he would have used terminology that does not vary with the fluctuations in the law. Moreover, the absence of something other than these legal terms demonstrates George Collett's desire to leave his wife the maximum portion of his estate the law allows. Thus, this court's consideration of the law in effect at the time George Collett executed his testament does not militate in favor of Dayhuff and Ebarb's claims. The trial court was eminently correct in its interpretation of the legal effects of Mr. Collett's testament.
V.
CONCLUSION
The trial court's judgment in favor of Marjorie Collett is affirmed. Costs of this appeal are assessed to Mary Lou Collett Dayhuff and Naomi Ruth Collett Ebarb.
AFFIRMED.
NOTES
[1] Prior to its repeal, the statute, as amended in 1997, read:
Construction of testaments executed prior to January 1, 1996
If a person dies testate after July 15, 1997, and the testament is executed before January 1, 1996, then the testator's intent shall be ascertained according to the following rules:
(1) That the testament shall be governed by the law in effect at the time of the testator's death in any of the following instances:
(a) When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator's death.
(b) When the testament leaves to the forced heir an amount less than the legitime under the law in effect at the time the testament is executed.
(c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.
(2) That in all other instances the testament shall be governed by the law in effect at the time the testament was executed.
(3) That the term forced heir, as used above, shall mean a presumptive forced heir under the law in effect at the time the testament was executed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613180/ | 23 So.3d 380 (2009)
Katherine Marie Phillips ULYANOV
v.
Sergey Michael ULYANOV.
No. 2009-CA-0642.
Court of Appeal of Louisiana, Fourth Circuit.
September 23, 2009.
*381 Mark Moreau, Southeast Louisiana Legal Services, Lawrence J. Pichler, New Orleans, LA, for Plaintiff/Appellant.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
MAX N. TOBIAS, JR., Judge.
Katherine Marie Phillips Ulyanov ("Katherine") appeals a trial court judgment assessing her court costs. On appeal, she contends the trial court erred in assessing court costs against her. For the reasons that follow, we agree that the trial court erred in assessing court costs against her.
Katherine filed a petition for divorce in which she included a request for permission to proceed in forma pauperis. The requisite in forma pauperis application was completed with supporting financial documentation. Subsequently, by order of court, she was granted indigent status. On 8 April 2009, the court entered a judgment of absolute divorce on Katherine's motion to confirm the default entered on 19 February 2009. The trial court further assessed "the cost for filing [the] divorce action" against Katherine and ordered Katherine to "pay all costs within (90) ninety days of the signing of [the] judgment." For the following reasons, we reverse that portion of the order for Katherine to pay all costs for filing the divorce action and render judgment accordingly.
La. C.C.P. art. 5186 states:
An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney. If judgment is rendered against the indigent plaintiff and he is condemned to pay court costs, an affidavit of the account by an officer to whom costs are due, recorded in the mortgage records, shall have the effect of a judgment for the payment due. [Emphasis supplied.]
The record on appeal is devoid of any evidence that Katherine's right to proceed in forma pauperis was ever traversed or rescinded. La. C.C.P. art. 5184. We note that, as a general matter, La. C.C.P. art. 1920 gives the trial court equitable discretion to tax costs against any party. Specifically, article 1920 states, in part:
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. [Emphasis supplied.]
We find the article 1920 discretion is limited in a pauper case by the more specific provision found in La. C.C.P. art. 5186, which mandates the assessment of costs to the party against whom judgment is rendered. See Holloway v. Holloway, 01-0273, p. 2 (La.App. 3 Cir. 6/6/01), 787 So.2d 600, 601. Moreover, pursuant to La. C.C.P. arts. 1701 and 1702, a judgment confirming a default is entered against the party who fails to answer the petition and citation of the plaintiff. In the case at bar, the judgment entered on Katherine's motion to confirm the default was rendered against the defendant, Sergey Michael Ulyanov, and thus, we find he should *382 have been condemned to pay all court costs associated with these proceedings. La. C.C.P. art. 5186. See also Williams v. Williams, 98-2899, pp. 1-2 (La.App. 4 Cir.4/28/99), 732 So.2d 1243, 1244; Smith v. Smith, 99-0365, pp. 1-2 (La.App. 4 Cir. 5/5/99), 733 So.2d 729, 730. We conclude the trial court erred in assessing court costs against Katherine Ulyanov.
Accordingly, we reverse that portion of the trial court judgment assessing the costs for the filing of the divorce action against Katherine Ulyanov and render judgment for the payment of court costs against Sergey Michael Ulyanov to be paid within 90 days. We affirm the trial court's ordering Katherine Ulyanov to pay all other costs (if any), except court costs, associated with these proceedings to be paid within 90 days.
REVERSED IN PART; AFFIRMED IN PART; RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613186/ | 23 So.3d 1232 (2009)
The ESTATE OF Steven Adam TINERVIN as assignee of Zenaida R. Gonzales and Alfredo V. Gonzales, M.D., P.A., Appellants,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
No. 4D08-2151.
District Court of Appeal of Florida, Fourth District.
November 25, 2009.
Rehearing Denied January 28, 2010.
*1234 Jane Kreusler-Walsh and Rebecca Mercier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Jeffrey C. Fulford of Jeffrey C. Fulford, P.A., Stuart, for appellants.
Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
MAY, J.
The plaintiff appeals an adverse declaratory judgment in favor of an insurer. Specifically, the trial court found that the professional services exclusion of a business owner's policy excluded coverage for services performed by the doctor's wife in filing, and making the doctor aware of, lab reports. The trial court also found the insurer had a duty to defend. From the latter finding, the insurer filed a cross-appeal. We affirm.
The doctor is a pediatrician. He employed his wife in the office.[1] Her duties included the filing of lab reports in the patient's chart and providing them to the doctor for review.
The decedent was the doctor's patient. The doctor diagnosed him as obese and having high blood pressure. An outside lab performed tests on the decedent, revealing abnormal values. In February, 2005, the lab mailed the abnormal test results to the doctor, who testified that his office usually receives reports within one or two days after blood is drawn. Yet, the first time he remembered seeing the lab results was three months later in May, 2005. The decedent died on June 2, 2005. The doctor opined that if he had seen the lab report earlier, he would have taken different actions in his treatment of the decedent.
The plaintiff brought a wrongful death action against the doctor, his only employee, and his professional association. The plaintiff alleged medical malpractice against the doctor and general negligence against the employee. The doctor and his employee requested coverage under the insurer's business owner's policy.[2] The insurer *1235 refused to defend or indemnify the doctor and his employee based on the exclusion for injuries arising from professional services. That exclusion provided:
This insurance does not apply to:
. . . .
j. Professional Services
"Bodily injury," "property damage," "personal injury" or "advertising injury" due to rendering or failure to render any professional service. This includes but is not limited to:
. . . .
(4) Medical, surgical, dental, x-ray or nursing services treatment, advice or instruction;
(5) Any health or therapeutic service treatment, advice or instruction. . . .
The insurer claimed that misfiling the lab results fell within the professional services exclusion because it was an "intricate part" of the medical services the doctor rendered. The plaintiff claimed, however, that the employee's negligence was not excluded because her services were clerical, as she had no professional responsibility to read or interpret the lab reports.
The insurer refused to defend the wrongful death action. The doctor and his employee entered into a $5,000,000 consent judgment with the plaintiff.[3] As part of the settlement, they assigned their coverage claims to the plaintiff. The plaintiff then brought an action against the insurer alleging that the insurer breached its duties to defend and indemnify the employee and the P.A.
The trial court denied the parties' cross-motions for summary judgment, and conducted a non-jury trial. The trial focused on whether the employee provided professional services within the meaning of the policy's exclusion. The plaintiff argued that the employee merely provided clerical services. The insurer maintained that the allegations against the employee involved the rendering of professional services.
The employee testified that she performed various clerical jobs for the doctor, which included opening the office, checking the mail, making appointments, setting up charts, and answering the phone. She did not examine patients, give medical advice, or interpret lab reports. However, she was a nurse by training and had been employed by the Philippine government as a military nurse; she was not licensed in the State of Florida. She took vital signs and wrote them in the patient's chart. She received lab reports and clipped them to the outside cover of the patient's chart. She never provided nursing treatment, advice, or instruction to the decedent. She testified that when she received abnormal test results, she put them with the patient's chart on her husband's desk. She prioritized the results so that the most serious results were on the top.
*1236 The doctor testified that he sometimes employed medical assistants, but none of them had any particular skill or training. He hired his wife to assist with his clerical and billing needs; not as a medical assistant. She never made clinical, medical, or professional decisions.
The defendant's expert testified that "professionals" require specialized skill, and no specialized training is required to give lab reports to a doctor. In response, the insurer argued that the employee acted as a medical assistant because she operated medical equipment and performed functions that were the tasks of a professional medical assistant under section 458.3485, Florida Statutes (2007).[4]
The insurer further argued that the employee's duties formed an "intricate part" of the medical services provided by the doctor, as she was his only employee in 2005. When she took a patient's vital signs, the doctor relied on the information, which was critical to his diagnosis. Without her help, he would have to do everything himself.
In a letter to the attorneys following the trial, the trial court tentatively concluded there was a duty to defend, but that the coverage issue "boil[ed] down to whether one looks at the matter as a package of medical treatment or whether each employee's acts are separated out." The court thought the employee performed both clerical and professional acts. Specifically, her responsibility to provide the doctor with the lab results involved a clerical act and an aspect of medical treatment.
The trial court ultimately concluded the insurer had a duty to defend the wrongful death claims based on the allegation that the employee was a non-professional employee. However, the trial court found the insurer had no duty to indemnify because the professional services exclusion applied. The court found the alleged negligence was either the failure of the doctor to review the results or the failure of the employee to furnish the report to him. Either failure culminated in the doctor's professional judgment that resulted in the decedent's death. The trial court was not "inclined to `unbundle' the acts which are part of providing medical services and put one act under a legal microscope."
The standard of review of an order interpreting an insurance policy is de novo. Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006).
Our interpretation of insurance policy provisions is guided by a few well-recognized rules. An insurance policy's coverage is defined by the plain language of the policy. Fayad v. Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1086 (Fla.2005). Clear and unambiguous terms are enforced as written. Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005). When the provisions are susceptible to two reasonable interpretations, the one providing coverage prevails. Id. Coverage clauses are broadly construed. Union Am. Ins. Co. v. Maynard, 752 So.2d 1266, 1268 (Fla. 4th DCA 2000). Exclusionary clauses are strictly construed. *1237 Id. With these tenets in mind, we construe the policy at issue.
First, we find that the policy language is unambiguous. The professional services exclusion excludes coverage for "`[b]odily injury,' `property damage,' `personal injury' or `advertising injury' due to rendering or failure to render any professional services. . . ." Professional services include "but [are] not limited to . . . [m]edical, surgical, dental, x-ray or nursing services treatment, advice or instruction." Employees are not insured for "`[b]odily injury' or `personal injury' . . . [a]rising out of his or her providing or failing to provide professional health care services."
The plaintiff argues that the policy's failure to define professional services renders the policy susceptible to more than one interpretation. We disagree. The policy clearly excludes coverage for claims "arising out of" the providing or failing to provide professional services and claims "due to" the rendering or failing to render any professional service. Professional services include medical or nursing services.
Second, we find, as did the trial court, that the employee's acts were causally connected to the professional services rendered by the doctor. The policy clearly excludes medical services, and the employee's duties were an "intricate part" of the medical services provided by the doctor.
The plaintiff argues that because the employee's act of opening the mail and attaching a lab report required no professional skill, her acts are not excluded from coverage. See Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470, 472 (Fla. 3d DCA 2005) (holding that a professional services exclusion did not apply because the services were rendered by employees who were "not required to have any specialized training or experience"). However, "[w]hether an act results from the nature of a professional service is determined by focusing upon the particular act itself, as opposed to the character of the individual engaging in the act." Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994).
We find Alpha Therapeutic Corp. v. St. Paul Fire & Marine Insurance Co., 890 F.2d 368 (11th Cir.1989), instructive. There, the Eleventh Circuit held that a medical technician's error in transcribing test results was an error in performing a professional service.
Even if a medical technician is not a professional, there are certain professional duties that, when delegated to the medical technician, bring the technician within the definition of "professional" for insurance purposes. . . .
Indeed, most professional services involve clerical duties that may lead to liability. While these duties typically are performed by a secretary or assistant, the professional is ultimately responsible for the duty. . . . While transposing the test results may be a clerical task, if the test results are transposed improperly, the testing process fails. Clearly, transposing test results and figures is an intricate part of testing plasma for hepatitis, which is a professional service. Thus, this court finds that the medical technician was performing a professional service when the error in question occurred. As such, the liability is excluded from coverage by the professional service exclusion clause. . . .
Id. at 370-71.
We also agree with the trial court's finding that the employee was a medical assistant under section 458.3485, Florida Statutes (2007). A "Medical Assistant" is defined as a "professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision *1238 and responsibility of a physician." § 458.3485, Fla. Stat. (emphasis added). Here, the employee assisted the doctor in all aspects of his practice. She not only performed clerical tasks, but she took vital signs: temperature, pulse, height, blood pressure, and weight. By finding that the employee was a medical assistant, the court found that she was a professional and her duties included the rendering of professional services. Thus, she fell within the policy's professional services exclusion.
On cross-appeal, the insurer argues the trial court erred in finding that it had a duty to defend. Once again, the trial court got it right. "An insurer's duty to defend is distinct from and broader than its duty to indemnify." Keen v. Fla. Sheriffs' Self-Ins. Fund, 962 So.2d 1021, 1024 (Fla. 4th DCA 2007). The duty to defend is determined solely by the allegations in the complaint, which must set forth facts that bring the case within the coverage of the policy. McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So.2d 692, 695 (Fla. 4th DCA 1999). "[A]ny doubt about the duty to defend must be resolved in favor of the insured." Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So.2d 579, 580-81 (Fla. 4th DCA 2000).
The complaint in this case specifically alleged facts that fell within the insuring language of the policy. It alleged that in a non-professional manner, the employee negligently:
a) made clerical mistakes in the filing of significant laboratory results for STEVEN TINERVIN;
b) lost, misplaced or untimely filed significant laboratory results for STEVEN TINERVIN;
c) failed to forward or show the laboratory results of STEVEN TINERVIN to her husband, Dr. Gonzales;
d) read the previously obtained laboratory results during the May 2005 office visit and negligently told the physician that they were normal; and
e) was otherwise negligent in her non-professional office duties owed to STEVEN TINERVIN.
These allegations squarely fell within the policy's duty to defend. It was only after the facts were flushed out in discovery that the duty to indemnify was found not to exist.
Affirmed.
DAMOORGIAN and CIKLIN, JJ., concur.
NOTES
[1] His wife will be referred to as the employee throughout the opinion.
[2] The policy's insuring language contained the following relevant provisions:
A. Coverages
1. Business Liability
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury," "property damage," "personal injury" or "advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. . . .
. . . .
C. Who is an Insured
Each of the following is also an insured:
a. Your "employees," other than either your "executive officers" . . ., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" is insured for:
(1) "Bodily injury" or "personal injury":
. . . .
(d) Arising out of his or her providing or failing to provide professional healthcare services. . . .
[3] The medical malpractice claim against the doctor was settled after the medical malpractice carrier paid the policy limits.
[4] A medical assistant is defined as "a professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician. This practitioner assists with patient care management, executes administrative and clinical procedures, and often performs managerial and supervisory functions. Competence in the field also requires that a medical assistant adhere to ethical and legal standards of professional practice, recognize and respond to emergencies, and demonstrate professional characteristics." § 458.3485(1), Fla. Stat. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613216/ | 145 N.W.2d 919 (1966)
180 Neb. 784
Frank L. LEE, Appellee,
v.
RALSTON SCHOOL DISTRICT, DOUGLAS COUNTY, Nebraska, Appellant.
No. 36274.
Supreme Court of Nebraska.
October 28, 1966.
*920 Shrout, Hanley, Nestle & Corrigan, Omaha, for appellant.
Story, Carl & Parker, Omaha, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and MANASIL, District Judge.
BOSLAUGH, Justice.
The plaintiff, Frank L. Lee, was employed by the defendant, Ralston School District, as superintendent of its schools for a term of 3 years commencing July 1, 1961. On January 21, 1963, the defendant relieved the plaintiff of his duties but continued to pay his salary until November 1963. The plaintiff then commenced this action to recover the salary and expense allowances alleged to be due the plaintiff under the contract from November 1963 through June 1964.
The defendant's answer alleged that the plaintiff had obtained other employment and denied that there was any amount due the plaintiff under the contract. By counterclaim the defendant sought to recover the payments made to the plaintiff for June through October 1963.
A jury was waived and the action tried to the court. The trial court found that the plaintiff was entitled to recover an amount equal to the salary alleged to be due under the contract, with interest, and dismissed the counterclaim. The defendant's motion for new trial was overruled and it has appealed.
The action of defendant in relieving the plaintiff of his duties under the contract was the equivalent of a dismissal or discharge. Schlueter v. School Dist. No. 42, 168 Neb. 443, 96 N.W.2d 203. Although the defendant alleged that the plaintiff had been discharged for cause, there was a complete failure of proof in that regard. The plaintiff's rights as against the defendant are those of an employee who has been wrongfully discharged from his employment.
From the allegations of the petition, it would appear that the action was brought to recover wages due under a contract for personal services. In some states an employee who has been wrongfully discharged may sue for his wages under the doctrine of constructive service. See, 35 Am.Jur., Master and Servant, s. 53, p. 484; 56 C.J.S. Master and Servant § 50, p. 444. The doctrine of constructive service has never *921 been adopted in this state, and the proper remedy for the wrongful discharge of an employee is an action for damages for the breach of the contract of employment.
The judgment in this case was for the entire amount remaining due the plaintiff under the contract. The question that must be determined is whether the evidence will sustain a judgment for that amount.
The measure of damages in a suit for breach of contract for personal services is the amount of the salary agreed upon for the period involved less the amount which the servant earned or, with reasonable diligence, might have earned from other employment during that period. Schlueter v. School Dist. No. 42, supra.
In this case the plaintiff testified that he was placed on temporary duty as a naval officer on July 15, 1963; that his rank was that of commander; that his duty was that of recruiting officer for the Naval Reserve in the Omaha area; that he was stationed at Fort Omaha and had offices there; and that his total pay and allowances per month as a naval officer were greater than his salary per month under the contract with the defendant.
The plaintiff further testified that he did not keep regular office hours while on naval duty; that sometimes he would be in his office at 9 o'clock in the morning, at other times at 1 o'clock in the afternoon, and at other times not until 5:30 or 6 o'clock in the evening. The work consisted of preparing material to be mailed to prospective recruits, arranging for interviews, and arranging for teams to go out and talk to the parents of prospective recruits. The plaintiff also testified that most of the work was done in the evenings, some on Saturday, and occasionally on a Sunday. The work involved travel in Omaha and occasionally out of town. His first tour of duty terminated in December 1963, and was followed by a second tour of duty that ended in May 1964.
The record in this case will not sustain a finding that the plaintiff's employment as a naval officer after his discharge by the defendant was part-time work or consistent with the performance of all the duties of a superintendent of schools under the contract of employment with the defendant. The defendant is entitled to a reduction in damages by reason of the plaintiff's earnings while on duty as a naval officer during 1963 and 1964 to the extent that his duty as a naval officer was not consistent with the performance of his contract with the defendant. The evidence will not sustain a judgment for the entire amount remaining due under the contract.
The plaintiff argues that the judgment must be affirmed because the defendant is estopped from denying that the plaintiff's contract was "purchased" by it. The argument appears to be based upon a statement made by the president of the defendant's board.
At the meeting of the board on January 21, 1963, the president requested the plaintiff's resignation. When this was refused, the president stated: "`In that case we have no option other than to buy your contract.'"
The petition in this case sought recovery under the original contract. The plaintiff alleged that he was "ready and willing to assume and perform all acts required of him by the contract." In a letter to the defendant's board on November 15, 1963, the plaintiff's attorney stated that the plaintiff was ready and willing to assume the duties of superintendent and do everything required of him by the contract.
There is no pleading or proof of any agreement between the plaintiff and the defendant whereby the defendant "purchased" or "bought up" the contract. The resolution of the defendant's board merely stated that the plaintiff's salary would be paid on a monthly basis until the expiration date. The plaintiff's contention is without merit.
*922 The judgment of the district court is reversed and the cause remanded for a determination of the damages due the plaintiff for the defendant's breach of the contract of employment.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613898/ | 258 So.2d 132 (1972)
Ona Bernice LARKIN, Plaintiff-Appellant,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Defendants-Appellees.
No. 11766.
Court of Appeal of Louisiana, Second Circuit.
February 1, 1972.
*134 Robinson & McKneely by Billy R. Robinson, Bossier City, for plaintiff-appellant.
Mayer & Smith by Caldwell Roberts, Shreveport, for Arkansas Louisiana Gas Co. and United States Fidelity and Guaranty Co., defendants-appellees.
Cook, Clark, Egan, Yancey & King by James E. Clark, Shreveport, for City of Bossier City, third party defendant-appellee.
Before AYRES, PRICE and HALL, JJ.
AYRES, Judge.
This is an action in tort wherein plaintiff seeks to recover damages for personal injuries sustained when she tripped and fell over a valve cover box, attached to a gas service line, while she was walking in the grass alongside the curb on the south side of Ogilvie Street in Bossier City. Made defendants are Arkansas-Louisiana Gas Company, hereinafter referred to as Arkla, and its named insurer.
For recovery, in addition to relying upon the doctrine of res ipsa loquitur, plaintiff, in the alternative, charged negligence to Arkla in placing an obstruction in a footpath without providing warning signals. Defendants denied the charges of negligence directed to them and, in the alternative, directed charges of contributory negligence to plaintiff, particularly in failing to keep a proper lookout, or to use the paved sidewalk on the north side of the street, or to take adequate precautions for her own safety.
Inasmuch as the alleged obstruction was located and the alleged accident occurred in the street right of way, defendants, in a third-party proceeding, caused the municipality of Bossier City to be made a thirdparty defendant from which they sought contribution or reimbursement in the event they were cast in damages.
After trial on the merits, there was judgment not only rejecting plaintiff's demands but rejecting defendants' third-party demands against the municipality. From this judgment, plaintiff appealed devolutively to this court. The defendants, out of an abundance of precaution, likewise appealed so far as concerned the third-party demand against the City.
The facts with reference to Arkla's liability may be briefly reviewed.
On the morning of January 13, 1970, about 9:00 o'clock, plaintiff walked westerly on the sidewalk along the north side of Ogilvie Street. In approaching the Methodist Church, to avoid the rough sidewalk continuing westerly from that point, plaintiff crossed the street and continued her journey westerly on the sidewalk alongside the south side of the street. After proceeding for some undisclosed distance, plaintiff came to the end of the sidewalk, whereupon she continued westerly by walking upon the grass near the street curb. The evidence negates the existence of any visible pedestrian pathway across the grass in the vicinity where plaintiff was then walking. While thus proceeding, plaintiff *135 testified, she tripped over what she described as a "gas pipe" which precipitated her fall over the curb into the street, causing severe and painful injuries to her head, a knee, and arms.
Plaintiff testified she did not see the valve cover box before stumbling upon it. But she was able to see it after she assumed a sitting position, though the box was almost obscured by leaves and grass which surrounded and covered it. Her testimony in this respect is corroborated by the testimony of two members of the Bossier City Police Department who testified that the cover was not readily seen because of the presence of the grass and leaves. One of the officers measured the box and found it to be 1 1/3 inches aboveground at its highest point. The other estimated its height to be 1½ to 3 inches aboveground.
As we are informed by the evidence, after a service line leads off from a gas main, a valve is placed on the service line for the purpose of extending the line and providing service to adjacent property. This valve serves to turn on or to discontinue the service to that particular property. This valve is protected by a cover in the nature of a box installed flush with the ground. The cover in the instant case had become tilted with a corner as the highest or most exposed part. This valve cover was shown to have been installed on March 5, 1920, almost 50 years prior to the accident. No history of prior accidents at this valve cover was noted or at any other similar cover in that period of time.
There is no showing how or when the valve cover may have become tilted with a corner slightly raised above ground. Various ways were suggested which might, or could, have caused the cover to assume that position, such as, for example, a lawn mower passing over it or the work of a plumber or plumbers in discontinuing or restoring services to the adjacent lot. Arkla denied it had any notice or knowledge of the condition complained of. There is no showing of any such knowledge on its part. No complaint with respect to the height of the cover was recounted by any of defendant's witnesses or employees.
Thus, from the above recital of the facts, it is readily seen that the valve cover was not in the exclusive control and possession of the defendant so as to render the doctrine of res ipsa loquitur applicable. In the absence of special circumstances sufficient to bring into operation the doctrine of res ipsa loquitur, the mere happening of an accident or the occurrence of an injury does not raise a presumption or authorize an inference of negligence on the part of the defendant. Moreover, the doctrine is a rule of evidence peculiar to the law of negligence and is an exception or a qualification of the general rule that negligence is not to be presumed but must be affirmatively established. The doctrine is, however, inapplicable where the injury might have been brought about by one, two, or more causes, neither of which is included nor excluded by any affirmative showing. Nor does the doctrine find application where, from the nature of the facts, it is reasonable to assume that the damage may have been caused by the negligence of another or through the instrumentality or the agency of another, or when the accident might have happened as the result of two or more causes with some of which defendant had no causal connection.
Shields v. United Gas Pipe Line Company, 110 So.2d 881, 884-885 (La.App., 2d Cir. 1959);
Anderson v. London Guarantee & Accident Co., 36 So.2d 741 (La.App., 2d Cir. 1948).
The defendant Arkla made no regular or routine inspections of its valve covers. The absence of any complaint for almost half a century would tend to refute any argument for the necessity of such inspections.
There is a general rule, with few exceptions and of which the present is *136 not one, that one must be guilty of fault or negligence or a delict of some kind to be liable for damage caused to another.
LSA-C.C. Art. 2315;
McIlhenny v. Roxana Petroleum Corporation, 10 La.App. 692, 122 So. 165 (1929).
As a general rule, fault is an essential basic ingredient of any charge of negligence or of any action for damages. The principle with which we are here presently concerned is tersely stated:
"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." (Emphasis supplied.)
LSA-C.C. Art. 2315.
The word "fault," as envisioned in this article, is synonymous with "negligence."
Samson v. Southern Bell Telephone & Telephone & Telegraph Co., 205 So.2d 496, 502 (La.App., 1st Cir. 1967);
Lyons v. Jahncke Service, Inc., 125 So. 2d 619 (La.App., 1st Cir. 1960).
"Negligence" is a failure to do what a reasonable and prudent person would ordinarily do under the circumstances, or the doing of what such a person under the existing circumstances would not do.
Bait, and Potomac R. R. Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506;
Parrott v. Wells, 15 Wall. 524, 82 U.S. 524,21 L.Ed. 206;
Illinois Cent. R. Co. v. O'Neill, 177 F. 328, 100 C.C.A. 658cert. denied.
Thus, the basis or foundation of all liability in tort cases is fault.
Pitre v. Thibodeaux, 200 So.2d 360 (La. App., 4th Cir. 1967);
Tucker v. Travelers Insurance Company, 160 So.2d 440, 442 (La.App., 2d Cir. 1964);
Salley v. State Farm Mutual Automobile Ins. Co., 157 So.2d 638 (La.App., 2d Cir. 1963);
Wilson v. Eagle Gas Company, 154 So. 2d 270 (La.App., 2d Cir. 1963).
The jurisprudence of this State is uniform to the effect there must be fault or negligence or a delict of some kind, or a failure to perform some duty, and that such must be alleged and established by proof in order that recovery of damages may be permitted. See:
McIlhenny v. Roxana Petroleum Corporation, supra, 122 So. 165, 167, and the authorities therein cited.
However, it is also well established that for negligence to give rise to an action ex delicto under LSA-C.C. Art. 2315, it must be a proximate cause of the injury for which damages are sought.
Samson v. Southern Bell Telephone & Telegraph Co., supra, 205 So.2d 496, 502;
Harvey v. Great American Indemnity Company, 110 So.2d 595, 601 (La.App., 2d Cir. 1958).
Therefore, to constitute proximate cause as distinguished from remote cause, the negligent act must be the primary or moving cause of the injury, or that cause which in natural or continuous sequence, unbroken by any efficient or intervening cause, produces injury and without which the accident could not have happened, provided the injury is of such nature as to have been reasonably anticipated or foreseeable as the natural and probable consequence of the wrongful act.
Craig v. Burch, 228 So.2d 723 (La.App., 1st Cir. 1969writ refused);
Todd v. Aetna Casualty & Surety Company, 219 So.2d 538 (La.App., 3d Cir. 1969writ refused);
Hoover v. Wagner, 189 So.2d 20 (La. App., 1st Cir. 1966writ refused);
*137 Gay v. United States Fidelity & Guaranty Co., 76 So.2d 60 (La.App., 2d Cir. 1954);
Matranga v. Travelers Ins. Co., 55 So. 2d 633 (La.App., Orl.1951);
Anderson v. London Guarantee & Accident Co., 36 So.2d 741 (La.App., 2d Cir. 1948).
These principles of law were restated and emphasized by the Supreme Court of this State in Spiers v. Consolidated Companies, 241 La. 1012, 132 So.2d 879, 883-884 (1961), where it was declared:
"The law is well settled that a person cannot be held responsible on the theory of negligence for an injury from an act or omission on his part unless it appears that he had knowledge, or reasonably was chargeable with knowledge, that the act or omission involved danger to another. See 38 Am.Jur., Negligence, sec. 23, p. 665. In the case of Anderson v. London Guarantee & Accident Co., La.App., 36 So.2d 741, 746, the Court of Appeal cited numerous cases of this court on the subject, saying:
"` * * * Our jurisprudence is replete with cases which clearly define the degree of care required of an actor, from some of which we cite extracts as follows:
* * * * * *
""Negligence' has been defined to be the failure to use such care as is necessary to avoid a danger which should have been anticipated, by reason of which the plaintiff has suffered injury. Lopes v. Sahuque, 114 La. [1004], 1011, 38 So. 810; Baltimore & P. R. Co. v. Jones, 95 U.S. 439, 441, 24 L.Ed. 506; 6 Cyc. 591.
"`"A defendant can only be required to guard against a probable or anticipated danger. New Orleans & N. E. R. Co. v. McEwen & Murray, 49 La.Ann. 1184, 1196, 22 So. 675, 38 L.R.A. 134 * * *." Caillier v. New Orleans Railway & Light Company, 11 La.App. 93, 120 So. 76, 78.
"`"See also, Brandt v. New Orleans Public Service, Inc., 15 La.App. 391, 132 So. 244.
"`"The common usage of a business or occupation is frequently stated to be a test of care or negligence, and accordingly, conformity to custom or usage is very generally regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case, * * *." 45 Corpus Juris 706.
"`The Supreme Court of this State in New Orleans & N. E. R. Company v. McEwen & Murray, 49 La.Ann. 1184, 22 So. 675, 680, 38 L.R.A. 134, said:
"`"`Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event such as may happen once in a lifetime, or perhaps twice in a century, does not * * * make out a case of negligence upon which an action in damages will lie.'"
"`In the same case our Supreme Court quoted with approval from the case of Huber v. LaCrosse City Railway Company, 92 Wis. 636, 66 N.W. 708, 31 L.R.A. 583, 53 Am.St.Rep. 940, decided by the Supreme Court of Wisconsin, affirming what it had said in Block v. Milwaukee St. Railway Company, 89 Wis. 371, 61 N.W. 1101, 27 L.R.A. 365, 46 Am.St.Rep. 849, as follows:
"`"`The negligence is not the proximate cause of the accident, unless * * under all the circumstances, the accident might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence. * * * A mere failure to ward against a result which could not have been reasonably anticipated is not actionable negligence.'" Keller v. Stevenson, La.App., 6 So.2d 569.'"
*138 Thus, the general rule is that before an act of commission or of omission may be regarded as negligence, the person charged therewith must have knowledge or notice that such act or omission involves danger to another, or as a reasonably prudent person, he should have foreseen or anticipated the injury or danger and guarded against it. Anticipation and foreseeability are, therefore, important considerations in determining liability for negligence. The governing consideration as to the knowledge or notice of a defect or danger required for a showing of negligence is what the person sought to be charged should have reasonably foreseen or anticipated; and the rule is that one is bound to anticipate and guard against the reasonable and natural consequences of his own conduct or wrongful acts. Thus, actual anticipation is not the test but what one should, under the circumstances, reasonably anticipate as a consequence of his conduct. However, a person is not chargeable with negligence in failing to provide against danger or injury which a reasonably prudent person would not have foreseen or anticipated.
Negligence, therefore, cannot be predicated upon an act of commission or upon a failure to act where there is no reason to anticipate that injury of any kind might result. Consequently, it may not be said that reasonable anticipation of injury or danger is required where the injury or danger is unlikely, improbable, impossible, or would occur only under exceptional, unusual, or abnormal circumstances.
Gauging the facts of this case by the aforesaid principles and rules of law, it cannot be said that defendant Arkla should have foreseen or anticipated that injury or danger to third persons would have resulted from the installation of a valve cover to a gas service line imbedded flush with the top of the soil a half century ago in an area not even yet adapted to or generally used as a pedestrian pathway. Fault on the part of Arkla as a proximate cause of the accident was not established.
Inasmuch as plaintiff's demands are being rejected, the third-party proceeding presents no issues requiring our attention.
We find no error in the judgment appealed; hence, it is affirmed at plaintiffappellant's costs.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919974/ | 146 N.J. Super. 235 (1976)
369 A.2d 919
DOLORES MARINI & FRANK CROSS, T/A WOODSTOWN CAKE SHOP AND FRANK CROSS & LESTER FORD AND DOLORES MARINI, INDIVIDUALLY, PETITIONERS-RESPONDENTS AND CROSS-APPELLANTS,
v.
BOROUGH OF WOODSTOWN, RESPONDENT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 29, 1976.
Decided December 16, 1976.
*237 Before Judges BISCHOFF, MORGAN and E. GAULKIN.
Mr. Lawrence W. Point argued the cause for appellant Borough of Woodstown (Messrs. Acton & Point, attorneys).
Mr. G. Thomas Bowen argued the cause for cross-appellants Marini and Cross, t/a Woodstown Cake Shop (Mr. G. Thomas Bowen and Mr. Arthur T. Vanwart, II, attorneys).
Ms. Andrea Kahn, Deputy Attorney General, argued the cause for Department of Community Affairs (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Ms. Erminie L. Conley, Deputy Attorney General, of counsel).
PER CURIAM.
Defendant Borough of Woodstown (borough) appeals from a final decision of the Director of the Division of Housing and Urban Renewal, Department of Community Affairs, awarding relocation assistance payments to petitioners pursuant to the Relocation Assistance Act (N.J.S.A. 20:4-1 et seq.).
Hilda Montaigne was, in 1973 and for many years prior thereto, the owner of the lands and buildings involved herein which are situate in the borough. For 15 years petitioners, Dolores Marini and Frank Cross, trading as the Woodstown Cake Shop, rented the building from Mrs. Montaigne at a rental of $175 a month. The land beside and behind the building was leased to the borough and served as a parking lot. Because Mrs. Montaigne was advancing in years and *238 in order to insure the continued use of the lands for a municipal parking lot, officials of the borough approached Mrs. Montaigne on or about August 6, 1973, seeking to purchase the land which the borough was then leasing. Mrs. Montaigne agreed to sell, but only if all the lands and building were purchased. Agreement was reached between the parties and on November 26, 1973, a deed conveying the lands and premises to the borough was delivered.
Petitioner Marini testified that though she had been told by Mrs. Montaigne of the sale of the lands to the borough, she had not been informed where to pay the rent and did not pay any. In March 1974 the borough instituted an action to recover the rent due on the building, as a result of which Mrs. Marini paid all rent due and continued to pay the rent through July 1974.
On March 29, 1974 the borough served petitioner with a notice to vacate the premises on August 6, 1974. She opened negotiations with the borough, claiming entitlement to relocation expenses under N.J.S.A. 20:4-1 et seq. (the Relocation Assistance Act) and N.J.S.A. 52:31B-1 et seq. (the Relocation Assistance Law of 1967). During the course of the negotiations Mrs. Marini was notified that she had "until July 20, 1974 to find a suitable location and submit bids for any relocation services or materials which [she] may need under N.J.S.A. 52:31B," and was offered assistance in finding a new location.
Petitioner failed to move by the indicated date but at a later time obtained estimates of the cost of moving the bakery, which estimates ranged from $9,000 to $11,000.
Petitioner Marini and three other people lived in rooms over the bakery and all moved out of the rooms, incurring some expenses in doing so, but Marini remained in the bakery.
The borough thereafter determined that they had no need of the property for public purposes, and since Marini was having difficulty in relocating, the notice to quit was withdrawn on October 29, 1974. The notice stated that the *239 "month to month tenancy at the rental of $175 per month with tenant paying water and sewer excess may continue."
The bakery equipment continues to remain on the premises, but it is not being operated. There is evidence that the building is substandard and could not pass the health inspection for the year 1974.
By letter dated November 12, 1974 petitioner sought and obtained a hearing before the Commissioner of the Department of Community Affairs to determine "the extent of the Borough's responsibility for Mrs. Marini's expenses * * *."
At the termination of the hearing the final decision of the Commissioner ordered that:
(1) Relocation assistance payments were to be paid by the borough to petitioners;
(2) The borough was to have credit against such payments for back rent owed by petitioner for the period during which petitioner's goods remained on the property;
(3) Petitioner should be paid the costs of travel, phone calls and other incidental expenses, and
(4) The borough should pay petitioners Marini and Lester Ford household relocation expenses of $250 each.
The borough appeals from (1), (3) and (4). Petitioners have cross-appealed from (a) the allowance to the borough of a credit for the unpaid rent and (b) the failure of the Commissioner to award attorney's fees.
The Relocation Assistance Law of 1967 (N.J.S.A. 52:31B-1 et seq.) provided for relocation assistance to persons required to vacate real property, or a tenancy therein, pursuant to any lawful order or notice of any state agency or unit of local government on account of the acquisition of any real property for a public use, a program of law enforcement or a program or project for the voluntary rehabilitation of dwelling units. N.J.S.A. 52:31B-3(e). Such relocation assistance, however, is limited to $200 in the case of an individual or family and $3,000 in the case of a business concern. N.J.S.A. 52:31B-4(c).
*240 In 1970 Congress passed the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C.A. § 4621 et seq. In order to be eligible for federal financial assistance for a program that will result in the displacement of any person, state agencies must be able to provide relocation assistance according to the federal scheme. 42 U.S.C.A. § 4630.
The federal act authorizes relocation assistance payments to persons displaced as a result of the acquisition of real property for a federal program far exceeding the limitations in N.J.S.A. 52:31B-4(c). 42 U.S.C.A. § 4622. Moreover, the federal act does not limit relocation assistance to situations where there has been a condemnation of real property in the exercise of the eminent domain power, but authorizes such assistance even when displacement results from the acquisition of real property by voluntary transfer. 42 U.S.C.A. § 4621 et seq.
In order to comply with the federal directive and to be eligible for federal financial assistance to programs causing the displacement of persons as a result of the acquisition of real property, the New Jersey Legislature passed the Relocation Assistance Act, N.J.S.A. 20:4-1 et seq., in 1971. Introduced to the Legislature as Assembly Bill 2320 on April 1, 1971, the bill had appended to it a statement indicating:
The purpose of this bill is to permit New Jersey to comply with the provisions of the new Federal Uniform Relocation Assistance and Real Property Acquisitions Policy Act of 1970 (Public Law 91-646). The Federal Act requires that states be able to offer substantially the same relocation benefits and advisory assistance as that required of the Federal agencies for persons displaced by federally assisted projects. This legislation would permit New Jersey to meet these requirements.
This policy was enacted in the "Declaration of Policy" embodied in N.J.S.A. 20:4-2:
The purpose of this act is to establish a uniform policy for the fair and equitable treatment of persons displaced by the acquisition of real property by state and local land acquisition programs, by building *241 code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision.
It is clear that this act was intended to comply with the federal statute and that the State has been receiving funds from the Federal Government on that basis.
The borough argues that N.J.S.A. 20:4-1 et seq. authorizes relocation assistance payments only when persons have been displaced as a result of the condemnation of private property under the doctrine of eminent domain. It relies on N.J.S.A. 20:4-3(a), which defines "taking agency" as follows:
"Taking agency" means the entity, public or private, including the State of New Jersey, which is condemning private property for a public purpose under the power of eminent domain.
The argument continues that since the borough did not condemn the Montaigne property, the statute is not applicable and petitioners are not entitled to relocation assistance payments.
The Department of Community Affairs and petitioner, on the other hand, contend that the New Jersey statute was intended to have as broad an application as the federal act, which includes voluntary as well as involuntary acquisitions.
We refrain from deciding that issue and assume, for purposes of this appeal, that the borough is a "taking agency" under N.J.S.A. 20:4-1 et seq.
The borough contends that petitioners are not "displaced persons" entitled to receive relocation assistance. N.J.S.A. 20:4-3(c) provides:
"Displaced person" means any person who, on or after the effective date of this act, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a taking agency; and solely for the purposes of sections 4 a. and b. and section 7 of this act, as a result *242 of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project. [Emphasis supplied]
The record here discloses that while petitioners, on March 29, 1974, were directed to remove from the premises, that order was withdrawn on October 29. As of that date and as of the date of the hearing, petitioners had not removed their bakery equipment from the premises. They, therefore, do not qualify as "displaced persons" within the intent and meaning of that statute.
Nor are petitioners aided by a reference to N.J.S.A. 52:31B-3(e), which contains a somewhat broader definition of "displaced person" as follows:
The term "displaced" shall mean required to vacate any real property, or any tenancy therein, pursuant to any lawful order or notice of any State agency or unit of local government on account of the acquisition of any real property for a public use, or on account of a program of law enforcement, or on account of a program or project for the voluntary rehabilitation of dwelling units.
The basic element for qualification under that section is a requirement that the tenant vacate pursuant to a lawful order or notice. Here the notice to vacate was withdrawn by the borough before petitioners acted upon it. We reject petitioners' contention that the borough could not withdraw its notice to quit.[1]
The fact that the premises became unsuitable for occupancy as a bakery, because of the violation of health codes, may be relevant should the borough seek to collect the rent due since August of 1974, but it is neither material nor relevant to a determination of petitioners' qualifications for relocation assistance as "displaced persons" under the statute.
*243 The judgment of the Commissioner of the Department of Community Affairs, insofar as it ordered the borough to make relocation payments to petitioners Marini and Cross, together with "costs of travel and phone calls and other incidental expenses," is reversed.
The judgment of the Commissioner, determining that petitioners owed the borough back rent, is vacated. The Commissioner is without jurisdiction to make that determination. The issue of liability for rent may be litigated by and between the parties in the appropriate forum if they desire to do so.
There remains the provision of the judgment directing the borough to make payment for household relocation assistance to Marini and Ford based upon their removal from the apartments above the bakery. We have examined the entire record and find a lack of sufficient credible evidence to support an award to either one for that purpose.
The final decision of the Commissioner of the Department of Community Affairs, insofar as it made an award in favor of both petitioners Marini and Lester Ford for household relocation expenses against the borough is reversed.
No costs to either party on this appeal.
NOTES
[1] In a somewhat analogous situation a governmental agency may abandon a condemnation proceeding, even after the entry of an award by the commissioners. N.J.S.A. 20:3-35. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613221/ | 23 So. 3d 722 (2009)
MOORE
v.
CARTWRIGHT.
No. 2D09-3536.
District Court of Appeal of Florida, Second District.
December 14, 2009.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613252/ | 23 So. 3d 694 (2008)
Vallory J. FRANKLIN
v.
STATE of Alabama.
CR-06-1870.
Court of Criminal Appeals of Alabama.
December 19, 2008.
*695 James F. Hampton, Montgomery; and Fletcher D. Green, Clanton, for appellant.
Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
WISE, Judge.
The appellant, Vallory J. Franklin, was convicted of aggravated child abuse, a violation of § 26-15-3.1, Ala.Code 1975.[1] She was sentenced to a term of 20 years' imprisonment. Franklin filed a motion for a new trial, which was denied by operation of law. This appeal followed.
The evidence indicated that the victim was Franklin's granddaughter. The evidence further indicated that on or about March 29, 2006, the then five-year-bid victim was staying with Franklin; that Franklin was boiling water in the kitchen; that Franklin accused the victim of cutting her sibling's hair; that the victim denied cutting her infant brother's hair; that Franklin then held the victim down and poured boiling water on her arm, which splashed on her leg and back. The evidence further indicated that Franklin wrapped the victim's arm in a cloth, but did not take the victim to seek medical assistance; that two days later the victim's aunt noticed the injuries and took the victim to be examined by medical personnel, where she was diagnosed with third-degree burns covering four percent of her body.[2] The victim testified inconsistently *696 as to whether Franklin appeared to have intended to pour the boiling water on her or whether it was an accident. Franklin testified that she was scolding the victim when her arm accidentally struck the pot containing the boiling water, causing the boiling water to accidentally spill on the victim, and that she immediately treated the burns with Neosporin brand antibiotics cream, clean water, and clean bandages.
I.
Franklin first argues that her sentence is illegal because, she claims, she was charged with and convicted of "child abuse" as set forth in § 26-15-3, rather than "aggravated child abuse" as set forth in § 26-15-3.1.
At the time of the events in this case, the offense of child abuse was set forth in § 26-15-3, Ala.Code 1975, as follows:
"A responsible person, as defined in Section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years."[3]
Section 26-15-3.1, Ala.Code 1975, states the offense of aggravated child abuse, as follows:
"(a) A responsible person, as defined in Section 26-15-2, commits the crime of aggravated child abuse if he or she does any of the following:
". . .
"(3) He or she violates the provisions of Section 26-15-3 which causes serious physical injury, as defined in Section 13A-1-2, to the child.
"(b) The crime of aggravated child abuse is a Class B felony."
The indictment charged that Franklin
"did, while a responsible person, to-wit: the grandmother of [the victim], having permanent or temporary care or custody or responsibility for the supervision of said [victim], did cause serious physical injury to a child, [. . .], by failing to seek medical care after [the victim] was seriously burned, in violation of Section 26-15-3, Code of Alabama 1975."
(C. 10.)
A.
To the extent that Franklin's argument is based on the premise that the indictment cited § 26-15-3 rather than § 26-15-3.1, it is well settled that "[m]iscitation of a code section does not void an indictment which otherwise states an offense; and, in the absence of a showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage." Tinker v. State, 932 So. 2d 168, 190 (Ala.Crim.App. 2005), quoting Ex parte Bush, 431 So. 2d 563, 564 (Ala.1983).
Here, although the indictment did cite only to § 26-15-3, it clearly alleged that Franklin caused the victim serious physical injury, an element required under § 26-15-3.1 (aggravated child abuse) and not § 26-15-3 (child abuse). Further, we note that the page of the indictment that contains Franklin's address and physical description, the witnesses, and the signatures of the circuit judge setting bail, the circuit clerk, and the foreperson of the grand jury, listed the charge in count two as: "CHILD ABUSE (AGGRAVATED)." (C. 9.) When defense counsel objected to the *697 trial court's instructing the jury on aggravated child abuse pursuant to § 26-15-3.1, he noted that that charge was listed "on the back" of the indictment. (R. 243.)
Further, Franklin has not shown that she suffered actual prejudice. Her arguments before the trial courtfollowing jury instructions, at sentencing, and in her motion for a new trialwere premised on general principles regarding notice, or her challenge to the length of sentence, which was proper. Much of her argument on appeal is also directed at those grounds. She also alleged on appeal that
"Franklin was put on notice, by the Grand Jury and the District Attorney's office, that she was charged under § 26-15-3 which, at the time of this offense (March 30, 2006) indicated a punishment of `not less than one year nor more than ten years.' Code of Alabama, 1975, § 26-15-3, [prior to its amendment of July 1, 2006 (see case note `History' under § 26-15-3)]. This is significant because Franklin, being apprised of the charge, which is substantially equal to a Class `C' felony (the punishment being set out as `not less than one year nor more than ten years') decided to go to trial on that basis. An awareness of the charged crime would obviously affect the decision of whether to go to trial versus a decision to plead and, as such, affected Franklin and her trial counsel in making their decision to go to trial. It is patently unfair to charge on one crime and convict on a greater crime."
(Franklin's brief at pp. 13-14.) Franklin does not, however, allege that she would not have gone to trial had the indictment cited to § 26-15-3.1. We find no showing of actual prejudice. Thus, Franklin is not entitled to any relief on this claim.
B.
To the extent that Franklin argues that the charge was referred to as "child abuse" throughout the trial, we are presented with a more troubling situation.
Throughout the trial, the offense in count two of the indictment was referred to by the trial court, the prosecution, and the defense, as "child abuse." Additionally, although during jury instructions the trial court instructed the jury on the additional elementserious physical injury that elevated the offense to aggravated child abuse, the trial court referred to the offense as "child abuse." Further, it appears that the verdict form supplied to the jury referred to the charge only as "child abuse." Because we have concluded that the indictment, although misciting to § 26-15-3, the child-abuse code section, actually charged Franklin with aggravated child abuse under § 26-15-3.1, we must determine whether the discrepancy between the offense charged and the verdict form requires reversal.
In Tinker v. State, 932 So. 2d 168 (Ala. Crim.App.2005), this Court stated:
"In Pittman v. State, 621 So. 2d 351, 352 (Ala.Crim.App.1992), Pittman was indicted for attempted murder, and `he was erroneously convicted of "intent to commit murder."' The trial court had instructed the jury on `intent to commit murder' and `attempted murder' and `[t]he verdict form submitted to the jury contained a charge of "intent to commit murder" rather than "attempted murder."' Pittman, 621 So.2d at 352. In reversing Pittman's conviction, this Court stated:
"`Although "intent" to commit a crime is a necessary element within any "attempt" statute, it is not, in and of itself, a crime to possess intent; hence, the court was without jurisdiction to pronounce judgment on the verdict finding the defendant guilty of "intent to commit murder." Accordingly, *698 the trial court's judgment on the "intent to commit murder" conviction is null and void and will not support an appeal.'
"Pittman, 621 So.2d at 352-53.
"In Edwards v. State, 570 So. 2d 252 (Ala.Crim.App.1990), Edwards was indicted for unlawful sale of a controlled substance (marijuana), and the trial court instructed the jury on the offense of illegal sale of marijuana, but the verdict form submitted to the jury listed the offense as `possession of marijuana' and the jury returned a verdict finding Edwards guilty of `possession of marijuana.' Edwards, 570 So.2d at 253. In reversing Edwards's conviction, this Court stated:
"`"The verdict in a criminal case must be responsive to the offense charged in the indictment, but surplusage can be disregarded if the intent of the jury is clear. A jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless."
"`Peterson v. State, 508 S.W.2d 844, 849 (Tex.Cr.App.1974). See also Rodgers v. State, 649 S.W.2d 371, 373-376 (Tex.App. 3 Dist.1983).
"`In the present case, the jury's verdict was not responsive to the offense charged in the indictment and the jury's intent is not clear; therefore, the language stating that the appellant was found guilty of the "possession of marijuana" cannot be held to be surplusage.
"`In State v. Whiting, 41 Ohio App. 3d 107, 534 N.E.2d 904 (1987), the defendant argued on appeal that the jury verdict was insufficient to sustain his sentence for a second or third degree felony. The defendant in Whiting, supra, was indicted for aggravated trafficking, wherein the drug is a Schedule I or II controlled substance, but the jury verdict form stated that the defendant was guilty of simple trafficking in drugs, wherein the drug is a Schedule III, IV, or V controlled substance. The court found that "[t]he discrepancy between the indictment and the verdict form is sufficient to cast doubt upon the jury's verdict and create the need for a new trial because, under the facts of the case on review, trafficking in drugs cannot be a lesser-included offense of aggravated trafficking."
"`"As Chief Justice Marshall stated:
"`"`The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence. It is only a modification of this rule, that the accusation on which the prosecution is founded, should state the crime which is to be proved, and state such a crime as will justify the judgment to be pronounced.'
"`"The Hoppet v. United States, 7 Cranch (11 U.S.) 389, 394, 3 L. Ed. 380, 382 (1813)."
"`Clements v. State, 370 So. 2d 723, 728 (Ala.1979), overruled, Beck v. State, 396 So. 2d 645 (Ala.1980). See also Ex parte Tomlin, 443 So. 2d 59, 64-65 (Ala.1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984), Johnson v. State, 399 So. 2d 859, 865 (Ala.Cr.App.1979), affirmed in part, reversed in part on other grounds, 399 So. 2d 873 (Ala.1979).
"`Because the appellant was charged with the unlawful sale of a *699 controlled substance but was convicted, pursuant to the jury verdict forms, of the possession of marijuana, where the latter could not be a lesser included offense of the former, the judgment is due to be reversed and the cause remanded for a new trial.'
"Edwards, 570 So.2d at 253-54."
Tinker, 932 So.2d at 176-77. In Tinker, the indictment charged Tinker with conspiracy to traffic in cocaine, but the verdict form listed the offense only as trafficking in cocaine. The trial court's instructions in that case included both the elements of conspiracy and the elements of trafficking in cocaine. Thus, this Court concluded that Tinker's conviction and sentence were due to be vacated because the jury's intent in rendering the verdict was unclear. This Court stated that it was
"conceivable that a layperson on the jury could have easily construed the instructions as requiring the jury to determine whether Tinker was guilty of trafficking in cocaine, especially since the verdict form provided to the jury gave the jury two choices on count 1that the jury could find Tinker either guilty or not guilty of `trafficking cocaine, as charged in count one of the indictment.' (C. 183, R. 975.)"
Tinker, 932 So.2d at 177.
In Bradford v. State, 948 So. 2d 574 (Ala. Crim.App.2006), the indictment charged the appellant with reckless driving, yet the offense was referred to throughout trial as reckless endangerment. In its oral charge to the jury the trial court instructed the jury on the elements of reckless driving but referred to the charge as reckless endangerment. This Court, noting that the jury was instructed only on the elements of reckless driving and was not instructed on the elements of reckless endangerment, concluded that under the facts of that case, it was apparent that the jury's intent was to find Bradford guilty of reckless driving as charged in the indictment despite the repeated characterization of the offense as reckless endangerment throughout the trial and on the verdict form.
Looking to the facts in this case, as discussed more fully earlier in this opinion, we have determined that despite the miscitation to the offense of child abuse in § 26-15-3, Franklin was charged with aggravated child abuse under § 26-15-3.1. The offense was referred to throughout the trial as "child abuse." In its oral charge to the jury, the trial court instructed the jury that the two counts of the indictment should be viewed as separate cases; after instructing the jury on assault, the trial court stated:
"The second case is the child abuse charge. The law provides that a responsible person as defined under Section 26-15-2 commits the crime of aggravated child abuse if he or she does any of the following. There are several ways that a person can commit this offense. The only one applicable in this case and the only one for you to decide on is Section 3. He or she violates the provisions of Section 26 which causes serious physical injury as defined in Section 13A-1-2 to a child. A responsible person, as defined in Section 26-15-2, who shall torture, willfully abuse, cruelly beat, or otherwise willfully maltreat any child under the age of 18 years shall be guilty of child abuse.
"A responsible person means a child's natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for supervising a child.
"The willful maltreatment of a child is encompassed in the definition of child abuse set out in the statute that I've *700 previously read to you. Willful maltreatment may result from a willful act or omission which evidences such a serious disregard for the consequences as to cause harm or to threaten harm to a child's health or welfare, and this may include a willful denial of medical care or treatment.
"The Court further charges you, ladies and gentlemen, that the State must prove that there was culpable mental state during the commission of the crimes that were charged, that is knowingly or intentionally, pursuant to the indictment in this case. If you do not find that the State has proven such a mental state beyond a reasonable doubt, then the jury must acquit the defendant of the charges which stand against her.
"I charge you, ladies and gentlemen, that the child abuse offense for which the defendant is charged in the indictment requires an intentional conduct, such as willfully, or otherwise willfully maltreat or willfully abuse."
(R. 237-39.)[4] Although the verdict forms are not contained in the record, we note that the trial court, in its oral instructions to the jury, discussed the verdict form for count one of the indictment, i.e., the assault charge, and then stated:
"You will then go on to consider count two. The verdict form is identical. It provides verdict, count two, we, the jury in the above-styled case, find the defendant, Vallory Jean Franklin, guilty of child abuse as charged in count two of the indictment, so say we all. If you find that she is guilty, that's where the foreperson will sign. The second possible verdict is, we, the jury in the above-styled case, find the defendant, Vallory Jean Franklin, not guilty of child abuse as charged in count two of the indictment, so say we all. If you find that she is not guilty, the foreperson will sign on the line provided."
(R. 240-41.)
Here, the trial court's oral instructions included the elements of both child abuse and aggravated child abuse. To find aggravated child abuse the jury must have, of necessity, found that Franklin committed child abuse. However, in light of the mixed referencesthroughout the trial, in the oral instructions, and in the verdict formto child abuse and aggravated child abuse, the question is whether the jury unanimously found that Franklin caused serious physical injury by committing said child abuse. In this case, unlike Bradford, we cannot reasonably ascertain the answer to that question. Rather, it is conceivable that a layperson on the jury could have construed the trial court's oral instructions as allowing a finding of guilty without necessarily finding the serious-physical-injury element that elevated the offense from simple child abuse to aggravated child abuse. See generally Tinker. Thus, we cannot say that the error is harmless. Therefore, we have no choice but to remand this case for the trial court to vacate Franklin's conviction and sentence for aggravated child abuse.
However, unlike Tinker, where the offenses were not lesser-included offenses, the second offense in this case, i.e., child abuse under § 26-15-3, is included in the indictment. "[I]n determining whether one offense is included in another, the trend of recent Alabama decisions is to focus on the statutory elements of the *701 offenses and the factual allegations actually included in the indictment, rather than on the evidence or factual basis the State presents at trial or during the guilty-plea colloquy." Johnson v. State, 922 So. 2d 137, 141 (Ala.Crim.App.2005). See also Moss v. State, 929 So. 2d 486, 489 (Ala. Crim.App.2005) ("[T]he clear trend in Alabama law is that in determining whether one offense is included in another, the focus is on the statutory elements of the offenses and the facts as alleged in the indictment, not on the evidence presented at trial.").[5] The indictment in this case clearly encompassed § 26-15-3. While we cannot ascertain from the verdict in this case that the jury unanimously found the serious physical injury necessary for a finding of guilty on a charge of aggravated child abuse pursuant to § 26-15-3.1, we can ascertain that, in returning a verdict of guilty in count two, the jury necessarily and as a matter of law found Franklin guilty of child abuse pursuant to § 26-15-3. It is well settled that "[a]ppellate courts have the `inherent authority to reverse a conviction while at the same time ordering an entry of judgment on a lesser-included offense.' Edwards v. State, 452 So. 2d 506, 507 (Ala.Crim.App.1983), aff'd, 452 So. 2d 508 (Ala.1984)." Campbell v. State, 555 So. 2d 252, 254 (Ala.Crim.App. 1989). See also Brand v. State, 960 So. 2d 748 (Ala.Crim.App.2006); Gilmore v. State, 963 So. 2d 158 (Ala.Crim.App.2006); and Franklin v. State, 854 So. 2d 153 (Ala.Crim. App.2002). Accordingly, we remand this case to the trial court with instructions that it vacate Franklin's conviction and sentence entered on aggravated child abuse under § 26-15-3.1, and to instead enter a judgment of guilty of the lesser-included offense of child abuse pursuant to § 26-15-3, and impose a sentence for that offense.
II.
Franklin next argues that the trial court erroneously denied her motion for a judgment of acquittal. Specifically, she claims that the State did not present a prima facie case of aggravated child abuse because, she claims, the State did not present any evidence indicating that she caused serious physical injury to the victim. Franklin does not argue that the State failed to present a prima facie case of child abuse pursuant to § 26-15-3, Ala.Code 1975. However, because of our resolution of issue I, above, Franklin's challenges to the evidence of serious physical injury is moot.[6]
III.
Franklin next challenges the trial court's oral instructions to the jury.
Initially, we note that Rule 28(a)(10), Ala.R.App.P., requires that an argument contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Here, Franklin's argument references § 13A-1-2 and § 26-15-2, but cites no other legal authority. Thus, her argument *702 fails to meet the requirements of Rule 28(a)(10), Ala.R.App.R, and is deemed waived. See Water Works & Sewer Bd. of City of Selma v. Randolph, 833 So. 2d 604 (Ala.2002) ("Merely quoting a statute and emphasizing certain parts with bold type does not constitute a properly stated and supported contention."), and Harrim v. State, 913 So. 2d 460, 486 (Ala. Crim.App.2002) (noncompliance with the requirements of Rule 28(a)(10), Ala.R.App. P., which "requires parties to include in their appellate briefs an argument section with citations to relevant legal authorities," "has been deemed a waiver of the arguments listed"). Moreover, even if her brief were not deficient, Franklin would not be entitled to any relief for the following reasons.
A.
To the extent that Franklin argues that the trial court erred in instructing the jury on the elements of aggravated child abuse as set forth in § 26-15-3.1, we note simply that for the reasons discussed more fully in Part I. of this opinion, the trial court did not err in instructing the jury on aggravated child abuse.
B.
To the extent that Franklin argues that the trial court failed to define the term "reasonable person" as contained in § 26-15-2 and that the trial court instructed the jury that it must find that she caused serious physical injury to the victim without defining the term "serious physical injury" as set forth in § 13A-1-2, it is well settled that a party must raise by timely and specific objection challenges to the trial court's oral charge to the jury. Rule 21.3, Ala.R.Crim.P., provides in pertinent part:
"No party may assign as error the court's ... giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection."
See also Greenhill v. State, 746 So. 2d 1064 (Ala.Crim.App.1999); and Sanders v. State, 683 So. 2d 14 (Ala.Crim.App.1996). Here, at the conclusion of the trial court's oral charge, Franklin objected only to the trial court's instructing the jury on aggravated child abuse pursuant to § 26-15-3.1. Franklin did not, however, object on the grounds that the trial court did not define "reasonable person" as that term is defined in § 26-15-2, or "serious physical injury" as that term is defined in § 13A-1-2. Thus, these claims on appeal were not preserved for appellate review.[7]
IV.
Franklin next argues that the trial court erred in allowing into evidence photographs of the victim's burns. Specifically, Franklin contends that the photographs were taken two or three days after the injuries were incurred and therefore "did not accurately depict the condition of the burns for a substantial period of time after the burns occurred." (Franklin's brief at p. 41.) Thus, she concludes, the photographs "had no probative value and served only to inflame the jury." (Franklin's brief at p. 45.)
*703 However, Franklin's argument does not comply with the requirements of Rule 28(a)(10), Ala.R.App.P. It is well settled that "[r]ecitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed." Hamm v. State, 913 So. 2d 460, 486 (Ala.Crim.App.2002). "An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument." Ex parte Riley, 464 So. 2d 92, 94 (Ala.1985) (citations omitted). "When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research." City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747, 752 (Ala.1998). Therefore, this claim is deemed waived, because Franklin failed to provide any citation to legal authority in support of her claims.
Moreover, we note that the specific claim asserted on appeali.e., that the photographs had no probative value because they were taken days after the injuries occurred and did not accurately depict the wounds as they appeared when they occurredwas not evident from the generic language in Franklin's motion in limine or from Franklin's general objection at the time the exhibits were admitted on the grounds raised in his motion in limine. "A general objection that does not specify any grounds generally will preserve nothing for review." Schaefer v. State, 695 So. 2d 656, 659-60 (Ala.Crim.App.1996).
"An appellant must provide specific grounds for his general objections at trial if he intends to appeal that issue. `A general objection that does not specify grounds preserves nothing for review.' Landreth v. State, 600 So. 2d 440, 447 (Ala.Cr.App.1992), Thompson v. State, 575 So. 2d 1238 (Ala.Cr.App.1991). `A defendant is bound on appeal of a criminal prosecution by the grounds stated for the objection at trial,' Lyde v. State, 605 So. 2d 1255, 1258 (Ala.Cr.App. 1992). Thus, `an objection without specifying a single ground is not sufficient to place the trial court in error for overruling such objection.' Reeves v. State, 456 So. 2d 1156, 1160 (Ala.Cr.App.1984)."
Capps v. State, 630 So. 2d 486, 489-90 (Ala. Crim.App.1993). The exception to this general rule is when the evidence is patently inadmissible.
"A general objection which does not specify grounds preserves nothing for review unless the ground is so obvious that the court's failure to act constitutes prejudicial error, e.g., Lawrence v. State, 409 So. 2d 987 (Ala.Crim.App.1982), or unless the objected to matter is clearly not proper for any purpose, e.g., McGinnis v. State, 382 So. 2d 605 (Ala.Crim. App.), cert. denied, 382 So. 2d 609 (Ala. 1980)."
Samuel v. State, 455 So. 2d 250, 252 (Ala. Crim.App.1984). See also Charles W. Gamble, McElroy's Alabama Evidence § 426.01(7) (5th ed. 1996) ("A general objection will suffice to isolate error on appeal [only] if the ground of objection was apparent from the context or ... the matter objected to was patently illegal or irrelevant." (footnotes omitted)). Here, nothing in Franklin's boilerplate motion in limine directed the trial court to the lapse of time between the injuries and the taking of the photographs, nor did Franklin's objections at trial when the exhibits were introduced and admitted. Therefore, this *704 issue was not preserved for appellate review.
V.
Finally, Franklin argues that the trial court erred in allowing the victim to testify. Specifically, Franklin avers that the trial court should have declared the victim incompetent to testify because of her young age and because she was shown to be incompetent to testify based on her responses to the trial court when asked about her ability to understand the truth and to respond to questioning about the offense. This conclusion is supported, according to Franklin, by the witness's confusing testimony before the jury.
Initially, we question whether this issue has been properly preserved for appellate review. Franklin made a motion in limine seeking to have the victim declared incompetent to testify, and the trial court indicated that it would make that determination after an initial examination of the victim by the court. At trial the trial court questioned the victim to determine whether she understood what it meant to tell the truth and the importance that she tell the truth regarding the events resulting in her being burned; the trial court administered an oath to the victim. The following exchange then occurred:
"THE COURT: The Court reserves ruling on the competency of the witness at this time. We'll go forward with some examination.
"[Defense counsel]: Objection is noted?
"THE COURT: Got you."
(R. 24.) The victim testified without any further objections or rulings on her capacity to testify. Franklin did not raise any further challenges to the victim's testifying until her motion for a new trial.
"In order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court." Goodson v. State, 540 So. 2d 789, 791 (Ala.Crim.App. 1988), abrogation on other grounds recognized by Craig v. State, 719 So. 2d 274 (Ala.Crim.App.1998).
"This court will not review the merits of a motion presented by the appellant at trial unless the court below has issued a ruling adverse to the appellant on the motion. Knight v. State, 623 So. 2d 376, 379 (Ala.Cr.App.1993). It is the appellant's duty to preserve the record for appeal by invoking a ruling from the trial court. White [v. State], 589 So.2d [765] at 766 [ (Ala.Crim.App.1991) ]."
Berryhill v. State, 726 So. 2d 297, 302 (Ala. Crim.App.1998). Here, the trial court reserved ruling on Franklin's motion, and Franklin did not invoke any ruling from the trial court before, during, or after the victim's testimony. Thus, it appears that she failed to preserve this claim for appellate review.
Even assuming, for the sake of argument, that this claim is properly before this Court, we note that Franklin avers that Rule 603, Ala.R.Evid., §§ 12-21-135 and 12-21-165, Ala.Code 1975, and Hacker v. State, 31 Ala.App. 249, 15 So. 2d 336 (1943), support her position. Rule 603 and § 12-21-135 require a witness to declare by oath or affirmation that he or she will testify truthfully. Section 12-21-165 provides that those without the use of reason, including by reason of infancy, are incompetent witnesses and charges the trial court with deciding upon the capacity of such potential witnesses.
However, § 15-25-3(c), Ala.Code 1975, provides, in pertinent part, that "[notwithstanding any other provision of law or rule *705 of evidence, a child victim of a physical offense ... shall be considered a competent witness and shall be allowed to testify without prior qualification in any judicial proceeding." See also Hewlett v. State, 520 So. 2d 200 (Ala.Crim.App.1987). Further, Rule 601, Ala.R.Evid., provides that "[e]very person is competent to be a witness except as otherwise provided in these rules." The Advisory Committee's Notes to Rule 601 recognize that "very few persons are incapable of giving testimony useful to the trier of fact and that historic grounds of incompetencymental incapacity, conviction, etc.should go to the credibility of the witness and the weight the trier of fact gives to the witness's testimony."
Here, the trial court examined the victim, and after the victim indicated that she understood what it meant to be truthful and the importance of telling the truth about the incident in which she was burned, the trial court allowed the victim to take the witness stand in the presence of the jury. Thus, even assuming that the trial court's decision indicates that it determined the victim was competent to testify, we cannot say that the trial court abused its discretion in allowing the victim's testimony. See Hewlett, supra.
For these reasons, Franklin is not entitled to any relief on this claim.
VI.
For the reasons set forth in Part LB. of this opinion, Franklin's conviction for aggravated child abuse pursuant to § 26-15-3.1 is due to be vacated. Therefore, we remand this case with instructions that the trial court, in the presence of Franklin and her counsel, enter a judgment finding Franklin guilty of child abuse pursuant to § 26-15-3, Ala.Code 1975, and sentence Franklin accordingly. A return should be filed with this Court reflecting the imposition of such judgment and sentence within 35 days of this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.[*]
WELCH, J., concurs in part and concurs in the result, with opinion, which BASCHAB, P.J., joins. McMILLAN, J., concurs in the result. SHAW, J., concurs in the result, with opinion.
WELCH, Judge, concurring in part and concurring in the result.
I concur with parts LA, II., III., IV., V., and VI. of the main opinion. I agree that the issue raised in Part LB. requires that the judgment in this case be reversed and the cause remanded, but for reasons different from those set forth in the opinion. Because I disagree with the analysis by which that result is reached, I write separately.
The element of serious physical injury elevates the offense of child abuse to aggravated child abuse. Franklin was indicted for aggravated child abuse because she failed to seek medical care for the victim after burning the victim with scalding water. The prosecution theorized that Franklin's failure to seek medical attention for the victim's injury resulted in the victim's sustaining a more serious injury, i.e., a serious physical injury, than was caused by the initial burn.
To sustain a conviction based on the above theory of guilt, causation between the lack of medical attention and the seriousness of the injury must be established.
*706 "Section 13A-2-5(a), Ala.Code 1975, the statute governing causation in criminal cases, provides:
"`A person is criminally liable if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.' (Emphasis added.)"
Ex parte Lucas, 792 So. 2d 1169, 1170-71 (Ala.2000).
In that case, Lucas was indicted for capital murder for the Wiling of her young child based on her failure to provide necessary medical care for the child. The Alabama Supreme Court noted that the burden of proving causation was the State's, and "[i]f the State did not introduce evidence that medical treatment would have saved or prolonged the child's life, then the State did not prove that Lucas's failure to provide the child with medical treatment actually caused, or resulted in, the child's death." Ex parte Lucas 792 So.2d at 1171. In Lucas, "the record d[id] not contain evidence tending to prove that, but for Lucas's failure to seek prompt medical treatment for her injured son, he would have survived, or survived longer." Ex parte Lucas, 792 So.2d at 1173. Thus, the Supreme Court held, because "the State failed to prove the essential element of causation ... the trial court erred in denying Lucas's motion for a judgment of acquittal on Count II," i.e., that "she intentionally caused the death of the child by failing in her parental duty to provide said necessary medical services." Ex parte Lucas, 792 So.2d at 1170 and 1173. See also Washington v. State, 608 So. 2d 771, 773 (Ala.Crim.App.1992)(manslaughter conviction upheld where the victim, a young child, was burned by scalding water and "the appellant's behavior was simply a gross deviation from the standard of conduct of a reasonable person").
Following the logic applied in Lucas, Franklin could be criminally liable for aggravated child abuse only if the victim would not have suffered a serious physical injury but for Franklin's failure to provide medical treatment. Here, as in Lucas, there was no evidence presented suggesting that the failure to obtain medical attention made the victim's injury worse. In other words, there was no causation established between the lack of medical attention and the seriousness of the injury, as alleged in the indictment.
For this reason, I believe that Franklin's conviction must be reversed and remanded with directions for the trial court to enter a judgment finding Franklin guilty of the lesser-included offense of child abuse and to sentence her for that offense.
BASCHAB, P.J., joins.
SHAW, Judge, concurring in the result.
I disagree with the holding in the main opinion that it is impossible to determine whether the jury unanimously found Franklin guilty of aggravated child abuse. The opinion holds that, because references to child abuse were also made during the trial, the jurors could have believed that they could find Franklin guilty of aggravated child abuse without finding the existence of the serious-physical-injury element. Initially, I note that my review of the record indicates, and the main opinion holds in Part LA., that the indictment charged Franklin with aggravated child abuse. See § 26-15-3.1, Ala.Code 1975. In addition, the trial court's charge to the jury included an explanation that a responsible person as defined in § 26-15-2 commits the crime of aggravated child abuse if he or she tortures, willfully abuses, cruelly beats, or otherwise willfully maltreats a *707 child under the age of 18 and "causes serious physical injury as defined in Section 13A-1-2 to a child." (R. 237-38.) After the trial court charged the jury, Franklin objected to the instruction on "aggravated child abuse" because, she said, the body of the indictment did not place her on notice that she was being charged with aggravated child abuse. (R. 243.) Thus, Franklin's own objection establishes that the trial court's charge included an instruction on aggravated child abuse. Finally, the verdict stated: "We, the jury in the above-styled case, find the defendant, Vallory Jean Franklin, guilty of child abuse as charged in count two of the indictment ...." (R. 246.) As noted previously, count two of the indictment charged Franklin with aggravated child abuse. Therefore, I cannot agree with the conclusion in the main opinion that the jury's verdict might not have been unanimous because the record included references to both child abuse and aggravated child abuse.
However, as Judge Welch points out in his special writing, the evidence failed to establish a causal connection between the misconduct alleged in the indictment and the element of serious physical injury as alleged in the indictment. The indictment alleged that Franklin caused serious physical injury to the child by failing to seek medical care after the child had been seriously burned. (C. 10.) After carefully reviewing the record, I can find no evidence from which the jury could have reasonably inferred that Franklin's failure to seek immediate medical care for the child caused the child to suffer serious physical injury as that term is defined in § 13A-1-2(14), Ala.Code 1975.
The State attempted to prove both an assault and aggravated child abuse by Franklin. The State charged that Franklin assaulted the child by intentionally pouring boiling water on hercount one of the indictment charging first-degree assaultand that Franklin also harmed the child by failing to secure immediate medical carecount two of the indictment charging aggravated child abuse. The jury acquitted Franklin of assault. Thus, in order to uphold the conviction on count two of the indictment, the record must demonstrate that the child would not have suffered a serious physical injury but for Franklin's failure to seek immediate medical care.
Serious physical injury is defined in § 13A-1-2(14), Ala.Code 1975, as "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ." The record contains no evidence indicating that Franklin's failure to seek immediate medical care for the burns created a substantial risk of death or that it caused serious or protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ. Stated differently, there was simply no testimony from the medical personnel, or any other evidence in the record, establishing that Franklin's failure to seek immediate medical care resulted in the child's suffering any serious physical injury that was worse than the injuries the child initially sustained as a result of the burns.
Although I am compelled to agree with the majority that the conviction for aggravated child abuse must be set aside, the record contains sufficient evidence to establish that Franklin committed the lesser-included offense of child abuse, which requires proof that Franklin tortured, willfully abused, cruelly beat, or otherwise willfully maltreated the child. See § 26-15-3, Ala.Code 1975. The record reflects *708 that Franklin's failure to seek immediate medical care for the child after she suffered third-degree burns constituted willful maltreatment. Therefore, I concur to remand this case for the trial court to vacate the aggravated-child-abuse conviction, to enter a conviction for child abuse, and to impose a sentence for that conviction.
NOTES
[1] In addition to the aggravated-child-abuse count, Franklin was also indicted for first-degree assault, a violation of § 13A-6-20(a)(1), Ala.Code 1975. The jury found Franklin not guilty of the assault charge.
[2] The evidence further indicated that the victim was transported from a Pri-Med medical facility to Children's Hospital in Birmingham because of the nature and severity of her injuries; that she remained at Children's Hospital for 10 days for treatment of her injuries.
[3] After the indictment but before Franklin's conviction and sentence, the child-abuse statute was amended, effective July 1, 2006, to substitute "guilty of a Class C felony" for "punished by imprisonment in the penitentiary for not less than one year nor more than 10 years."
[4] The trial court did not define "serious physical injury" in its oral charge to the jury on count two of the indictment. However, the trial court did define "serious physical injury" in its oral charge to the jury in the assault charge under count one of the indictment against Franklin.
[5] This trend emanates from Ex parte Cole, 842 So. 2d 605 (Ala.2002), a case this Court has interpreted as being overruled in part by the Alabama Supreme Court in Ex parte Seymour, 946 So. 2d 536 (Ala.2006). The holding in Seymour did not overrule the analysis set out in Cole for determining whether one offense is included in another, but rather overruled Cole only to the extent that Cole held that a defendant's claim that he pleaded guilty to an offense not included in the indictment implicated the trial court's jurisdiction.
[6] Although Franklin's argument was limited solely to the serious-physical-injury element of aggravated child abuse, we note simply that the State presented legally sufficient evidence of child abuse.
[7] Moreover, even had these claims been preserved by timely and specific objection, we note that in its oral charge to the jury, the trial court stated: "A responsible person means a child's natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for supervising a child." (R. 238.) The trial court also defined serious physical injury in its instruction regarding count one of the indictment.
[*] Note from the reporter of decisions: On May 22, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618105/ | 685 S.W.2d 456 (1985)
Mildred L. TILLER, et al., Appellants,
v.
W.J. TILLER, et al., Appellees.
No. 14227.
Court of Appeals of Texas, Austin.
February 6, 1985.
Rehearing Denied February 27, 1985.
C.C. Small, Jr.,Small, Craig & Werkenthin, Austin, for appellants.
John H. Burris, Alice, for appellees.
Before POWERS, GAMMAGE and CARROLL, JJ.
CARROLL, Justice.
The appellees filed suit in the district court of Caldwell County, seeking, among other relief, recovery of accrued royalty payments claimed by them under a 1958 partition deed. The trial court entered partial summary judgment construing the partition deed in favor of the appellees, and subsequently entered a final judgment awarding damages to the appellees based on the trial court's interpretation of the 1958 deed. We will reverse the judgment of the trial court and render judgment that the appellees take nothing in this cause.
This case revolves around the proper construction of an October 13, 1958 partition deed between eight persons who were the owners in common and in fee simple of *457 356.536 acres of land in Caldwell County. The parties to the 1958 partition deed included Mildred L. Tiller, one of the appellants in this case, and W.C. Tiller, under whom the appellees claim. The deed expressly recited that the eight partitioners were "... desirous of making partition of the (356.536 acres), including the oil, gas and mineral rights thereunder, ...." (emphasis added). The deed divided that the property into eight separate 44.567 acre tracts, with one individual tract being conveyed to each of the partitioners. The surface estate was clearly vested in each of the individual owners. This dispute arose over the division of minerals in the partition deed.
Appellant Mildred L. Tiller received Tract # 1 under the partition deed which conveyed other the following:
... for her part, share and proportion of the aforesaid lands and premises, and the oil, gas and mineral rights thereunder, the following described tract of land and the following oil, gas and mineral rights therein, on and under the same, to-wit: [metes and bounds description deleted] and of the oil, gas and other minerals in, on, under or that may be produced from said 44.567 acres, Tract # 1, the said Mildred L. Tiller shall own out of the royalties provided for in any oil, gas or other minerals lease that may be given thereon 2/9 of such royalties (2/9 of 1/8) and of such oil, gas and mineral produced in, on and under, or that may be produced. from said land, and the said Mildred L. Tiller shall own all of the 7/8 lease-hold rights on all oil, gas and other minerals, in, on or under said land, and shall have the sole right, without the joinder of any of the parties hereto, to give and execute oil, gas and mineral leases on said tract of land and to receive for herself, her heirs and assigns, all bonus monies or other consideration, including annual rentals, paid for any such oil, gas or other mineral leases, provided, however, that all oil, gas and other mineral leases that may be executed by the said Mildred L. Tiller, her heirs or assigns, shall provide for a royalty of not less than 1/8 of the oil, gas or other minerals that may be produced from said land.
The exact language used in the conveyance to Mildred L. Tiller was also used in conveying the remaining seven tracts. The partition deed also contained the following language:
In other paragraphs of this partition deed, Tract # 1 is described herein and set aside to Mildred L. Tiller, Tract # 2 to Ester T. Morse, Tract # 3 to Lucille T. Langley, Tract # 4 to Irby L. Tiller, Tract # 5 to Gladys T. Couser, Tract # 7 to Jimmy T. Warner, and Tract # 8 to James M. Tiller, each of said tracts containing 44.567 acres of land. Under each of said tracts, Nos. 1, 2, 3, 4, 5, 7 and 8, the said W.C. Tiller shall own 1/9 of the 1/8 royalty, (1/72) of all the oil, gas and other minerals, produced from said land, and the same shall be payable out of the royalty provided in any oil, gas or other minerals lease given on said land, same to be a royalty interest and free and clear of all drilling and operating expenses. (emphasis added).
On March 6, 1981, the appellants executed oil and gas leases on their respective individual tracts. These leases provided a 1/5 royalty payment, rather than a 1/8 royalty payment. Each of these oil and gas leases contains the following express royalty provision:
In lieu of the normal 1/8 royalty and bonus, lessor shall receive a 1/5 royalty as herein provided. It is understood and agreed that any other heirs of J.L. Tiller and Emma Tiller (or such heirs, successors and assigns) who may have a royalty interest in the herein described land shall be paid out of lessor's royalty as if such royalty was the customary 1/8 royalty interest, the remaining 3/40 interest attributable to bonus.
The appellees claim that they are entitled to 1/9 of any royalty received under any oil and gas lease on the partitioned tracts, claiming in this case, 1/9 of 1/5 or 1/45 of the total production from each tract. The trial court agreed, and granted relief which *458 awarded them a 1/45 interest in all production under the oil and gas leases.
Our reading of the partition deed, leads us to conclude that each of the partitioners received, outright, the surface to his respective tract, along with the mineral estate lying under his acreage, subject to a 1/8 royalty interest discussed below. While the partition deed in one section uses the phrase "all of the 7/8 lease hold rights", it is apparent that the deed conveyed outright ownership to each individual of the mineral estate under his respective tract.
Each tract was subject to a 1/8 royalty interest which was to be shared among the partitioners. The owner of each individual tract would receive 2/9 of the 1/8 royalty with each remaining partitioner receiving 1/9 of 1/8 (which was clearly expressed as 1/72) of the minerals in and under the tracts conveyed to their copartitioners.
The partition deed expressly granted the owner of each individual tract all rights regarding the execution of oil and gas leases on his tract as well as the right to receive all bonus monies or other considerations. The only restriction on the individual owners as to the development of their mineral estate was a provision that any lease must provide at least a 1/8 royalty interest to be shared, as described above, among the original partitioners and their successors.
This case stands on much the same footing as Helms v. Guthrie, 573 S.W.2d 855 (Tex.Civ.App.1978, writ ref'd n.r.e.) wherein the Fort Worth court held that a reservation of "½ of the 1/8 royalty (same being 1/16 of the total production) of oil, gas and other minerals" was a contractual limitation on the amount of the reserved interest. The court concluded that Helms owned a fractional royalty of 1/16 of the total production, not a "fraction of royalty" to be determined upon the execution of some future lease.
In the case before us, the partition deed, in clear and unambiguous language, conveyed to W.C. Tiller, the appellees' predecessor in title, "1/9 of the 1/8 royalty, (1/72) of all the oil, gas and other minerals produced from said land, (the tracts at issue) ...." Under the Helms case, W.C. Tiller contractually limited the royalty interest reserved for himself to "1/9 of 1/8 royalty, (1/72) of all of the oil, gas and other minerals, ... payable out of the royalty provided for in any ... lease ... free and clear of all drilling and operating expenses."
The appellees argue that the intention of the partition deed was to divide the royalty interest, regardless of size, with 2/9 of the royalty being paid to the owner of each individual tract, and the remaining 7/9 of the royalty being shared among the other partitioners. Appellees seek to disregard the apparent limitation language of the partition deed which expressly states the division as "1/9 of the 1/8 royalty (1/72)" by relying on cases dealing with construction of ambiguous instruments. Since we find this provision of the partition deed to be clear and unambiguous, these cases are not persuasive.
Appellees next turn to the bonus clause in the leases at issue, arguing that the 3/40 share of production described as being given in lieu of bonus, is in fact, royalty and as such should be shared among the partitioners. The appellees contend that the party holding executory rights to a mineral estate cannot deprive royalty owners of their rightful share of royalties by characterizing what is, in reality, a royalty interest as some form of bonus, citing Lane v. Elkins, 441 S.W.2d 871 (Tex.Civ.App.1969, writ ref'd n.r.e.), and Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673 (1956). Under our interpretation of the partition deed, any distinction between bonus or royalty as to the 3/40 interest at stake in this case is meaningless, since we hold that the appellees' predecessor in title received a specific fractional royalty interest equal to 1/9 of 1/8, or 1/72.
Accordingly, we reverse the judgment of the trial court, and render judgment that the appellees, as plaintiffs, take nothing in the case below. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737478/ | 548 So. 2d 834 (1989)
Bernard M. UTSET, Jorge E. Utset, Camilo F. Utset, Manuel A. Utset, Maria Mercedes Utset De Escobar and Lillian Arca De Quintana, Appellants,
v.
Manuel Arca CAMPOS, Jr., et al., Appellees.
No. 87-3067.
District Court of Appeal of Florida, Third District.
September 12, 1989.
*835 Bailey, Dawes & Hunt and William A. Fragetta, Miami, for appellants.
Mershon, Sawyer, Johnston, Dunwody & Cole and Stephen M. Corse, Miami, and Jack Shaw, Jacksonville, for appellees.
Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.
HUBBART, Judge.
This is an appeal by the plaintiffs Bernard M. Utset and others from a final order which dismissed their action below as to seventeen of eighteen defendants on the basis of failure to prosecute under Fla.R. Civ.P. 1.420(e). The central question presented for review is where, as here, there has been record activity as to one defendant within one year prior to the filing of a motion to dismiss under Fla.R. Civ.P. 1.420(e), are the remaining unserved defendants in the action entitled to a dismissal under the above rule upon a showing that there has been no such record activity as to them. We hold that such unserved defendants are not entitled to such a dismissal based on these circumstances and, accordingly, reverse.
I
On July 14, 1986, the plaintiffs, Bernard M. Utset and others,[1] brought an action below against eighteen defendants for breach of trust and other related causes.[2] On July 17, 1987, the plaintiffs served their complaint upon one of the eighteen defendants, Manuel P. Arca; on the same day, the plaintiffs also filed and served a notice of taking Arca's deposition which was set for the following month. On July 30, 1987, the remaining seventeen defendants,[3] who had not been served with process in the cause, filed a motion to dismiss the action as to them under Fla.R.Civ.P. 1.420(e), correctly contending that there had been no record activity with reference to them for over one year prior to the filing of the motion to dismiss. The trial court granted this motion and dismissed the action below as to the seventeen unserved defendants; the action remained pending, however, as to the one served defendant.[4]
*836 II
Fla.R.Civ.P. 1.420(e) provides:
"All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute."
(emphasis added).
Under the above rule, it is settled that where: (a) there has been no record activity in the action by any party for more than one year prior to the filing of a motion to dismiss, and (b) no good cause is shown why the action should remain pending or no court order or court-approved stipulation staying the action has been filed, the trial court is required to dismiss the action for failure to prosecute. See, e.g., Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So. 2d 744, 746 (Fla. 3d DCA 1977). Where, however, there has been record activity directed toward disposition of the cause as to one of multiple defendants in the cause within the requisite one year period, as here, Florida courts have consistently held that the remaining defendants are not entitled to be dismissed from the cause for failure to prosecute the action against them individually; this is so because Fla.R.Civ.P. 1.420(e) only authorizes the dismissal of "actions," not individual parties.[5] Moreover, it is settled that the filing within the requisite one-year period of a notice of taking deposition or the issuance of a summons on a complaint, as here, constitutes sufficient record activity to preclude the dismissal of an action for failure to prosecute under Fla.R.Civ.P. 1.420(e). See, e.g., Hale v. Hart Properties, Inc., 436 So. 2d 1093, 1094 (Fla. 3d DCA 1983); Harris v. Winn-Dixie Stores, 378 So. 2d 90, 94 (Fla. 1st DCA 1979).
It is urged, however, that the Florida Supreme Court in Koppers Co. v. Victoire Dev. Corp., 284 So. 2d 193 (Fla. 1973), carved out an "exception" to the general rule that record activity within the requisite one-year period as to one defendant is sufficient to preclude a dismissal as to a codefendant under Fla.R.Civ.P. 1.420(e). This "exception," it is said, obtains and a dismissal for failure to prosecute lies as to the codefendant where it is shown, as here, that the codefendant has not been served with process and there has been no record activity as to him for the requisite one-year period. It was this "exception" which the trial court relied on in dismissing the seventeen defendants herein from the action below. We disagree that any such "exception" was established in Koppers.
In Koppers, the plaintiff sued four defendants, including the defendant Koppers who was never served with process. No record activity took place in the main action for over one year as to Koppers nor, apparently, as to any other defendant; accordingly, Koppers moved to dismiss the main action for failure to prosecute under Fla.R. Civ.P. 1.420(e). The trial court conditionally granted the motion provided Koppers was not served with process within the next twenty days. The Fourth District affirmed, and the Florida Supreme Court reversed on the basis that the motion to dismiss should have been granted unconditionally, rather than conditionally.
There is nothing in the Koppers opinion, however, which remotely announces or even discusses the aforementioned "exception." *837 This is not surprising because the issue was never involved in the case; the sole issue before the Court was whether the dismissal should have been conditional or unconditional. It is true, of course, that there was record activity in Koppers in a cross claim filed in the cause; a codefendant had filed a cross claim against Koppers, and Koppers had answered the cross claim. The plaintiff, however, made no contention that this record activity in the cross claim had advanced the cause on the main claim, and, accordingly, the issue was never before the Court. It is therefore inaccurate, we think, to cite Koppers for the sub silentio proposition that an unserved defendant is entitled to be dismissed from an action under Fla.R.Civ.P. 1.420(e) where there has been no record activity as to him for over a year, even though there has been record activity as to other defendants in the cause. No such point of law was at issue, discussed, or decided in Koppers.
We recognize that the Fourth District Court in Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla. 4th DCA 1974), has, in effect, interpreted Koppers to adopt such an "exception," and that Sandini v. Florida East Coast Properties, Inc., 454 So. 2d 578 (Fla. 4th DCA 1984), follows Crouse-Hinds;[6] we do not, however, agree with these decisions. Indeed, the Fourth District itself did not follow such an "exception" in Mueller v. North Broward Hospital District, 403 So. 2d 581 (Fla. 4th DCA 1981), and has questioned the validity of the Crouse-Hinds and Sandini decisions in Belli v. Porsche-Audi of Broward, Inc., 503 So. 2d 441, 442 (Fla. 4th DCA 1987). We agree entirely with Mueller and certify our conflict with Crouse-Hinds and Sandini.
Beyond this, we think there is no legal basis in any event for interpreting Fla.R. Civ.P. 1.420(e) as authorizing the dismissal of an unserved defendant, notwithstanding record activity as to other parties in the action within the requisite one-year period. Fla.R.Civ.P. 1.420(e) specifically provides that "all actions" shall be dismissed where "it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year," subject to certain exceptions not relevant here. There is no provision in the rule authorizing the dismissal of an individual defendant, whether served or unserved, notwithstanding the presence of record activity in the case. Indeed, the rule only authorizes the dismissal of "actions," not individual parties; it contains no provision for the dismissal of some defendants from an action, to the exclusion of other defendants. Moreover, the sole basis for dismissal under the rule is the lack of proper record activity in the entire action; where such activity has taken place, however, the rule does not provide for a dismissal as to any defendant under any circumstances.
III
Turning to the instant case, under the above-stated law it is clear that the trial court erred in dismissing the seventeen unserved defendants from the action below under Fla.R.Civ.P. 1.420(e). There was admittedly record activity directed toward disposition of the case which took place within one year prior to the filing of the motion to dismiss, to wit: the subject complaint was served on the defendant Manuel P. Arca and a notice of taking Arca's deposition was filed. This record activity precludes any defendant in the cause from obtaining a dismissal for failure to prosecute under Fla.R.Civ.P. 1.420(e), including the seventeen unserved defendants.[7] The *838 final order of dismissal under review is therefore reversed and the cause is remanded to the trial court for further proceedings.
Reversed and remanded.
NOTES
[1] The other plaintiffs were Jorge E. Utset, Camilo F. Utset, Manuel A. Utset, Maria Mercedes Utset de Escobar, and Lillian Arca de Quintana.
[2] The other causes of action pled were for breach of a fiduciary duty, fraud, conversion, conspiracy, civil theft, and civil RICO. The complaint sought an accounting, imposition of a constructive trust, compensatory damages, and punitive damages.
[3] These defendants were: Manuel Arca Campos, Jr., Evora Arca Sardina, Mercedes Arca Scopetta, John Scopetta, Adelaida Arca Campos, Camilo B. Aguirre, Richard M. White, Lake Haven Estates, Inc., Industrial Consultants International, Inc., Industrial Consultants and Managements Corp., Power Engineering Co., Scopar International, Inc., Ebasint International, Inc., Empresa Electrica del Ecuodar, Inc., PEC Engineering Construction Corp., Puma Engineering Co., and United Packing and Crating Corp.
[4] The served defendant, Manuel P. Arca, filed a separate unrelated motion to dismiss which was granted without prejudice to file an amended complaint.
[5] See, e.g., Belli v. Prosche-Audi of Broward, Inc., 503 So. 2d 441 (Fla. 4th DCA 1987); Mueller v. North Broward Hosp. Dist., 403 So. 2d 581 (Fla. 4th DCA 1981) (dismissed defendant had not been served with the complaint; dismissal reversed); Shaw & Keeter Motor Co. v. Maris Distrib. Co., 403 So. 2d 570 (Fla. 1st DCA 1981); Biscayne Constr. Co. v. Metropolitan Dade County, 388 So. 2d 329 (Fla. 3d DCA 1980); Phillips Petroleum Co. v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976), cert. denied, 348 So. 2d 948 (Fla. 1977); Devaney v. Rumsch, 247 So. 2d 69 (Fla. 1st DCA 1971).
[6] This "exception" has also been referred to in dicta in Smith v. St. George Island Gulf Beaches, Inc., 343 So. 2d 847, 849 (Fla. 1st DCA 1976), and Bowman v. Peele, 413 So. 2d 90, 91 (Fla. 2d DCA), dismissed, 419 So. 2d 1199 (Fla. 1982), but was not applied to the facts of the case. We therefore do not interpret these decisions as having adopted such an "exception."
[7] Although not relevant to our decision, it should be noted that Fla.R.Civ.P. 1.070, dealing with service of process, has subsequently been amended to provide for dismissal without prejudice of a defendant who has not been served with process within 120 days after the filing of the initial pleading, absent a showing of good cause. Fla.R.Civ.P. 1.070(j); see In re Amendments to Rules of Civil Procedure, 536 So. 2d 974, 975 (Fla. 1988), clarified, 545 So. 2d 866 (Fla. 1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/241247/ | 240 F.2d 606
MISSISSIPPI VALLEY BARGE LINE COMPANYv.ESSO SHIPPING COMPANY, Claimant of THE S.S. QUEMADO LAKE.ESSO SHIPPING COMPANY, Claimant of the S.S. Quemado Lakev.MISSISSIPPI VALLEY BARGE LINE COMPANY.
No. 16202.
United States Court of Appeals Fifth Circuit.
February 13, 1957.
Rehearing Denied April 2, 1957.
Selim B. Lemle, Lemle & Kelleher, New Orleans, La., for the M/V New Orleans and Mississippi Valley Barge Line Co., appellants and cross-appellees.
Alfred M. Farrell, Jr., New Orleans, La., Kirlin, Campbell & Keating, New York City, Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.
HOLMES, Circuit Judge.
This is a suit in admiralty, growing out of a collision on the Mississippi River between ascending and descending vessels, a tanker and a flotilla of barges propelled by a tug. The collision occurred in a bend of the river, and the trial judge found that the descending vessel, in spite of the danger, came on down the river without slackening its speed and, at or before the moment of collision, put its engines into full speed ahead, when it should have put them into reverse. From a holding that both vessels were at fault and that the damages should be divided, both sides have appealed, and the controversy here is waged upon the contention of each side that the other was solely to blame. Into the equation the doctrine of major and minor fault is also introduced.
The accident occurred on the night of June 20th, 1952, and the ascending vessel was the tug New Orleans, which was shoving ahead a tow of 17 barges in five tiers. The overall length of this tow was 872 feet, and its width was 105 feet at the widest point. The combined length of the tow and towboat was 1,087 feet. The descending vessel was the Quemado Lake, which was loaded and drawing 30 feet forward and 31 feet 10 inches aft, or a mean draft of 30 feet 11 inches. The hour was about 9:15 p. m. The night was dark, but visibility was otherwise unimpaired by weather factors. Both vessels were properly showing all lights. The Quemado Lake was travelling downstream and averaging 17.23 miles per hour over the bottom. Navigation of the waters wherein this collision occurred is governed by the "Pilot Rules for the Western Rivers and the Red River of the North."
The lower court held that the Quemado Lake was at fault in (a) proceeding at too high a rate of speed for a deep draft vessel in restricted waters and endeavoring to pass the New Orleans flotilla without reducing speed; (b) negligently navigating too close to the right descending bank, which caused the Quemado to smell the bank and to take a sheer to its left or alternatively, oversteering to the left, by reason of which the Quemado Lake did not make good a course down-river parallel with the right descending bank, but ran out toward the center of the river and struck the New Orleans; (c) not navigating in a manner so as not to embarrass the towboat New Orleans, which was encumbered with a large and heavy tow, citing The Mayumba, D.C., 21 F. 476; The Rose Culkin, D.C., 52 F. 328; The Lucy, 4 Cir., 74 F. 572; The Georgetown, D.C., 135 F. 854; The Westhall, D. C., 153 F. 1010; The Maine, D.C., 2 F.2d 605; cf. Intagliata v. Shipowners & Merchants Towboat Co., 26 Cal. 2d 365, 159 P.2d 1; and (d) continuing to go full speed ahead in the jaws of collision and not going full astern, citing The New York, 175 U.S. 187, 20 S. Ct. 67, 44 L. Ed. 126. The New Orleans flotilla, proceeding upstream at the slow speed of 3.8 M. P. H. as against 17.23 for the Quemado Lake, was held at fault for crossing the center line of the river onto the bend side, the stream being about 1800 feet wide at that point, citing The Stephen R. Jones, 5 Cir., 27 F.2d 208; The Norne, 5 Cir., 59 F.2d 145; The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L. Ed. 148.
We accept the trial court's findings of fact, and the majority concurs in its conclusion that the negligence of neither vessel was wholly sufficient to account for the accident, from which it follows that the damages should be divided; but the writer of this opinion thinks that the major fault of the descending vessel heavily and flagrantly outweighs the error of the towboat, and that justice requires the condemnation completely of the more culpable vessel. Compania De Maderas, etc., v. The Queenston Heights, 5 Cir., 220 F.2d 120.
1
Accordingly, the judgment appealed from is affirmed.
2
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1613909/ | 258 So.2d 897 (1972)
Eva Mae HALL
v.
William J. COSBY, Sr. and Gulf American Land Corporation, a Corporation.
8 Div. 436.
Supreme Court of Alabama.
March 2, 1972.
*898 Griffin & Griffin, Huntsville, for appellant.
Wilson & Collier, Florence, for appellee William J. Cosby, Sr.
Cabaniss, Johnston, Gardner & Clark, and C. Henry Marston, Birmingham, for appellee Gulf American Land Corp.
MADDOX, Justice.
Appellant, Mrs. Eva Mae Hall, claims that her former husband induced her to give him a power of attorney while she was a patient at Bryce Hospital, and then used the power of attorney to transfer and assign to himself rights she had in Florida real property, all without her knowledge, consent and without any consideration. She sought to set aside and void the assignment of her interest in the Florida property.
The former husband defended on the ground that (1) he had specific authority to transfer the interest to himself and (2) the issue of the title to the Florida property was tried or should have been tried in the divorce proceeding he filed against her.
The facts are not seriously disputed. The testimony was taken orally before the court.
Eva Hall and William Cosby were married for 26 years. Eva had been committed to Bryce Hospital on three occasions and was hospitalized in Memphis, Tennessee on two occasions for an emotional illness. In March, 1967, she had come home from Bryce for a week before Easter. It was during this time that her husband asked her to give him a power of attorney. The evidence is barely conflicting on the reason for the power. Eva claimed he wanted it for "filing income tax." William said he told her "that it was near time to sign tax forms and execute written documents."
On March 25, 1967, appellant signed the power of attorney at a local bank before a notary public and stated she knew what she was signing. It was a general power of attorney. She went back to Bryce the next day.
On October 13, 1967, appellant's former husband executed the assignments transferring her interest in the Florida property to him, without consideration. Five months later he filed for divorce on grounds of separation, and by amendment, he claimed his wife had "become addicted to habitual drunkenness." The divorce proceeding was very much contested. The trial judge granted the husband a divorce and entered orders with regard to personal and real property located in Lauderdale County. No disposition was made of the Florida property by the decree in the divorce proceeding. The only mention of the Florida property was in appellant's answer to the divorce proceeding. She admitted joint ownership of the property in Alabama, but also alleged:
". . . Also that Complainant and Respondent own property in the State of Florida, some being located at River Ranch Acres, and some at Cape Coral, Florida."
The record of the divorce proceeding, introduced as evidence in this cause, indicates that the appellant, on June 4, 1968, filed a motion in the divorce proceeding to have the submission set aside and to allow the appellant to introduce evidence concerning the Florida property. She alleged that she did not know until May 29, 1968 that her husband had used the power of attorney to transfer her interest in the property to him. The trial judge set the motion down for a hearing for a date certain, but the record shows no ruling was ever made concerning the motion and the final decree of the court makes no mention of the Florida property. The husband's contention that the issue was adjudicated in *899 the divorce case, based upon an examination of the record before us, is without merit.
The husband's defense of res judicata is, therefore, unavailing. There was no duty on respondent to open up the suit and expand the issues so as to seek judicial approval of actions with respect to which no breach of law or duty or contract was alleged in the bill of complaint in the divorce action. The rule under such situation is that in order to sustain a plea of res judicata or estoppel by judgment, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point. Bass v. Sanders, 282 Ala. 546, 213 So.2d 391 (1968).
There is no evidence of any kind in this record that the question of the transfer of the Florida property was adjudicated in the divorce proceeding. The only evidence in this record that the Florida property was in any way involved in the divorce case is the statement in the wife's answer to the divorce proceeding which we have set out above and the motion filed by the wife requesting that the submission be set aside in order to allow her to present evidence on the very issue made the basis of this action. The appellee did testify in this action that the Florida property "was discussed extensively" in the divorce suit and that Judge Robert Hill, who tried the divorce case, had told his ex-wife that "he had considered every aspect of this case in rendering a decree and he felt like he had rendered her justice."
The final decree and a supplemental decree issued by Judge Hill deal specifically with real and personal property located in Lauderdale County, but nothing is mentioned in the decree, either generally or specifically, about the Florida property.
The decree appealed from here is general in nature, simply denying complainant's prayer for relief, and we cannot tell whether the trial judge thought the defense of res judicata was applicable or whether his decision was based on appellant's failure to prove her claim. Having determined the defense of res judicata unavailing, we now consider whether the trial court could find from the evidence that the appellant authorized her ex-husband to transfer her interests in the Florida property to himself.
It is the established rule that powers of attorneys will be given strict construction, restricting the power to those expressly granted, and such incidental powers as are essential to carry into effect the expressed power. To authorize a conveyance of real estate, a power of attorney must be plain in its terms. Where such power is specifically conferred, it does not authorize a conveyance by the donee to himself, unless such power is expressly granted. It will not be implied. Dillard v. Gill, 231 Ala. 662, 166 So. 430 (1936).
No express power was here granted. The transfers made by the husband to himself were not within the scope of the power granted to him. If the wife had intended to give the husband the authority to transfer her interests in the Florida property to himself, she could have executed such instrument of transfer herself.
Furthermore, it is still the law of this state that for the common security of womankind that gifts procured by husbands, and purchases made by them, from their wives, should be scrutinized with a close and vigilant suspicion, and that the court, upon the appearance of the slightest circumstance of suspicion, should require of the husband satisfactory proof that the transaction resulted from the "pure, voluntary and well-understood" act of the mind of the donor. Ray v. Ray, 238 Ala. 269, *900 189 So. 895 (1939). The transaction here cannot hold up under such scrutiny.
The judgment is due to be reversed and remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
HEFLIN, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645477/ | 994 So.2d 317 (2008)
PEREZ
v.
STATE.
No. 3D08-208.
District Court of Appeal of Florida, Third District.
October 28, 2008.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919989/ | 245 Pa. Superior Ct. 75 (1976)
369 A.2d 300
COMMONWEALTH of Pennsylvania
v.
Robert SMYTHE, Appellant.
Superior Court of Pennsylvania.
Argued December 11, 1975.
Decided November 22, 1976.
*76 John M. Gallagher, Jr., Upper Darby, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, Media, for appellee.
Before WATKINS, President Judge, and CERCONE, PRICE and VAN der VOORT, JJ.
CERCONE, Judge:
In the early morning of February 19, 1973, appellant, a 26-year-old detective-patrolman with four years service on the Darby Borough Police Department, went to the S. *77 I.M.S. Club to assist in the service of various purported warrants[1] charging Anthony Raffaele and six others with selling liquor after hours. Upon arriving at the club, appellant and several other officers entered and began serving these warrants and making arrests. When appellant attempted to serve one such warrant upon Raffaele a fight took place and as a result Raffaele was hospitalized. Raffaele subsequently filed criminal complaints against appellant and two other officers of the Darby Borough Police Department. The three officers were indicted by the grand jury on charges of assault and battery, aggravated assault and battery and conspiracy,[2] and in a consolidated trial the jury acquitted appellant's fellow officers of all charges but found appellant guilty of assault and battery and conspiracy. Appellant's post-verdict motions were denied, and he was sentenced to serve one year on probation and ordered to pay a fine of $750. He now appeals to this court.
The first matter to be considered is appellant's contention that his conviction for conspiracy should be vacated because his alleged co-conspirators were acquitted. In support of this position appellant points to the case of Commonwealth v. Salerno, 179 Pa.Super. 13, 16-17, 116 A.2d 87, 89 (1955) which states:
"In a charge for conspiracy the Commonwealth must prove that two or more are guilty. Commonwealth v. Faulknier, 89 Pa.Super. 454, 459. Where, therefore, there are only two conspirators and one is acquitted, the other cannot, of course, be tried or convicted." Accord Commonwealth v. Turchetto, 193 Pa.Super. 376, 378, 165 A.2d 118 (1960).
*78 This rule, however, is not without an exception. The case of Commonwealth v. Avrach, 110 Pa.Super. 438, 441, 168 A. 531 (1933) states:
"Where an indictment charges a conspiracy among specifically named defendants and other persons unknown to the grand jury, and there is at the trial proof of a conspiracy with the persons who are unknown, there is an exception to the rule that a jury may not convict one of two or more defendants and acquit the other or others."
In the instant case the bill of indictment returned against appellant states that appellant had conspired with his two named co-defendants "and with divers other evil disposed persons whose names are to this Grand Inquest as yet unknown." Therefore, the question with which we are faced is whether there was proof at trial of a conspiracy with unknown persons. In answering this question we are bound to view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).
At trial Raffaele testified that in addition to appellant and his two named co-defendants, he was beaten by two other officers. This testimony was corroborated by several other witnesses. On the basis of this testimony the lower court held that there was sufficient evidence on the record upon which the jury could find a conspiracy. We disagree. While participation of two or more persons is an element of conspiracy, "[t]he heart of the offense is a common understanding or agreement. . . . Even giving the Commonwealth the benefit of all favorable testimony and all reasonable inferences therefrom, the evidence fails to show any understanding or agreement." Commonwealth v. Santana, 216 Pa.Super. 183, 187, 264 A.2d 724, 726 (1970). Evidence of an understanding or agreement with unknown persons was not shown at trial in the instant case and, therefore, we have *79 no alternative but to vacate appellant's conviction for conspiracy.
Appellant next raises several issues in support of a new trial as to the assault and battery charge. Appellant's first contention is that he had a right, for purposes of cross-examination, to examine written statements of Commonwealth witnesses which were taken during the course of an investigation by the Federal Bureau of Investigation. The F.B.I. had conducted their investigation as a result of a civil rights claim instituted by Raffaele. In the trial of the instant case, appellant subpoenaed Robert E. Curran, United States Attorney, for production of the statements in question. At a conference Kenneth Richey, Assistant United States Attorney, who appeared on behalf of Mr. Curran, read into the record the following telegram from J. Stanley Pottinger, Assistant Attorney General of the Civil Rights Division of the Department of Justice:
"Pursuant to conversation between you and Frank Allen of this Division, March 26, 1974, this is to advise that I do not authorize release of files and materials assembled by the F.B.I. in connection with the captioned civil rights matter.
"Please respectfully advise the Court of my position in this matter and request that the subpoena be withdrawn or quashed.
"In the event the subpoena is continued in effect, please proceed in accordance with 28 CFR 16.21 et seq."[3]
In response to this telegram the trial court, over objection by appellant's counsel, quashed the subpoena.
In support of his position that he was entitled to review the statements of Commonwealth witnesses in the *80 F.B.I.'s possession, appellant cites the case of Commonwealth v. Smith, 417 Pa. 321, 208 A.2d 219 (1965) which is strikingly similar to the instant case. Both cases involve the following: assault and battery charges arising out of a fight between a police officer and a citizen, which occurred when the officer attempted to arrest the citizen; the filing of a civil rights action which was investigated by the F.B.I. and led to the F.B.I.'s taking statements of Commonwealth witnesses; service of a subpoena duces tecum to gain access to F.B.I. files which contained the witnesses' statements which were desired for impeachment purposes; and, a trial judge's granting of the Justice Department's motion to quash leading to an appeal to this court. After consideration of the Smith case this court affirmed. See Commonwealth v. Smith, 198 Pa.Super. 499, 182 A.2d 104 (1962). An appeal was then taken to our Supreme Court which also affirmed. See Commonwealth v. Smith, 412 Pa. 1, 192 A. 2d 671 (1963). An appeal was then taken to the United States Supreme Court. That court contacted the Department of Justice and was informed that the Department of Justice, while not willing to disclose its entire file, would comply with a specific request for the witnesses' statements. Accordingly, the case was remanded to our Supreme Court. See Smith v. Pennsylvania, 376 U.S. 354, 84 S.Ct. 763, 11 L.Ed.2d 753 (1964). Our Supreme Court then remanded and ordered the trial court to authorize the issuance of a subpoena duces tecum limited to the witnesses' statements. See Commonwealth v. Smith, 417 Pa. 321, 208 A.2d 219 (1965).
While the Smith case is very similar to the instant case, it is different in one critical respect. In Smith the Pennsylvania courts ordered the subpoena to be issued and a new trial held only after it had learned that the Department of Justice was willing to comply with a specific demand from the court to supply the witnesses' statements. In the instant case the Department of Justice *81 has not shown that same cooperativeness. Accordingly, the Smith case does not under the facts of this case mandate a new trial. Accord Commonwealth v. Hicks, 228 Pa.Super. 76, 80, 324 A.2d 397 (1974). Since appellant has shown no authority which would empower a state court to subpoena the documents in question from the Department of Justice when that Department is unwilling to turn over such documents, we do not now attempt to exercise such authority. As was stated by Justice Roberts in his Concurring and Dissenting opinion in the Smith case:
"I also have little doubt that, even beyond questions of privilege, the federal government could refuse to reveal, in state court proceedings, material in its possession. Out of comity, no doubt, these instances may be seldom, but the fact legitimate power to refuse remains."[4]
Appellant's next argument in support of a new trial is that he was prejudiced by the following portion of the trial court's charge to the jury:
"These police officers thought they had Warrants. In fact, they did not. It is not denied that the papers are not Warrants because they were never issued by the Magistrate. They thought they had Warrants. They believed that they had them. The Commonwealth contends that they should have known that they did not have them and by going in there and doing what they did, they should have known they were doing something unlawful under the Statute. That is what the Commonwealth contends. You are going to make the final judgment. So the Commonwealth contends that these three defendants, at least knew or should have known, they were from the Borough of Darby and they were familiar with the entire situation, and when *82 they got a Warrant they should have examined it to see that they had legal authority to do what they set out to do."
Appellant contends that the above charge instructed the jury to judge him by negligence rather than criminal standards. He argues that the jury's verdict could have been based upon a finding that despite his belief that the warrants he served were valid he, nevertheless, should have known that they were defective. In support of this argument appellant points to the case of Commonwealth v. McFarland, 226 Pa.Super. 138, 140, 308 A.2d 126 (1973) which states:
"In a criminal case, with some exceptions not here pertinent, guilt is not objective but personal; the question is not what a reasonable man would have known but what the defendant knew; and the only pertinence in asking what a reasonable man would have known is in considering whether, because a reasonable man would have known it, the defendant did."
In McFarland the crime in question was receiving stolen property and the defendant's knowledge of whether the property was stolen was an essential element. Accordingly, the court in McFarland committed reversible error when it instructed the jury that it could find the defendant guilty "[i]f the Commonwealth has shown a collection of circumstances which would have led a reasonably prudent man to know that the goods had been stolen."
In the instant case a critical question is whether appellant was privileged to exercise reasonable force in arresting Raffaele. Beyond question, had a valid warrant existed such a privilege would have existed. However, as the above-quoted portion of the court's charge indicates, the evidence indisputably established that appellant did not have a valid warrant. Furthermore, the evidence sufficiently established for the jury's consideration that, had appellant inspected the warrant, he would have known it was invalid. Accordingly, the question we face *83 herein is whether a police officer on February 19, 1973 was privileged to use reasonable force to effect an arrest based on a warrant which he did not actually know was invalid,[5] but which he would have discovered was invalid had he inspected it.
This question is one of first impression in the courts of this Commonwealth. We have neither Pennsylvania case law to guide us, nor statutory law to compel us to any particular conclusion. However, we do find strong and definite guidance in the recent Crimes Code which, although passed on December 6, 1972, was not made effective until June 6, 1973. Although in the strict sense of the term, the Code is not binding authority, it clearly demonstrates the legislative determination of the public policy in this Commonwealth at the time of the incident here in question. In the absence of precedent, the courts should adopt the rule which agrees with the habits, customs and public policy of the Commonwealth. See 21 C. J.S. Courts § 181, at p. 292; 20 Am.Jur.2d, Courts § 203. Specifically, Section 508(a)(2) of the Crimes Code answers the question as follows:
"A peace officer making an arrest pursuant to an invalid warrant is justified in the use of any force which he would be justified in using if the warrant were valid, unless he knows that the warrant is invalid."[6]
It is obvious from Section 508(a) (2) that a police officer's privilege to use reasonable force to effect an arrest is not conditioned by a requirement that he first inspect the warrant to determine whether it is valid on its face. The officer will only be denied that privilege if he actually knows the warrant is defective. Hence, the trial court erred when it instructed the jury that it could find appellant *84 guilty of assault and battery if appellant should have known the warrant was defective.[7]
Judgment of sentence for conspiracy is vacated; judgment of sentence for assault and battery is reversed and remanded for a new trial.
JACOBS, HOFFMAN and SPAETH, JJ., absent.
NOTES
[1] As will be discussed at some length below, these warrants were in fact invalid.
[2] Act of June 24, 1939, P.L. 872, §§ 708, 709 and 302, 18 P.S. §§ 4708, 4709 and 4302.
[3] 28 CFR 16.21 et seq. establishes the procedure to be followed by employees of the Justice Department when a subpoena is issued demanding the production of materials.
[4] Four of the six Justices who participated in the consideration and decision of the Smith Case on remand agreed with this statement of the law.
[5] We hasten to add that we express no opinion on whether the jury could have determined on the evidence before it whether appellant did in fact know that the warrant was invalid.
[6] Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 508.
[7] For guidance on its charge upon retrial of this case the court might refer to Pennsylvania Standard Jury Instructions, Criminal Subcommittee Drafts, prepared by Criminal Instructions Sub-committee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions, Instruction No. 9.508c at p. 195, which provides:
"The defendant was making an arrest with a warrant which I instruct you was invalid as a matter of law. However, the fact that the warrant was legally invalid does not alter or nullify the principle I have just given you unless the defendant used force against Raffaele with actual knowledge that the arrest warrant was invalid. In other words, if the evidence convinces you beyond a reasonable doubt that the defendant knew that the warrant was invalid then his use of force was not justified and you should find the defendant guilty even though you are not otherwise convinced beyond a reasonable doubt that he unreasonably believed that the use of force was necessary." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304708/ | McAMIS, P. J.
Mr. and Mrs. Lloyd Logan sued Herbert Coffee and Elmer Plemons for personal injuries sustained when they were struck by an automobile driven 'by Plemons as they walked across Jackson 'Street in the City of Athens at about 8:30 P. M., September 25, 1952. The two cases, tried together, resulted in a directed ver'dict in each case in favor of the defendant Herbert Coffee and verdicts, and judgments in favor of Mr. and Mrs. Logan in the respective amounts of $6,200 and $300 against Plemons. Plemons has appealed in error insisting: (1) There is no material evidence of negligence on his part, (2) Plaintiffs were guilty of proximate contributory negligence in deviating from an established crosswalk.
Jackson Street, running north and south and paved to a width of 60 feet, is intersected at right angles by Main Street. Traffic at the intersection is controlled by an overheadlight signal. Prior to the date of the accident, the City of Athens had established a crosswalk six or seven feet in width and marked it by white lines leading from the northeast corner of the intersection to the northwest corner. At the curb line at the Western terminus of the crosswalk and two or three inches below the level of the pavement, the City had constructed a grilled water drain.
*267Mr. and Mrs. Logan, approaching the intersection from the east, stopped at the curb line at the northeast corner of the intersection in observance of a red traffic light. "When the light turned green, favoring traffic and pedestrians moving east and west and at the same time halting traffic on Jackson Avenue moving north and south, they entered the crosswalk at its eastern terminus and had reached a point approximately ten feet from the curb on the opposite end of the crosswalk when they were struck by the car driven by Plemons.
Plenums, it appears, approached the intersection from the west at a speed, according to plaintiffs’ evidence, of 30 miles per hour. Without proceeding to the center of the intersection he “cut the corner” in making a left turn into Jackson Street and thus, according to abundant credible evidence, was traveling north on Jackson Street on his left-hand side. He did not see plaintiffs because of the blinding lights of an automobile which had proceeded from north to south on Jackson 'Street and stopped on the west side of Jackson Street with its front wheels on the northern line of the crosswalk. Finding the crosswalk partially blocked by the automobile, and to avoid stepping around or over the drain, plaintiffs had decided to pass to the rear of the parked automobile and, walking within 3 feet of the eastern side of the parked automobile, they had proceeded north a distance of only 4 or 5 feet when they were struck by defendant’s automobile. The impact knocked them a distance of about 15 feet and they were picked up near the center of Jackson Street.
The declarations charge that when plaintiffs were struck the defendant was driving on the wrong side of Jackson Street and in violation of a municipal ordinance of the City of Athens limiting the speed of automobiles at the intersection and on Jackson Street to 15 miles per *268hour. There is abundant evidence to support a jury finding in plaintiffs’ favor on both of these charges of negligence.
It is insisted, however, that both plaintiff's were guilty of negligence per se in deviating from the crosswalk, it is said, in violation of Section 2700.8(c) of the 1950 'Supplement to the Code providing:
“The driver of any vehicle upon a road, street, or highway within a business or residence district shall yield the right of way to a pedestrian crossing such road, street or highway, within any clearly marked crosswalk or any regular pedestrian crossing including the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices. Every pedestrian crossing a road, street or highway within a business or residential district at any point other than a pedestrian crossing, crosswalk, or intersection, shall yield the right of way to vehicles upon such road, street or highway.”
Conceding that there was sufficient space for plaintiffs to have walked in front of the automobile partially blocking the crosswalk, and that in deviating from it they may have forfeited, technically, the right of way which, otherwise, they would have had over vehicular traffic, can we say as a matter of law that such deviation was the proximate cause of the accident? We had this question in Seahorn v. Karr, 35 Tenn. App. 38, 242 S. W. (2d) 331, but pretermitted it in holding that a pedestrian 42 feet from a crosswalk could not be found by a jury to be within a crosswalk entitling him to the right of way over vehicular traffic.
In Purser v. Thompson, 31 Tenn. App. 619, 219 S. W. (2d) 211, the defendant was charged with having defec*269tive brakes which caused him to lose control of his car and strike plaintiff’s intestate as he walked across the street at or near a street intersection. While the statute here invoked was not involved, it .appeared that the intestate was crossing at a point ten feet from the intersection and it was held that a jury question as to proximate cause was presented.
In Watson v. Parker, Hamilton Law, Tenn. App., (unreported), decided March 20, 1952, certiorari denied June 7, 1952, .a violation of the statute here invoked was claimed by the defendant motorist to result from a deviation from the crosswalk to avoid a crowd of people waiting for a bus. In rejecting defendant’s insistence Judge Hale there said:
“By the laws of the IState and the ordinances of the City of Chattanooga, pedestrians are required to yield the right of way to motorists at unauthorized crossings. If we assume, altho it is not decided, that a slight variation from the cross-walk in order to get around people massed at the terminus constitutes negligence, then the question of proximate cause is for the jury, unless there was no room for a difference of opinion among reasonable minds.
“As we see it the jury could have well concluded the proximate cause of the accident was the excessive speed of the defendant at a time when his perceptions and reflexes were dulled by alcohol. ’ ’
In Standridge v. Godsey, 189 Tenn. 522, 226 S. W. (2d) 277, 280, the defendant motorist relied upon the violation of Code Section 2687 (d, e) by plaintiff’s intestate, a pedestrian, as contributory negligence barring recovery. The statute there invoked is more than a right of way statute. It requires pedestrians to walk on the “extreme left side or edge of the left hand traffic lane, so that they *270will be facing oncoming traffic at all times. ’ ’ In considering the effect of a violation of the statute Chief Justice Neil, in dealing with the question of proximate cause, there said:
“If we should concede that the deceased was violating the law of the road, which is negligence per se, there remains the question of whether or not his fault was the proximate cause of the accident. By the weight of authority the contributory negligence of the plaintiff in violating the law of the road, or municipal ordinances regulating traffic, is not a complete defense unless it contributes to the accident as the proximate cause. Whether or not his fault was the proximate cause of the accident was for the jury. Vol. 1, p. 117, F'oundations of Legal Liability (Street); Captron v. Birchfield, 159 Va. 60, 165 S. E. 499; Corcoran v. Pacific Auto Stages, 116 Cal. App. 35, 2 P. (2d) 225. We are constrained to hold that the trial judge was in error in directing a verdict for the defendant.”
Other cases in accord and involving violations of statutory traffic regulations relied upon as barring recovery include Holt v. Walsh, 180 Tenn. 307, 174 S. W. (2d) 657, and cases there cited; Sutherland v. Keene, 29 Tenn. App. 303, 203, S. W. (2d) 917; Atchley v. Sims, 23 Tenn. App. 167, 169, 128 S. W. (2d) 975.
The statute here involved, as we construe it, does not undertake to outlaw pedestrian crossings between crosswalks. As said by Presiding Judge Anderson in De Rossett v. Malone, 34 Tenn. App. 451, 467, 239 S, W. (2d) 366, 373:
“Taken literally, this provision of the ordinance (The statute was also relied upon) would apply whenever a pedestrian knew or had reason to know that an automobile was on the roadway, however distant from the point *271at which lie was attempting to cross. But obviously this is not the meaning of the ordinance or the statute. They can mean no more than that such a crossing pedestrian must yield the right-of-way whenever ordinary care requires that he do so in order to avoid collision with an approaching vehicle. As is true in other conduct regulated by that standard, what ordinary care requires in such a situation must depend upon the immediate circumstances of the particular case.”
Such regulations are to be given a reasonable construction. They do not mean that a pedestrian must yield the entire street on the assumption a motorist will imperil his passage by driving on the wrong side in violation of law. It seems to us impolitic to hold that a slight deviation from a crosswalk, such as here involved, would place pedestrians as a matter of law beyond the protection of traffic controls designed for their protection.
We conclude that there was no error in overruling defendant’s motion for a directed verdict and that there is material evidence sustaining the verdicts.
It results that the assignments must be overruled and the judgments affirmed with costs.
Hale .and Howard, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1035623/ | Filed 7/29/13 P. v Valerio CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C072402
Plaintiff and Respondent, (Super. Ct. No. 12F03257)
v.
URIEL TORRES VALERIO,
Defendant and Appellant.
Appointed counsel for defendant Uriel Torres Valerio has asked us to review the
record to determine whether there exist any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.
BACKGROUND
A jury found defendant guilty of assault with a deadly weapon (Pen. Code,1 § 245,
subd. (a)(1); count I), making criminal threats (§ 422; count II), and two counts of
1 Further undesignated statutory references are to the Penal Code.
1
misdemeanor vandalism (§ 594, subd. (a); counts III & IV). The jury found defendant
used a deadly weapon in the commission of count II. (§ 12022, subd. (b)(1).)
The trial court sentenced defendant to four years in state prison on count I and two
years plus one year for the deadly weapon enhancement on count II, stayed pursuant to
section 654. The court sentenced defendant to 30 days concurrent on count III and 30
days stayed on count IV. The court also imposed the following fines and fees: $240
restitution fines in accordance with sections 1202.4 and 1202.45; victim restitution of
$1,174.25 (§ 1202.4, subd. (f)); a main jail booking fee of $340 (Gov. Code, § 29550.2);
and a main jail classification fee of $62 (Gov. Code, § 29550.2). The court credited
defendant with 354 days of presentence custody credit (177 actual & 177 conduct).
Facts from jury trial
Carlos Gomes owned an automobile detailing shop in Sacramento and defendant
sometimes worked for Gomes. In January 2012, Gomes sold a car to defendant for
payments; Gomes kept the pink slip. Defendant soon stopped making payments; on
May 2, 2012, Gomes caused the car to be towed. That same afternoon, defendant went to
Gomes’s auto shop and demanded the return of the car, threatening Gomes. Defendant
left and Gomes reported the incident to the police.
About 7:00 p.m. on May 2, Edith Villanueva and Oliva Garcia drove into the
driveway of the residence they shared with Gomes. Each testified they saw defendant,
with whom they were acquainted, pouring sugar into the gas tank of a Chevy Camaro
belonging to Gomes. Robert Mijach, who lived next door to Gomes, saw a man pouring
sugar into the gas tank of the Camaro as Villanueva and Garcia drove up. Mijach was
unable to identify defendant in court as the man he had seen.
During the morning of May 3, 2012, Gomes was at his shop, crouched down,
working on a car door. Defendant came up behind Gomes, grabbed him by the neck,
choked him, and placed a knife to his throat. Defendant told Gomes he was going to kill
2
him and moved the knife to Gomes’s cheek and ribs while making threats. Gomes feared
he was going to be killed. Defendant threw Gomes to the ground and hit him.
Sanjeev Mishra, who worked in an auto repair shop next to that of Gomes and was
acquainted with defendant, heard yelling and screaming coming from Gomes’s shop.
Mishra went to see what was happening and saw defendant holding Gomes from behind
with one arm and holding a knife to Gomes’s neck with the other. Mishra called 911 and
defendant ran. When Mishra spoke to the police he described defendant as “a light-
skinned Black guy.” However, Mishra identified defendant in court as the person he had
seen attacking Gomes.
Deputy Sheriff Darren Benato responded to Gomes’s shop about 10:15 a.m.
Benato saw injuries to Gomes’s face, eye, forehead, and left hand. Benato did not see
any injuries to Gomes’s neck and Gomes did not mention having been choked.
Jeremy Armstrong, called by the defense, testified that he and defendant are
friends and that Armstrong’s sister is defendant’s girlfriend. On May 3, 2012, Armstrong
went to defendant’s residence around 9:30 to 10:00 a.m., and defendant arrived about 20
minutes later. The two walked to a 7-Eleven and returned 15 minutes later. Armstrong
did not see any blood on defendant’s clothing or any injury to defendant’s hands or
anything unusual about defendant’s behavior.
Defendant did not testify.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and asks this
court to review the record to determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. He has done
so, in the form of an index card-sized letter, containing six nearly unintelligible “points.”
As we interpret defendant’s letter, he claims that the evidence presented to support
his convictions is insufficient for several reasons: 1) the police never found a weapon
3
near him; 2) the police did not see any blood on him when he was arrested shortly after
the assault; 3) Mishra described the assailant as a Black man, whereas defendant is
Hispanic; and 4) when Gomes testified that he paid to fix the cars with sugar in their
tanks, the court found he was lying.2
To the limited extent that these claims show conflicts in the evidence presented at
trial, such conflicts were for the jury to resolve. “[A] reviewing court resolves neither
credibility issues nor evidentiary conflicts. [Citation]. Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v.
Young (2005) 34 Cal.4th 1149, 1181.) To the limited extent that defendant’s assertions
may be relevant to the strength and nature of the evidence presented at trial, the record
does not support the assertions. As we have described ante, ample evidence supports
defendant’s convictions.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
MAURO , Acting P. J.
HOCH , J.
2 The letter also contains references to the car’s pink slip, a traffic ticket, and an oath.
4 | 01-03-2023 | 07-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613320/ | 23 So.3d 121 (2009)
ALEXIS
v.
STATE.
No. 3D09-2809.
District Court of Appeal of Florida, Third District.
November 25, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96024/ | 193 U.S. 79 (1904)
LEIGH
v.
GREEN.
No. 119.
Supreme Court of United States.
Argued January 13, 1904,
Decided February 23, 1904.
ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.
*80 Mr. J.M. Woolworth and Mr. W.D. McHugh for plaintiff in error.
Mr. Edward P. Smith and Mr. William R. Green for defendant in error.
*85 MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.
A motion is made to dismiss because the claim of impairment of a right secured by the Fourteenth Amendment was not made in the courts of Nebraska until the motion for rehearing was filed in the Supreme Court. We are unable to discover a specific claim of this character made prior to the motion for rehearing. In the motion reference is made to the failure of the Nebraska Supreme Court to decide the claim heretofore made, that the statute of Nebraska was unconstitutional because of the alleged violation of the right to due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. Be this as it may, the Supreme Court of Nebraska entertained the motion and decided the Federal question raised against the contention of the plaintiff in error. In such case the question is reviewable here, although first presented in the motion for rehearing. Mallett v. North Carolina, 181 U.S. 589.
The Federal question presented for our consideration is briefly this: Is the Nebraska statute under which the sale was made and under which the defendant in error claims title, in failing to make provision for service of notice of the pendency of the proceedings upon a lienholder, such as Patrick, a deprivation of property of the lienholder without due process of law within the protection of the Fourteenth Amendment?
The statutes of Nebraska under which the conveyances were made to the Farmers' Loan and Trust Company are given in the margin.[1]
*86 The evident purpose of section 4, where the owner of the land is unknown, is to permit a proceeding in rem, against the land itself, with a provision for service as in case of a non-resident. By section 6 it is provided that in cases where the *87 land itself is made defendant the deed shall be an absolute bar against all persons, unless the court proceedings are void for want of jurisdiction. The object and intent of the action is defined to be "to create a new and independent title, by virtue of the sale, entirely unconnected with all prior titles."
The Supreme Court of Nebraska has held that the term "owner," as used in the fourth section, applies to the owner of the fee, and does not include a person holding a lien upon the premises. It is this section (4) and section 6 which are alleged to be in conflict with the Fourteenth Amendment. The argument for the appellant concedes that the State may adopt summary or even stringent measures for the collection of taxes so long as they are "administrative" in their character; and it is admitted that such proceedings will not divest the citizen of his property without due process of law, although had without notice of assessments or levy, or of his delinquency and the forfeiture of his lands. But the argument is, that when the State goes into court and invokes judicial power to give effect to a lien upon property, although created to secure the payment of taxes, the same principles and rules prevail which govern private citizens seeking judicial remedies, and require service on all interested parties within the jurisdiction. The right to levy and collect taxes has always been recognized as one of the supreme powers of the State, essential to its maintenance, and for the enforcement of which the legislature may resort to such remedies as it chooses, keeping within those which do not impair the constitutional rights of the citizen. Whether property is taken without due process of law depends upon the nature of each particular case. If it be such an exercise of power "as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe *88 for the classes to which the one in question belongs," it is due process of law. Cooley on Const. Lim. (7th ed.) 506.
The most summary methods of seizure and sale for the satisfaction of taxes and public dues have been held to be authorized and not to amount to the taking of property without due process of law, as a seizure and sale of property upon warrant issued on ascertainment of the amount due by an administrative officer, Murray v. Hoboken Land Co., 18 How. 272; the seizure and forfeiture of distilled spirits for the payment of the tax, Henderson's Distilled Spirits, 14 Wall. 44. The subject underwent a thorough examination in the case of Davidson v. New Orleans, 96 U.S. 97, in which Mr. Justice Miller, while recognizing the difficulty of defining satisfactorily due process of law in terms which shall apply to all cases, and the desirability of judicial determination upon each case as it arises, used this language: "That whenever by the laws of a State, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections."
In the present case, the argument is that, as the State has not seen fit to resort to the drastic remedy of summary sale of the land for delinquent taxes, but has created a lien in favor of a purchaser, at tax sale, after permitting two years to elapse in which the owner or lienholder may redeem the property, it has in authorizing a foreclosure without actual service, taken property without due process of law, because the proceedings and sale to satisfy the tax lien do not require all lienholders within the jurisdiction of the court to be served with process. If the State may proceed summarily, we see no reason why it may not resort to such judicial proceedings as are authorized *89 in this case. And if the State may do so, is the property owner injured by a transfer of such rights to the purchaser at the tax sale, who is invested with the authority of the State? In Davidson v. New Orleans, supra, the objection was made that the State could not delegate its power to a private Corporation to do certain public work, and, by statute fix the price at which the work should be done. In that connection, speaking of the Slaughter-House Cases, 16 Wall. 36, Mr. Justice Miller said: "The right of a State to use a private corporation and confer upon it the necessary powers to carry into effect sanitary regulations was affirmed, and the decision is applicable to a similar objection in the case now before us."
In the statute under consideration, for the purpose of collecting the public revenue, the State has provided for the enforcement of a lien by the purchaser at a tax sale, and authorized him to proceed against the land subject to the tax to enforce the right conferred by the State. The State has a right to adopt its own method of collecting its taxes, which can only be interfered with by Federal authority when necessary for the protection of rights guaranteed by the Federal Constitution. In authorizing the proceedings to enforce the payment of the taxes upon lands sold to a purchaser at tax sale, the State is in exercise of its sovereign power to raise revenue essential to carry on the affairs of state and the due administration of the laws. This fact should not be overlooked in determining the nature and extent of the powers to be exercised. "The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain. It involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the principles which underlie them." Bell's Gap Railroad v. Pennsylvania, 134 U.S. 232, 239.
In authorizing the proceedings under the statute to enforce the lien of the purchaser, who has furnished the State its revenue in reliance upon the remedy given against the land assessed, the State is as much in the exercise of its sovereign power to collect the public revenues as it is in a direct proceeding *90 to distrain property or subject it to sale in summary proceedings.
Nor is the remedy given in derogation of individual rights, as long recognized in proceedings in rem, when the Fourteenth Amendment was adopted. The statute undertakes to proceed in rem, by making the land, as such, answer for the public dues. Of course, merely giving a name to an action as concerning the thing rather than personal rights in it cannot justify the procedure, if in fact the property owner is deprived of his estate without due process of law. But it is to be remembered that the primary object of the statute is to reach the land which has been assessed. Of such proceedings, it is said in Cooley on Taxation (2d ed., 527): "Proceedings of this nature are not usually proceedings against parties; nor, in the case of lands or interests belonging to persons unknown, can they be. They are proceedings which have regard to the land itself, rather than to the owners of the land; and if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form." And see Winona Land Co. v. Minnesota, 159 U.S. 526.
Such being the character of the proceedings, and those interested having an opportunity to be heard upon application, the notice was in such form as was reasonably calculated to bring the same to the attention of those interested in the lands. In the present case the notice was in the form given in the margin.[1a]
*91 This notice was to all persons interested in the property. The lienholder, the Nebraska court has held, may appear in court and set up his claim. The notice was good as against the world, and all that is necessary when the proceedings are in rem:
"Laws exist under which property is responsible for taxes imposed upon it. These same laws often authorize the obligation by them imposed upon the property, to be enforced by proceedings in which no service of process is required except upon such property. The judgment resulting from such a procedure is in rem, and satisfaction thereof is produced by an execution authorizing the sale of the property. The sale acts upon the property, and, in so acting, necessarily affects all claimants thereto." Freeman on Judgments, sec. 606.
When the proceedings are in personam the object is to bind the rights of persons, and in such cases the person must be served with process; in proceedings to reach the thing service upon it and such proclamation by publication as gives opportunity to those interested to be heard upon application is sufficient to enable the court to render judgment. Cross v. Armstrong, 44 Ohio St. 613, 624. Where land is sought to be sold and is described in the notice a technical service upon it would add nothing to the procedure where the owner is unknown. The publication of notice which describes the land *92 is certainly the equal in publicity of any seizure which can be made of it.
In Tyler v. Judges of the Court of Registration, 175 Massachusetts, 71, the Supreme Judicial Court of Massachusetts upheld as constitutional an act providing for registering and confirming titles to lands, in which the original registration deprived all persons, except the registered owner, of any interest in the land, and the act gave judicial powers to the recorder after the original registration, although not a judicial officer, and there was no provision for notice before registration of transfer or dealings subsequent to the original registration. The majority opinion was delivered by Mr. Justice Holmes, then chief justice of Massachusetts. In the course of the opinion, speaking of the Massachusetts Bill of Rights and the Fourteenth Amendment, he said: "Looked at either from the point of view of history or the necessary requirements of justice, a proceeding in rem dealing with a tangible res, may be instituted and carried to judgment without personal service upon claimants within the State or notice by name to those outside of it, and not encounter any provision of either constitution. Jurisdiction is secured by the power of the court over the res."
In Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, it was held that notice by publication in proceedings to condemn land for railway purposes was sufficient notice to non-resident owners, and was due process of law as to such owners. So as to adjudications of titles of real estate within the limits of the State as against non-resident owners, brought in by publication only. Arndt v. Griggs, 134 U.S. 316, 327; Hamilton v. Brown, 161 U.S. 256, 274.
The principles applicable which may be deduced from the authorities we think lead to this result: Where the State seeks directly or by authorization to others to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are "so minded," to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be *93 heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment to the Constitution.
In the case under consideration the notice was sufficiently clear as to the lands to be sold; the lienholders investigating the title could readily have seen in the public records that the taxes were unpaid and a lien outstanding, which, after two years, might be foreclosed, and the lands sold and by the laws of the State an indefeasible title given to the purchaser. Such lienholder had the right for two years to redeem, or, had he appeared in the foreclosure case, to set up his rights in the land. These proceedings arise in aid of the right and power of the State to collect the public revenue, and did not, in our opinion, abridge the right of the lienholder to the protection guaranteed by the Constitution against the taking of property without due process of law.
The judgment of the Supreme Court of Nebraska is
Affirmed.
NOTES
[1] SEC. 1. That any person, persons or corporation having by virtue of any provisions of the tax or revenue laws of this State a lien upon any real property for taxes assessed thereon, may enforce such lien by an action in the nature of a foreclosure of a mortgage for the sale of so much real estate as may be necessary for that purpose and costs of suit.
SEC. 2. That any person, persons or corporation holding or possessing any certificate of purchase of any real estate, at public or private tax sale, or any tax deed, shall be deemed entitled to foreclose such lien under the provisions of this act, within any time not exceeding five years from the date of tax sale (not deed) upon which such lien is based; And provided, That the taking out of a tax deed shall in nowise interfere with the rights granted in this chapter.
SEC. 3. All petitions for foreclosure or satisfaction of any such tax lien shall be filed in the District Court in chancery, where the lands are situated.
SEC. 4. Service of process in causes instituted under this chapter shall be the same as provided by law in similar causes in the District Courts, and where the owner of the land is not known the action may be brought against the land itself, but in such case the service must be as in the case of a non-resident; if the action is commenced against a person who disclaims the land, the land itself may be substituted by order of court for the defendant, and the action continued for publication.
SEC. 5. All sales of lands under this chapter, by decree of court, shall be made by a sheriff or other person authorized by the court, in the county where the premises or some part of them are situated.
SEC. 6. Deeds shall thereupon be executed by such sheriff, which shall vest in the purchaser, the same title that was vested in the defendant to the suit at time of the assessment of the tax or taxes against the same; and such deed shall be an entire bar against the defendant to such suit, and against all parties or heirs claiming under such defendants; and in case the land itself is made defendant in the suit, the deed shall be an absolute bar against all persons, unless the court proceedings are void for want of jurisdiction; the object and intent of this section being to create a new and independent title, by virtue of the sale, entirely unconnected with all prior titles.
SEC. 7. The proceeds of every sale made under a decree, by virtue of this chapter, shall be applied to the discharge of the debt, adjudged by the court to be due and of the costs awarded, and if there be any surplus it shall be brought into court for the use of the defendant, or of the person entitled thereto, subject to the order of the court.
SEC. 8. If such surplus, or any part thereof, shall remain in court, for the period of three months, without being applied for, the court may direct the same to be put out at interest, under the direction of the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of the court; the party to whom said surplus shall be loaned to be designated by the court, and the sureties, upon which said money is loaned, to be approved by the judge.
SEC. 9. All lands sold by the sheriff by virtue of this act, shall be appraised, advertised, and sold as upon execution and the title conferred by his deed shall be entitled to all the presumptions of any judicial sale.
SEC. 10. This act shall be construed as cumulative and not exclusive in respect to the remedy for enforcing liens, and collecting delinquent taxes, by sale of property or otherwise, in the cases herein provided for, and shall in nowise interfere with, alter, or amend the existing revenue laws of the State.
[1a] Legal Notice.
In the District Court of Knox County, Nebraska.
The Farmers' Loan and Trust Company, Plaintiff, |
vs. |
Henry A. Root and The Northwest Quarter of >
Section Twenty-two (22), Township Thirty-one |
(31), Range Three (3) West, of the 6th Principal |
Meridian, Defendants. |
The State of Nebraska, Knox County, to the above-named defendants and all persons interested in said real estate:
You are hereby notified that the petition of plaintiff is now on file in the District Court of Knox County, Nebraska, wherein plaintiff claims that it purchased said real estate for taxes due thereon in the sum of twenty-four dollars and fifty-one cents at the tax sale held in said county on the 12th day of June, 1888; that under said sale it has paid subsequent taxes on said land as follows, to wit: on the 10th day of August, 1888, twenty-one dollars and seventy-nine cents, and on the 9th day of July, 1889, nineteen dollars and sixty-three cents, for which sum, with interest as provided by statute, plaintiff claims the first lien against said premises and asks the foreclosure thereof, and that the said property be sold to satisfy the amount due plaintiff, together with the further sum of ten per cent of said amount as attorney's fees and costs of suit. And you are further notified to appear and answer said petition on or before Monday, the 9th day of November, 1891, or the petition will be taken as true and judgment rendered accordingly.
Dated this 30th day of September, 1891.
FARMERS' LOAN AND TRUST COMPANY,
By M.J. SWEELEY, Its Attorney. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920011/ | 34 Md. App. 654 (1977)
369 A.2d 140
ROBERT JUNIAN PIERCE, JR. AND NORMAN KEMP JACKSON
v.
STATE OF MARYLAND.
No. 504, September Term, 1976.
Court of Special Appeals of Maryland.
Decided February 4, 1977.
The cause was argued before THOMPSON, LOWE and MELVIN, JJ.
Bruce R. Harrison for appellant Robert Junian Pierce, Jr.
Submitted on brief by Michael S. Libowitz, Assigned Public Defender, for appellant Norman Kemp Jackson.
Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and Daniel J. Cassidy, Assistant State's Attorney for Prince George's County, on the brief, for appellee.
LOWE, J., delivered the opinion of the Court.
Appellants Pierce and Jackson were tried together and convicted of robbery with a deadly weapon and numerous related crimes, by a jury in the Circuit Court for Prince George's County. The testimony at trial indicated that the appellants and two other subjects attempted to rob the Hechinger's Department Store in Marlow Heights, Maryland. Both appellants were identified at trial by eyewitnesses. We will refrain from detailing the facts and evidence at length because, for the most part, they are not material to these appeals.
Pierce
After raising three issues on appeal, appellant Pierce runs them together under a single argument. We will respond *656 to the first two in kind. Upon review we find his contention that a pretrial photographic identification was impermissibly suggestive to be totally without merit.[1] Nor are we convinced by his second contention that evidence had been suppressed by the prosecutor in violation of Brady v. Maryland, 373 U.S. 83. Our review found no Brady violation. To the contrary, we found Brady totally inapposite to the factual situation here.[2]
Although appellant's third assignment of error was also cursorily briefed, it is answered less simply. In light of the Court of Appeals' ruling in Christensen v. State, 274 Md. 133, appellant contends that the trial judge committed reversible error when he failed to grant a mistrial after having overruled appellant's objections to the prosecutor's attempts to invoke the "missing witness rule" in closing argument. Appellant also contends that, at least, the judge should have, on his own motion, stricken the remarks "from the jury's consideration".
Pierce, who took the stand on his own behalf, testified that he was not at the scene of the crime. He contended that before, after and during the time of the commission of the crime, he was with his friend Nathaniel "Pee Wee" Young at locations removed from the crime scene. Young was among four persons whom the State contended had committed the crime. He was not on trial however, and he did not testify. The prosecutor emphasized Young's absence and indicated *657 that he was not produced by Pierce because he would not have supported Pierce's alibi:
"Now, further in this case Mr. Pierce, whose really only alibi witness is an individual by the name of Nathaniel Young, also known as Pee Wee, this man if he was present in court could, in fact, show the whereabouts of Mr. Pierce on this particular date. The only people that testified to the whereabouts of Mr. Young on this date was our witnesses, who put him right in that store and right in that parking lot shooting that gun at all those people. Those witnesses picked him out along with Mr. Pierce on this particular day. Why didn't they bring in Pee Wee, Nathaniel Young, to show his whereabouts? He never came in this courtroom, he never testified. The only one who testified to his whereabouts was the next door neighbor.
MR. HARRISON: I object to the comment of counsel.
THE COURT: Overruled. Proceed.
...
Now, in a criminal case it is a search for the truth. I through my prosecution of the case have tried to present to you all the witnesses that I felt would be beneficial in this case, in bringing out the truth.
I again ask you to ask yourselves where the alibi witnesses in this case are to establish the whereabouts of Mr. Jackson on this particular date, where are the people that back him up, and what he said? And for Mr. Pierce, where is the other individual that was with him, Nathaniel Young? Why aren't these people in court to testify.
MR. HARRISON: I object again, Your Honor.
THE COURT: Overruled."
*658 The "missing witness rule",
"... even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Graves v. United States, 150 U.S. 118, 121.
A Court of Appeals' writ of certiorari was directed to our opinion in Christensen v. State, 21 Md. App. 428, wherein we had held that rule to be applicable in criminal cases, and the writ was granted:
"... in order that we might consider Christensen's contention that application of the `missing witness' rule in criminal cases is `an unconstitutional deprivation of the defendant's right to confrontation and cross-examination as guaranteed under the Sixth Amendment of the United States Constitution and Article 21 of the Declaration of Rights in the Maryland Constitution' ...." Christensen, supra, 274 Md. at 134.
In light of the issue having been one of first impression in criminal cases in Maryland, this was a commendable issue for certiorari consideration. Regrettably, however, that question was never reached. The Court had an addendum upon its writ:
"and that `assuming the missing witness rule is not unconstitutional' that `it [was not] applicable in the present case.'" Id. at 134.
We were reversed on the facts without having been enlightened on the law:
"We shall not address ourselves to the first contention because we conclude that the rule is not applicable to this case. For the same reason we shall be obliged to reverse the conviction." Id. at 134.
*659 Nor were we told whether our analysis of the cases, concluding in the determination that the missing witness rule is applicable in a criminal case, was correct or incorrect. The Court of Appeals relied upon, and adopted, as "the better and the majority rule" an exception quoted from 1 Wharton Criminal Evidence § 148:
"No inference arises if the person not called as a witness by the defendant is a codefendant or an accomplice not presently on trial, or has already been convicted of the same offense as that for which the defendant is being prosecuted.' Id. at 251." Id. at 139-140.
Although it would appear that the Wharton exception has become the Maryland rule, it would seem apparent that the adoption of the exception presupposes the recognition of the rule. But that is neither what the Court of Appeals held, nor is it necessary for us to decide here. Here, as in Christensen, it is the exception with which we are concerned, not the rule.
Although Judge Smith (who wrote for the Court of Appeals in Christensen) emphasized by repetition that the holding there was restricted to "the facts of [that] case", the similarity of circumstances here casts the case in a beguilingly precedential light.[3]
In Christensen the absence of the witness was argued extensively (by the State, as indicative of an unfavorable inference, and by the accused, who contended that the absence redounded as well against the State, Christensen v. State, 21 Md. App. at 435-436), but the Court of Appeals did not reach the issue of the propriety of arguing, to the jury, inferences that were available to them from the absence of a witness. Judge Smith clearly outlined the limited issue to which the Court spoke in that case:
"The critical question becomes whether the trial judge should or should not have granted the *660 instruction requested by the defendant." 274 Md. at 139.
Because the Court decided that the trial judge had erred in denying the requested instruction, we were reversed, but on that issue alone.
However, when Christensen was presented to this Court, one of the issues raised, and met, was whether the trial court had erred in allowing "`the State's Attorney to comment unfavorably upon the absence of a defense witness who ostensibly could have corroborated Appellant's version of the facts.'" 21 Md. App. at 435. Although the remarks there went considerably beyond those made in the case we now consider, we noted in our Christensen that:
"The remarks were certainly not prejudicial and hardly `unfavorable'" Id. at 435.
The prosecutor's remarks there, as those here,
"did little more than attempt to neutralize the possibility of a favorable inference." 21 Md. App. at 437.
In this case appellant himself injected the issue by alibi testimony, indicating that he was with "Pee Wee" Young far removed from the crime scene.[4] It is certainly legitimate argument for the prosecutor to ask, then, why the witness was not there to say so. In holding that such argument was not improper we pointed out that:
"Generally, broad latitude is given counsel in argument and we find nothing in this one prejudicial to Appellant." Id. at 437.
As we have pointed out, our reversal in Christensen by the Court of Appeals was expressly narrowed to the failure of the trial judge to give the requested instruction, and no such instruction was requested by Pierce in this case. We *661 further note that although the Court of Appeals was cognizant of the argument issue, 274 Md. at 138-139, it pointedly avoided reversing our holding on that issue. Nor did it criticize either our reasoning or our language in that regard and, we know from experience, that the Court of Appeals is not hesitant to point out the error of our ways when they do not agree with our reasoning or our result.
We have not changed our opinion that when an accused rests an alibi on an absent witness, it is not improper to argue the reasonableness of expecting the accused to justify or explain the absence. We hasten to add, however, that such argument is equally available against the State where the absent witness is said by the State to have been an accomplice.
In reading the Court of Appeals' Christensen, appellant was apparently misled into applying it over-broadly to cover his argument complaint, because of the reasoning behind the Wharton exception which the Court adopted as the Maryland rule. Judge Smith said:
"The reason behind the rule is not difficult to divine. Defense counsel have been known to believe that the military's advice to its personnel that in the event of capture one should disclose only name, rank, and serial number has its merits in criminal cases in that what one does not say cannot be used against him. Accordingly, counsel for Christensen probably was correct in believing that, if Paine were summoned to the witness stand by Christensen, Paine's counsel might well advise him to invoke his constitutional right against self-incrimination, notwithstanding the fact that his testimony might serve to corroborate that of Christensen and that if he testified Paine might claim that the incriminating testimony of the prosecutrix was untrue. Under the facts of this case, a defendant might well be damaged if an accomplice or codefendant were called to the stand and then did not testify, claiming his privilege against self-incrimination." 274 Md. at 140.
*662 Such rationale would, at first blush, appear applicable to argue the rule's inference, as well as failure to instruct the prohibitive exception, in an appropriate case. Yet there is a clear distinction between that which a trial judge must instruct a jury when requested and that which counsel may argue to it.
Providing that the court's instruction may be given any time after the close of evidence, Md. Rule 756 e. expressly points out that:
"The giving of such instructions prior to the argument of counsel shall not preclude counsel from arguing to the contrary." (emphasis added).
If it is not apparent from that rule that the Court of Appeals recognizes the right of counsel to argue legal presumptions or legitimacy of inferences which may be contrary to Maryland law, the Court of Appeals' cases make it abundantly clear. They rest upon Maryland's unique blessing or burden, that "the Jury shall be the Judges of Law, as well as facts", Md. Const., Art. XV, § 5; from which it reasonably follows, that if the jury is the judge of the law, legal argument may be made to it. Schanker v. State, 208 Md. 15, 21; Wilkerson v. State, 171 Md. 287, 290; Samson v. State, 27 Md. App. 326. The right to argue conflicting interpretations of the law, or the application thereof in dubious factual situations, e.g., Schanker v. State, supra, has been held proper even in the face of instructions to the contrary, Wilson v. State, 239 Md. 245, 255-256, without regard to Md. Rule 756 e. Because we have so recently spoken upon the right of counsel to argue relevant law to the jury (as well as the limitations upon that right), Samson v. State, supra, suffice to say the right is well preserved, both by the Court of Appeals and by this Court, as long as Maryland retains its unique constitutional provision.
Since we consider the overruling of appellant's objections to the prosecutor's argument proper, it follows that the judge did not abuse his discretion in denying a mistrial. We carry coals to Newcastle by adding that he did not err by failing to strike the arguments, sua sponte. Absent a request *663 for an instruction requesting the reverse missing witness rule adopted by Christensen, supra, there was no error by the court below.
Jackson
Because appellant Jackson's defense did not rely upon an alibi which the missing witness Young might have supported or controverted, Pierce's complaint does not include appellant Jackson, who raised three of his own assignments of error:
"I. The Court erred by excluding a defense witness from testifying because of a violation of the Sequestration Rule.
II. The Court erred in not promptly and properly advising the jury as to the State's unsubstantiated question about the Appellant's prior record.
III. The Court erred in allowing the State to improperly argue to the jury."
I
Violation of Sequestration
Appellant called Paula Jackson as a witness but admitted to the judge that she had been present in court in violation of sequestration, Md. Rule 753, which had been invoked at the request of appellant. A preliminary interrogation disclosed that she had been in the courtroom throughout the entire trial and had heard all of the testimony in the case. The court declined to permit her to testify, pointing out that:
"... the purpose of Rule 753, the sequestration rule, is to prevent one prospective witness from being taught by hearing another witness' testimony. The application of the rule is to avoid any artificial harmony of testimony that would prevent the trier of the facts from truthfully weighing all the testimony, and it is also used to avoid any outright manufacturing of testimony.
*664 The rule was exerted on behalf of the parties in this case. The witness has been in this courtroom since the inception of the trial. The motion to not permit the witness to testify by the State, after having been called by the defendant, is granted and the objection is sustained."
In McKnight v. State, 33 Md. App. 280 (1976), we again pointed out that whether a witness's violation of sequestration should preclude that witness from testifying is a matter for the sound discretion of the trial judge. We find no abuse.
Appellant preferred that her testimony would substantiate the testimony of appellant which she had heard. Such edification is precisely that which sequestration was intended to guard against. After reviewing all of the relevant factors in the record, we hold that the court acted within the limits of its discretion.
II
Sua Sponte Instructions
During the course of cross-examining appellant Jackson, the prosecutor asked:
"Are you the same Norman Kemp Jackson convicted on November 4, 1973, of the charge of carrying a pistol without a license?"
A timely objection was sustained when it was pointed out (at the bench) that although convicted, appellant had not yet been sentenced. See Md. Code, Cts. Art., § 10-905. Appellant now complains because the court did not advise the jury immediately, "that the State did not mean to intimate that the appellant had been convicted of a crime."
Appellant relies upon Woodell v. State, 2 Md. App. 433, 439, where we held that when cross-examining on prior convictions a prosecutor who receives a negative response should either produce authenticated evidence of the judgment of conviction or:
"If the State's Attorney chooses not to offer appropriate evidence of the prior conviction, he *665 should, under the dictates of Cook [v. State, 225 Md. 603], seek leave of court to explain to the jury that he disclaims any intimation from his question that the defendant had previously been convicted of such crime. Failure to do so may result in an appellate reversal of the conviction where the error cannot be deemed harmless, and the point is properly preserved for review on appeal." Id. at 439.
But that is not the question before us. Appellant's objection to the question was sustained. He received everything he asked for. Indeed, at the end of the case appellant was further benefited gratuitously by the judge's instruction to the jury that the question be disregarded:
"During the course of the trial there was a question propounded by the State's Attorney relative to a reference of prior criminal conduct on behalf of Mr. Jackson. You are to completely disregard that. I don't wish to amplify that particular part of the trial, but I tell you just for information purposes only, that if a person has been heretofore convicted that evidence would not be substantive evidence in the case, it would merely go to your consideration and evaluation of the credibility of the defendant as a witness."
Although we find Woodell inapposite, it is of some interest that we affirmed there, notwithstanding a flagrant violation of the principle espoused, because there was no preservation of the issue by objection, request for instruction or motion for mistrial. Here appellant's objection was sustained. He did not then ask the trial judge to instruct the jury that no unfavorable inference could be drawn from the question, but he received such an instruction at the end of the trial. Furthermore, there was no motion for a mistrial. Consequently, as in Woodell, the matter is not properly before us for review. Md. Rule 1085.
*666 III
Improper Argument
The final question raises an issue that gives us passing concern; however, we certainly find no prejudice sufficient to warrant a reversal.
During their argument to the jury both of the appellants' counsels criticized the manner in which the State had conducted its investigation, the arrest, a pretrial photographic identification and the prosecution of the case. Counsel for appellant Pierce, Mr. Harrison, succinctly characterized Jackson's counsel's preceding summation:
"Mr. King gave us a good, very good, analysis, sloppy police work."
While expressly hesitating to be critical generally of law enforcement, Mr. Harrison wandered into the respective fields of judicial actors:
"The police, the prosecution, the defense and the courts, or vice versa, play a particular role, but all of it is geared to lead to the same thing, for the protection and preservation of society and the rights of the inhabitants therein. We are not antagonists. We are adversaries, the State and myself, but we are not antagonists. We both believe in the same thing. One, the preservation of rights of citizens; and, two, the preservation and rights of the defendant. The Court is an impartial arbiter over both of them, and the police are to investigate a criminal occurrence so that the State can find the truth and prosecute it with vigor."
Although these discussions strayed from the issues before the jury, the State decided that it would respond instead of complaining. It was this response which Jackson contends was highly prejudicial and requires reversal:
"Now, both defendants' counsel have commented on the way the State has conducted the arrest, *667 investigation, and the prosecution of this particular case. They have commented on the photographic identification. Ironically, I was going through my files before I came down here today and I picked up a case which speaks of law enforcement involving a criminal case, and also photographic identification, and that is the case of United States v. Wade [388 U.S. 218]. This is the case that sets forth what the police did in this case, the photographic identification through the groups of photographs.
Now, in that case Justice White, who is a member of the Supreme Court of the United States, said:
`Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But, defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent,
MR. KING: [Jackson's counsel] I would object to that. That is not rebuttal, reading that.
THE COURT: Overruled. Proceed.
MR. CASSIDY: [the prosecutor] " but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing even if he knows what the truth is.'
*668 That is what the Supreme Court said in regard to the roles of law enforcement officers and defense counsel in cases.
Mr. Harrison explained himself to be a Deus ex machina, which means God out of the sky, for his clients in this particular case.
MR. HARRISON: [Pierce's counsel] Means God out of a machine.
MR. CASSIDY: I stand corrected.
In this particular case that is exactly what his client needs. His client has been described by numerous witnesses as participating in this particular armed robbery.
Now, he has talked about many things in his closing argument, not very much had anything to do with the facts. He talked about Moses coming down from the mountains, and he quoted the one commandment I forgot. `Thou shalt not steal, thou shalt not kill', are also important. They are important to the people of Prince George's County that have to live in the county."
The propriety of reading such matter to the jury is as questionable as is its relevance to the issue being tried. The reading of case law to a jury has been approved by the Court of Appeals, but the sanction carried the restriction that the law being read
"refer solely to relevant questions of law." Brown v. State, 222 Md. 290, 302.
Admitting that this reading from a dissenting and concurring opinion of a Supreme Court Justice contained no law, but merely an expression of the writer's view of the roles of court and law enforcement officers, the State submits that it was fair commentary in direct response to the attacks on the investigators and prosecutors, and that it applied also to the opening paragraphs of Mr. Harrison's argument from which it appeared that, but for the force of *669 gravity, he was in danger of ascending to Heaven like Elijah.[5]
Despite the questionable value of such appeals by defense counsel, the doctrine of retaliation[6] may explain the prosecutor's response but it cannot justify it. Although we do not consider such irrelevant attempts at eloquence to be professional misconduct as such, counsel should move with trepidation. See Code of Professional Responsibility, Disciplinary Rule DR7-106 (C) (1). See also A.B.A. Standards Relating to the Prosecution Function, § 5.8. The passage read was not relevant to any issue before the jury. Even if characterized as a retaliatory response, the excerpt was improper argument because it belittled not only the offending adversary, but was so general that it encompassed Mr. King, Jackson's attorney. While the latter's argument was critical of the manner in which officials had handled this case, it was directly relevant to the issues before the court. Mr. King had not digressed from the issues to the extent that counsel for Pierce had. The remarks read by the prosecutor embraced in a demeaning light the entire profession, by suggesting in a public forum that a defense counsel's sole objective is acquittal. State v. Thornton, 38 N. *670 J. 380, 185 A.2d 9, 19. It is equally improper to have utilized the imprimatur of absolute authority by quoting from "Justice White, who is a member of the Supreme Court of the United States," to cloak the prosecutorial team with impartiality. To have done so might have added weight to the prosecutor's influence and to the probative force of the evidence adduced. This could result in the juror's consciously or unconsciously adopting the prosecutor's view without applying their own independent judgment to the evidence. Thornton, supra. In exercising their discretion to permit reported cases to be read to the jury, trial judges should recognize that their discretion in such matters is one which courts ought seldom exercise, for the reason that such a practice would lead to confusion in trials, rather than enlightenment. Cf. Barrett v. Lohmuller Bldg. Co., 151 Md. 133, 139-140.
We also observe that Mr. Harrison's opening remarks, while possibly appropriate in a theological setting, had little to justify them as relevant to the issues being tried. To some gullible jurors it may provide a touch of credibility to the argument of its exponent, but more likely jurors would feel demeaned by one who sought to persuade them by equating himself with the Almighty. While of questionable relevance in either event, it is irritatingly distracting and produces nothing upon which a factual circumstance should be decided. See DR7 106 (C) (1) supra; A.B.A. Standards Relating to the Defense Function § 7.8. While remaining sensitive to the broad scope permitted counsel in argument, see Wilhelm v. State, 272 Md. 404, trial judges should be vigilant gently to excise blatantly irrelevant attempts by counsel to beguile jurors. Had the defense caqueterie here been averted, very likely the prosecutor would not have sought succor and retaliation in Justice White's irrelevancies.
It should be apparent by now that we find neither Mr. Harrison's arguments nor the prosecutor's response to be paragons for embryonic attorneys to follow. But with regard to the issue raised, our concern is limited to whether the jury was actually misled or influenced in this case, to the *671 prejudice of the accused, by the remarks of the prosecutor. See Wood v. State, 192 Md. 643, 652. We find it highly unlikely.
We too fall back on language of the Supreme Court to express our own opinion; however, the reasoning upon which we rely is relevant to the issue before us. The Court addressed prejudicial prosecutorial remarks offered in argument which it viewed in the light we viewed the remarks here:
"They were, we think, undignified and intemperate. They do not comport with the standards of propriety to be expected of the prosecutor. But it is quite another thing to say that these statements constituted prejudicial error. In the first place, it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately. In the second place, this was not a weak case.... Of course, appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial. But each case necessarily turns on its own facts. And where, as here, the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239-240, 84 L.Ed. 1129, 1177.
Having applied the "applicable test for prejudice" adopted in Wilhelm, supra, 272 Md. at 416, from Gaither v. United States, 413 F.2d 1061, and finding none,[7] we will not reverse.
*672 A second alleged prosecutorial error is without indicia of prejudice. Appellant complains that the prosecutor expounded upon a theory which went beyond the evidence. Our review does not so disclose. To the contrary, that which the prosecutor expressed after confessing prefatorily that "this is not evidence, this is my theory", could readily have been inferred from the evidence before the jury. It is not improper to propound theories that could inferentially be supported by the evidence.
Judgments affirmed.
Costs to be paid by the appellants.
NOTES
[1] Appellant contends that there was conflict in testimony of the eyewitnesses and that the photographs used in the pretrial identification were manipulated. He neither supports this with argument nor does he indicate where in the record evidence indicative thereof may be found. "We cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position." Van Meter v. State, 30 Md. App. 406, 408, cert. den. 5/25/76. Nevertheless, we did peruse the record and found the appellant's contention to be a specious one.
[2] Appellant complained that although the police took preliminary nitric acid swabs of his hands to determine if he had fired a pistol recently, they decided not to submit the tests to the laboratory for neutron activation analysis because of the circumstances relating to when the test was taken, the weather, and the perspiration on appellant's hands.
[3] The missing witness in this case, one Nathaniel Young, was admittedly an "accomplice not presently on trial", as was Mr. Paine in Christensen. Mr. Paine's complicity in the crime was part of the State's version of the case. This appears to be another limitation upon the applicability of Christensen. See 274 Md. at 140-141.
[4] In Christensen, the "Appellant meticulously avoided direct reference to, or identification of, the obviously absent potential witness." 21 Md. App. at 431.
[5] "MR. HARRISON: Ladies and gentlemen of the jury. As Mr. Cassidy pointed out to you, and as His Honor pointed out, you have been one of the most attentive juries that I have had in my career, which spans some 22 years.
You know the law, what the law really is, is a search for the truth, that is what it is all about, and ever since Moses came down from the mountaintop with the tablet, with the Ten Commandments, that is what we have been trying to do, find out what the truth is. And one of those Commandments was, `Thou shalt not bear false witness.' And that is what has happened in this case.
Now, if there are two things in my being that I will die for it is truth and beauty, and they are almost indistinguishable, because if beauty is the penultimate then truth is the ultimate, or vice versa, because in all which surrounds us, both animate and inanimate, all else is irrelevant.
Now, how do we get to it? Well, we lawyers and judges attend law schools, the cherished halls of Howard University, Harvard, Georgetown, et cetera, and we are taught certain rules, and to the layman it may seem dry, it may sometimes seem boring, and sometimes we may want to catch a nap or two, in fact sometimes we lawyers and judges even nod off from time to time, but it is man's attempt to do what Moses was commanded to do by the Lord, `Thou shalt not.'"
[6] See, e.g., Anderson, Wharton's Criminal Law and Procedure § 2083; 75 Am.Jur.2d Trial § 233; 88 C.J.S. Trial § 194.
[7] Any prejudice potential was further minimized by the court's instruction that:
"Opening statements of counsel and final arguments are not of themselves evidence. The only evidence for you to consider is what you have seen and heard and observed from the witnesses on the witness stand and the exhibits that have been permitted in evidence for your consideration." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1410240/ | 412 S.E.2d 7 (1992)
330 N.C. 465
The NEWS AND OBSERVER PUBLISHING COMPANY, INC.; the North Carolina First Amendment Foundation, Inc.; and the North Carolina Press Association
v.
Samuel H. POOLE; Dean W. Colvard; C.C. Cameron; William A. Klopman and Hellon Senter.
No. 269PA90.
Supreme Court of North Carolina.
January 10, 1992.
*10 Everett, Gaskins, Hancock & Stevens by Hugh Stevens, Raleigh, for plaintiffs-appellees.
Lacy H. Thornburg, Atty. Gen. by Andrew A. Vanore, Jr., Chief Deputy Atty. Gen., and K.D. Sturgis, Asst. Atty. Gen., Raleigh, for defendants-appellants.
EXUM, Chief Justice.
This action is brought under the Public Records Act, N.C.G.S. Chapter 132, and seeks to compel defendants to disclose for public inspection certain written materials.[1] These materials were compiled on behalf of a commission appointed by the president of the University of North Carolina system of higher education. The Commission's purpose was to investigate and report on certain alleged improprieties relating to the men's basketball team at North Carolina State University (NCSU), one of the system's component universities. Defendant Poole was chairman of the Commission, which became popularly known as the "Poole Commission," and which we will refer to as the Commission. Defendants Colvard, Cameron and Klopman were members of the Commission; and defendant Senter assisted the Commission in its work.
The records sought to be disclosed are investigative reports prepared for the Commission by special agents of the State Bureau of Investigation (SBI), Commission minutes, and draft reports prepared by individual Commission members.
Defendants concede that the Commission is a state agency and that the records sought, except for the investigative SBI reports, are public records as these terms are defined by the Public Records Act, N.C.G.S. § 132-1 (1991).[2] They resist disclosure, nevertheless, on the ground that the records sought, other than the SBI reports, are protected by certain statutory and public policy exceptions to the Public Records Law. They contend the SBI reports were not public records because of the exemption to the Public Records Act contained in N.C.G.S. § 114-15. The trial court concluded none of the statutes relied on by defendants protects the records from disclosure. It ordered disclosure of all the records. The question before us is the correctness of this decision. We conclude the decision is essentially correct but needs modification. We, therefore, modify and affirm the trial court's judgment. We affirm the trial court's denial of plaintiffs' motion to amend their complaint.
I.
The facts are essentially not in dispute. In January 1989 C.D. Spangler, Jr., President of the University of North Carolina *11 system of higher education (UNC) appointed the Commission members named above. The Commission, using SBI agents, conducted its investigation between January and August 1989.
On 26 July 1989 Frank A. Daniels, Jr., publisher of The News and Observer, wrote Spangler requesting that all documents made or received by the Poole Commission be made available for public inspection as provided by the Public Records Law. Spangler responded that he did not possess the records and referred Daniels to Poole. Daniels wrote to Poole requesting disclosure of the documents. Poole, through Chief Deputy Attorney General Andrew A. Vanore, counsel for the Commission, declined to disclose any of the documents. On 23 October 1989 defendant Poole did disclose his preliminary report.
On 23 October 1989 plaintiffs filed the action now before us, alleging in a verified complaint that defendants' refusal to permit access to the documents in question violated Section 6 of Public Records Act, N.C.G.S. § 132-6 (1991).[3] Plaintiffs prayed that the trial court order defendants to make the documents available for inspection and copying, as provided by that statute.
Defendants opposed the requested order, pleading in answer several statutory exceptions to the Public Records Act: N.C.G.S. § 114-15 (SBI records); N.C.G.S. § 126-22 (1987) (state employee personnel records); N.C.G.S. § 132-1.1 (1991) (attorney communications); and N.C.G.S. § 143-318.11(d) (Supp.1991) (part of the Open Meetings Law). Defendants also pleaded certain "public policy" considerations in defense of their refusal to disclose.
On 2 May 1990 plaintiffs moved to amend their complaint to add Lacy H. Thornburg, Attorney General of North Carolina, as a defendant. The motion was denied.
At the hearing on the merits the trial court considered the pleadings, depositions, affidavits, and exhibits. Based upon these materials the trial court made extensive findings of fact and conclusions of law. The pertinent facts found together with certain other undisputed pertinent facts of record will be summarized in our discussion of the legal issues brought forward on appeal.
II.
Defendants first contend the trial court erroneously concluded that the SBI investigative reports were public records. For the reasons explained below, we hold the SBI investigative reports became public records subject to the Public Records Law when the SBI submitted them to and they became a part of the records of the Commission.
A.
During its organizational meetings the Commission determined it would need assistance in conducting its investigation. After much discussion and consultation with counsel, the Commission ultimately decided to employ SBI special agents to assist its investigation. Upon the Commission's request, the Attorney General directed the SBI to assign agents to assist the Commission. The SBI assigned three agents.
The SBI agents interviewed approximately 160 people and summarized the interviews in written reports which, with attachments, they submitted to the Commission. After the agents submitted their reports, William Dowdy, chief investigative agent for the SBI, who worked on the investigation, forwarded copies of all the materials gathered and produced by the agents to Wake County District Attorney C. Colon Willoughby in the event they might contain evidence of criminal misconduct. Willoughby concluded the information did not merit criminal prosecution.
*12 Commission members treated the SBI reports and attachments as confidential. Near the investigation's end, however, two UNC officials who were not on the Commission, University Vice Presidents Arthur Padilla and Raymond Dawson, were allowed to review all Commission records, including the investigative reports. Poole, as custodian of the records, allowed the inspection.
B.
The Public Records Act, N.C.G.S. § 132-6, provides:
Every person having custody of public records shall permit them to be inspected and examined at reasonable times and... shall furnish certified copies thereof on payment of fees prescribed by law.
Defendants claim this provision has no application to the SBI investigative reports because N.C.G.S. § 114-15 provides in part:
All records and evidence collected and compiled by the Director of the Bureau and his assistants shall not be considered public records within the meaning of G.S. § 132-1, and following....
The trial court concluded that the Commission's investigation, although conducted by SBI agents, was not of a type specifically authorized by section 114-15. The trial court then held:
The provision of G.S. 114-15 concerning the non-public status of "records and evidence collected and compiled" by the S.B.I. is directed primarily toward the records of criminal investigations, and in any event extends no further than the records of investigations which are specifically authorized by G.S. 114-15. Therefore, since the investigation in question was not specifically authorized by G.S. 114-15, or by any other statutory provision, the records compiled on behalf of the Commission by the S.B.I. agents do not fall under the exemption, and are public records as defined by G.S. 132.1. Accordingly, they must be disclosed.
We do not reach the question whether the SBI investigation was authorized. We hold, simply, that whether the investigation was authorized or not, when the SBI submitted its investigative reports to the Commission, they became Commission records. As such they are subject to the Public Records Act and must be disclosed to the same extent that other Commission materials must be disclosed under that law.
In News & Observer v. State ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984), this Court held that N.C.G.S. § 114-15 exempted from the Public Records Act records of a criminal investigation conducted by the SBI at the request of a district attorney. The records sought there resulted from an investigation expressly authorized by section 114-15. Plaintiffs attempt to distinguish Starling. They argue that the scope of the exemptive provision in section 114-15 does not reach the investigative materials sought in the case sub judice, because these materials are not the product of an investigation enumerated or authorized by section 114-15. Plaintiffs further argue that even if the exemption extended to records of all SBI investigations authorized by statute, it would not extend to the materials here, because the SBI investigation on behalf of the Commission was not expressly authorized by any statute. The trial court agreed with these arguments. We think Starling is distinguishable, but for other reasons.
Plaintiffs do not seek disclosure of investigative reports in the possession of the SBI. They seek disclosure of copies of such reports in the possession of the Commission. The issue before us is whether these reports which have become Commission records continue to be exempt from the Public Records Act pursuant to section 114-15. We conclude that they do not.
To extend the statutory exemption to SBI investigative reports which have been placed in the public domain is like unringing a bella practical impossibility. When such reports become part of the records of a public agency subject to the Public Records Act, they are protected only to the extent that agency's records are protected. When the SBI investigative reports here became Commission records, *13 they, as Commission records, ceased to be protected by section 114-15. They became subject to disclosure under the Public Records Act to the same extent as other Commission records.
The legislature knows how to extend the scope of protection of confidential records beyond the confines of the agency which maintains them. N.C.G.S. § 126-22, which provides that certain personnel information about state employees is not subject to public inspection, includes the clause "wherever located and in whatever form." Where the legislature has not included such broad protection for SBI records in section 114-15, we will not engraft it.[4]
The legislature's mandate for open government supports our holding. By enacting the Public Records Act, "the legislature intended to provide that, as a general rule, the public would have liberal access to public records." Starling, 312 N.C. at 281, 322 S.E.2d at 137. The Court of Appeals has also noted the broad acceptance of this policy.
"[G]ood public policy is said to require liberality in the right to examine public records." 66 Am.Jur.2d, Records and Recording Laws, § 12 at 349 (1973). "While some degree of confidentiality is necessary for government to operate effectively, the general rule in the American political system must be that the affairs of government be subject to public scrutiny." Comment [Public Access to Government-Held Records: A Neglected Right in North Carolina], 55 N.C.L.Rev. 1187, 1188 (1977).
Advance Publications, Inc. v. Elizabeth City, 53 N.C.App. 504, 506, 281 S.E.2d 69, 70-71 (1981).
C.
Defendants also contend the SBI reports and attached documents obtained from university records and elsewhere are protected from public inspection under N.C.G.S. § 126-22, which exempts from the Public Records Act certain information about a state employee gathered by his or her employer.
Plaintiffs contend defendants failed to preserve this issue for appeal. We disagree. In their answer defendants asserted a sixth defense that "the Commission's records contain confidential personnel records protected from public inspection under N.C.Gen.Stat. §§ 126-22." The trial court's order made no reference to this defense. Defendants assigned error to "[t]he trial court's failure to find and conclude that State employee personnel records, including information gathered which relates to charges against a state officer or employee or to such person's demotion, termination or other personnel action, should be excluded from its disclosure order." North Carolina Rule of Appellate Procedure 10 was amended effective 1 July 1989 to delete the requirement that assignments of error be supported by exceptions. The Rule now provides that an assignment of error is sufficient "if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references." N.C.R.App.P. 10(c)(1). Defendants' assignment of error Number Nineteen satisfies these requirements. This issue was properly presented to the trial court and preserved for appeal; therefore, we will consider it.
Chapter 126, Article 7 of the General Statutes is titled "The Privacy of State Employee Personnel Records." Neither this Court nor the Court of Appeals has had occasion previously to apply this statute. Section 126-22 provides in pertinent part:
Personnel files of State employees, former State employees, or applicants for State employment shall not be subject to inspection and examination as authorized by G.S. 132-6. For purposes of this Article, a personnel file consists of any information gathered by the department, division, *14 bureau, commission, council, or other agency subject to Article 7 of this Chapter which employs an individual, or considered an individual's application for employment, or by the office of State Personnel, and which information relates to the individual's application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment wherever located and in whatever form.
Under the plain meaning of the statutory language, any information satisfying the definition of "personnel file" is excepted from the Public Records Act. In order for personnel information to be protected by section 126-22, it must meet two requirements: (1) it must have been gathered by an individual's employer (including the Office of State Personnel) or considered in an individual's application for employment; and (2) the information must relate to at least one of the enumerated activities by the employer with respect to the individual employee or applicant for employment.
The state employees who were the subject of SBI reports and Poole Commission meetings were employed by NCSU. Under section 126-22, only personnel information about those employees gathered by the employing state agency is exempt from public inspection under section 126-22. In the case of the individuals investigated, neither the Poole Commission nor the SBI was the employing state agency. Unless, therefore, the information gathered by the SBI for the Commission was first gathered by the employing state agency or the Office of State Personnel, it is not exempt under section 126-22 and is subject to disclosure under the Public Records Act.
Personnel information first gathered by the employing state agency or the Office of State Personnel and turned over to the SBI and the Poole Commission remains protected because of the language "wherever located and in whatever form" in section 126-22. On remand the trial court must examine the documents in camera to decide if any part of them falls within the statutory "personnel file" definition so as to be protected.
III.
Defendants next assign error to the trial court's ruling that minutes of the Poole Commission's meetings are public records. Defendants contend the minutes are excepted from the Public Records Law because the meetings were lawfully closed to the public. Defendants also contend the minutes are protected because they contain privileged "deliberative process" communications, discussions of individual state employee personnel matters, and attorney-client communications.
A.
The trial court took notice of the parties' stipulation that the Poole Commission was not a "public body" as defined by the Open Meetings Law, N.C.G.S. § 143-318.10 (Supp.1991), so that the Commission lawfully closed its meetings to the public. However, the trial court held that the minutes of those same meetings are public records as defined in N.C.G.S. § 132-1 and are subject to disclosure under the Public Records Act.
Section 132-1 defines "public records" as documentary material "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." The statute defines subject agencies and subdivisions as "every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government." N.C.G.S. § 132-1.
Defendants have admitted that with the exception of the SBI investigative reports, all documents made or received by the Poole Commission are public records within the literal meaning of N.C.G.S. § 132-1. Also, defendants have not assigned error to the trial court's ruling that the Poole Commission, the UNC Board of Governors, the UNC administration, the Attorney General, *15 and the SBI are all "public agencies" within the scope of section 132-1.
N.C.G.S. § 143-318.10, commonly known as the Open Meetings Law, provides for public access to the proceedings of public bodies. The definition of a "public body" under this statute is narrower than the definition of "public agency" under the Public Records Act. A "public body" is defined in section 143-318.10(b) as a political entity, composed of two or more members, which (1) is authorized to exercise one of several enumerated governmental functions, and (2) was established by one of several enumerated devices: the State Constitution, a legislative enactment, a resolution pursuant to statutory procedure, a local ordinance or resolution, or an executive order of the Governor or comparable action by a State office or department head as defined in other North Carolina statutes. Defendants and plaintiffs have stipulated that the Poole Commission was not a "public body" under the statute because it was not established by any of the means enumerated in section 143-318.10(b)(2).
Defendants first argue that the Public Records Law does not apply to minutes from meetings of an agency not subject to the Open Meetings Law. Defendants cite no authority to support this proposition. We decline to create such a broad exception to the Public Records Act where the legislature has not elected to do so. The Public Records Act and the Open Meetings Law are discrete statutes, each designed to promote in a different way openness in government. There is no suggestion in either statute that an agency not subject to one is, ipso facto, exempt from the other.
Defendants argue in the alternative that minutes of the Commission's meetings are excepted from the Public Records Act by the following provision in the Open Meetings Law:
Minutes of Executive SessionNotwithstanding the provisions of G.S. 132-6, minutes and other records made of an executive session may be withheld from public inspection so long as public inspection would frustrate the purpose of the executive session.
N.C.G.S. § 143-318.11(d) (Supp.1991). Other provisions in section 143-318.11 help define what meetings are executive sessions protected by section 143-318.11(d). Section 143-318.11(a) provides that a "public body may hold an executive session and exclude the public" for several, specifically defined purposes, including:
(5) To consult with an attorney, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer.[5]
....
(8) To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of a public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge or grievance by or against a public officer or employee.
Defendants argue that because consultations with counsel and discussion of personnel matters by a "public body" would fall within the executive session exceptions quoted above, minutes from Commission meetings containing such material should likewise be excepted from public inspection, even though the minutes are not from a meeting of a "public body" covered by the Open Meetings Law.
The trial court examined the minutes sought here and first concluded that had the Poole Commission been subject to the Open Meetings Law, it could not have held executive sessions under sections 143-318.11(a)(5) or (8). The trial court further held that considering the contents of the minutes and the other materials that it was ordering disclosed, the minutes did not meet the threshold test of section 143-318.11(d), because "public inspection of the *16 minutes at this time would not frustrate the purpose of the executive session even if G.S. 143-318.11(a) did apply."
We affirm the trial court ruling on the ground, simply, that the Commission was not subject to nor governed by the Open Meetings Law. Not being burdened by this law's provisions, the Commission is not entitled to its benefits.
We agree, nevertheless, with the trial court's second reason for rejecting defendants' arguments based on the Open Meetings Law.
The legislature's intent in enacting the Open Meetings Law is made clear in section 143-318.9, titled "Public policy," which provides:
Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.
Section 143-318.11 sets forth specific exceptions to the general rule that the public be allowed access to government meetings. Section 143-318.11(d) also provides an exception to the Public Records Act for minutes, which would ordinarily be public records, "so long as public inspection would frustrate the purpose of the executive session." This standard requires consideration of time and content factors, allowing courts to tailor the scope of statutory protection in each case. Courts should ensure that the exception to the disclosure requirement should extend no further than necessary to protect ongoing efforts of a public body, respecting the policy against secrecy in government that underlies both the Public Records Act and the Open Meetings Law.
The Commission had completed its work and disbanded at the time plaintiffs filed this action. The nature and purpose of the meetings at issue are relevant in determining the extent of protection, if any, provided in section 143-318.11(d) for minutes of proceedings that are no longer ongoing. This Commission met to conduct an administrative investigation, to suggest solutions to problems it discovered in athletics and academics, and to help restore the integrity of a public university. At the time plaintiffs sought the minutes, the Commission had completed its proceedings and had reported to Spangler, the university system's chief executive officer. Also, Spangler had relayed the Commission's findings and recommendations to the UNC Board of Governors. No further action or disposition by any higher ranking university officer was pending. By then the Commission's work, or any results depending on that work, could not have been compromised by public inspection of the minutes.
Defendants contend that if minutes revealing the deliberative processes of public agencies are not permanently excepted from the Public Records Act, knowledge by the agencies that public scrutiny may occur will chill free and frank decision-making. While we recognize this policy argument, we must yield to the decision of the General Assembly, which enacted several specific exceptions to the Public Records Act, none of which permanently protects a deliberative process like that of the Commission after the process has ceased.[6]
We therefore affirm the trial court's ruling that section 143-318.11(d) does not authorize defendants to withhold Commission minutes.
B.
Defendants next contend the minutes are exempt from disclosure because they contain *17 privileged attorney-client communications and discussions of individual state personnel matters. Plaintiffs contend defendants failed to preserve these issues for appeal. We disagree for the same reasons discussed in Part II concerning the issue of state employee personnel records. Just as defendants properly preserved that issue, they also preserved the attorney-client privilege issue.[7] Therefore, we will consider both issues.
The Public Records Act provides only one exception to its mandate of public access to public records: written statements to a public agency, by any attorney serving the government agency, made within the scope of the attorney-client relationship. N.C.G.S. § 132-1.1 (1991). The statute provides that even those communications shall become public records subject to disclosure three years after the communication was received by the public agency. Id.[8]
Although the Public Records Act does not provide an exception for records of statements by a public agency to its attorney in the scope of the attorney-client relationship, defendants contend that such statements lie at the heart of the attorney-client privilege. Confidential communications between attorney and client, from either one to the other, are protected by the traditional attorney-client privilege mandated by common law. E.g., State v. Tate, 294 N.C. 189, 193, 239 S.E.2d 821, 824 (1978). So far this Court has not recognized an attorney-client privilege for public entity clients, and it is unclear whether the traditional privilege should be so extended. Lory A. Barsdate, Attorney-Client Privilege for the Government Entity, 97 Yale L.J. 1725, 1734 (1988). Most courts that have applied such a privilege have not considered its origin but have merely assumed it exists. E.g., Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D.Wash.1975); People ex rel. Department of Pub. Works v. Glen Arms Estate, Inc., 230 Cal. App. 2d 841, 854, 41 Cal. Rptr. 303, 310 (1964).
We need not decide here whether public agencies in North Carolina enjoy the traditional attorney-client privilege in all contexts. That issue is not before us. In the context of what such agencies must disclose pursuant to the Public Records Act, the statute itself defines the scope of the privilege. See note 8. Under this definition only those portions of the Poole Commission meeting minutes revealing written communications from counsel to the Commission are excepted from disclosure under the Public Records Act.
The trial court did not squarely address defendants' claim of attorney-client privilege. The trial court concluded, rather, that the Open Meetings Law exception, N.C.G.S. §§ 143-318.11(d) and 143-318.11(a)(5), to the Public Records Act, which *18 allows a public body to go into executive session to consult with its attorney, would not apply to any of the Poole Commission minutes, which the trial court had inspected in camera.
The trial court erred in not further considering whether the minutes were protected by the Public Records Act attorney-client privilege provided in section 132-1.1. On remand the trial court must determine whether that provision protects any portions of any of the Commission minutes.
We now turn to defendants' contention that minutes of the Commission's meetings are exempt from disclosure under N.C.G.S. § 126-22. As discussed in Part II, that statute provides that certain personnel information gathered by state agencies concerning their employees or applicants for employment is exempt from the Public Records Act. The Poole Commission was not the employer of any state employees questioned or mentioned in the meeting minutes. Therefore, as we explained in Part II, the minutes do not meet the definition of "personnel file" information set forth in section 126-22 because the information was not "gathered" by the employer state agency. Because the minutes do not fall within the statutory definition of "personnel file," they are not protected by the statute.
IV.
Finally, defendants contend the trial court erred in ordering the disclosure under the Public Records Act of draft reports that two Commission members wrote at the conclusion of the investigation and submitted to President Spangler. Defendants base this assignment of error on their argument that a public policy exception to the Public Records Act should be recognized in the form of a "deliberative process privilege" and that this privilege should protect preliminary draft reports prepared by members of the Commission and submitted to President Spangler. Defendants cite decisions from other jurisdictions in which courts have held preliminary documents exempt from public inspection. Ernest & Mary Hayward Weir Foundation v. United States, 508 F.2d 894 (2d Cir.1974); Wilson v. Freedom of Information Com'n, 181 Conn. 324, 435 A.2d 353 (1980); Lopez v. Fitzgerald, 76 Ill. 2d 107, 28 Ill. Dec. 476, 390 N.E.2d 835 (1979); Kottschade v. Lundberg, 280 Minn. 501, 160 N.W.2d 135 (1968); Sanchez v. Board of Regents, 82 N.M. 672, 486 P.2d 608 (1971).
The relevant statutes in those jurisdictions, however, differ significantly from North Carolina's Public Records Act. Those decisions are, therefore, not persuasive. Our statute contains no deliberative process privilege exception. Whether one should be made is a question for the legislature, not the Court.
Defendants also argue that we must infer a "preliminary draft" exception to the Public Records Act to prevent the legislature from intruding into the decision-making processes of other government branches, in violation of the separation of powers provision in Article I, Section 6 of the North Carolina Constitution. Defendants have cited no controlling authority in support of this assignment of error, and failed to cite or rely on the state Constitution when they raised this argument before the trial court. The only decision cited by defendants bearing on the separation of powers doctrine, State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), involved two branches of government interfacing with each other. That decision is inapposite here. The Public Records Act allows intrusion not by the legislature, or any other branch of government, but by the public. A policy of open government does not infringe on the independence of governmental branches. Statutes affecting other branches of government do not automatically raise separation of powers problems.
We, therefore, affirm the trial court's ruling that the draft reports of individual Commission members are subject to disclosure under the Public Records Act.
V.
Plaintiffs cross-assign as error the trial court's denial of their motion to amend *19 their complaint to add the Attorney General as a defendant. Plaintiffs allege the Attorney General assigned SBI agents to conduct an investigation not authorized by law for the purpose of circumventing the Public Records Act. The trial court's ruling was prejudicial error, plaintiffs contend, because it precluded plaintiffs from seeking an appropriate remedy, such as an injunction prohibiting further unauthorized deployment of the SBI, and because without the Attorney General as a defendant plaintiffs were unable to discover information in support of their claim that the unauthorized investigation was conducted for an improper purpose.
On 2 March 1990, three days before this action was heard by the trial court, plaintiffs filed the motion to amend. The motion stated that the claims against the Attorney General arose from new information obtained from depositions taken on 29 November 1989. Defendants responded that plaintiffs had unduly delayed filing their motion and had no basis in law to seek the amendment. In denying plaintiffs' motion to amend, the trial court concluded that justice did not require the amendment because the issue of whether the Attorney General exceeded statutory authority was properly raised by the original pleadings.
Rule 15(a) of the North Carolina Rules of Civil Procedure provides that once an action has been placed on the trial calendar, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." As defendants note, a motion to amend is left to the discretion of the trial court, and its decision will not be disturbed on appeal absent a clear showing of abuse of discretion. Smith v. McRary, 306 N.C. 664, 671, 295 S.E.2d 444, 448 (1982); Patrick v. Williams, 102 N.C.App. 355, 360, 402 S.E.2d 452, 455 (1991).
Among proper reasons for denying a motion to amend are undue delay by the moving party and unfair prejudice to the nonmoving party. Patrick v. Williams, 102 N.C.App. at 360, 402 S.E.2d at 455. Plaintiffs here moved to amend their complaint three months after obtaining new information from deposition testimony, and three days before the action was scheduled for hearing. Although the trial court did not reach the issue of delay and possible prejudice to defendants, the circumstances would have supported a denial of plaintiffs' motion on those grounds.
Furthermore, we agree with the trial court's reasoning that denying the motion to amend caused no prejudice to plaintiffs. Plaintiffs have prevailed in their action to enforce the Public Records Act. They have offered no argument why, if they prevailed in compelling disclosure under the law, they would be prejudiced by not gaining access to additional evidence supporting the same result. Their contention that, had the motion to amend been allowed, they could have obtained an injunction prohibiting the Attorney General from further deploying the SBI without authority is speculative at best. At the time the action was filed, and certainly at the time of the motion to amend, an injunction was unnecessary, because there was no chance that the Attorney General would assign the SBI to further assist the Poole Commission, a body which months before had completed its work and disbanded.
Plaintiffs have not shown an abuse of discretion by the trial court in denying their motion to amend. This assignment of error is overruled.
CONCLUSION
In conclusion, we hold that in the absence of clear statutory exemption or exception, documents falling within the definition of "public records" in the Public Records Act must be made available for public inspection. Copies of SBI investigative reports submitted to the Poole Commission are beyond the exemption contained in section 114-15 and are protected from public inspection only to the extent that other Poole Commission records are so protected. Documents not falling within the definition of the "personnel file" exception in N.C.G.S. § 126-22, because they are not gathered by the employer or for the reasons enumerated, are not protected by that statute. Minutes of the Poole Commission's *20 meetings are not excepted from the Public Records Act under N.C.G.S. § 143-318.11 because the Commission was not subject to that statute and public inspection of the minutes will not frustrate the Commission's proceedings. Finally, with respect to any protection from disclosure provided by the attorney-client privilege, only written communications to a public agency by its attorney are excepted from public inspection under the circumstances set out in N.C.G.S. § 132-1.1. We refuse to engraft upon our Public Records Act exceptions based on common-law privileges, such as a "deliberative process privilege," to protect items otherwise subject to disclosure.
For the reasons stated, except for the trial court's failure to address and apply the exception in N.C.G.S. § 132-1.1 for attorney communications and the exception in N.C.G.S. § 126-22 relating to state personnel records, we affirm the trial court's order requiring disclosure of the materials in question. We remand the matter to the trial court with directions to apply these Public Records Act exceptions to the materials in question and to exclude any materials protected by them from its order requiring disclosure.[9] Pending the trial court's disposition on remand, the materials in question will remain sealed.
MODIFIED AND AFFIRMED. REMANDED.
NOTES
[1] N.C.G.S. § 132-9 provides, in part, "Any person who is denied access to public records for purposes of inspection, examination or copying may apply to the appropriate division of the General Court of Justice for an order compelling disclosure, and the court shall have jurisdiction to issue such orders."
[2] N.C.G.S. § 132-1 defines public records as follows:
"Public record" or "public records" shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.
[3] N.C.G.S. § 132-6 provides, in part:
Every person having custody of public records shall permit them to be inspected and examined at reasonable times and under his supervision by any person, and he shall furnish certified copies thereof on payment of fees as prescribed by law.
[4] The legislature also can protect SBI records outside the SBI's possession by so providing in statutes governing records of other agencies. For example, N.C.G.S. § 7A-377, which authorizes the SBI to assist in investigations for the Judicial Standards Commission, provides that such investigative materials are confidential.
[5] This subsection was amended in 1991, after the appeal in this case, to allow privileged consultation with an attorney "employed or retained to represent the public body, to the extent that confidentiality is required in order to preserve the attorney-client privilege between the attorney and the public body." N.C.G.S. § 143-318.11(a)(5) (1991).
[6] Defendants argue that this "absurd interpretation" will outlaw the use of wastebaskets in state government, because N.C.G.S. § 132-3 makes disposing of public records a misdemeanor. This argument overlooks section 132-3, which refers state agencies to N.C.G.S. § 121-5 for procedures allowing the disposal of records having no value to the government or the public. That section allows state agencies to submit to the Department of Cultural Resources an inventory of records and a schedule for disposing of certain documents. Once such a schedule is approved, "destruction or disposal of records in accordance with its provisions shall be deemed to have met the requirements of G.S. 121-5(b)." N.C.G.S. § 121-5(c) (1986).
[7] In their answer to plaintiffs' complaint filed with the trial court, defendants asserted in the seventh defense that during its meetings the Commission "had privileged communications with counsel." Following the trial court's order, defendants filed assignments of error at the conclusion of the record on appeal. Assignment Number Eighteen assigns error to "[t]he trial court's failure to find and conclude that the S.B.I. records and evidence, the minutes of closed meetings, and the draft reports are protected from disclosure under the Public Records Act by deliberative process, investigative, and attorney client privilege."
[8] N.C.G.S. § 132-1.1 provides as follows:
Public records, as defined in G.S. 132-1, shall not include written communications (and copies thereof) to any public board, council, commission or other governmental body of the State or of any county, municipality or other political subdivision or unit of government, made within the scope of the attorney-client relationship by any attorney-at-law serving any such governmental body, concerning any claim against or on behalf of the governmental body or the governmental entity for which such body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected. Such written communication and copies thereof shall not be open to public inspection, examination or copying unless specifically made public by the governmental body receiving such written communications; provided, however, that such written communications and copies thereof shall become public records as defined in G.S. 132-1 three years from the date such communication was received by such public board, council, commission, or other governmental body.
[9] This directive does not mean that we believe any portion of the records sought is protected by these statutory exceptions to the Public Records Act. We examined the documents under seal only to the extent necessary to review the trial court's rulings. A more detailed review of the evidence in light of this opinion is more properly the work of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919957/ | 245 Pa. Super. 578 (1977)
369 A.2d 778
Sam CURCIO, Appellant,
v.
Herbert DILUZIO t/a DiLuzio's Grocery.
Superior Court of Pennsylvania.
Submitted June 21, 1976.
Decided February 18, 1977.
*579 Allen S. Kellerman, Philadelphia, for appellant.
C. Norwood Wherry, Media, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
VAN der VOORT, Judge:
This is an action in assumpsit filed by appellant for $1,278.49 and interest pursuant to an oral agreement for merchandise, primarily delicatessen staples, sold and delivered to appellee DiLuzio.
Appellee filed preliminary objections to appellant's complaint following which appellant filed an amended complaint attaching as exhibits some 59 sales slips and memoranda of transactions between appellant and appellee. Appellee again filed preliminary objections. They were overruled on November 12, 1975, the court below commenting orally that the appellee's remedy was by discovery. On November 24, 1975, appellee filed interrogatories addressed to appellant which have not been answered.
Appellee has at no time either filed an answer to appellant's complaint or sought an extension of time in which to do so. On December 8, 1975, appellant filed a praecipe for judgment for failure to file an answer within 20 days of the date of the order of November 12 dismissing *580 preliminary objections. Judgment was so entered on that date for $1,323.24, representing the amount claimed, with interest. On December 19, 1975, appellee filed a petition to strike the judgment of December 12 and to impose sanctions upon appellant for failure to answer the interrogatories. On January 9, 1976, the court below entered an order striking appellant's judgment of December 8, 1975, and imposing sanctions. The interrogatory answers were not due when the default judgment was entered.
This appeal is taken from the order of January 9, 1976, striking the default judgment of December 8, 1975, in favor of appellant. On March 1, 1975, subsequent to the appeal to this court, the court below, in a memorandum opinion, acknowledged that there was no basis for striking the judgment of December 8 and on its own motion amended its order of January 9, 1976, by ordering that the judgment of December 8, 1975, be opened to permit a defense, rather than stricken.
At the time the lower court entered its amended order of March 1, it had no jurisdiction in the matter since the order of January 9 had already been appealed to this court. We ruled in Weise v. Goldman, 229 Pa.Super. 187-8, 323 A.2d 31 (1974), that "When an appeal is taken to an appellate court, it is well-established that the jurisdiction of the lower court is removed and the court of first instance may not further proceed with a cause as long as the appeal is still pending."
The order of January 9, 1976, striking the default judgment was entered in error for the reason that a motion to strike a judgment, as opposed to a petition to open a judgment to permit a defense may not be granted unless a fatal defect in the judgment appears on the face of the record: Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d 819 (1972). A review of appellee's petition to strike the judgment of December 8 reveals no *581 averments with respect to any defects of record, and we find none. Indeed, the lower court concedes in its opinion in explanation of its amending order of March 1 that "there is no fatal defect on the face of the record and hence the judgment should not have been stricken."
If appellee's motion of December 19 to strike the judgment of December 8 were to be liberally construed as a motion to open the judgment to permit a defense, it would still fail to justify an opening of the judgment to permit a defense because the petition does not aver the existence of a meritorious defense or explain satisfactorily the failure to file a timely answer to appellant's complaint: Fishman v. Noble, Inc., 236 Pa.Super. 611, 613, 346 A.2d 359 (1975).
The order of the trial court of March 1, 1976, is vacated as beyond its jurisdiction; the order of January 9, 1976, is reversed; and the default judgment of December 8, 1975, is reinstated.
SPAETH, J., files a concurring opinion.
JACOBS, J., did not participate in the consideration or decision of this case.
SPAETH, Judge, concurring:
I agree with the majority's disposition. I wish only to add that appellee will not be barred at least, not by this court's decision from filing a petition to open the judgment once it has been reinstated. See Miller v. Michael Morris, Inc., 361 Pa. 113, 63 A.2d 44 (1949). I do not understand the majority to mean otherwise.
*582 MEMORANDUM REPORTS
Reports of cases decided by the Superior Court in which the order, decree, judgment or decision of the court below was affirmed or otherwise disposed of without opinion or without extended opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613325/ | 23 So.3d 110 (2009)
VUJIN
v.
ZARETSKY.
No. SC09-1834.
Supreme Court of Florida.
November 12, 2009.
Decision Without Published Opinion Mand.vol.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/178276/ | FILED
United States Court of Appeals
Tenth Circuit
October 28, 2010
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-3080
ISHA JACKSON, (D.C. No. 2:09-CR-20124-KHV-1)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
Defendant/Appellant Isha Jackson pled guilty to one count of bank robbery with a
deadly weapon in violation of 18 U.S.C. § 2113(a) and (d), and one count of brandishing
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The
district court sentenced Jackson to fifty-eight months’ imprisonment on the bank robbery
count and eighty-four months’ imprisonment on the brandishing count, to be served
consecutively. The bank robbery sentence is in the middle of the advisory sentencing
guideline range, and the firearm sentence is equal to the mandatory statutory minimum.
On appeal, Jackson contends that his sentence is substantively unreasonable. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On September 21, 2009, Jackson robbed a bank in Lenexa, Kansas. He pointed a
handgun at a bank teller and demanded money, which he received. While fleeing the
scene in a vehicle, Jackson led pursuing officers on a high-speed chase. During the chase,
Jackson ran a stop sign and struck another vehicle.
The presentence report (“PSR”) states that the guideline sentence on the
brandishing charge is the statutory mandatory minimum of seven years or eighty-four
months, to be served consecutively to any sentence on the bank robbery charge. ROA,
Vol. 3, at 10; see also 18 U.S.C. § 924(c)(1)(A)(ii). The PSR states that the base offense
level on the bank robbery charge is 20. The PSR adds two levels because the property of
a financial institution was taken, one level because the loss was between $10,000 and
$50,000, and two levels for obstruction of justice. Two levels were deducted for
acceptance of responsibility, resulting in a total offense level of 23. ROA, Vol. 3, at 9-10.
The PSR assigns Jackson two criminal history points for a prior conviction of robbery in
2
the second degree, resulting in a criminal history category of II and an advisory guideline
range of fifty-one to sixty-three months. Id. at 15.
Jackson filed a motion for a variance, arguing that his “crime was a poorly
considered and impulsive reaction to what Mr. Jackson perceived as desperate financial
circumstances which does not prefigure future criminality.”1 Id., Vol. 1, at 23. The
district court denied the motion and sentenced Jackson to fifty-eight months’
imprisonment on the bank robbery count and eighty-four months’ imprisonment on the
firearm count, to be served consecutively. Id. at 32.
II
A. Standard of Review
Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), this court reviews sentences for procedural and substantive reasonableness.
United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). Here, Jackson argues
only that his sentence is substantively unreasonable. Substantive reasonableness is
reviewed under an abuse of discretion standard, United States v. Sayad, 589 F.3d 1110,
1117 (10th Cir. 2009), and a within-guidelines sentence is afforded a rebuttable
presumption of reasonableness on appeal. United States v. Beltran, 571 F.3d 1013, 1018
(10th Cir. 2009); United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir.
2008). This standard is deferential, and “[t]he defendant may rebut this presumption by
1
Jackson also argued that a one-level variance was appropriate to fully account for
his acceptance of responsibility. He does not appeal the denial of his motion for a
variance on that basis.
3
showing that his sentence is unreasonable in light of the sentencing factors delineated in
18 U.S.C. § 3553(a).” Alapizco-Valenzuela, 546 F.3d at 1215. However, “the fact that
the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall v. United States,
552 U.S. 38, 51 (2007).
B. Discussion
Jackson argues that, when it denied his motion for a variance, the district court
failed to give adequate weight to the circumstances of his crime and his psychological
condition. At the sentencing hearing, Jackson presented evidence that, just before the
robbery, he had become homeless and jobless. His girlfriend was in jail and needed bond
money, and Jackson was driving a rental car which was due to be returned but that he
could not afford to return. A clinical psychologist testified that Jackson suffered from an
adjustment disorder that compromised his ability to respond to stress. The psychologist
also testified that Jackson would benefit from treatment and was not likely to re-offend.
Counsel argued for a reduced sentence on the bank robbery count because Jackson would
already be sentenced to a significant period of imprisonment due to the statutory
minimum on the brandishing count.
In denying Jackson’s motion for a variance, the district court stated,
It seems to me that this particular bank robbery fit well within the heartland
of bank robberies that I’ve seen in more than over 18 years on the bench. I
can’t say that I ever saw one that was well thought out and maybe more
than other crimes, they seem to be almost bizarre in terms of the motives
why people do them and the methods that they use. . . . [Bank robbers] tend
4
to always be desperate people who have no coping mechanisms and no
ability to rationally develop a better plan for dealing with the stress in their
lives. . . . So I don’t think there’s anything in the factual background of this
case which takes the case outside of the guideline heartland – the heartland
of the cases that the guidelines were developed to address.
ROA, Vol. 2, at 100-01. Thus, the district court concluded that Jackson’s explanation for
his crime was not a reason to vary downward. The district court also noted that Jackson
had a prior felony conviction for robbery in the second degree, and that he “placed the
lives of a large number of people at great risk” by leading the police on a chase. Id. at
102. After discussing several of the 18 U.S.C. § 3553(a) factors, the court imposed a
sentence of fifty-eight months on the bank robbery count, in the middle of the guideline
range. The court imposed the mandatory statutory minimum on the brandishing count.
Jackson has not rebutted the presumption that his sentence is reasonable. The
district court considered the § 3553(a) factors and concluded that the circumstances of
Jackson’s case did not warrant a variance. While he may disagree with the district court’s
view of the significance of his explanation for his actions and the weight that the district
court gave to various § 3553(a) factors, Jackson has not shown that the district court
abused its discretion in imposing his sentence.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
5 | 01-03-2023 | 10-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1613617/ | 23 So. 3d 996 (2009)
Rebecca DJORGHI
v.
Cynthia A. GLASS, M.D., et al.
No. 09-461.
Court of Appeal of Louisiana, Third Circuit.
November 4, 2009.
*997 Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendants/Appellees, Louisiana Medical Mutual Insurance Company Cynthia A. Glass, M.D.
R. Scott Iles, Lafayette, LA, for Plaintiff/Appellant, Rebecca Djorghi.
Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
AMY, Judge.
The plaintiff brought a medical malpractice action against the defendant physician alleging that the defendant's substandard post-operative infection management caused the plaintiff damages for medical expenses, lost wages, pain and suffering, and disfigurement. The trial court granted summary judgment for the defendants, and the plaintiff appealed. For the following reasons, we affirm.
Factual and Procedural Background
On May 23, 2005, the plaintiff, Rebecca Djorghi, underwent bilateral breast augmentation performed by the defendant, Dr. Cynthia Glass. Following the procedure, the plaintiff developed an infection in her left breast which was treated by intravenous antibiotic therapy at Our Lady of Lourdes hospital. In October 2005, the plaintiff filed a complaint with the Louisiana Patients' Compensation Fund adverse to the defendant alleging the defendant deviated from the applicable standard of medical care. According to the petition, a medical review panel rendered a unanimous opinion in favor of the defendant finding the defendant did not breach the standard of medical care on August 30, 2006. The plaintiff subsequently filed suit against the defendant and Louisiana Medical Mutual Insurance Company in September *998 2007. The defendant then propounded interrogatories and requests for production of documents seeking the identity of any experts the plaintiff consulted to testify at trial as to an alleged breach in the standard of care. The record indicates that the plaintiff did not identify any such expert.
On February 29, 2008, the defendant filed a Motion for Summary Judgment. After a November 3, 2008 hearing, the trial court granted the defendant's Motion for Summary Judgment, dismissing the defendant and the insurer. The plaintiff appeals, arguing that the motion was granted absent sufficient evidence.
Discussion
A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria as the trial court to determine whether summary judgment is appropriate; whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So. 2d 880. A motion for summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law." La. Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
In the present case, the defendant, who is the movant in the Motion for Summary Judgment, does not bear the burden of proof at trial on the issue of whether medical malpractice was committed. Louisiana Revised Statutes 9:2794(A) provides "that a medical malpractice plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and the resulting injury." See Brown v. Riverland Med. Ctr., 06-1449, p. 4 (La.App. 3 Cir. 3/7/07), 952 So. 2d 889, 892, writ denied, 07-0740 (La.6/1/07), 957 So. 2d 177. Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care and breach of that standard of care. Samaha, 977 So. 2d 880. Thus, the defendant is only required to point out that there is an absence of factual support for one or more elements essential to the plaintiff's claim to support that there is no genuine issue of material fact. Id.
The plaintiff argues that the defendant did not produce competent evidence to support the Motion for Summary Judgment and shift the burden of proof to the plaintiff. This argument is without merit. Recall that it is the plaintiff who will be required to bear the burden of proof at trial. In this instance, La.Code Civ.P. 966(C)(2) governs, as it provides that the moving party, here the defendant, bears its initial burden on the motion by pointing out an absence of support for an essential *999 element of the adverse party's case. See Samaha, 977 So. 2d 880.
On the record before us, it is clear that the defendant met its initial burden. The plaintiff contends that the motion should have failed because the defendant failed to offer a certified copy of the medical review panel opinion into the record.[1] In Samaha, the supreme court found that the medical review panel opinion is "expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit[;]" however, in that case, they found the doctor "bore his burden of proof on the motion for summary judgment in this matter with the support of the interrogatory responses alone." Samaha, 977 So.2d at 890-891.
In this case, the plaintiff's petition confirms that the medical review panel found "no breach of the standard of care on the part of the healthcare provider." The defendant confirmed this allegation in her petition. As pleadings, these are proper considerations for summary judgment per La.Code Civ.P. art. 967(C)(2). Furthermore, the defendant introduced interrogatories propounded on the plaintiff in October 2007, asking for the identification of expert witnesses. There is no indication in the record that, as of the November 2008 hearing date, the plaintiff had identified an expert.
The record shows that the plaintiff has only offered the deposition testimony of one of the medical review panel members in which he confirms that the medical review panel's opinion that the defendant did not breach the applicable standard of care remains his opinion.[2] Even this testimony, which offers no support for the plaintiff's position, was not introduced into evidence and was only attached to its memorandum in opposition to summary judgment. The plaintiff has not offered any expert alleging that the defendant breached the standard of care. Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care unless the "negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." Samaha, 977 So.2d at 884. Without sufficient evidence produced by the plaintiff to establish that she will be able to prove the claim at trial, no genuine issue of material fact exists, and the defendant's Motion for Summary Judgment was properly granted.
DECREE
For the forgoing reasons, the judgment of the trial court granting the defendant's *1000 Motion for Summary Judgment is affirmed. All costs of these proceedings are assessed against the plaintiff-appellant, Rebecca Djorghi.
AFFIRMED.
NOTES
[1] Although the transcript of the hearing indicates that a certified copy of the opinion was, in fact, introduced at the hearing, the copy of the medical review opinion included in the record before this court is the copy introduced when the defendant filed its motion. It appears to be uncertified.
[2] Q: Is that medical review panel Opinion still your opinion today, Doctor?
A: Yes.
Q: Doctor, do you have an opinion as to whether any third party, that is, not Ms. Djorghi and not Dr. Glass was responsible for the eventual infection that this lady sustained resulting in treatment at Our Lady of Lourdes for an infection after her breast implant?
A: I do not think a third party was responsible.
. . . .
A: You're asking me if I don't think it was a third party and I don't think it was Ms. Djorhi? I don't. I think it just happened. I don't know that you can really say what or who caused it. I don't think it was a surgical site infection occurring at the time of the surgery. I think that would be very unusual for a surgical site infection to display itself three months postoperatively. She could have had I mean, the implants can get infected from a variety of reasons. I don't think we really know what happened in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613437/ | 23 So. 3d 1193 (2009)
SAMUEL
v.
STATE.
No. 3D09-937.
District Court of Appeal of Florida, Third District.
December 15, 2009.
Decision Without Published Opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613434/ | 23 So. 3d 658 (2009)
William R. JEWETT
v.
Lester BOIHEM.
1071534.
Supreme Court of Alabama.
May 15, 2009.
*659 J. Byron Brackin III of Brackin, McGriff & Johnson, P.C., Foley, for appellant.
Daniel G. Blackburn and Rebecca A. Gaines of Blackburn & Conner, P.C., Bay Minette, for appellee.
WOODALL, Justice.
William R. Jewett appeals from a judgment in favor of Lester Boihem in Boihem's action seeking restitution of money he paid Jewett and a company Jewett owned in an aborted business transaction. We affirm.
I. Factual and Procedural Background
This dispute arose out of events that began in approximately December 2005. At that time, Jewett was the sole owner and manager of Accu-Crete, LLC ("the company"). By a "letter of agreement" dated December 21, 2005 ("the letter agreement"), Jewett agreed to sell 50% of the company to Boihem for the sum of $2,000,000. The letter agreement stated that the company's assets, which included "ready mix concrete trucks, concrete plants w/computers, heavy equipment ..., good will, bank accounts and accounts receivable," would not be "alienate[d], encumber[ed] or impair[ed] ... pending closing." The letter agreement required (1) the payment of $675,000 "to William Jewett personally," and (2) the payment of $1,325,000 to the company "as a membership contribution." The transaction was to close "on or before March 15, 2006." Additionally, Boihem's duty to complete the purchase was expressly made "contingent upon there being no material adverse change to the business or assets of [the company] prior to closing."
On December 30, 2005, Boihem sent Jewett a payment of $375,000. On January 30, 2006, Jewett sent Boihem an e-mail requesting an additional payment of $640,000. That sum was broken down as follows: (1) "$300,000.00 for re-imbursement on ex-partner buy out," (2) "$150,000.00 for down payment on plant at factory," (3) "$40,000.00 for down payment on 5 front discharge trucks," and (4) "$150,000.00 for set up cost on Spanish Fort Plant and Additional Foley Plant for Condos." Attached to the e-mail were "wiring instructions" directing Boihem to send the payment to the company's account. Boihem made that payment as directed on February 27, 2006.
The sale did not close by March 15, 2006, as provided in the letter agreement. Nevertheless, on March 23, 2006, Boihem wired a $300,000 payment to the company's account. On May 24, 2006, over two months after the deadline for closing, Boihem received another e-mail from Jewett requesting a payment of $685,000 to complete the purchase price as set out in the letter agreement.
Meanwhile, in early 2006, Jewett was receiving offers from Delta Industries, Inc. ("Delta"), a Mississippi corporation, to purchase the assets of the company, and negotiations between Jewett and Delta subsequently began in earnest. Evidence at the trial of this case was in direct dispute as to the extent, if any, of Boihem's knowledge of these negotiations. In any event, on October 16, 2006, Jewett executed an "asset purchase agreement" with Delta, which *660 transferred a number of the company's assets to Delta for $1,849,000.
Approximately one month later, on November 21, 2006, Jewett sent Boihem an e-mail, declaring him to be in default of the letter agreement. Specifically, the e-mail stated:
"Per our Letter of Agreement dated December 21, 2005, it was agreed `Whereas, it is agreed upon by all parties the full purchase price of the ownership interest is to be transferred pursuant to paragraph 3 of this document on the same day of closing.' This has not happened to date. I have talked to you and emailed you on quite a few occasions about this. To date all monies have not been transferred. It has been almost a year since we started this negotiation. Also, I have made purchases personally on real estate for the progress of Accu-Crete and have given this information to [you] for [you] to do your part, this has not happened. To this date [you have] not held to [your] part of the agreement and are in default of the agreement. Not to mention that I have not ever received [your] signed part of the agreement. I believe that I have given you more than enough time and chance to make good on your end of the Agreement. Therefore, I am saying you ... are in default of the Agreement. I will be returning your monies that are owed to you ... before December 31, 2006. You should be receiving a letter via certified mail confirming this email."
(Emphasis added.) None of the $1,315,000 Boihem paid was ever returned.
On January 10, 2007, Boihem sued Jewett, alleging (1) breach of contract, (2) money had and received, and (3) unjust enrichment. However, during the course of the subsequent non-jury trial, Boihem indicated in open court that he was seeking only restitution. Specifically, it was stated:
"Q. [By Boihem's counsel:] Mr. Boihem, tell Judge Reid what it is you are asking for this court to do in any ruling that it makes in this case, please.
"A. [By Boihem:] Just to get my money back that I wired and any interest that might be due on that money."
(Emphasis added.) Subsequently, the trial court entered a judgment awarding Boihem $1,495,547, and Jewett appealed.
On appeal, Jewett challenges the judgment on two grounds. First, he argues that the judgment is "so unsupported by the evidence as to be plainly and palpably wrong." Jewett's brief, at 14. According to Jewett, the judgment is contrary to the evidence, because, he insists, "[i]t is undisputed that Boihem did not fulfill his obligations under the [letter agreement]" and, therefore, that he "could not establish a claim for [b]reach of [c]ontract." Jewett's brief, at 13. Also, Boihem's restitution claims must fail, because, Jewett argues, "Jewett received no money from Boihem and was not unjustly enriched." Jewett's brief, at 13. Second, he argues that the judgment must be reversed for failure to name the proper defendant, namely, the company.
II. Discussion
A. Evidentiary Challenges
"It is well established that `[w]hen a trial court hears ore tenus testimony "its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust."'" Black Diamond Dev., Inc. v. Thompson, 979 So. 2d 47, 52 (Ala. 2007) (quoting New Props., L.L.C. v. Stewart, *661 905 So. 2d 797, 799 (Ala.2004), quoting in turn Philpot v. State, 843 So. 2d 122, 125 (Ala.2002)).
1. Breach of Contract
Jewett's first evidentiary argument focuses on the weight of the evidence as to the breach-of-contract count in Boihem's complaint. However, as pointed out previously in this opinion, Boihem essentially abandoned his breach-of-contract claim at trial by requesting only the return of the money he wired to Jewett and/or the company, with interest. By contrast, "[f]or breach of contract the law of damages seeks to place the aggrieved party in the same economic position he would have had if the contract had been performed." John D. Calamari & Joseph M. Perillo, The Law of Contracts § 14-4 (3d ed. 1987) (emphasis added).
There is no evidence, or contention, that the trial court's award consisted of damages for breach of contract. Jewett challenges only the judgment itself, not the amount of, or the method of calculating, the award. Also, Jewett does not argue that the letter agreement or the claim that it was breached precludes restitution or recovery on an implied contract theory. See Kennedy v. Polar-BEK & Baker Wildwood P'ship, 682 So. 2d 443, 447 (Ala. 1996) ("[W]here an express contract exists between two parties, the law generally will not recognize an implied contract regarding the same subject matter."). We, therefore, are not presented with such contractual issues as (1) which party first breached the letter agreement, (2) whether the breach by the first party excused further performance by the other party, or (3) the proper amount of the damages. The only issues presented concern the propriety of the judgment under the implied-in-law contract or restitution theories relied on in the trial court. "The intention of the parties in such a contract is entirely disregarded while in cases of express contracts and contracts implied in fact, the intention is of the essence of the transaction." Jenelle Mims Marsh & Charles W. Gamble, Alabama Law of Damages § 34:2 (5th ed. 2004) (hereinafter "Marsh & Gamble").
2. Unjust Enrichment/Money Had and Received
"[An action for money had and received] is founded upon the equitable principle that no one ought justly to enrich himself at the expense of another, and is maintainable in all cases where one has received money under such circumstances that in equity and good conscience he ought not to retain it because in justness and fairness it belongs to another."
Marsh & Gamble, § 34:2. "[A] cause of action for money had and received is `less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money, which. . . belongs to the plaintiff.'" Staats v. Miller, 150 Tex. 581, 584-85, 243 S.W.2d 686, 687-88 (1951)(quoting United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 402-03, 54 S. Ct. 443, 78 L. Ed. 859 (1934) (emphasis added)).
According to Jewett, the judgment for Boihem is plainly and palpably wrong, because, he insists, Jewett does not "hold money" paid by Boihem. Jewett contends that the money Boihem paid was paid to the company; therefore, he says, he is not the proper defendant in this case. We disagree.
"Whenever one person adds to the other's advantage in any form, whether by increasing his holdings or saving him from expense or loss, he has conferred a benefit upon the other." Opelika Prod. Credit *662 Ass'n v. Lamb, 361 So. 2d 95, 99 (Ala.1978). Moreover, "[i]t is not necessary . . . to prove that money belonging to the plaintiff was actually and physically given to, and received by the defendant, as it is sufficient to show that . . . the defendant has received the benefit indirectly." 42 C.J.S. Implied Contracts § 19, at 27 (2007) (emphasis added). "`Often a person owes restitution for a benefit he received through entirely innocent behavior, and even through a transaction in which he took no part.'" Pratt v. Watkins, 946 F.2d 907, 909 (Temp.Emer.Ct.App.1991) (quoting Restatement (Second) of Restitution § 1(b), at 10 (Tent. Draft No. 1, 1983) (emphasis added)). Cf. Weakley v. Brahan, 2 Stew. 500, 501 (Ala.1830) ("[T]he rule [that one cannot make another his debtor without his consent] extends to all payments made to another's use, where the action is brought in the name of him who advances the money."); Oliver v. Camp, 9 Ala.App. 232, 234, 62 So. 469, 470 (1913) ("An action for money paid does not lie except upon a request on the part of the defendant or his authorized agent. The request may be either express or implied. One's request of another to make a payment for him may be implied from his subsequent ratification of the payment.").
Boihem paid a total of $1,315,000 toward acquiring a 50% interest in the company. Under the evidence, the trial court was authorized to find (1) that, while Jewett was requesting $685,000 from Boihem to complete the purchase, he was actively and secretlynegotiating with Delta to strip the company of a substantial portion of the assets Boihem expected to receive for his payments; (2) that it was only after the Delta deal was concluded that Jewett declared Boihem in default of the letter agreement; (3) that Jewett initially signaled an intention to refund Boihem's consideration; (4) that Boihem has received nothing for his consideration; (5) that the company, as bargained for, has been substantially compromised through no fault of Boihem's; and (6) that the consideration Boihem paid belongs, in "justness and fairness," to him.
It is no answer to say, as Jewett does, that he owes no obligation simply because Boihem made payments to the company, rather than to him personally. Indeed, $375,000 was paid directly to Jewett. Thus, to that extent, Jewett "holds money" directly that in "justness and fairness" belongs to Boihem.
As for the rest of the money, it was paid to the company at the instance of Jewett. To the extent that the company is in Jewett's hands, the money is in his hands. As the sole owner and manager of the company, Jewett had absolute authority over its assets and accounts payable as evidenced by the sale of company assets to Delta. In other words, Boihem's payments enriched the company. The enrichment of the company in turn enriched Jewett as of the time, and to the extent, of his choosing. Jewett cannot avoid restitutionary principles by mere form, that is, by arbitrarily directing payment to one of two bank accounts, both of which were under his ultimate control. In short, the trial court's judgment is not, as Jewett contends, "so unsupported by the evidence as to be plainly and palpably wrong."
B. Proper Party
Finally, Jewett contends that the company is not only the proper party, but also an indispensable party, and, therefore, that the trial court's judgment must be reversed for failure to join the company, pursuant to Ala. R. Civ. P. 19(a). Rule 19(a) states, in pertinent part: "A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person's absence complete relief *663 cannot be accorded among those already parties . . . ." According to Jewett, because Boihem was seeking reimbursement of money he paid to the company, "[p]roper and complete relief was not afforded to the parties as a result of Boihem's failure to name [the company] as a defendant." Jewett's brief, at 18.
These objections are sufficiently answered by the discussion in the preceding section. As Boihem correctly points out, he had no agreement with the company and he seeks no money from the company. His agreement was with Jewett, and it is from Jewett that he seeks restitution. To countenance Jewett's objection to nonjoinder would only revive the argument already rejected in this opinion, namely, that restitution cannot be had from Jewett because he did not receive the money directly. That is not the law as applied to the facts of this case.
III. Conclusion
The trial court's judgment is not palpably erroneous or manifestly unjust. That judgment is, therefore, affirmed.
AFFIRMED.
COBB, C.J., and LYONS, PARKER, and SHAW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613447/ | 23 So. 3d 112 (2009)
HOLT
v.
STATE.
No. 1D08-3107.
District Court of Appeal of Florida, First District.
December 3, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613463/ | 513 F. Supp. 2d 983 (2007)
Nancy PIETRAS, Plaintiff,
v.
SENTRY INSURANCE COMPANY and Curfin Oldsmobile, Inc., d/b/a Curry Motors Driver's Edge, Defendants.
Paul Blair and Linda Killingsworth, Plaintiffs,
v.
Sentry Insurance Company and Ridgeway Chevrolet, Inc., Defendants.
Nos. 06 C 4769, 06 C 3576.
United States District Court, N.D. Illinois, Eastern Division.
September 10, 2007.
*984 Daniel A. Edelman, Cassandra P. Miller, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL, for Plaintiffs.
Jennifer Marie Zlotow, Schwartz Cooper Chartered, John J. Duffy, Donohue, Brown, Mathewson & Smyth, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
This decision involves two consolidated cases that present the same issue: whether a liability insurer is required to pay a settlement that its insured entered into in a lawsuit in which the insurer had declined to defend the insured. The Court rules in each case that the insurer must pay the settlement.
Background
1. The Pietras case
The first of the two consolidated cases is entitled Pietras v. Sentry Ins. Co., Case No. 06 C 3576. In an earlier suit, Nancy Pietras sued Curfin Oldsmobile, Inc., alleging that Curfin violated the Fair Credit Reporting. Act by accessing her credit information and that of other class members without a permissible purpose. 15 U.S.C. §§ 1681b(a)(3)(A) & 1681b(c)(1)(B). The penalty for such FCRA violations is the greater of either "actual damages . . . or damages of not less than $100 and not more than $1,000." Id. § 1681n(a)(1)(A). Sentry Insurance Company refused to defend Curfin against Pietras' suit, though Curfin's insurance policy with Sentry covered Curfin for liability incurred due to "personal and advertising injury caused by an offense arising out of your business." Def. LR 56.1 Stat. ¶ 21 (internal quotation marks omitted). Curfin settled the case or a class-wide basis for $420,000, paying $20,000 and assigning the plaintiff class its rights under the insurance policy to the remaining $400,000.
In the present case, Pietras has stepped into Curfin's shoes and sued Sentry, alleging there was coverage under the insurance policy and that Sentry was obliged to indemnify Curfin. The Court previously ruled that Sentry is obliged to indemnify Curfin. See Pietras v. Sentry Ins. Co., No. 06 C 3576, 2007 WL 715759 (N.D.Ill. Mar. 6, 2007). Pietras has moved for summary judgment against Sentry, seeking a determination that the settlement between Curfin and class members was reasonable and that judgment should be entered against Sentry in the amount of $400,000 plus prejudgment interest at 5% from May 31, 2006 and attorney's fees.
2. The Blair case
The second of the two consolidated cases is entitled Blair v. Sentry Ins. Co., Case No. 06 C 4769. In an earlier suit, Paul Blair and Linda Killingsworth sued Ridgeway Chevrolet, Inc., alleging the same type of FCRA violation claimed by Pietras in her suit against Curfin. Blair and Killingsworth were and are represented by the same lawyers who represented and still represent Pietras. Ridgeway had a liability insurance policy with Sentry that is indistinguishable from Curfin's insurance policy. Ridgeway settled the case on *985 a class-wide basis for $400,000 pursuant to an agreement under which it assigned the plaintiff class its rights under the insurance policy to recover that amount and incurred liability on its own of up to $20,000 for costs of notice and class administration.
In the present case, Blair and Killingsworth have stepped into Ridgeway's shoes and sued Sentry, alleging there was coverage under the insurance policy and that Sentry is obliged to indemnify. Ridgeway. The Court previously ruled that Sentry is obliged to indemnify Ridgeway. See Blair v. Sentry Ins. Co., No. 06 C 4769, Order of Apr. 16, 2007. Blair and Killingsworth have moved for summary judgment against Sentry, seeking a determination that the class settlement was reasonable and that judgment should be entered against Sentry in the amount of $400,000 plus prejudgment interest at 5% from November 15, 2006 and attorney's fees.
Facts
As the Court will discuss, in a situation like those presented in these cases, a settlement is binding on the insurer if it is reasonable in that it conformed to the standard of what a prudent uninsured party would have done under similar circumstances. For this reason, the relevant facts include not only the procedural histories recited above, but also class-wide FCRA settlements reached in comparable cases.
The Pietras case settled for $32 per class member; the Blair case settled for $20 per class member. As for comparable cases, the parties have focused their attention on a set of similar FCRA cases in this District in which the defendants paid settlements out of pocket. The parties have cited eighteen cases, which settled for an average of $34.59 per class member. As Sentry points out, however, the two largest settlements on a per capita basis were cases that settled after the plaintiffs had prevailed on summary judgment. See Kudlicki v. Farragut Fin. Corp., No. 05 C 2459 (N.D.Ill.); Murray v. Sunrise Chevrolet, Inc., No. 04 C 7668 (N.D.Ill.). Those cases arguably are not comparable to the present cases, in which liability had not been determined at the time of the settlements. After eliminating those cases, the average payment for comparable FCRA settlements by uninsured defendants was $28.26 per class member.
Eleven of the comparable cases involved lower per capita settlement amounts than Curfin agreed to in the Pietras case; only two of the comparable cases settled for a lower per capita amount than Ridgeway agreed to in the Blair case. This means that in five of the sixteen comparable cases, the per capita settlement amount was as large as or larger than Curfin's settlement, and in fourteen of the comparable cases, the amount was larger than Ridgeway's settlement.
Discussion
Entry of summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In reviewing a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party and draws reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
Under Illinois law, the general rule is that when an insurer breaches its duty to defend, as Sentry did in these cases, the insured may enter into a reasonable settlement agreement without foregoing its right to seek indemnification. See Guillen v. Potomac Ins. Co., 203 Ill. 2d 141, 158, 271 Ill. Dec. 350, 785 N.E.2d 1, 11-12 (2003) (citing Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 128, *986 180 Ill. Dec. 691, 607 N.E.2d 1204, 1222 (1992)). But because the settlements in these cases provided that they were to be paid largely by Sentry, each plaintiff must "prove that the settlement it reached with the insured was reasonable" before the settlement is considered binding on Sentry and thus payable by the insurer. Id. at 163, 271 Ill. Dec. 350, 785 N.E.2d 1, 785 N.E.2d at 14. This rule is meant to prevent an insured defendant from entering into a collusive settlement in which it overpays the plaintiff, knowing that it is in effect using the insurer's checkbook.
Under Guillen, the "litmus test" for determining whether the insured's decision to settle is reasonable is "whether, considering the totality of the circumstances, the insured's decision conformed to the standard of a prudent uninsured." Id. at 163, 271 Ill. Dec. 350, 785 N.E.2d at 14 (emphasis in original; internal quotation omitted).
In opposing the plaintiffs' motions for summary judgment, Sentry argues that because they were settling with the insurer's money, Curfin and Ridgeway had no incentive to bargain over the settlement amount. That, however, is the driving force that led the Illinois Supreme Court to adopt its litmus test in Guillen; it is not a basis to disregard Guillen and reject the settlement without assessing its overall reasonableness.
Sentry argues that because Curfin and Ridgeway did not oppose class certification and did not attempt to litigate the merits of the FCRA cases, their quicklyreached settlements were unreasonable. But as plaintiffs points out, classes have been certified in virtually every other comparable FCRA case. The fairly self-evident reason for this is that class actions are ideal in cases like the underlying suits here, "in which the potential recovery is too slight to support individual suits, but injury is substantial in aggregate." Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir.2006). No reasonable fact finder could infer that a prudent uninsured party would have opposed class certification in either case.
Regarding the merits of the cases, Sentry points out that the insured parties had no incentive to contest liability or damages because of the availability of insurance. It contends that the relatively small proportion of the settlement that the insureds paid and the lack of litigation of the merits raise a question as to whether "a reasonably prudent person in the position of the [insured] would have settled" for the same amount. Guillen, 203 Ill.2d at 163, 271 Ill. Dec. 350, 785 N.E.2d at 14. In "considering the totality of the circumstances," however, the Court must take into account, for instance, the fact that the insured was denied coverage by Sentry in the underlying suits. Id. That decision gave Curfin and Ridgeway an incentive to settle quickly rather than face significant attorney's fees and other out of pocket expenses to defend the case, as well as the expenditure of employee time not to mention the possibility of a larger judgment. The fact that Curfin and Ridgeway might have been able to dispute the plaintiffs' claims that they acted willfully does not mean it was imprudent for them to settle, given the prospect of lengthy, expensive, and time-consuming litigation that they would have had to finance out of pocket.
Sentry argues that there was no "serious negotiation on damages" and that this can be an indicator of unreasonableness. Def. Resp. at 4 (citing Continental Cas. Co. v. Westerfield, 961 F. Supp. 1502, 1505 (D.N.M.1997)). The absence of serious negotiation can be an indicator of unreasonableness, which is why the court in Continental said that such settlements warrant "heightened scrutiny." Id. That does not mean, however, that a quickly *987 negotiated settlement is necessarily unreasonable. Id. The Court therefore turns to the question of whether Pietras and Blair have met their burden to demonstrate that the settlements pass Guillen's litmus test.
In addressing the settlements' reasonableness under the Guillen test, both sides refer to comparable cases in which uninsured defendants settled for cash. Under Curfin's settlement agreement with Pietras, each class member will receive $32, a 68% discount from the $100 per person minimum available for a willful violation of the FCRA. According to Sentry, this compares poorly, from the perspective of its insured Curfin, with discounts automobile dealers obtained in comparable FCRA settlements. The evidence, however, does not support Sentry's contention that Curfin got a bad deal; rather, it shows the opposite. Even after excluding two comparable cases which settled for the lowest discounts after plaintiffs had prevailed on summary judgment, the other sixteen cited cases settled for an average discount of 71.74%. In other words, the class members received, on average, $28.26, which is not materially different from the per capita award in the Pietras Curfin settlement.[1]
Sentry argues that the comparable cases undermine Pietras' contention that the settlement was reasonable, because eleven of the eighteen cases settled for discounts greater than 68%. Rather than paying $32 per class member, Sentry says, "a prudent uninsured defendant . . . would settle for $11.68 per class member" because "$11.68 was fair and reasonable in Smith v. Rockenbach" (Case No. 05 C 5454). Def. Resp. at 7. Smith, however, settled for the greatest discount of any case among those cited as comparable. Sentry is, in effect, arguing that a reasonable uninsured defendant would not agree to a settlement any higher than the lowest reached in all comparable cases. The Court disagrees. Guillen does not entitle Sentry to the most favorable settlement possible. That case imposes a reasonableness requirement, not a "most favored nations" requirement.
In sum, Sentry's argument that a 68% discount is unreasonable when compared with the sixteen-case average 71.74% discount is lacking in merit. The settlements reached by uninsured parties in comparable cases are more than sufficient to demonstrate that the Curfin's settlement with Pietras was reasonable and satisfies the Guillen standard. No reasonable fact finder could conclude otherwise. Pietras is therefore entitled to summary judgment.
The same is true in the Blair case. As noted earlier, Ridgeway settled with the plaintiff class for a per capita payment of $20 per class member. If the Pietras Curfin settlement was reasonable, as the Court has concluded, the Blair Ridgeway settlement was likewise reasonable.
Conclusion
For the reasons stated above, the Court grants the plaintiffs' motions for summary judgment in Case No. 06 C 3576 and Case No. 06 C 4769. In Case No. 06 C 3576, the Clerk is directed to enter judgment in favor of the plaintiff in the amount of $425,644, which consists of the principal amount of the Pietras Curfin settlement plus prejudgment interest at five percent per annum through from May 31, 2006 through September 11, 2007. In Case No. 06 C 4769, the Clerk is directed to enter judgment in favor of the plaintiff in the amount of $416,667, which consists of the principal amount of the Blair Ridgeway settlement plus prejudgment interest at five percent per annum through from November 15, 2006 through September 11, *988 2007. The plaintiffs' motions for attorney's fees will be determined pursuant to the provisions of Local Rule 54.3, except that the fee motions will be due on October 29, 2007, not the longer period provided by the Rule. The parties are directed to agree upon appropriate dates for the pre-motion disclosures contemplated by Rule 54.3. Both cases are set for a status hearing on October 31, 2007 at 9:30 a.m.
NOTES
[1] In cases where there was a discount range, e.g. 86.4%-66%, but no distribution information, the Court averaged the high end and low end for a single figure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613570/ | 488 N.W.2d 581 (1992)
241 Neb. 488
STATE of Nebraska, Appellee,
v.
Lee WICKLINE, Appellant.
Nos. S-90-1135, S-90-1136.
Supreme Court of Nebraska.
September 11, 1992.
*583 Lee Wickline, pro se.
Don Stenberg, Atty. Gen., and Terri M. Weeks, Lincoln, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
HASTINGS, Chief Justice.
This is a consolidated appeal from judgments of the district court denying defendant's motions for postconviction relief from his convictions of one charge of theft and one charge of burglary. We affirm.
"In an appeal involving a proceeding for postconviction relief the trial court's findings will be upheld unless such findings are clearly erroneous." State v. Gildea, 240 Neb. 780, 782, 484 N.W.2d 467, 468 (1992).
Lee Wickline, the defendant, was charged in separate informations with theft and burglary, and he was convicted of both charges. The two convictions were affirmed on direct appeal. State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989) (Wickline I).
Although the facts are set out in detail in Wickline I, we mention briefly some of the more salient points. On April 7, 1988, at approximately 1:30 a.m., Steve Reiter, a resident of Ewing, Nebraska, observed a man walking down the sidewalk wearing a backpack. At about the same time, Reiter saw an automobile with a flat tire parked nearby. This was the only vehicle on the street other than the one in which the witness was riding. The witness asked the man if he needed any help, and he said, "[N]o, leave me alone." Shortly thereafter, the witness again observed this man take off for an alleyway and try to hide between a housetrailer and the police station, and when asked what he was doing he said, "I am just trying to find a place to sleep." The witness reported these facts to the local police officer later that morning.
Another resident of Ewing, Elfreda Pruden, heard a noise about 5 a.m., looked outside, and saw someone sitting in her yard smoking a cigarette, so she called the same police officer, William Hubert.
Officer Hubert went to that location and found the defendant lying on the ground with his head on his duffelbag. The defendant was taken to the Ewing police station where he was observed smoking a Salem cigarette. The cigarette butt was taken and marked as evidence.
Another passenger in the Reiter vehicle, along with Tim Hobbs, was Hobbs' wife, Nadine Hobbs, who, in answer to a call from Officer Hubert, came to the police station and looked through the window from the outside, saw the defendant seated there, and identified him as the person they had seen earlier walking on the sidewalk. This information was testified to by Officer Hubert. Although this testimony was objected to as part of a continuing objection as an improper showup, which was raised on direct appeal and rejected by this court in Wickline I, no hearsay objection was interposed.
There was testimony that the automobile in question had been stolen from the BG & S transmission shop in O'Neill, Nebraska. Additionally, the owner of that establishment testified that a bank deposit bag containing *584 21 $20 bills, a $5 bill, a $1 bill, and change had been stolen at the same time that the automobile had disappeared. The owner testified that the shop's door had been pried open. The moneybag was found on the roof of a building close to where the stolen automobile was found on the street. The defendant had secreted in his eyeglass case 23 $20 bills and a $5 bill, and he had a number of coins in his possession.
Several cigarette butts were found in the ashtray of the stolen automobile, and when the cigarette butt which defendant had smoked at the police station and at least one of the butts found in the automobile were analyzed for amylase (an enzyme contained in saliva), it was determined that the saliva on both cigarette butts was of the same blood group.
Finally, a search of defendant's duffelbag disclosed a clawhammer and a screwdriver, either or both of which, it would seem, could have been used to force open the door of the BG & S transmission shop.
It was on the basis of this evidence, including the testimony of Officer Hubert as to the eyewitness' identification, that defendant was convicted and upon which this court affirmed the conviction.
Defendant's assignments of error on this appeal claim that he was improperly denied his Fifth Amendment right to confront an eyewitness who had identified him, because she was not produced as a witness at his trial; that his trial counsel was ineffective in failing to object to hearsay testimony by a police officer regarding this identification; and that his trial counsel was inadequate, in that he filed a brief on direct appeal that did not conform to this court's rules.
The district court dismissed the postconviction petition after a hearing. That court found that Wickline had not been prejudiced by the unavailability of the identifying eyewitness because the other evidence against him was overwhelming. The court further found that counsel's decision not to object to the eyewitness testimony was a matter of trial strategy, in that the record did not show that the eyewitness was unavailable and the State could have introduced the identification into evidence simply by calling her as a witness. Specifically, the court in its findings declared:
Furthermore there is no showing that Nadine Hobbs was not available as a witness, and presumably could have been called. Anyone familiar with trials [sic] tactics knows that in practically every trial a great deal of hearsay is admitted without objection. In any trial many valid objections are waived as a matter of trial tactics without consulting the client. The usual reason is that the evidence is admissible if offered by the correct procedure, the opponents knows [sic] the evidence is admissible and knows [sic] the correct procedure to get it admitted. When a trial attorney knows this, there is no p[o]int in making the opponent offer the evidence the hard way, particularly when the hard way is often the more dramatic and more effective way.
A great deal of hearsay is introduced at trial on the above basis. In this case there is no apparent reason why the prosecution could not have called Nadine Hobbs. The record shows the defendant's counsel was going to object to her testimony on the basis that it was the result of an improper showup. That same objection was made by the defendant's counsel, denied by the trial court and affirmed by the Supreme Court.
This court finds that beyond a reasonable doubt the defendant did not show his trial counsel was constitutionally ineffective by not objecting to the hearsay, nor that the defendant was prejudiced by the failure to object. Furthermore there is no reasonable probability that the results would have been different if the hearsay had been excluded.
Wickline's claim that he was denied his Fifth Amendment right to confront Hobbs regarding her identification of him, due to the failure of the State to call her, may not be considered in this proceeding because of the failure of defense counsel to object at the time of trial. "A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal." (Emphasis *585 supplied.) State v. Nearhood, 233 Neb. 767, 771, 448 N.W.2d 399, 403 (1989). Therefore, we need consider in this regard only the claim that the district court erred in failing to find that Wickline's trial counsel was ineffective in his handling of the Hobbs identification.
The trial court in its findings declared that there appeared no reason of record why Hobbs could not have been called to testify in person regarding the identification of Wickline. As is often the case, the strict adherence to the rules of evidence when such action seeks only to prolong or accentuate the obvious is oftentimes detrimental to the objecting party's case. The trial court agreed with this strategy. In State v. Lieberman, 222 Neb. 95, 101-02, 382 N.W.2d 330, 335 (1986), this court said:
We have often held that the decision to object or not to object is part of trial strategy and that this court gives due deference to defense counsel's discretion in formulating trial tactics. [Citations omitted.] To maintain a claim of ineffective assistance of counsel, the record must affirmatively support the defendant's position. [Citation omitted.] Further, the effectiveness of counsel will not be judged by hindsight. [Citation omitted.] We conclude that Lieberman has failed to support adequately his claim of prejudice in counsel's decision not to object to this testimony.
Notwithstanding the issue as to trial strategy,
To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced his defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different.
State v. Stahl, 240 Neb. 501, 512, 482 N.W.2d 829, 839 (1992). The two prongs of this test need not be addressed in order: "`"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed...."'" Id. (quoting State v. Hawthorne, 230 Neb. 343, 431 N.W.2d 630 (1988), quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Wickline has suffered prejudice from the failure of his trial counsel to suppress the hearsay testimony relating to Hobbs' identification only if there was a reasonable probability, in light of the remainder of the evidence, that the exclusion of such evidence would have produced a different result. See State v. Stahl, supra.
In State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990), the defendant alleged that his counsel had been ineffective in failing to call an alibi witness. This court held that the witness' testimony "would not, with reasonable probability, have changed the result in [the] case" because of other evidence linking the defendant to the charged crimes. Id. at 580, 456 N.W.2d at 743. Accordingly, counsel's performance was not ineffective.
In this case, as in State v. Evans, there is other evidence sufficient that it cannot be said, to a reasonable probability, that the result would have been different had the evidence of Hobbs' identification of Wickline not been admitted. When Wickline was arrested in Ewing, he had a duffelbag. Reiter's testimony was that the man he had seen walking near the stolen car had a backpack. The moneybag stolen in the BG & S burglary was found on the roof of a building near the stolen car.
When the cigarette butt which Wickline had been seen smoking was compared with one or more cigarette butts taken from the ashtray of the stolen car, both were found to contain saliva from a "type H secretor." Additionally, at least one of the cigarette butts taken from the automobile ashtray was the same brand Wickline was smoking.
The most damning evidence against Wickline was the currency he possessed at the time of his arrest. When he was taken to the county jail, a sheriff's deputy asked Wickline if he had any money. Wickline *586 answered that he did not. Later Wickline asked to, and was allowed to, go alone to the bathroom. Wickline took his eyeglass case with him. When Wickline emerged, his clothes and personal effects were taken from him and inventoried, but he was allowed to keep the eyeglass case.
The sheriff's deputy later searched Wickline's eyeglass case and found currency matching almost identically the description of the currency claimed to have been in the moneybag when it was stolen.
Finally, there was evidence of forcible entry at the scene of the burglary likely to have been made by a pry instrument, and Wickline had in his possession a clawhammer and a screwdriver.
Taken piece by piece, it is possible that none of this evidence individually, excluding the identification testimony, would have been sufficient to convict Wickline. However, taken as a whole, the evidence is sufficient that it cannot be said to a reasonable degree of probability that the result of Wickline's trial would have been different if Hobbs' identification of him had not been admitted.
In State v. Durst, 232 Neb. 639, 441 N.W.2d 627 (1989), this court affirmed the defendant's conviction for theft of an auto upon circumstantial evidence, despite a lack of a positive identification of the defendant as the thief. A man resembling the defendant was seen walking near the scene of the theft. Later, the defendant was involved in an accident while driving a car of the same make, model, and year and bearing the same license plates as the car that had been stolen. The defendant was transported from the scene of the accident by a police officer, who later found the keys to the stolen car in the backseat of his cruiser. This court held that "[t]his evidence was clearly sufficient to sustain the verdict of the jury...." Id. at 641, 441 N.W.2d at 629.
As in State v. Durst, circumstantial evidence linked Wickline to the abandoned vehicle and the scene of the burglary. Similarly, Wickline's actions in secreting cash in his eyeglass case prior to the search of his person and the inventory of his personal effects shows that he did not wish the police to know he possessed the cash, in the same way that the abandonment of the stolen car's keys by the defendant in State v. Durst showed defendant's guilty knowledge. The evidence in this case, even if Hobbs' identification of Wickline is omitted, would be sufficient to sustain his conviction. He has therefore suffered no prejudice from his trial counsel's allegedly deficient performance, and his claim of ineffective assistance fails.
Wickline next contends that the trial court committed error in failing to find that his counsel on direct appeal was ineffective, in that the brief filed by that attorney was inadequate. However, Wickline did not provide the district court with a copy of that brief and therefore failed to properly present the issue for the postconviction court, and this court may not now consider this assignment of error.
Finally, Wickline charges that the district court erred in failing to appoint counsel to represent him in this appeal. He cites State v. Wiley, 228 Neb. 608, 423 N.W.2d 477 (1988). However, that case is of no help to Wickline because it deals with appointment of counsel at the trial stage of a postconviction proceeding, and Wickline had court-appointed counsel in this case at that stage of the proceedings.
[U]nder the Post Conviction Act it is within the discretion of the District Court to determine whether legal counsel shall be appointed to represent a defendant on appeal to this court, and in the absence of a showing of an abuse of discretion, the failure to appoint counsel is not error.
State v. Paulson, 211 Neb. 711, 715, 320 N.W.2d 115, 118 (1982). Wickline has shown no abuse of discretion.
The judgments of the district court dismissing Wickline's postconviction petitions are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613594/ | 488 N.W.2d 811 (1992)
STATE of Minnesota by, Hubert H. HUMPHREY, III, its Attorney General, Appellant,
v.
Garold E. BRIGGS, Respondent.
No. C4-91-1972.
Court of Appeals of Minnesota.
July 14, 1992.
Review Denied September 15, 1992.
*813 Hubert H. Humphrey, III, Atty. Gen., Joseph Plumer, Gordon L. Moore, III, Sp. Asst, Attys. Gen., St. Paul, for appellant.
Allen D. Barnard, Minneapolis, for respondent.
Considered and decided by HUSPENI, P.J., and FORSBERG, and PETERSON, JJ.
OPINION
PETERSON, Judge.
A jury awarded respondent Garold E. Briggs damages of $475,000 for land taken by appellant State of Minnesota. The state appeals from the judgment and the trial court's denial of its motion for judgment notwithstanding the verdict, a new trial or remittitur. The state claims the trial court erred by admitting evidence of proposed development plans for Briggs' property because the use was prohibited by a zoning ordinance. Briggs seeks review of the trial court's denial of his motion for compound interest. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
FACTS
Briggs owned an unimproved lot abutting the southern edge of Trunk Highway 12 in Wayzata, Minnesota. The lot, which was zoned for residential use, is bordered on the west by Trunk Highway 101 and on the east by a 15 acre parcel of land containing a nursing home. The state acquired rights to the lot through a condemnation action.
Briggs submitted evidence of the value of the land acquired by the state through the expert testimony of Samuel Poppleton, a development planner, and Culver Ernest LaSalle, a real estate appraiser. Poppleton testified the land was not suitable for residential use because of its location adjacent to and at the same elevation as highway 12. He stated that the noise and other pollution caused by 49,000 cars driving by each day was a nuisance inconsistent with residential development. He noted that nearby residences were screened off from the highway by their higher elevation and a buffer zone of trees.
Poppleton testified the highest and best use of the land was as office or office-condominium space. Office use would result in a light traffic impact on the nearby residential area. An office building could *814 be constructed to blend in with residential housing and it would act as a buffer for the houses from the highway. Poppleton opined the likelihood of rezoning was certain enough that he "would bank on it." His opinion was based on the land being located along a developing and well defined commercial strip and other lots in the area having been rezoned from residential to commercial. Poppleton's testimony indicated that the land would be more valuable if used for a more intensive commercial purpose, such as a roadside shopping center, but the lot was not ideal for that type of use and, therefore, rezoning for that use was less likely.
LaSalle agreed the highest and best use of the land was as office or office-condominium space. Based on comparable sales of unimproved commercial property, he determined the amount of damages Briggs incurred as a result of the taking was $475,000.
The land acquired by the state had no direct access to highway 12. Its only access was via two residential streets. Ronald Lauer, who owned the adjacent lot where a nursing home was located at the time of the taking, testified he would have granted Briggs access to highway 12 across his land. Poppleton testified that direct access to highway 12 would not have been necessary for the proposed commercial development and that lack of direct access would not have affected the marketability of the property.
ISSUES
1. Did the trial court err by allowing evidence of the proposed commercial development for the land acquired by the state?
2. Did the trial court err by computing the interest award as simple interest?
3. Did the trial court err by allowing evidence of access across Lauer's property to highway 12?
4. Did the trial court err by not allowing the jury to view the land acquired by the state?
ANALYSIS
When reviewing a jury's determination of value in a condemnation case, this court must view the evidence in the light most favorable to the prevailing party and assume the jury chose to believe its witnesses. State by Lord v. Pearson, 260 Minn. 477, 493, 110 N.W.2d 206, 217 (1961). On a claim of excessive damages, the trial court's decision to deny a motion for a new trial will not be overturned absent an abuse of the trial court's broad discretion. Roettger v. United Hosps. of St. Paul, Inc., 380 N.W.2d 856, 862 (Minn.App.1986).
The state alternatively claims it is entitled to judgment notwithstanding the verdict or remittitur. Both the trial court and this court must accept a verdict as final if the verdict is reasonably supported by the evidence. Brubaker v. Hi-Banks Resort Corp., 415 N.W.2d 680, 683 (Minn. App.1987), pet. for rev. denied (Minn. Jan. 28, 1988). When considering a motion for judgment notwithstanding the verdict, the trial court must view all evidence and the credibility of witnesses in the light most favorable to the verdict and admit every reasonable inference therefrom. Id. Judgment notwithstanding the verdict may only be granted if the evidence is practically conclusive against the verdict or if reasonable minds could reach but one conclusion against the verdict. Id.
A motion for remittitur is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Newmaster v. Mahmood, 361 N.W.2d 130, 133 (Minn.App.1985). The trial court must leave the plaintiff with the highest dollar verdict permissible under the evidence. Id.
1. Evidence of proposed commercial development.
The state claims the trial court erred by admitting evidence of the proposed commercial development because the lot was zoned for residential use. Evidence of value for uses prohibited by an ordinance is admissible "only where there is evidence showing a reasonable probability *815 that the ordinance will be changed in the near future." State v. Pahl, 254 Minn. 349, 356, 95 N.W.2d 85, 90 (1959). The probability of rezoning to permit a proscribed use may only be considered by the trier of fact if the prospect of the rezoning was sufficiently likely to have an appreciable influence upon the market value on the date of acquisition. 4 Julius L. Sackman & Patrick J. Rohan, Nichols' The Law of Eminent Domain § 12C.03[2] (rev. 3d ed. 1990).
The initial determination on the admissibility of evidence of land value based on rezoning lies within the trial court's discretion. See United States v. Eden Memorial Park Ass'n, 350 F.2d 933, 936 (9th Cir.1965). A proper foundation must be laid before admitting evidence of land value based on rezoning. First, the trial court must determine whether sufficient evidence exists to permit a jury to conclude that there was a reasonable probability of rezoning on the date of acquisition. Department of Pub. Works & Bldgs. v. Association of Franciscan Fathers, 44 Ill.App.3d 49, 4 Ill.Dec. 323, 360 N.E.2d 70, 74-75 (Ill.App.1976), aff'd, 69 Ill.2d 308, 13 Ill.Dec. 681, 371 N.E.2d 616 (Ill.1977). Second, the owner must establish that there was a likelihood of a demand for the proposed use in the market. See Ramsey County v. Miller, 316 N.W.2d 917, 921-22 (Minn.1982).
Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration.
Id. at 921 (quoting Olson v. United States, 292 U.S. 246, 257, 54 S.Ct. 704, 709, 78 L.Ed. 1236 (1934)).
Although the record does not indicate the trial court made a specific preliminary determination that the evidence was sufficient to permit the jury to conclude there was a reasonable probability of rezoning, the memorandum accompanying the trial court's denial of the state's motion for a new trial indicates the trial court properly considered the admissibility of the rezoning evidence during pretrial motions. Because prior Minnesota case law does not explicitly state that the trial court must make a preliminary determination on the admissibility of evidence of rezoning, we decline to apply the requirement retroactively.
Here, there was expert testimony about the considerable demand for office space in the market and the reasonable probability of rezoning. The evidence admitted was sufficient to permit the jury to conclude that, on the date of acquisition, there was a reasonable probability of obtaining rezoning that would allow the proposed development. The trial court's decision to allow the evidence was not an abuse of discretion.
2. Interest rate.
Minn.Stat. § 117.195, subd. 1 (1990) provides, in part:
All damages allowed under this chapter, whether by the commissioner or upon appeal, shall bear interest from the time of the filing of the commissioner's report or from the date of the petitioner's possession whichever occurs first. The rate of interest shall be determined according to section 549.09.
Minn.Stat. § 549.09, subd. 1(c) (1990) provides, in part:
The interest shall be computed as simple interest per annum. The rate of interest shall be based on the secondary market yield of one year United States treasury bills, calculated on a bank discount basis as provided in this section.
Because Minn.Stat. § 549.09, subd. 1(c) expressly provides for simple interest, the trial court awarded Briggs simple interest on the value of the land taken from the time of taking until judgment. Briggs argues that interest on the value of the land must be compounded to meet the "just compensation" requirement of Minn.Const. art. I, § 13.[1]
*816 Whether interest applicable to condemnation awards is to be calculated as simple or compound interest is a matter of first impression. The literal construction of these two statutes, when read together, does not require that interest on condemnation awards be computed as simple interest.
Minn.Stat. § 117.195, subd. 1 requires only that the rate of interest shall be determined according to Minn.Stat. § 549.09; no mention is made of the separate requirement that interest shall be computed as simple interest. However, we need not determine whether the legislature intended to apply both the simple interest requirement and the interest rate determined under Minn.Stat. § 549.09 to condemnation awards.
The Minnesota Supreme Court has decided that the determination of the rate of interest on condemnation awards is a judicial decision and that automatic application of a statutorily prescribed interest rate does not satisfy the constitutional requirement of just compensation. State by Spannaus v. Carney, 309 N.W.2d 775, 776 (Minn.1981).
In Carney, the court addressed only the rate of interest applicable to condemnation awards; it did not consider whether the applicable rate should be compounded. However, the court stated,
On remand the trial court must determine the rate of interest required to give the landowner "the market value of the property at the time of taking contemporaneously paid in money." The landowner is entitled to that return which would have been available if the landowner had been timely paid and had made reasonable and prudent investments. We note that the return which satisfies the requirements of just compensation may be more, less, or equal to the return allowed by statute.
Id. (citations omitted).
The return available to a landowner who is timely paid and makes reasonable and prudent investments can be greatly affected by the ability to earn compound interest. If, at the time of taking, Briggs had been paid the market value of the property in money, this money would have been available to him for investment from that time forward. Because this money would have been available to him for several years before the judgment, the return he earned from investing the money during any one year would have been available to him for further investment during the following years. The return that would have been available to him had he been paid money at the time of taking includes the amount Briggs could have earned by investing the principal sum on the date it was received and by investing any earnings generated by the principal sum when they were earned.
Because just compensation requires a judicial determination of the return on reasonable and prudent investments, the requirement in Minn.Stat. § 549.09, subd. 1(c) that interest shall be computed as simple interest cannot apply to condemnation awards. The trial court award of simple interest is reversed. On remand the trial court must determine the total return that would have been available to Briggs had he been paid the value of the property at the time of taking in money and made reasonable and prudent investments. If reasonable and prudent investments would have allowed Briggs to earn compound interest, the interest award should include the interest that would have been earned.
3. Access evidence.
The state argues the trial court erred by admitting evidence of access from Briggs' property across Lauer's property to highway 12 because the evidence was too speculative. The certainty of the access across Lauer's property was dependent on the jury's assessment of Lauer's credibility. Witness credibility is an issue for the jury to determine. Mayzlik v. Lansing Elevator Co., 241 Minn. 468, 473, 63 N.W.2d 380, 384 (1954). The trial court did not err by admitting the evidence. Moreover, Poppleton testified that access across Lauer's property was not necessary for commercial development of Briggs' property and would not have affected the marketability of the lot. Even if the trial court erred by admitting the evidence, the error was not prejudicial.
*817 The state also contends the evidence of access across Lauer's property misled the jury into believing Briggs should be compensated for the taking of Lauer's land. The argument is without merit. The evidence went only to the issue of the suitability of Briggs' land for commercial development.
4. Jury viewing of land.
The state contends the trial court erred by not allowing the jury to view the land the state acquired from Briggs. The decision whether to allow the jury to view the property is committed to the trial court's discretion. State by Peterson v. Andrews, 209 Minn. 578, 580, 297 N.W. 848, 850 (1941). The trial court found that both parties had submitted evidence of the adaptability of Briggs' property to commercial use in 1984 in the form of photos and drawings and that a viewing would not have assisted the jury's understanding of the case. There was evidence that the contour of the lot had been changed by the construction of the frontage road. The trial court's decision was not an abuse of discretion.
DECISION
The trial court properly allowed evidence of the proposed commercial development and evidence of access across Lauer's property. The trial court's award of simple interest is reversed and remanded for further proceedings consistent with this opinion. The trial court's decision to not allow the jury to view the land was proper. Viewing the evidence in the light most favorable to the verdict, as we must, the jury's award of damages to Briggs is supported by the evidence. The trial court did not abuse its discretion by denying the state's motion for a new trial or remittitur. Briggs' request for attorney fees on appeal is denied.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] Minn.Const. art. I, § 13 provides: "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919993/ | 369 A.2d 686 (1977)
In the Matter of Paul R. REED, a member of the Bar of the Supreme Court of Delaware.
Supreme Court of Delaware.
Submitted January 3, 1977.
Decided January 18, 1977.
Henry N. Herndon, Jr., Wilmington, and Jackson R. Dunlap, Jr., Georgetown, for the Censor Committee.
Respondent, pro se.
Before HERRMANN, C. J., DUFFY and McNEILLY, JJ.
*687 PER CURIAM:
The Censor Committee of this Court reported the respondent, Paul R. Reed, a member of the Delaware Bar, for disciplinary action upon the basis of its following findings of fact and conclusions of law:
I.
"1. On or about February 25, 1975, the Respondent received funds from or on behalf of his client, Robert J. Reed, the Administrator of the Estate of Susie Reed, in the sum of Three Thousand Two Hundred Ninety-Four Dollars and Fourteen Cents ($3,294.14) consisting of the proceeds of a real estate settlement of properties belonging to the said Estate. The funds were deposited in an escrow or trust funds account entitled `Lawyers Title of Sussex County, Inc.' with the Wilmington Trust Company at Georgetown, Delaware.
"2. On or about February 25, 1975, the Respondent made authorized withdrawals from the Trust funds held on behalf of the said Estate in the amount of Two Hundred Twenty-Nine Dollars and Thirty-Four Cents ($229.34). The balance of Three Thousand Sixty-Four Dollars and Eighty Cents ($3,064.80) continued to be held in the above mentioned escrow account.
"3. On or about April 2, 1975, the Respondent transferred the balance of the funds being held on behalf of the Susie Reed Estate to an escrow account entitled `Commonwealth of Sussex, Inc.', being an account with Farmers Bank at Georgetown, Delaware.
"4. Thereafter, the Respondent closed out the Commonwealth of Sussex, Inc. account on or about November 14, 1975, and transferred the balance of funds remaining in that account in the amount of One Thousand Three Hundred Thirty-Eight Dollars and Sixty-Two Cents ($1,338.62) to an account entitled `Abstract and Land Title Company Escrow Account' with Farmers Bank of the State of Delaware. At the time of closing this account, the Respondent should have been holding funds in at least the amount of Three Thousand Sixty-Four Dollars and Eighty Cents ($3,064.80) on behalf of the Susie Reed Estate.
"5. Thereafter, in December of 1975, Mr. Robert Reed the Administrator of the Estate of Susie Reed contacted the Respondent and inquired as to when the funds would be paid to the duly entitled recipients. The Respondent testified that he then wrote a letter to the said Robert Reed directing him to go ahead and distribute the said monies, said advice having been given by the Respondent under the mistaken impression that the funds belonging to the estate had been distributed to the administrator.
"6. Thereafter, the Complainant, Robert Reed, contacted the Censor Committee, and after a letter from the Censor Committee, Respondent delivered to Robert Reed, from an account entitled `Paul R. Reed Collections Escrow Account', a check in the amount of $3,604.80.
"7. The Respondent admitted at hearing that he had made three (3) substantial disbursements from his real estate settlement escrow accounts during prior years on behalf of clients who had not deposited with him sums to cover such disbursements. He testified that two (2) of these so-called over-disbursements had been repaid in full but that the largest *688 amount, which was approximately Nine Thousand Nine Hundred Ninety-Nine Dollars and Sixty-Five Cents ($9,999.65) and which had existed since 1973, had not been repaid at the date of the Committee hearing, although a judgment had been obtained against the client who owed the monies.
"8. The Respondent testified that the over-disbursement in the amount of Nine Thousand Nine Hundred Ninety-Nine Dollars and Sixty-Five Cents ($9,999.65) had resulted from a mechanic's lien which had been paid off on behalf of a client with the specific understanding that the client would reimburse the monies to the Respondent's trust account. This occurred in 1973 and Respondent testified that the monies had never been repaid and that his escrow account had been continually short because of the said overdisbursement.
"Conclusions of Law:
"1. By reason of the conduct described in the Findings of Fact, Respondent has violated DR 9-102 of the Code of Professional Responsibility[1] in failing to maintain and preserve on hand all monies which he was supposed to be holding on behalf of the Estate of Susie Reed or others.
"2. By reason of the conduct described above, the Committee found that the financial records of Respondent, as produced to the Committee, were inadequate to explain the flow of the escrowed monies which he was supposed to be holding on behalf of other clients and the availability of funds to pay the amount owed to such clients.
"3. By reason of the conduct described above, the Respondent was found to have been in violation of the Court's Interpretive Guideline, numbered 2,[*] under *689 DR 9-102 and of his certification of compliance to the Supreme Court of the State of Delaware on May 31, 1975, in that he was not, at that date, maintaining *690 on hand all monies which he was supposed to be holding on behalf of clients."
II.
Upon the return of rule to show cause why he should not be subjected to disciplinary action, the Court heard the respondent's oral statement and considered his written statement. Thereupon, the Court ordered that an audit of the books and records of the respondent be made under the direction of the Trustees of the Clients' Security Trust Fund by a public accountant selected by the Trustees; that the audit be limited to the books, records, and purposes set forth in Interpretive Guideline No. 2, and be made at the expense of the respondent.
The audit report thus made was summarized by the Censor Committee as follows:
"1. The Audit Report reflects that $3,752.27 constituted funds due the respondent's clients at June 30, 1976, for which there was no escrow account. The non-fiduciary account balances of the respondent on the same day aggregated $471.58.
"2. With respect to the respondent's existing escrow accounts, the balances due clients on June 30 and July 30, 1976, aggregated $31,392.19. Subject to a possible $48.18 error in one account, the balances in these accounts on the same dates totalled $11,642.75. The difference of $19,749.44 was advanced to or on behalf of clients other than those for whom funds were to have been held in escrow.
"3. The aggregate amount due clients for which there is either no escrow account or a shortage in existing escrow accounts is $23,501.71, which exceeds the $9,999.65 due from one client that is referred to in paragraphs 7 and 8 of the Committee's Report.
"4. The Audit Report confirms the conclusions of Law set forth in the Committee's Report."
In response to the audit report, the respondent reported to the Court that he had "arranged to deposit personal funds obtained by a loan to cover the sums due escrow accounts for funds due from other clients"; and that he had arranged to bring his books and records into compliance. A supplementary audit report dated December 29, 1976, confirmed that the respondent "had deposited funds to cover all the amounts due to the various escrow accounts", as of November 9, 1976; but that, as of that date, there "was no evidence of reconciliation of cash recipts, cash disbursements, or ending cash balances with the checkbook balances for the non-fiduciary fund."
III.
We conclude that the respondent has been guilty of unprofessional conduct in that he has violated Disciplinary Rule 9-102 and Interpretive Guideline No. 2 of the Delaware Lawyer's Code of Professional Responsibility.
Upon due consideration of the Report of the Censor Committee, the oral and written statements of the respondent, and the audit reports made pursuant to the Order of this Court, it is adjudged and ordered that the respondent be disciplined as follows:
(1) The publication of this opinion shall constitute a public censure of the respondent; and
(2) The respondent shall forfeit and pay a fine of $5,000. to be paid over, not later than February 15, 1977, to the Trustees of the Clients' Security Trust Fund of the Bar of the State of Delaware.
In determining the appropriate disciplinary action to be taken in this case, the Court has taken into consideration the fact that the record indicates that no client or other person has sustained loss by reason of the respondent's non-compliance with the rules involved.
This opinion and judgment covers the period ending November 10, 1976.
NOTES
[1] DR 9-102 of the Delaware Lawyer's Code of Professional Responsibility provides:
"DR 9-102. Preserving Identity of Funds and Property of a Client.
"(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
"(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
"(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
"(B) A lawyer shall:
"(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
"(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safe keeping as soon as practicable.
"(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
"(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive."
[*] Interpretive Guideline No. 2 of the Delaware Lawyer's Code of Professional Responsibility provides in pertinent part:
"INTERPRETIVE GUIDELINE NO. 2 RE: PRESERVING IDENTITY OF FUNDS AND PROPERTY OF CLIENT
"The following statements of principles are promulgated as interpretive guidelines in the application of Disciplinary Rule 9-102 of the Delaware Lawyer's Code of Professional Responsibility:
"(a) As a minimum requirement, every attorney engaged in the private practice of law in the State of Delaware (hereinafter `Attorney') shall maintain on a current basis books and records which establish his compliance with DR 9-102, and which shall be preserved for at least five years following the completion of the year to which they relate, or, as to fiduciary or trust records, five years following the completion of that fiduciary obligation. For this purpose, the following books and records, or their equivalent, are suggested:
"NONFIDUCIARY FUNDS
"(1) A cash receipts journal reflecting monies received on his own account such as fees received and other nontrust receipts. The receipts journal should identify the source of the receipt and show the date of the receipt. Receipts should be deposited intact and the duplicate deposit slip should be sufficiently detailed to identify each item.
"(2) A cash disbursements journal reflecting monies disbursed on his own account for overhead and other expenditures.
"(3) A record in the form of a fees book or file of copies of billing invoices reflecting all fees charged and other billings to clients (preferably pre-numbered invoices).
"(4) Bank statements, cancelled checks, and duplicate deposit slips.
"(5) A reconciliation of the cash balance derived from the cash receipts and disbursement journal totals, the check book balance and the bank statement balance at least quarterly (preferably monthly).
* * *
"FIDUCIARY FUNDS (Including all funds held for clients or others):
"(1) A cash receipts journal (separate from the nonfiduciary funds journal) listing the sources of the receipt and the date of the receipt. Receipts should be deposited intact and the duplicate deposit slip should be sufficiently detailed to identify each item.
"(2) A disbursements journal listing the date of the disbursement and payee. All disbursements are to be made by check.
"(3) A subsidiary ledger containing a separate page for each person or company for whom monies have been received in trust showing the date of the receipt and the amount, the date of the disbursement and the amount, and any unexpended balance.
"(4) A monthly trial balance of the subsidiary ledger showing the name of the client and the balance of the client's account at the end of each month.
"(a) The total of the monthly trial balance should agree with the control figure computed by taking the beginning balance, adding the total of monies received in the trust for the month and deducting the total of monies disbursed for the month.
"(b) Monies disbursed for a client which exceed monies received must be explained.
"(5) A monthly reconciliation at month-end of the cash balance derived from the cash receipts and cash disbursement journal totals, the check book balance, the bank statement balance, and the subsidiary ledger trial balance total.
"(6) Bank statements, cancelled checks, and duplicate deposit slips.
"(7) A record showing all property, specifically identified, other than cash, held in trust from time to time for clients or others.
"(8) As to real estate bank accounts, where separately maintained, it will be sufficient if they are reconciled each month, and a list of escrow funds held therein is maintained, reflecting the amounts held therein, the person for whom held, and the purpose for which held.
"(b) On or before May 31, 1975, each Attorney shall file with the Trustees of the Clients' Security Trust Fund of the Bar of Delaware (hereinafter `Trustees') a certificate and respond to a questionnaire as follows:
"(1) The certificate shall state that:
`I have read the Delaware Lawyer's Code of Professional Responsibility and have noted DR 9-102 and the guideline relating thereto. I am complying with the DR 9-102 and its guideline.'
* * *
"(c) On on before May 31, 1976, each Attorney shall respond to a similar questionnaire, and file a similar certificate with the Trustees. This second certificate and the questionnaire shall relate to the entire preceding 12 month period or calendar year. A similar certificate and questionnaire shall be completed and filed with the Trustees on or before May 31 of each year thereafter by each Attorney. Any attorney having filed a certificate pursuant to paragraph E hereof shall file a certificate pursuant to this paragraph within 30 days after paragraph E becomes inapplicable.
"(d) Books of account and records of every Attorney are subject to examination by a person or firm, engaged and directed by the Trustees, for the purpose of verifying the accuracy of certificates filed by the Attorney. Such examination shall be conducted so as to preserve the private and confidential nature of the Attorney's records insofar as is consistent with this Guideline, Supreme Court Rules and Censor Committee Rules."
* * * | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919964/ | 279 Md. 345 (1977)
369 A.2d 70
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
OWEN JOSEPH SILK, JR.
[Misc. Docket (Subtitle BV) No. 2, September Term, 1976.]
Court of Appeals of Maryland.
Decided February 7, 1977.
The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.
Joseph P. McCurdy, Jr., for respondent.
L. Hollingsworth Pittman, Bar Counsel, for petitioner.
ORDER
This Court having heard argument on the exceptions to the recommendation of the panel of judges designated to sit in the Circuit Court for Howard County and the answer filed thereto, it is this 7th day of February, 1977
ORDERED, by the Court of Appeals of Maryland, that the recommendation be adopted and that Owen Joseph Silk, Jr. be, and he is hereby, disbarred from the further practice of law in the State of Maryland; and it is further
ORDERED that the clerk of this Court shall forthwith strike the name of Owen Joseph Silk, Jr. from the register of attorneys and shall certify that fact to the Trustees of the *346 Clients' Security Trust Fund and the clerks of all judicial tribunals in the State in accordance with Rule BV 13.
/s/ Robert C. Murphy
/s/ Frederick J. Singley, Jr.
/s/ Marvin H. Smith
/s/ J. Dudley Digges
Filed: February 7, 1977 /s/ Irving A. Levine
/s/ James H. Norris, Jr. /s/ John C. Eldridge
Clerk
Court of Appeals of Maryland /s/ Charles E. Orth, Jr.
MEMORANDUM AND ORDER
The Commission has petitioned for disciplinary action against the Respondent, alleging that "2. The Respondent is a member of the Bar of this Court (The Court of Appeals), but does not maintain an office for the practice of law, and does not engage in the private practice of law; although he is gainfully employed in a position requiring a knowledge of the law.
"3. That your Petitioner specifically represents and charges that the Respondent, in violation of Disciplinary Rules DR 1-102A (3) and (4), engaged in illegal conduct involving moral turpitude and engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, in that the Respondent did mishandle, misappropriate and/or embezzle funds of the Mount St. Joseph Father's Club of Mount St. Joseph High School in Baltimore, Maryland, during the time he served as Treasurer and President of said club, during that period of time from approximately November of 1973 to November of 1974."
The Respondent has answered, admitting the allegations of the second paragraph but denying the allegations of the third. In the hearing, however, before this Panel, designated by the Court of Appeals, by its order dated May 21, 1976, to *347 hear the charges, the allegations contained in the third paragraph were admitted and there was no factual dispute to be resolved.
By way of amplification, it should be added that the Respondent has not been prosecuted for his misappropriation of the funds in question, that he consented to the entry of a judgment against him in the Circuit Court for Baltimore County in the amount of $4,621.77, although he did not think that that amount was accurate, that he has paid the judgment in full, that he has shown contrition and remorse for the wrong committed, that he has been, for many years, an employee of the State of Maryland and is presently employed in the Comptroller's office, and that, although he is permitted the private practice of law, such practice has, in fact, been very limited.
The issue is whether suspension from practice for a period of time or disbarment should be recommended. The answer to this question depends, to a great extent, on whether more lenient sanctions should be imposed on a lawyer who has misappropriated funds which have come into his hands in a fiduciary but not professional capacity, as distinguished from a lawyer who, in his professional capacity, has misappropriated the funds of a client. In the latter instance the Court of Appeals has consistently upheld or ordered disbarment, stating that "misappropriation of a client's funds, even if no criminal conviction results, must be considered to be an offense of the utmost gravity." In re Barton, 273 Md. 377, 380 (1973); Bar Association of Baltimore City v. Carruth, 271 Md. 720, 727, 319 A.2d 532 (1974); Bar Association of Baltimore City v. Marshall, 269 Md. 510, 519, 307 A.2d 677 (1973); Balliet v. Baltimore County Bar Association, 259 Md. 474, 479, 270 A.2d 465 (1970); In re Lombard, 242 Md. 202, 206-207, 218 A.2d 208 (1966).
In In Re Myerson, 190 Md. 671, 676 (1948), it was said that "`Conduct prejudicial to the administration of justice' may include a criminal offense which impairs the basic objects of a lawyer's profession, though not committed in his professional capacity, and though he has not been convicted...."
*348 In Maryland State Bar Association v. Agnew, 271 Md. 543, 550 (1974), the Court of Appeals observed that, "... we see no significant moral distinction between willfully defrauding and cheating for personal gain a client, an individual, or the government.... The professional ethical obligations of an attorney, as long as he remains a member of the bar, are not affected by a decision to pursue his livelihood by practicing law, entered the business world, becoming a public servant, or embarking upon any other endeavor."
In the light of what has been said in the cases cited, there appears to be no sound reason for regarding misappropriations committed in a non-professional capacity more leniently than those committed in a professional capacity. Each involves a breach of trust or of a fiduciary relationship and bear equally on the fitness of a lawyer to practice his profession.
It was suggested on behalf of the Respondent that either a reprimand or a possible suspension would be an appropriate disposition in this case, particularly in view of the Respondent's minimal contact with private clients and the fact that his position with the State does not involve the handling of funds. This Panel is not persuaded by the suggestion. An occasional client is entitled to the same protection as many clients. Furthermore, the misappropriation committed by the Respondents amounted to more than a single, isolated incident; it consisted of a number of incidents over a period of time. For this reason the case of Prince George's County v. Vance, 273 Md. 79 (1974) is not apposite.
Since the members of this Panel find that the Respondent has violated Disciplinary Rules DR 1-102A (3) and (4) under such circumstances as to require disbarment, disbarment will be recommended.
/s/ James Macgill
/s/ Guy J. Cicone
/s/ J. Thomas Nissel
*349 ORDER
The petition for disciplinary action of the Attorney Grievance Commission against Owen Joseph Silk, Jr., coming on for hearing, and being submitted, evidence was received in open Court, counsel were heard and the proceedings read and considered.
It is, thereupon, this 2nd day of December 1976, by the Undersigned, designated by The Court of Appeals pursuant to the provisions of Rule BV9, of the Maryland Rules of Procedure, Adjudged and Ordered that it be, and it is hereby, recommended to The Court of Appeals that the said Owen Joseph Silk, Jr., be disbarred.
/s/ James Macgill
/s/ Guy J. Cicone
/s/ J. Thomas Nissel | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613466/ | 194 Mich. App. 676 (1992)
488 N.W.2d 785
McCARTHY & ASSOCIATES, INC
v.
WASHBURN
Docket No. 137031.
Michigan Court of Appeals.
Decided July 6, 1992, at 10:20 A.M.
Monaghan, LoPrete, McDonald, Sogge & Yakima (by Ronald R. Sogge), for the plaintiff.
Goldstein, Serlin, Reizen, Rosenbaum & Baker, P.C. (by Barry M. Rosenbaum), for the defendants.
Before: FITZGERALD, P.J., and CAVANAGH and NEFF, JJ.
NEFF, J.
In this suit for recovery of broker's commissions, plaintiff attempts to appeal as of right from the circuit court's amended order granting partial summary disposition to defendants. We dismiss plaintiff's appeal for lack of jurisdiction.
I
The order granted summary disposition to defendants Elaine Washburn and Deborah Washburn with respect to the claim of breach of contract in count I of plaintiff's second amended complaint. Summary disposition was granted on the ground that those defendants were not signatories of the listing agreement that called for the broker's commission.
The order also granted summary disposition to all defendants with respect to the third-party beneficiary claim in count II of that complaint on the ground that the purchase agreement involved in this case did not contain a third-party promise to plaintiff. The only claim left after the order of summary disposition was that of breach of contract against the estate of Michael Washburn under count I of the complaint. Among the defendants, *678 Michael Washburn was the only one who signed the listing agreements.
II
This appeal has been before this Court once before. It was dismissed on December 18, 1990, on the ground that this Court lacked jurisdiction because the original order granting partial summary disposition was not a final order appealable as of right. (Docket No. 134629). Unlike the amended order from which the present appeal is taken, the original order did not contain the certification that there was no just reason for delaying appeal, as required by MCR 2.604(A). The original order was amended pursuant to plaintiff's motion after the appeal was initially dismissed.
The only change since this Court's initial dismissal is the addition of the following language to the order:
IT IS FURTHER ORDERED AND ADJUDGED that this Order Granting Partial Summary Disposition shall be final and that there is no just cause in delaying an appeal of this matter.
We do not believe that merely adding the certifying language to the order transforms it into one that is appealable as of right.
According to MCR 7.203(A)(1), this Court's jurisdiction of an appeal as of right from a circuit court is limited to final judgments or final orders. Helms v Helms, 185 Mich. App. 680, 685; 462 NW2d 812 (1990).
A final order is an order which, by itself or in conjunction with previous orders, disposes of all of the claims of all of the parties or is an order which, although otherwise not final, disposes of at *679 least one claim of one party and is certified as a final order under MCR 2.604(A). [Dean v Tucker, 182 Mich. App. 27, 30; 451 NW2d 571 (1990).]
MCR 2.604(A) provides as follows:
When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct entry of a final judgment on one or more but fewer than all the claims or parties, but only on an express determination that there is no just reason for delay.
Commentators have explained the effect of the certification as follows:
This much of the rule is perfectly clear that is, that any disposition of a part of the case without the required certificate is not final and therefore not appealable of right. The other aspect of the rule's operation is not quite so clear. That is, it does not necessarily follow that the matter may be appealed of right whenever the trial court makes the required certificate in connection with the disposition of a part of the case. MCR 2.603(A) [sic, 2.604(A)] operates only "when more than one claim for relief is presented in an action." The certificate of the trial judge does not preclude the appellate court as to whether there were actually multiple claims presented. The appellate court is free to decide for itself whether there were actually multiple claims or only mere variants of a single claim. [3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, authors' comments, p 416.]
The commentators went on to explain:
[I]f a claimant presents merely alternative legal theories, such that he will be permitted to recover *680 on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A). [Id. at 417.]
Thus, certification by the lower court does not end the inquiry into whether an order is final. The question whether the lower court had merely disposed of one or more legal theories of a plaintiff's single claim for relief must also be resolved before an order can be considered final so that it can be appealed as of right.
In Derbeck v Ward, 178 Mich. App. 38, 41; 443 NW2d 812 (1989), a panel of this Court cited with approval the quoted passages from Martin, Dean & Webster. On the basis of that language, the panel concluded that the order in that case, which granted summary disposition of some, but not all, of the plaintiff's several theories of negligence, was not a final order. Id. at 42. Nonetheless, the panel went on to consider the merits of the appeal as on leave granted. Id. The same procedure was followed in Helms, supra.
We disagree with the procedure in those cases because it leads to piecemeal appeals and an unnecessary waste of judicial resources. Further, under MCR 7.203(A)(1), this Court does not have jurisdiction of nonfinal circuit court orders appealed as of right.
In the present case, the first part of the inquiry is satisfied by the certifying language in the amended order granting partial summary disposition. The second aspect of the inquiry, however, is not satisfied. Plaintiff seeks to recover its broker's commissions under alternative theories: a claim of breach of contract and a third-party beneficiary *681 claim. It can recover those commissions on, at most, one of those theories. Thus, plaintiff has presented only a single claim for relief. Therefore, this Court does not have jurisdiction to consider this appeal brought as of right.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613477/ | 821 So. 2d 311 (2002)
Shannon KNOX, Appellant,
v.
DISTRICT SCHOOL BOARD OF BREVARD, etc., et al., Appellees.
No. 5D01-2384.
District Court of Appeal of Florida, Fifth District.
May 3, 2002.
Rehearing Denied July 16, 2002.
*312 Shannon McLin Carlyle of the Carlyle Appellate Law Firm, Leesburg, for Appellant.
Patricia K. Olney of Patricia K. Olney, P.A., Port Canaveral, and Harold T. Bistline of Stromire, Bistline & Miniclier, Cocoa, for Appellee.
SHARP, W., J.
Knox appeals from the trial court's order which denied her request for a temporary injunction against the Brevard County School Board and others for alleged violations of Florida's "Sunshine Law," section 286.011.[1] We conclude that Knox failed to show a substantial likelihood of success on the merits and affirm.
The record establishes, without dispute, the following factual scenario. In June 2001, a middle school principal position in Brevard County became vacant. Eleven candidates applied for the position. Brenda Blackburn, the Area Two superintendent,[2] assembled a team of five school *313 board employees and herself, to interview the candidates. The team asked questions designed to evaluate the candidates in the areas of communication, judgment, leadership, energy and tolerance for stress. The team also discussed the relative strengths and weaknesses of the candidates and assigned them numerical scores. Based on input from her team, Blackburn recommended two or more candidates to Dr. DiPatri, the superintendent for the county school system.[3] However, all of the eleven applications were ultimately given to DiPatri, and DiPatri decided which applicants to interview and nominate to the School Board.[4]
Knox, an interested citizen who has three children attending Brevard County schools, asked for permission to attend the interviews conducted by Blackburn's team, but was refused. Knox then filed a complaint against the School Board, DiPatri, Blackburn, and the members of the interview team seeking a declaration that the interviews violated section 286.011. Knox also sought a temporary and permanent injunction enjoining the team from conducting any more such interviews.[5] Following an emergency meeting, the trial court denied relief on the ground the Sunshine Law does not apply to such interviews.
A temporary injunction is an extraordinary and drastic remedy whose purpose is to preserve the status quo pending final hearing. The party moving for a temporary injunction must show 1) irreparable harm unless the status quo is maintained, *314 2) no adequate remedy at law and 3) a substantial likelihood of success on the merits. In addition, an injunction may be denied where the injury to the public outweighs any individual right to relief. City of Ormond Beach v. City of Daytona Beach, 794 So. 2d 660 (Fla. 5th DCA 2001); Hall v. City of Orlando, 555 So. 2d 963 (Fla. 5th DCA 1990).
On appeal, a trial court's denial or granting of a temporary injunction is subject to an abuse of discretion standard of review. A temporary injunction does not decide the merits of a case; no full hearing has been conducted. To rule on a temporary injunction, the court must, early in the case, estimate the likelihood of the plaintiff prevailing on the merits and securing a permanent injunction. These are some of the reasons that a party appealing the denial of a temporary injunction carries a heavy burden to demonstrate that the court's ruling was clearly improper. Rollins, Inc. v. Parker, 755 So. 2d 839 (Fla. 5th DCA 2000).
On appeal, Knox contends that Blackburn's team constituted a "board" which engaged in the "official acts" of interviewing and recommending candidates to the school superintendent. Thus Knox argues these interviews are governed by section 286.011 and must be open to the public.
The Sunshine Law applies to actions of school boards. Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976). If the school board delegates a portion of its decision-making authority to an advisory group, those meetings must be open to the public. See, e.g., Wood v. Marston, 442 So. 2d 934 (Fla.1983) (committee appointed by university president to solicit and screen applicants for deanship of law school and to submit a list of best qualified applicants for faculty approval before forwarding list to president for the final selection came within ambit of the Sunshine Law; committee performed policy-based, decision-making function in deciding which applicants to reject from further consideration); Silver Express Co. v. Dist. Bd. of Lower Tribunal Trustees of Miami-Dade Community College, 691 So. 2d 1099 (Fla. 3d. DCA 1997) (committee appointed by college's purchasing director to consider and rank proposals to provide flight-training services was subject to Sunshine Law); Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (advisory group used by city manager to assist in his decision to select new chief of police was governed by Sunshine Law).
However, the staff of the school board, which includes the superintendent, is generally not subject to the Sunshine Law. Blackford v. Sch. Bd. of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979). Even if the school superintendent is viewed as an "agency" subject to the Sunshine Law, the interview team, in this case, did not have any decision-making function so as to constitute a "board." Compare Wood (faculty committee which screened applicants for position of dean was governed by the Sunshine Law where the committee eliminated applicants); Silver Express Co. (committee was governed by Sunshine Law where its function was to weed through various proposals, determine which were acceptable and to rank them accordingly).
Here, Blackburn's interview team served only an advisory function. It was selected by Blackburn, the area superintendent, and not by DiPatri, the school superintendent. Its purpose was to gather information and impressions about the applicants. Although the team made recommendations, all the applications went to the superintendent and he decided which applicants to interview and nominate to the school board. Since the interview team simply had a fact-finding or advisory role, their meetings were not governed by *315 the Sunshine Law. See Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (career employees' counsel at college, members of which were appointed by the president, was too remote in the decision-making process relating to working conditions of career employees and thus was not governed by the Sunshine Law). See also Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (group which assisted city manager in interviewing persons for the position of police chief was not governed by Sunshine Law; their function was to assist the city manager in acquiring information by asking questions during the interview and discussing with the city manager the qualifications of each candidate after the interview so that he could decide which of three candidates he wished to interview further). A Sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties. See Wood.
AFFIRMED.
THOMPSON, CJ., and PALMER, J., concur.
NOTES
[1] Section 286.011 provides as follows:
Public meetings and records; public inspection; criminal and civil penalties
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.
[2] As the Area Two superintendent, Blackburn would be the immediate supervisor for this principal. She, in turn, reported to Dr. DiPatri, the superintendent for the whole county.
[3] Section 230.33(7) provides:
Duties and responsibilities of superintendent. The superintendent of schools shall exercise all powers and perform all duties listed below....:
* * *
(7) Personnel.Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231, and in addition the superintendent of schools shall have the following duties:
(a) Positions, qualifications, and nominations. Recommend to the district school board duties and responsibilities which need to be performed and positions which need to be filled to make possible the development of an adequate school program in the district; recommend minimum qualifications of personnel for these various positions; and nominate in writing persons to fill such positions .... (emphasis added)
[4] Section 230.23(5) provides:
Powers and duties of school board.-The school board, acting as a board, shall exercise all powers and perform all duties listed below:
* * *
(5) Personnel.Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:
(a) Positions, qualifications, and appointments. Act upon written recommendations submitted by the superintendent of schools for positions to be filled and for minimum qualifications for personnel for the various positions and act upon written nominations of persons to fill such positions. .... The district school board may reject for good cause any employee nominated. If the third nomination by the superintendent of schools for any position is rejected for good cause, if the superintendent of schools fails to submit a nomination for initial employment within a reasonable time as prescribed by the district school board, or if the superintendent of schools fails to submit a nomination for re-employment within the time prescribed by law, the district school board may proceed on its own motion to fill such position .... (emphasis added)
§ 230.23, Fla. Stat.
[5] Knox filed her complaint and motion for injunctive relief on June 26 at 1:00 p.m. She alleged that the team was scheduled to interview candidates that day at 12:45 p.m. and was to submit its recommendation to DiPatri the following day. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613483/ | 821 So. 2d 141 (2000)
Earl L. WRIGHT A/K/A Earl Lee Wright, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2000-CP-00025-COA.
Court of Appeals of Mississippi.
October 31, 2000.
Rehearing Denied February 6, 2001.
Earl L. Wright, Pro Se.
Office of the Attorney General by Charles W. Maris, Jr., Attorney for Appellee.
BEFORE SOUTHWICK, P.J., IRVING, AND MYERS, JJ.
MYERS, J., for the Court:
¶ 1. In 1998 Earl Wright filed two motions for post-conviction relief for two guilty pleas, one entered in 1978 and another entered in 1980. He also petitioned the court to vacate the sentences associated with those pleas. Both of these motions were dismissed. The Circuit Court of Holmes County held that Mr. Wright had missed his window of opportunity and his claims were barred by the three year statute of limitations set out in Miss.Code Ann. § 99-39-5(2) (Supp.1999). Based on the language of the statute, we affirm the lower court in dismissing these time barred claims.
FACTS
¶ 2. Over two decades ago, in 1978 Earl Wright was arrested on a charge for burglary. He pled guilty and was sentenced to five years in the custody of the Mississippi Department of Corrections with four years suspended. Less than a year later, Wright was convicted of his second offense of burglary. He received a ten year sentence and, in addition, he had to serve the previously suspended four years because this burglary violated his parole. In 1980, while serving his time, he attacked the prison doctor. Wright was indicted for aggravated assault. Against his attorney's advice, he pled guilty. He was sentenced to an additional five years. Mr. Wright now wants this Court to overturn the decision of the Circuit Court of Holmes County regarding the lack of evidence presented in his motions and the tardiness of his post-conviction appeal.
*142 ANALYSIS
¶ 3. Mr. Wright's main concern is whether he has a right to an evidentiary hearing regarding his claims. The clear language of the Mississippi Uniform Post-Conviction Relief Act, Miss.Code Ann. § 99-39-5(2)( Supp.1999), allows for a three year window in which to file an appeal. He could have either filed within three years from (1) an opinion of the Circuit Court on direct appeal, (2) time for appeal expired, if no appeal is taken, or (3) entry of a guilty plea or judgment of conviction. Id.
¶ 4. In order to get this hearing, Wright needed to allege any one of the exceptions in § 99-39-5(2). Id. Of the three exceptions, Mr. Wright alleges that he has new evidence not reasonably discoverable at trial, but offers no proof in support of his allegations. Without support of his claims the motions are time barred.
¶ 5. The Mississippi Uniform Post-Conviction collateral Relief Act was enacted on April 17, 1985. Wright had three years in which to file these claims beginning on the effective date of April 17, 1985. Patterson v. State, 594 So. 2d 606, 607 (Miss.1992)(quoting Odom v. State, 483 So. 2d 343, 344 (Miss.1986)). Similar to Odom, Wright entered a plea of guilty in 1978, which was six years before the Uniform Post-Conviction Relief Act was enacted in 1984. That six year lapse plus the three years from the date of enactment afforded Wright nine years to effectively file an appeal. He did not do so.
¶ 6. The lower court was correct in dismissing these motions due to the expiration of the statute of limitations. Mr. Wright's claims are barred as his appeal is more than a decade overdue.
¶ 7. JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, IRVING, LEE, MOORE, PAYNE, AND THOMAS, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613464/ | 488 N.W.2d 795 (1992)
In the Matter of a Complaint Against the SANDY PAPPAS SENATE COMMITTEE.
No. C7-91-1898.
Supreme Court of Minnesota.
July 24, 1992.
Rehearing Denied August 26, 1992.
*796 Martha Casserly, Sp. Asst. Atty. Gen., St. Paul, for appellant.
Kenneth Tilsen, St. Paul, for Sandy Pappas Senate Committee.
Raymond W. Faricy, Faricy & Dunn, St. Paul, for Russell L. Doty.
Heard, considered, and decided by the court en banc.
COYNE, Justice.
We accepted review of the decision of the court of appeals denying the Minnesota Ethical Practices Board's motion to discharge a writ of certiorari issued upon petition of relator Russell L. Doty to consider the issue of his standing to petition for a writ of certiorari. We reverse.
In the 1990 DFL primary Sandra Pappas defeated Donald Moe for the office of State Senator of District 65. She went on to win the general election.
In August 1990 Pappas signed a contract with the Board in which she agreed to abide by the terms of the Ethics in Government Act. By a 20-page complaint dated April 11, 1991 and delivered to the Board, Doty, an assistant to Moe before the senator lost the 1990 primary, alleged that in the course of her campaign, Pappas violated the act in 17 respects by exceeding campaign spending limits and failing to record properly campaign expenditures and contributions. By letter dated October 4, 1990, Pappas had informed the executive director of the Board that she had exceeded the campaign spending limits,[1] and the Board had begun its review of Pappas's campaign records before it received Doty's complaint. In her October 4, 1990 letter Pappas also attempted to rescind her agreement and thereby disqualify herself from receipt of state election campaign funds. Minn.Stat. § 10A.322, subd. 1 (1990), provides, however, that "[a]n agreement may not be rescinded after [September 1]."
Following two informal hearings at which Pappas and Doty were each offered the separate opportunity to present comments, submit documents, and answer the Board's questions, the Board and Pappas entered into a conciliation agreement pursuant to which Pappas paid a civil fine of $903.42, the amount of her excess expenditures.[2]*797 On August 22, 1991 the Board made its findings in the Matter of a Complaint Against the Sandy Pappas for Senate Committee, concluding that the committee unintentionally exceeded the campaign expenditure limit by $903.42, that the committee made eight inadvertent reporting errors which had been amended in accordance with Minn.Stat. § 10A.23, and that the remaining allegations in Doty's complaint were unsubstantiated. The Board dismissed the complaint and entered correspondence into the public record pursuant to Minn.Stat. § 10A.02, subd. 11 (1990).
Doty sought judicial review of the Board's determination by petitioning the court of appeals for a writ of certiorari pursuant to Minn.Stat. § 480A.06, subd. 3 "upon the grounds that [the Board's decision] is not in conformity with the provisions of Minnesota Statutes 10A, and is unwarranted by the evidence." The court of appeals issued certiorari, prompting the Board and the Sandy Pappas for Senate Committee to move pursuant to Minn. R.Civ.App.P. 127 for discharge of the writ on the ground that Doty lacked standing. The court of appeals denied the motion to discharge the writ, holding that Doty had standing to invoke judicial review of the Board's decision in the Pappas matter. In re Sandy Pappas Senate Committee, 478 N.W.2d 337 (Minn.App.1991).
Standing may be conferred by statute or it may exist by reason of judicial recognition of a particular relationship between a person and an actionable controversy. Minnesota Public Interest Research Group v. Minnesota Dept. of Labor and Industry, 311 Minn. 65, 72, 249 N.W.2d 437, 441 (1976). Because the Ethics in Government Act does not confer standing upon complainants to the Board, if Doty has standing, he has it in its judicial manifestation. In the absence of a discernible legislative intent to the contrary, it has long been established that a person has standing to invoke judicial review of agency action only if that person suffers "injury in fact" as a consequence of that action. See, e.g., Snyder's Drug Stores, Inc. v. Minnesota State Bd. of Pharmacy, 301 Minn. 28, 32, 221 N.W.2d 162, 165 (1974). See also Minn.Stat. § 14.63 (1990): "Any person aggrieved by a final decision in a contested case is entitled to judicial review of the decision * * * *"
Doty contends that as a result of what he asserts is the Board's improper interpretation of the provisions of chapter 10A, its assessment of the extent of Pappas's liability for violation of the act's terms was inadequate. To have standing to petition successfully for writ of certiorari, however, a person must assert more than dissatisfaction with an agency's interpretation of statutes: the person must articulate with a degree of clarity some legally cognizable interest of his which has sustained injury in fact by the agency action i.e., that he has in fact sustained injury to some interest which differs from injury to the interests of other citizens generally. See Twin Ports Convalescent, Inc. v. Minnesota State Bd. of Health, 257 *798 N.W.2d 343 (Minn.1977); Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636 (1972). As the United States Supreme Court put it in Sierra Club:
The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the [federal] APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process.
405 U.S. at 740, 92 S.Ct. at 1368-69 (footnote omitted).
Doty argues that by participating in the Board's proceedings, a legally cognizable interest arose in him that, by virtue of the Board's ruling, sustained injury in fact. Certainly, pursuant to Minn.Stat. § 10A.02, subd. 9 (1990), it was proper for any registered voter to file a complaint with the Board and to appear before the Board at its informal hearings; however, Doty did not thereby acquire a legally cognizable interest in the outcome of the Board's proceedings, for in its judicial manifestation, standing cannot come into existence solely by participation in agency proceedings. In re Acquisition of Flying Cloud Airport, 226 Minn. 272, 32 N.W.2d 560 (1948). A mere "interest" in the problem, regardless that the interest is long-standing, does not confer standing on an individual or organization. Neither does that individual's expertise in evaluating the problem render that individual "adversely affected" or "aggrieved" within the meaning of Minnesota's Administrative Procedure Act. Cf. Sierra Club, 405 U.S. at 739, 92 S.Ct. at 1368. While Doty may have enhanced the Board's ability to discharge its regulatory function by interjecting himself into the proceeding against Pappas, he has no more standing to invoke judicial review than does a crime victim or any witness to invoke judicial review of a jury verdict of acquittal, conviction of a lesser included offense, or of a guilty plea negotiated between prosecutor and criminal. See, e.g., Diamond v. Charles, 476 U.S. 54, 64-65, 106 S. Ct. 1697, 1704-05, 90 L. Ed. 2d 48 (1986). Doty argues further that he has suffered injury as a taxpayer, contending that as a result of the Board's interpretation of the act's spending limits, Pappas received public funds to which she was not entitled. While he is correct to reference McKee v. Likins, 261 N.W.2d 566 (Minn.1977) for the proposition that we have expressed a willingness to characterize "injury in fact" broadly in the taxpayer standing context, his reliance on that case is misplaced. In McKee, we concluded that a taxpayer who challenged government rulemaking authority by declaratory judgment action had standing "to restrain the unlawful use of public funds." Id. at 571. In contradistinction, Doty's source of disagreement does not lie with the promulgation of rules making possible the allocation of tax revenue to a campaign subsidy fund or with the actual allocation of such funds, but instead it lies with the Board's disposition of the Pappas matter. Because the act does not authorize the Board to withhold public election campaign funds as a penalty for spending violations but instead provides only for fines and civil sanctions based on the amount by which expenditures exceeded the statutory limit, Doty has no actionable claim against the Board for disbursement of those public campaign funds. See Minn.Stat. § 10A.28 (1990). Inasmuch as Doty seeks judicial review of the Board's assessment of Pappas's liability and inasmuch as the Board was powerless to redress any harm he as an individual taxpayer could possibly have suffered by Pappas's receipt of the subsidy, he is not situated to profit from a taxpayer standing argument.
By our decision we do not suggest that agencies which fail to discharge their regulatory duties are free from the prospect of judicial review. We hold only that because *799 the Board's adjudication of Pappas's liability did not cause Doty to suffer injury in fact, he lacks standing necessary to cause a writ of certiorari to issue. We therefore discharge the writ of certiorari issued by the court of appeals upon the petition of Doty and dismiss this appeal.
Reversed.
NOTES
[1] The Board is subject to the terms of the Minnesota Administrative Procedure Act. Minn.Stat. § 10A.02, subd. 13. While noteworthy, the fact that a contested case was not initiated by the Board, nor requested by Pappas or Doty, nor required by the act is not dispositive of standing. Minn.Stat. § 14.63 affords judicial review to those persons aggrieved by a final agency decision in a contested case; however, it does not limit the availability of judicial review to such circumstances. See also Minn.R. chap. 4525. Thus, a person is not deprived of standing to invoke judicial review of an agency action merely because the disputed agency decision did not arise out of a contested case; at the same time, however, participation in a contested case proceeding does not guarantee standing. What our decisions require is that to have standing in a judicial sense to invoke review of an agency decision the person seeking review must suffer injury in fact as a consequence of the agency action. See County of Ramsey v. Minnesota Public Utilities Comm., 345 N.W.2d 740, 744 (Minn.1984).
[2] Minn.Stat. § 10A.02, subd. 11 (1990) provides that "[i]n the case of a written complaint alleging a violation of section 10A.25 or 10A.27, the board shall either enter a conciliation agreement or make a public finding of whether or not there is probable cause [to believe a violation has occurred], within 60 days of the filing of the complaint." Minn.Stat. § 10A.28 (1990) prescribes the penalty for exceeding limits:
Subdivision 1. Candidate exceeding expenditure limits. A candidate subject to the expenditure limits in section 10A.25 who permits the candidate's principal campaign committee to make expenditures or permits approved expenditures to be made on the candidate's behalf in excess of the limits imposed by section 10A.25, as adjusted by section 10A.255, is subject to a civil fine up to four times the amount which the expenditures exceeded the limit.
* * * * * *
Subd. 3. If the board finds that there is reason to believe that excess expenditures have been made or excess contributions accepted contrary to the provisions of subdivision 1 or 2 the board shall make every effort for a period of not less than 14 days after its finding to correct the matter by informal methods of conference and conciliation and to enter a conciliation agreement with the person involved. A conciliation agreement made pursuant to this subdivision shall be a matter of public record * * * * | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613479/ | 23 So. 3d 811 (2009)
Eddie Lee STEADMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-4748.
District Court of Appeal of Florida, Second District.
December 2, 2009.
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
*812 VILLANTI, Judge.
This case is on remand from the supreme court for reconsideration in light of its decisions in State v. Rabedeau, 2 So. 3d 191 (Fla.2009), and Gisi v. State, 4 So. 3d 613 (Fla.2009). Because we conclude that Rabedeau and Gisi are inapplicable to Eddie Lee Steadman's case, we affirm.
Steadman pleaded and was sentenced in two cases. In case number XX-XXXXXX, he was convicted of burglary of a conveyance, grand theft, two counts of aggravated assault, fleeing or eluding, driving with a suspended license, and giving false identification to law enforcement. His sentences for one count of aggravated assault, fleeing or eluding, and driving with a suspended license were consecutive to the other sentences. The sentences for the other counts were concurrent. The trial court gave Steadman jail time credit on all concurrent counts but did not give him jail time credit on the three consecutive counts, counts 3, 5, and 6.
In case number XX-XXXXXX, Steadman was convicted of driving with a suspended license, fleeing or eluding, resisting an officer, burglary of a conveyance, and grand theft. His sentences for driving with a suspended license, fleeing or eluding, resisting an officer, and grand theft were concurrent, but his sentence for burglary was consecutive to the other sentences. The trial court gave Steadman jail time credit on the three concurrent counts, but did not give him jail time credit on the consecutive burglary count, count 4.
Steadman filed a motion to correct sentencing error, arguing that the trial court should have given him credit for time served in jail while awaiting sentence on counts 3, 5, and 6 of case number XX-XXXXXX, and on count 4 of case number XX-XXXXXX. The trial court denied the motion, and Steadman appealed. On appeal, both Steadman and the State asserted that this case was controlled by Gisi v. State, 948 So. 2d 816 (Fla. 2d DCA 2007), which at the time was pending before the supreme court. We affirmed, Steadman v. State, 997 So. 2d 417 (Fla. 2d DCA 2008) (table decision), and Steadman sought and was granted review by the supreme court. Accordingly, when the supreme court decided Gisi and Rabedeau, it remanded Steadman's appeal for further consideration by this court. Steadman v. State, 14 So. 3d 218 (Fla.2009).
Rabedeau and Gisi are inapplicable to this case because they involved denial of credit for time served in prison on previously served concurrent prison sentences before the defendant was resentenced to consecutive prison terms. In Rabedeau, the defendant was first sentenced to three concurrent five-year prison terms, followed by three concurrent nine-year probation terms. 2 So.3d at 192. After completing his concurrent five-year prison terms, the defendant violated probation and was resentenced to three consecutive ten-year prison terms. Id. He received five years' credit for time served in prison on only one of the new ten-year sentences. Id. The supreme court held that upon resentencing to consecutive sentences, the trial court was required to give the defendant credit for the time served on all three concurrently served prison sentences against each new consecutive sentence. Id. at 193 ("[I]f multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions."). Similarly, Gisi involved a defendant who was originally sentenced concurrently on fourteen counts but who, upon resentencing, received three consecutive fifteen-year sentences. 948 So.2d at 817. Like the defendant in Rabedeau, the defendant in Gisi argued that he was entitled to credit for time served in prison on *813 each of his three new sentences, see 948 So.2d at 819, and the supreme court agreed, see 4 So.3d at 614. Neither Rabedeau nor Gisi addressed the issue presented in the present case: credit for time spent in jail while awaiting sentence.
"Time spent in jail before sentencing initially occurs differs from time served as part of ... a sentence." Barnishin v. State, 927 So. 2d 68, 71 (Fla. 1st DCA 2006). When a defendant receives concurrent sentences, he is entitled to receive credit on each sentence for time spent in jail before sentencing. Daniels v. State, 491 So. 2d 543, 545 (Fla.1986) ("[W]hen ... a defendant receives presentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served."); Barnishin, 927 So.2d at 71. However, a "defendant [who] does not receive concurrent sentences on multiple charges ... `is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.'" Daniels, 491 So.2d at 545 (quoting Martin v. State, 452 So. 2d 938, 938-39 (Fla. 2d DCA 1984)). Rather, "a defendant who is convicted of multiple offenses and sentenced to consecutive terms of imprisonment must be given presentence jail credit only on the first of the consecutive sentences." Canete v. Fla. Dep't of Corr., 967 So. 2d 412, 415-16 (Fla. 1st DCA 2007); see also Keene v. State, 500 So. 2d 592, 594 n. 2 (Fla. 2d DCA 1986) ("In the case of consecutive sentences, a defendant is only entitled to credit against one of the sentences...."); Barnishin, 927 So.2d at 71 ("If convicted of multiple offenses, the defendant must be given [jail time] credit only on the first of consecutive sentences."); Gillespie v. State, 910 So. 2d 322, 324 (Fla. 5th DCA 2005) ("[J]ail time credit need not be applied to all consecutive sentences."). Consistent with established case law, Steadman received jail time credit on all concurrent sentences and did not receive credit on the consecutive sentences. This case is not affected by Gisi or Rabedeau, and the trial court did not err.
Affirmed.
CASANUEVA, C.J., and KHOUZAM, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613482/ | 23 So. 3d 127 (2009)
Andres RIGUEIRO a/k/a Andres Rigueiro Munoz, Petitioner,
v.
STATE of Florida, Respondent.
No. 4D08-1073.
District Court of Appeal of Florida, Fourth District.
April 22, 2009.
Ronald S. Guralnick, P.A., Miami, for petitioner.
Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
MAY, J.
The defendant petitions this court for a writ of habeas corpus, pursuant to Florida Rule of Appellate Procedure 9.140, alleging ineffective assistance of appellate counsel. For the reasons that follow, we deny the petition.
The defendant was convicted of four counts of sexual battery on a victim over 12 years of age and sentenced to 40 years in prison. 919 So. 2d 688. He was represented by defense counsel on appeal. We affirmed without opinion on February 1, 2006, and issued our mandate on February 17, 2006. Two days prior to the issuance of our mandate, the defendant handed his pro se motion for rehearing and rehearing en banc to the correctional institution for mailing. We received the pro se motion on February 21, 2006, and denied the motion on March 21, 2006.[1]
On March 13, 2008, defense counsel filed a rule 3.850 motion in the trial court. One day later, he filed the current petition. Both were filed over two years after the issuance of the mandate, but within two *128 years of this Court's denial of the defendant's motion for rehearing on direct appeal.
The trial court denied the rule 3.850 motion as untimely and we affirmed. Rigueiro v. State, 4D08-3154, 2008 LEXIS 20630 (Fla. 4th DCA Sept. 24, 2008).
In its response to the petition in this court, the State argued that the petition was untimely filed. In his reply, the defendant cites Robbins v. State, 992 So. 2d 878 (Fla. 5th DCA 2008), which appears to reach a different conclusion under similar circumstances. There the court concluded it should have recalled its mandate before ruling on a prisoner's motion for rehearing that had been timely delivered to prison officials before the mandate was issued. Id. at 879-80. However, the Robbins opinion does not address the well-established principle that pro se filings are a "nullity" when filed by a party that is represented by counsel.[2]Logan v. State, 846 So. 2d 472, 475-76 (Fla.2003) (a pro se filing by a party represented by counsel "cannot be entertained on the merits" unless it is adopted by counsel.).
We agree that, generally, a court should recall its mandate when it receives a timely filed motion for rehearing. However, that procedure is not applicable here, where the defendant's pro se motion had "no legal force or effect" because he was represented by counsel. State v. Craven, 955 So. 2d 1182, 1183 (Fla. 4th DCA 2007). Because the two-year time limit ran from the issuance of the mandate rather than the denial of the defendant's pro se motion for rehearing, his petition must be dismissed as untimely.
Petition denied.
GROSS, C.J., and CIKLIN, JJ., concur.
NOTES
[1] This court has since expanded the time frame for issuing mandates in these cases to allow for timely filed motions under the mailbox rule.
[2] Moreover, in Robbins the court addressed the timeliness of a Rule 3.800(c) motion, which must be filed within 60 days of a mandate. Fla. R.Crim. P. 3.800(c). At the time the defendant in this case attempted to meet the two-year time limit for filing his Rule 9.141 petition, this Court had lost its jurisdiction to recall its mandate. State v. Cameron, 914 So. 2d 4, 5 (Fla. 4th DCA 2005) ("An appellate court's power to recall its mandate is limited to the term during which it was issued."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613494/ | 821 So. 2d 908 (2002)
Jessie Clifton SMITH a/k/a Jesse Smith, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2001-KA-00726-COA.
Court of Appeals of Mississippi.
July 16, 2002.
*909 Gus Grable Sermos, Summit, attorney for appellant.
Office of the Attorney General, by Deirdre Mccrory, attorney for appellee.
Before KING, P.J., LEE, and IRVING, JJ.
LEE, J., for the court.
PROCEDURAL HISTORY
¶ 1. In April 2001, an Amite County jury convicted Jessie Clifton Smith of burglary of a church. He was sentenced to serve fourteen years in the custody of the Mississippi Department of Corrections plus ordered to pay costs. He subsequently filed a motion for judgment notwithstanding the verdict, but the motion was denied. He now appeals that denial to this Court, arguing that the verdict was against the overwhelming weight of the evidence. We find no error and affirm.
FACTS
¶ 2. The evening of December 12, 2000, James Wilson, a parishioner of the Smithdale Church of God in Christ in Amite County, arrived at the church to find it had been burglarized. Deputy Jerry Bates from the sheriffs department investigated the crime scene and talked to church members. Together, they determined that missing items included a drum set, amplifier, and speakers. Outside the church the officer noted that a side door had been pried open, and tire tracks indicated that a vehicle had gotten stuck in the mud. The Amite County officers expanded their investigation to surrounding counties, looking into similar burglaries in neighboring areas and talking with officers in other counties. From the evidence and information they collected, they determined that Jessie Smith and his brother, David, were possible suspects. When the missing equipment was located in a pawn shop in Hammond, Louisiana, Jessie and David Smith were arrested and questioned. David Smith told the officers of his and his brother's plans to rob the church, and he explained in detail the way they broke into the church, took the sound equipment and later pawned it. Jessie testified that he had never seen the equipment before, and he denied having broken into the church as his brother claimed.
DISCUSSION OF THE ISSUE
I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
¶ 3. Jessie Smith raises a single issue on appeal: that the verdict was against the overwhelming weight of the evidence. In his motion for judgment notwithstanding *910 the verdict or, in the alternative, a new trial, Jessie argued that the court improperly denied his motions for directed verdict, that the verdict was against the overwhelming weight of the evidence, and that the evidence was insufficient to support the verdict. On appeal, he only lists the "weight" issue; thus, we review this issue alone.
The standard for reviewing denial of a new trial goes to the weight of the evidence.... Furthermore, [t]o discern that the jury verdict is against the weight of the evidence, we must "accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." In order to mandate a new trial, the verdict must be "so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction `unconscionable injustice[.]'"
Smith v. State, 800 So. 2d 535 (¶ 4) (Miss. Ct.App.2001) (citations omitted). In efforts to show the trial court erred in denying his motion for new trial, Jessie refers to various testimony at his trial and notes the following: James Wilson, a church member who first discovered the burglary, never saw Jessie at the church; Amite County Deputy Jerry Bates found no fingerprints at the scene; Deputy Barney Smith testified he was not present at the break-in and that Jessie denied involvement to him; David Smith described Jessie's involvement as his partner in the crime, but Jessie claims David's testimony is unreliable; Eric Myers, who owned the pawn shop where the stolen property was found, testified that David Smith conducted the transaction; and Marie Smith, a church member, testified that she did not know when the church was burglarized, nor could she identify the burglar. The defense's only witness was Jessie Smith. Jessie testified that he saw his brother at his house the afternoon after the burglary, and his brother asked him to go to Hammond, Louisiana, with him to pawn some musical equipment that David owned. Jessie testified he had never seen the equipment before, that David used his own identification to effect the transaction and that David kept all of the money from the transaction.
¶ 4. The case was essentially Jessie's word against that of all the other witnesses, and we look to our role in reviewing such a situation.
The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed. The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity. "It is not for this Court to pass upon the credibility of witnesses and where evidence justifies the verdict it must be accepted as having been found worthy of belief."
Ford v. State, 737 So. 2d 424 (¶ 8) (Miss.Ct. App.1999) (citations omitted). Jessie claims that the only witness to place him at the scene of the burglary was David, but David's testimony was not sufficient to support the conviction based on the case of Mister v. State, 190 So. 2d 869 (Miss.1966). In Mister, the defendant was convicted of arson based on the testimony of one witness. Mister, 190 So.2d at 871. The supreme court determined that the witness' testimony was inconsistent with what he had told other people and was unreasonable in other respects, making it insufficient to support a verdict of guilty. Id. The present case is distinguishable from Mister in that David Smith's testimony is not improbable or self-contradictory or substantially impeached. Additionally, *911 "[w]e have repeatedly recognized that a defendant may be lawfully convicted on the uncorroborated testimony of an accomplice... although we frequently caution that such testimony should be viewed with suspicion and must be reasonable and not improbable, self-contradictory or substantially impeached." Fairchild v. State, 459 So. 2d 793, 798 (Miss.1984) (citations omitted). Jessie points out that the testimony of Eric Myers, the pawn shop owner, contradicts David's testimony concerning who actually participated in the transaction with Myers. However, even viewing David's testimony cautiously, we do not find this discrepancy to rise to the level of "substantial impeachment." Thus, we find Mister distinguishable.
¶ 5. The jury has the sole prerogative to weigh the credibility of each witness and to determine truthfulness. Here, we presume they did so in arriving at their verdict. Accepting as true the evidence which supports the verdict, we cannot find that an unconscionable injustice has resulted, nor has the judge abused his discretion in denying Jessie's motion for new trial. Accordingly, we affirm.
¶ 6. THE JUDGMENT OF THE AMITE COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A CHURCH AND SENTENCE OF FOURTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO AMITE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613486/ | 23 So. 3d 1022 (2009)
Brock DORE
v.
S & S COATING SPECIALTIES, INC.
No. 09-455.
Court of Appeal of Louisiana, Third Circuit.
November 4, 2009.
Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant: Brock Dore.
Jennifer E. Frederickson, Stemmans & Alley, PLLC, Baton Rouge, LA, for Defendant/Appellee: S & S Coating Specialties, Inc.
Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
AMY, Judge.
The claimant filed for modification of a judgment denying workers' compensation benefits. The defendant filed an exception of res judicata pursuant to La. R.S. 23:1310(E). The workers' compensation judge sustained the defendant's exception. The claimant appeals. For the following reasons, we affirm.
Factual and Procedural Background
The claimant, Brock Dore, originally filed a disputed claim for compensation against his employer, S & S Coating Specialties, Inc., alleging he injured his neck and shoulder while working for the employer on December 22, 2003. On October 13, 2006, a hearing was held in which the workers' compensation judge denied benefits related to the claimant's alleged disc injury. That ruling was affirmed by this court. See S & S Coating Specialties v. Dore, 07-745 (La.App 3 Cir. 12/5/07), 971 So. 2d 491. On September 29, 2007, the claimant filed another disputed claim for compensation seeking indemnity and medical benefits for his December 22, 2003, accident. In his second claim, the claimant alleged that his medical condition had deteriorated since the original ruling, thus necessitating disc surgery. He contends he is entitled to a modification of his previous *1023 judgment in accordance with La. R.S. 23:1310.8(B). The defendant filed a peremptory exception of res judicata alleging that La. R.S. 23:1310.8(E) precludes the plaintiff from bringing an action to modify the previous judgment denying the claimant benefits. At the hearing on December 12, 2008, the workers' compensation judge sustained the defendant's exception of res judicata. The claimant now appeals.
Discussion
The claimant contends that the workers' compensation judge erred in sustaining the exception of res judicata based upon its finding that the original judgment did not constitute an award upon which a modification judgment may be made. The claimant asserts that the workers' compensation judge originally found that he was disabled for four days and that it recognized that S & S's payment of medical bills was proper. He contends these findings constitute an award for the purposes of La. R.S. 23:1310.8(B).
Louisiana Revised Statutes 23:1310.8(B) provides:
Upon the application of any party in interest, on the ground of a change in conditions, the workers' compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
Louisiana Revised Statutes 23:1310.8(E) provides, however, that "[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal."
Further, Louisiana's res judicata statute, La. R.S. 13:4231, reads:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
The issue here is whether the workers' compensation judge erred in sustaining S & S's exception of res judicata based upon a finding that no original award was granted. The workers' compensation judge's reasons for ruling reveal specific findings regarding the alleged disability. The record evidences that the workers' compensation judge made a distinction between two alleged injuries, specifically, injuries allegedly resulting in disc abnormalities and injuries allegedly resulting in muscle strain. With regards to the disc abnormalities, the workers' compensation judge stated:
Considering the problems with Dore's credibility, the WCJ is unwilling to give Dore any benefit of the doubt that his is the unique case where the symptoms are *1024 on the opposite side of the protrusions. Therefore the WCJ does not relate Dore's cervical disc abnormalities to his work related accident.
In regards to muscle strain, the workers' compensation judge stated:
This leads to the question of whether Dore sustained a right-sided muscle strain as a result of the accident. Dr. Dellanger gave Dore a four-day release the day of the accident. The WCJ believes this is a reasonable period of disability. The depositions of the physicians clearly establish that the remainder of Dore's complaints could just a[sic] likely be as [a] result of his previous problems and general physical condition. The record does not preponderate that Dore sustained any injury beyond the four-day work release as the result of the work-related accident, either directly or by aggravation of the pre-existing condition. The employer has paid the medical bills associated with Dore's initial emergency room visit, and therefore, no further benefits are owed.
As determined by the workers' compensation judge, the claimant failed to carry his burden of proof in the original proceeding to establish that a disc abnormality was caused or aggravated by his work-related accident. In a workers' compensation case, a claimant must prove not only that an accident occurred, but that the accident was causally related to the disability claim. Baker v. Conagra Broiler Co., 93-1230 (La.App. 3 Cir. 5/4/94), 640 So. 2d 494, writ denied, 94-1435 (La.9/23/94), 642 So. 2d 1289.
In this case, the workers' compensation judge determined that while the claimant may have exhibited disc abnormalities, the abnormalities were not related to his work accident. This determination was affirmed by this court. See S & S Coating Specialties, 971 So. 2d 491. Thus, the workers' compensation judge made no award of benefits relating to Dore's alleged disc abnormalities. At the hearing on the peremptory exception, the workers' compensation judge clarified that the original ruling was not an award, stating:
So I don't think there is any change of condition as anticipated by the statute and I do find that there was a judgment denying benefits and that the matter is therefore res judicata.
The record supports the determination that no award was initially made for the alleged disability, and, thus, a modification of that ruling to allow a disc-related surgery was barred by res judicata. See La. R.S. 23:1310.8(E).
The claimant argues that this case is similar to Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So. 2d 517, wherein the supreme court determined that res judicata did not preclude a suit to modify a prior judgment even if that judgment determined that claimant's disability terminated before trial and the judgment was satisfied. The present case differs from Jackson. In Jackson, the claimant was seeking a modification of the original judgment claiming his condition has worsened, an original condition determined by the hearing officer to constitute a compensable injury. In this case, however, the original ruling found no work-related nexus to any disc abnormality. The language of La. R.S. 23:1310.8(B) clearly requires a prior award of compensation before a hearing officer has the authority to modify that award. Matthews v. Farley Indus., 95-1387 (La.2/28/96), 668 So. 2d 1144.
This assignment of error lacks merit.
DECREE
The ruling granting defendant's exception of res judicata is affirmed. Costs of *1025 this proceeding are assessed to the claimant-appellant.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613490/ | 821 So. 2d 1251 (2002)
Philip F. CACCIATORE, Jr., Appellant,
v.
FISHERMAN'S WHARF REALTY LIMITED PARTNERSHIP, by and through Emalfarb Investment Corp., its general partner, et al., Appellees.
No. 4D01-4123.
District Court of Appeal of Florida, Fourth District.
July 31, 2002.
*1252 Thomas J. Ali and Scott Kramer of Kramer, Ali, Fleck, Carothers, Hughes, Gelb & Bornstein, Jupiter, for appellant.
Gregory L. Scott of Nason, Yeager, Gerson, White & Lioce, P.A., West Palm Beach, for appellees.
OWEN, WILLIAM C., JR., Senior Judge.
The trial court determined that a stock certificate titled in the joint names of appellant and his wife was owned by them as joint tenants, not as tenants by the entirety, and thus, appellee, the holder of a judgment against appellant, was entitled to have the sheriff levy on appellant's interest in the certificate.[1] We conclude that as between debtor and creditor the holding and rationale of Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), should be extended to create a presumption of tenancy by the entireties in the stock certificate. Accordingly, we reverse the order appealed and remand with directions.
After its judgment against appellant had been affirmed,[2] appellee sought an order authorizing the sheriff to levy writ of execution on a stock certificate for 510 shares of Nantucket Enterprises, Inc., which certificate designated "Phillip F. Cacciatore, Jr. and Elaine Cacciatore, his wife" as owner. Initially, appellee had sought to prove that appellant was the sole owner of the 510 shares of stock, and that his wife had no interest therein. Although there was evidence both pro and con on that issue, the trial court resolved that matter against appellee's position, finding that the stock was held by appellant and his wife jointly. No issue is raised on this appeal concerning that finding.
As its fall back position, appellee argued to the trial court that, even if the court found appellant and his wife owned the certificate jointly, the court nonetheless would have to find as a matter of law that their ownership was as joint tenants and *1253 not as tenants by the entireties since there was no evidence before the court as to the intent of appellant and his wife to create an estate by the entireties in the certificate. In support of that argument appellee cited Florida case law[3] holding that personal property taken in the joint names of a husband and wife, unlike real property when title was so taken, created no presumption that a tenancy by the entireties was intended but required the owners to prove that intent. The trial court, apparently accepting that argument, entered the order appealed determining that appellant and his wife owned the stock as joint tenants, not as tenants by the entirety, and directed the sheriff to levy and execute on appellant's one-half interest in the certificate.
In Beal Bank, the court answered the following certified question (as rephrased by the court) in the affirmative:
I. In an action by the creditor of one spouse seeking to garnish a joint bank account titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, should a presumption arise that shifts the burden to the creditor to prove that the subject account was not held as a tenancy by the entireties?
Beal Bank, 780 So.2d at 48. The court there was dealing with bank accounts titled in the names of both spouses and, thus, its ultimate holding dealt specifically with joint bank accounts. Nonetheless, in reaching that holding the court expansively reviewed and discussed Florida case law, including the cases relied upon by appellee, to point out the disparity that existed in Florida as to the presumption of an estate by the entireties when a husband and wife took title to real property in their joint names and the absence of any such presumption when a husband and wife acquired and held personal property in their joint names. Having recognized the existence of such a disparity, the court cogently pointed out sound reasons why it should be eliminated.[4] Of greater importance, and significant to our decision today, we think the court's opinion, fairly read, indicated that the time had come to eliminate that disparity and to accord to personal property in general (not just bank accounts) the same presumption of tenancy by the entireties when jointly owned by husband and wife as that accorded real property jointly owned by husband and wife. In this respect, the court said:
Although we understand the considerations that originally led to this Court's decision not to adopt a presumption of a tenancy by the entireties in personal property similar to that in real property, we conclude that stronger policy considerations favor allowing the presumption in favor of a tenancy by the entireties when a married couple jointly owns personal property. In fact, other jurisdictions apply a presumption in favor of a tenancy by the entireties to both real property and personal property.
Id. at 57 (footnote omitted). Consistent with that view, we hold that where a judgment creditor of one spouse seeks to levy under writ of execution against a stock certificate titled in the name of both spouses, *1254 if the unities required to establish ownership as a tenancy by the entireties exist, a presumption of such tenancy arises that shifts the burden to the creditor to prove that the stock was not so held. We believe the soundness of such holding is enhanced by our recognition, as a matter of common knowledge, that the alienation of a stock certificate held in spouses' joint names, just as title to real property held in spouses' joint names, requires greater formality than does alienation of the content of the joint banks accounts present in Beal Bank.
Appellee argues that irrespective of whether the holding of Beal Bank is limited solely to joint bank accounts, or is viewed as applicable to personalty in general, it does not support a presumption of tenancy by the entireties in the stock involved here. Pointing to the court's explicit holding, at 780 So.2d at 58, appellee argues that the court intended the presumption to arise only if husband and wife hold title in accordance with the unities of possession, interest, title and time and with right of survivorship. Thus, the argument continues, the presumption of tenancy by the entireties in the instant stock certificate could not arise because the words "with right of survivorship" were not present.
We think it clear that the holding in Beal Bank does not require, in order for the presumption to arise, the presence of the words "with right of survivorship," any more than it requires the presence of words describing each of the other unities characteristic of a tenancy by the entireties. Rather, the presumption arises from taking title in the spouses' joint names. The creditor then has the burden to prove by the preponderance of the evidence that one of the necessary unities (including, if such be the case, the right of survivorship) did not exist at the time the certificate was acquired. When husband and wife take title to property as a tenancy by the entireties, each is seized of the estate thus granted per tout et non per my. See First Nat'l Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777, 780 (Fla.1971). Upon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus, survivorship, in the generally accepted sense that after death of one spouse the surviving spouse continues to hold the entire estate, is the very essence of the unique nature of a tenancy by the entireties. It would be redundant to add the words "with right of survivorship" when describing the interest of a husband and wife who intend to take title to property as tenants of an estate by the entireties. Thus, we further hold that for the presumption to arise in connection with ownership of a stock certificate issued in the joint names of a husband and wife the words "with right of survivorship" are not required to be appended.
The order appealed is reversed. Upon remand, the trial court shall reconsider the judgment creditor's motion in light of this court's opinion. For that purpose, the court may conduct such further hearings, including the taking of additional evidence, as the court in its discretion may deem appropriate.
REVERSED.
STEVENSON and GROSS, JJ., concur.
NOTES
[1] The order likewise directed levy on appellant's interest in two jointly titled automobiles, but this appeal involves only the portion of the order pertaining to the stock.
[2] See Cacciatore v. Fisherman's Wharf Realty Ltd. P'ship, 778 So. 2d 1076 (Fla. 4th DCA 2001).
[3] Appellee cited to the trial court some or all of the cases it likewise cites here for that position: First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla.1971); Cadle Company v. G & G Associates, 741 So. 2d 1257 (Fla. 4th DCA 1999); Amsouth Bank of Florida v. Hepner, 647 So. 2d 907 (Fla. 1st DCA 1994); Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990); In re: Bundy, 235 B.R. 110 (M.D.Fla.1999).
[4] "[T]he effect of our decisions ... was to set up both an obstacle course for litigation and a trap for the unwary...." 780 So.2d at 57. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613468/ | 821 So. 2d 508 (2002)
Linda HANLEY, Plaintiff-Appellee
v.
DOCTORS HOSPITAL OF SHREVEPORT, Defendant-Appellant.
No. 35,527-CA.
Court of Appeal of Louisiana, Second Circuit.
June 6, 2002.
Rehearing Denied August 8, 2002.
*513 Julia A. Mann, Penny N. Nowell, Shreveport, for Appellant.
Laurie W. Lyons, Henry C. Walker, Shreveport, for Appellee.
Before WILLIAMS, STEWART and CARAWAY, JJ.
WILLIAMS, Judge.
The defendant, Doctors Hospital of Shreveport ("Doctors Hospital"), appeals a judgment in favor of the plaintiff, Linda Hanley ("Hanley"). For plaintiff's sexual harassment claim, the jury awarded $100,000 in lost wages, $100,000 for emotional distress and $300,000 in punitive damages. The award for the retaliation claim included $80,000 for emotional distress and $500,000 in punitive damages. Pursuant to the statutory damages cap in 42 U.S.C. § 1981a, the judgment reduced the total award to $579,900 and awarded plaintiff $127,966 in attorney fees. For the following reasons, we amend and affirm as amended.
FACTS
In August 1993, Hanley, a registered nurse (RN), began working at Doctors Hospital through a nurse staffing agency. Hanley was hired directly by the Hospital in August 1994 for a full-time position in the intensive care unit (ICU). Shortly after Hanley began working at the hospital, *514 another nurse, Mike Paxton, RN, was assigned to work with her in the same unit on the late shift.
According to Hanley, within the first month of working together, Paxton began to sexually harass her with offensive sexual jokes and comments. Hanley initially tried to ignore the conduct, but Paxton's harassment eventually escalated and became more overt and aggressive. Paxton repeatedly made sexual comments, suggesting that Hanley engage in sex with him and another nurse, referred to as a "threesome," and requesting that she perform oral sex. Paxton also physically touched Hanley's breasts and buttocks on several occasions. Hanley rejected his advances and demanded that he cease the harassment, but without result.
In August 1995, Hanley complained about Paxton's behavior to her supervisor and a meeting was held to discuss her concerns. The participants included Hanley, her supervisor, Pam Shelton, the director of nurses, Jackie Nettles and the human resources director, Gail Modisette. According to Hanley, at the meeting she asked that hospital management speak to Paxton and warn him to leave other employees alone, but was told this could not be done unless she filed a "formal" complaint. Hanley stated that she wanted her concerns about Paxton to be kept confidential because Shelton was unwilling to assure her that she would not be required to work alone with him during the overnight shift in the ICU.
After a two or three week period when Hanley and Paxton did not work together, Hanley was again scheduled to work alone with Paxton on the late shift. Hanley stated that a short time later, she informed Shelton that she wanted to file a formal complaint against Paxton and tried several times to arrange a meeting, but the supervisor said she was too busy and that they would talk later. Hanley also contacted Modisette and was told to make an appointment, but Hanley did not make the attempt.
Hanley began to believe that the hospital was retaliating against her because she had complained about Paxton's conduct. Her work seemed to be more closely scrutinized than that of other nurses. Hanley felt she was disparately disciplined for minor infractions, because the head nurse openly criticized Hanley for tardiness several times in front of her co-workers.
According to the hospital, the supervisors who met with Hanley in August 1995 felt their hands were tied because she did not provide specific information with which an investigation could be conducted. The hospital's administrator, Charles Boyd, stated that he met privately with Paxton and informed him that Hanley had accused him of sexual harassment. Boyd said he told Paxton that if a formal complaint was made, there would be a full investigation and that if any of Hanley's allegations were true, he needed to cease and desist. In January 1996, Hanley was assigned to work days and no longer worked with Paxton.
The hospital alleges that while working on the dates of February 11 and 13, 1996, Hanley committed five serious nursing errors, including improperly allowing air in an IV line before she was stopped by another nurse, setting an IV pump rate at a higher level than ordered, failing to have the removal of narcotics witnessed, writing the incorrect medication dosage and failing to transfer a verbal order to a patient's chart. Hanley then missed two weeks of work due to illness. On February 26, 1996, Hanley was terminated by the hospital for the alleged nursing errors.
Subsequently, the plaintiff, Hanley, filed a petition for damages against the defendant, *515 Doctors Hospital, alleging sexual harassment and retaliation. After filing suit, the plaintiff died of unrelated causes in April 2000. Pamela Raspberry, the administratrix of Hanley's succession, was substituted as party plaintiff. After a trial, the jury found that defendant was liable for sexual harassment and awarded plaintiff $100,000 in lost wages, $100,000 for emotional distress and $300,000 in punitive damages. Regarding the retaliation claim, the jury awarded $80,000 for emotional distress and $500,000 in punitive damages. Hanley's total award was $1,080,000.
Applying the damages cap provided in 42 U.S.C. § 1981a, the trial court rendered judgment awarding the succession of Hanley $579,900, consisting of the following amounts:
Emotional pain and suffering-plaintiff's $100,000
state law sexual harassment claim
Lost wages and benefits-plaintiff's $100,000
retaliation claim under state and
federal law
Emotional pain and suffering-plaintiff's $ 79,900
state law retaliation claim
Emotional pain and suffering-plaintiff's $ 100
federal sexual harassment and
retaliation claims
Punitive damages-plaintiff's federal $299,900
sexual harassment and retaliation
claims
The trial court also awarded attorney fees and costs of $127,966.49. Thus, the plaintiff's estate was awarded the total sum of $707,866.49. The defendant appeals the judgment.
DISCUSSION
The defendant contends the evidence was insufficient to support the jury's finding that sexual harassment occurred. Defendant argues that the plaintiff failed to show that hospital personnel knew or should have known of the harassment because her initial allegations were vague and she did not notify the hospital that Paxton had resumed harassing her after a period without incident following the August 1995 meeting.
LSA-R.S. 23:1006 prohibits intentional discrimination on the basis of race, color, religion, sex or national origin. Louisiana's anti-discrimination law is similar in scope to the federal statute prohibiting discrimination based on sex found in Title VII of the Civil Rights Act of 1964, at 42 U.S.C. § 2000e. Lebeaux v. Newman Ford, Inc., 28,609 (La.App.2d Cir.9/25/96), 680 So. 2d 1291.
A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. Alphonse v. Omni Hotel Management Corp., 94-0157 (La.App. 4th Cir.9/29/94), 643 So. 2d 836. To satisfy the burden of proof under Title VII, the plaintiff was required to prove that: (1) she belonged to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on gender; (4) the harassment affected a term or condition of employment; and (5) the employer knew or should have known about the harassment and failed to take prompt remedial action. Waltman v. International Paper Co., 875 F.2d 468 (5th Cir.1989); Lebeaux, supra.
In the present case, Ginger James, an RN and long-time employee of defendant, testified that Hanley told her that Paxton had acted inappropriately by approaching her from behind and pressing his body against her body. James stated that she informed Nettles and Shelton of Hanley's complaint about Paxton's improper sexual touching.
Kerri Stevens, a licensed practical nurse who sometimes worked in the ICU, testified that she personally observed Paxton *516 grab Hanley's buttocks as she walked past him while they were working. Stevens stated that she informed Shelton that Paxton had been fired from another hospital due to sexual harassment and that she had witnessed him perform the same behavior toward Hanley. Although Stevens did not remember the specifics of their conversation, she believed she told Shelton enough to make her aware that Paxton's conduct was sexual harassment.
Stevens also testified that Paxton remarked about Hanley's appearance and said that the shape of her mouth meant she would be able to perform oral sex. Stevens acknowledged that she had been terminated by defendant after being disciplined on two occasions for improper documentation of narcotics.
Gail Modisette, the defendant's human resources director, testified that she knew Hanley had complained about Paxton's inappropriate sexual behavior. Modisette told Shelton and Nettles to meet with Hanley and review the sexual harassment policy, to ask her for specific incidents and for the names of any witnesses. Modisette stated that employees were given a copy of the policy when hired, but that it was not posted in the hospital. Modisette testified that defendant did not provide training to assist employees in recognizing sexual harassment and that she was not aware of any training for department heads in responding to such complaints. Modisette acknowledged that she did not question Paxton about his conduct after Hanley's complaint and did not discuss defendant's sexual harassment policy with employees as a group.
Pamela Shelton, the assistant director of nurses at the time of Hanley's employment, testified that she and Jackie Nettles met with Hanley in August 1995 to discuss her concern about Paxton's conduct. Shelton stated that Hanley complained that she was having a problem with sexual harassment by Paxton, but she did not provide any specifics about his behavior. Shelton asserted that Hanley did not want any action taken, but only wanted hospital administrators to be aware of the situation in case anyone else complained about Paxton's behavior.
Shelton testified that after the meeting, her hand-written notes were typed and then signed by Nettles and herself as documentation of the meeting. Shelton acknowledged that she did not give Hanley a copy of the notes and did not allow her to read or sign the document to indicate whether she agreed with the contents. Shelton stated that she later telephoned Hanley at the ICU as a follow-up to the meeting and Hanley told Shelton that she was not having any further difficulty. However, Shelton did not document this action in writing.
Shelton testified that she advised Hanley not to talk to other employees about the situation, out of concern for Paxton's privacy, and told her that the hospital could not take any action because there was only her word about his conduct. However, Shelton acknowledged that she was personally aware that Paxton had previously told "off-color" jokes at work. Shelton denied saying on three occasions that she was too busy to meet with Hanley and discuss Paxton, asserting that such events "never happened."
In her deposition, Hanley testified that in Summer 1995, she told Ginger James that Paxton's inappropriate touching of her body and sexual jokes were interfering with her ability to work. In August 1995, Hanley attended a meeting with Shelton, Nettles and Modisette and told them that Paxton was touching her in a sexual manner, making sexual remarks and that his behavior was offensive and inappropriate. Hanley acknowledged that she "generalized" *517 about Paxton's behavior at the meeting because she was very uncomfortable talking about the subject. Hanley stated that during the meeting, she felt that her concerns were not taken seriously and that Shelton did not believe her complaints.
Hanley testified that Paxton commented on her breasts and buttocks almost every time they worked together and suggested that she participate in a sexual "threesome." Hanley stated that Paxton had grabbed her buttocks several times, that on more than two occasions, Paxton approached her from behind and pressed his body against hers and that he had followed her into the women's restroom. Hanley testified that for a brief period of two to three weeks after the August meeting there were not any incidents because she did not work with Paxton during that time. However, when they were again scheduled to work together, Paxton resumed his offensive touching and improper sexual comments.
In his testimony, Paxton denied touching Hanley in a sexual manner and asserted that while working together, he and Hanley had participated in "flirtatious conversations." Paxton testified that neither Nettles nor Modisette had given him a warning that his behavior was inappropriate.
Charles Boyd, the hospital administrator, testified that after receiving reports from Hanley's supervisors, he met with Paxton. Boyd stated that he informed Paxton that Hanley had alleged he was sexually harassing her, but accepted Paxton's denial of such behavior. Boyd did not meet with Hanley.
Based on the foregoing testimony, the jury could reasonably have found that Hanley produced sufficient evidence demonstrating that Paxton had touched her in a sexual manner and directed sexual comments toward her and that defendant had received notice of Paxton's harassment from the reports of Hanley and another nurse. Consequently, we conclude that the evidence presented supports the jury's finding that Hanley was subjected to sexual harassment affecting conditions of her employment and that defendant knew or should have known about the harassment, but failed to take prompt remedial action. The assignment of error lacks merit.
Prescription
The defendant contends the trial court erred in finding that plaintiff's claims had not prescribed. Defendant argues that the alleged sexual harassment would have ended by February 13, 1996, so that plaintiff's suit filed on February 24, 1997, was untimely.
When the plaintiff alleges a continuing course of harassing conduct, the defendant pleading prescription has the burden of proving the facts necessary to sustain the plea. Bustamento v. Tucker, 607 So. 2d 532 (La.1992). When the conduct and resulting damages continue over time, the prescriptive period does not commence until the last act occurs or the conduct causing the damage is abated. Waltman v. International Paper Co., 875 F.2d 468 (5th Cir.1989). Prescriptive statutes are to be strictly construed. Bustamento, supra.
In the present case, Hanley testified that on several occasions, Paxton telephoned her from other job sites while she was working, even though she had previously told him not to call. Hanley stated that these contacts were unwelcome, offensive and upsetting to her. The testimony indicates that because of Paxton's prior acts of harassment, the prospect that Paxton would continue to contact her caused Hanley anxiety and stress even when they were not working together. Thus, the trial court could reasonably find *518 that a hostile environment existed and continued to cause harm to Hanley up until the point she was terminated on February 26, 1996. Consequently, we cannot say the trial court erred in concluding that Hanley's claims had not prescribed when suit was filed on February 24, 1997. The assignment of error lacks merit.
Evidentiary Issues
The defendant contends the trial court erred in admitting evidence of errors committed by other nurses who did not work in the ICU or who worked at times before or after Hanley's period of employment. Defendant argues that such evidence confused the jury and should have been excluded.
All relevant evidence is admissible unless otherwise provided by law. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. LSA-C.E. arts. 401-403. Generally, the trial court is accorded discretion concerning the admission or exclusion of evidence. A trial court's decision to admit or exclude evidence will not be reversed absent an abuse of discretion. Dixon v. Winn-Dixie Louisiana, Inc., 93-1627 (La.App. 4th Cir.5/17/94), 638 So. 2d 306.
In the present case, Ginger James testified about errors made by other nurses at Doctors Hospital, including Val Anderson, Joyce Clements, Karen Noble, Royette Trotta, Cora Rose and Elaine Mack. All except Anderson and Trotta were RNs. Clements, Noble and Trotta worked in the ICU. At trial, defendant renewed its objection to testimony about nursing errors made by others after Hanley's termination and following the hospital's internal policy change concerning documentation of errors. The trial court stated that defendant's objection went to the weight of the evidence and that the testimony was admissible to give Hanley the opportunity to prove retaliatory discharge by showing that other nurses made similar mistakes but were treated differently.
The testimony indicated that despite any change in the documentation procedure in 1998, the same type of errors were considered "serious" both during Hanley's employment and afterward. In addition, the evidence showed that the types of errors committed, such as sleeping on the job or giving the wrong medication, could be compared between different departments of the hospital. Defendant was able to address those factors which it believed indicated that the other nurses discussed were not similarly situated to Hanley. The jury was able to evaluate the extent to which Hanley was treated differently. Based upon this record, we cannot say the trial court abused its discretion in admitting the evidence. The assignment of error lacks merit.
The defendant contends the trial court erred in denying defendant's motion to exclude testimony about a "late entry" on an emergency room patient's chart by RN Kurt Hartman. A trial judge's assessment of the probative value of evidence is afforded great weight. Green v. Claiborne Electric Co-op., 28,408 (La.App.2d Cir.6/26/96), 677 So. 2d 635.
Here, Deborah Weeks testified that while working as a nurse at Doctor's Hospital, she discovered that Hartman had failed to record a patient's vital signs during his shift. Weeks stated that some time later Hartman had written in the vital signs without designating the information as a late entry, an act which could be considered as falsifying medical records. This error was discovered approximately one year later while Hanley was working *519 at the hospital. Hartman was not counseled or disciplined in any way.
Defendant argues the testimony should have been excluded because Hartman, who worked in the emergency room, was not a comparable nurse to Hanley, there was an explanation for his act and the evidence gave the jury an unfair image of defendant. However, the jury was able to weigh Hartman's status as an ER nurse and the explanation provided for his conduct when considering the evidence.
Defendant also asserts that the trial court denied the motion despite finding that the prejudicial effect of this testimony would outweigh its probative value. As defendant points out, the trial transcript quotes the court as stating: "I think it is an appropriate line of inquiry. I think the prejudicial effect would outweigh the probative value. I think probative value is present, and the motion in limine will be denied." In light of the trial judge's comments and ruling, the defendant's assertion that the court found the testimony overly prejudicial is not reasonable in the context of the proceedings. We cannot say the trial court abused its discretion in denying the motion.
In two assignments of error, the defendant contends the trial court erred in excluding the testimony of Sherlynne Wright, Natalie Callahan and James Ferris. Defendant argues that Wright's testimony concerning a telephone call to plaintiff by her supervisor, Pam Shelton, should have been admitted to impeach plaintiff's contention that no one at the hospital followed up on her situation after the August 1995 meeting. The court found that Wright's proposed testimony was not reliable, since Wright did not recall the exact words spoken by Hanley and the testimony was based on partial statements Wright overheard two years previously in response to an unknown question. We cannot say the trial court abused its discretion in excluding the evidence.
Defendant argues that Ferris would have testified that Hanley made errors at Bossier Medical Center after she was fired by defendant and that the testimony should have been admitted to rebut her contention that retaliation was the actual motive for her termination. In his deposition, Ferris testified only that Hanley was on the list not to call back for work and that she "probably" made a medication error, but that he did not specifically remember. Thus, Ferris did not demonstrate personal knowledge of nursing errors by Hanley and the court's exclusion of the testimony was not an abuse of discretion.
Contrary to defendant's contention in its brief, the record does not show that the court refused to allow defendant to present Callahan's testimony. In a pretrial hearing, the court deferred a decision regarding Callahan to a later time. However, the defendant did not subsequently seek a ruling by the court or call Callahan as a witness. Thus, the issue is moot. The assignments of error lack merit.
Retaliation
The defendant contends the evidence does not support the jury's finding that Hanley was terminated in retaliation for her complaint about sexual harassment. To establish a prima facie case for retaliation, the plaintiff must prove by a preponderance of the evidence that: (1) she engaged in an activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Long v. Eastfield College, 88 F.3d 300 (5th Cir.1996). Once the plaintiff establishes a prima facie case, the burden of production shifts to *520 defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action. Long, supra.
If the defendant introduces evidence which, if true, would permit the conclusion that the adverse action was non-discriminatory, the employee assumes the burden of proving that the reasons given were a pretext for retaliation. The plaintiff must show that "but for" the protected activity, the termination would not have occurred. McMillan v. Rust College, Inc., 710 F.2d 1112 (5th Cir.1983).
In the present case, Hanley demonstrated that she engaged in a protected activity and experienced an adverse employment decision. In order to establish a causal link between her termination and the protected activity, Hanley introduced evidence showing that other hospital employees committed similar or more serious nursing errors as those for which she was purportedly terminated, but were not disciplined in the same manner. The testimony showed that when a nurse made an error, the supervisor could issue a verbal or written counseling, which was documented by an "exceptional memo" placed in the nurse's personnel file.
Hanley testified that when she complained about Paxton's sexual harassment in August 1995, Shelton and Nettles were not supportive, since Shelton expressed her belief that Hanley was overreacting and they said that no action would be taken if she did not make a "formal" complaint. Hanley stated that after the meeting, she felt that the head nurse, Bill Chreene, gave her work special scrutiny and criticized her for tardiness more severely than other nurses who were late. The evidence shows that Hanley was not counseled about or given a chance to explain her February 1996 errors prior to her termination, which occurred approximately six months after her complaint of sexual harassment. Based on this record, the jury could have found sufficient evidence to establish, for the purposes of a prima facie case, a causal link between Hanley's protected activity and her termination.
Thus, the burden shifted to defendant to articulate a non-discriminatory reason for terminating Hanley. The defendant presented testimony by Shelton that Hanley was fired because of a series of "potentially serious" errors in the ICU, including the use of an IV line containing air, the failure to write down a doctor's verbal order and setting an IV rate at a speed higher than ordered. Shelton testified that she felt there would be patient injury as a result of Hanley's errors and that termination was warranted.
Jo Anne Molnar, the hospital risk manager, testified that Hanley's most serious error was setting the IV fluid rate too high and then leaving, so that the IV bag ran empty, causing a situation that could have been dangerous for the patient. Molnar stated that although the patients were not harmed, Hanley made an unusual number of errors in a brief time period.
Linda Dessommes, an RN accepted as a nursing expert, testified that she reviewed the termination memo and that Hanley's errors on February 11 and 13, 1996, potentially posed a threat to patients. Dessommes opined that Hanley's termination was appropriate at the time and was consistent with defendant's procedure that in serious situations progressive discipline was not required. Based on the foregoing testimony, the defendant met its burden by offering admissible evidence sufficient for the trier of fact to conclude that Hanley was fired after committing a number of nursing errors within a two-day period. Thus, Hanley bore the burden of *521 proving that but for the protected activity, she would not have been fired.
The evidence shows that in Hanley's initial three-month evaluation, she met expectations for the job, except for tardiness when she did not have her own vehicle. In December 1994, Hanley received written counseling for problems at work when she was seen visibly shaking and crying, her blood pressure was elevated and she was unable to function. Two days later, a nurse reported that "something was wrong" with Hanley, who thought the problem was a reaction to a change in medication. Hanley was assigned to work with another nurse for a two-week evaluation period, which she completed satisfactorily. Hanley's annual evaluation, signed by Chreene on August 31, 1995, listed scores of one in all areas, indicating that her performance met the requirements of the job.
In October 1995, two months after her complaint, Hanley was counseled for reporting to work two hours late and for incorrectly transcribing the medication dosage ordered by a physician. In November 1995 and December 1995, exceptional memos were issued to Hanley when she made arrangements to change her work schedule without contacting the nursing supervisor.
In February 1996, the termination memo listed five separate errors allegedly made by Hanley some time during February 11 and 13, 1996, but did not identify the specific date of each error. The memo stated that Hanley was flushing an IV line containing air and was "stopped by co-worker before total amount of air given to patient...." However, the testimony indicated that Hanley was working to clear the line of air and she did not actually inject any air into the patient.
The memo reported that Hanley failed to write down a physician's verbal order to delay a transfusion, failed to sign the log after obtaining a narcotic, set the IV fluid rate at a higher level than ordered and did not give a prescribed medication. The testimony showed that Hanley believed another nurse had agreed to write the verbal order and that although the IV bag was emptied, the IV had been running for approximately seven hours before the rate was increased and the patient had requested more relief. The memo was signed by Nettles and Shelton, who concluded that Hanley's performance was "unacceptable" and required termination.
James testified that normally she spoke with a nurse accused of errors prior to any discipline, but that Hanley was not counseled about any of the incidents in the final memo. James acknowledged that although Hanley had made several errors in one day, she had not compromised the health of any patient. In contrast to the discipline applied to Hanley, the jury heard evidence about Karen Noble, an RN who worked in the ICU before, during and after Hanley's period of employment.
In May 1992, Noble failed to properly respond to a patient's cardiac arrest. In the exceptional memo, Nettles wrote that this was "a critical offense and unacceptable behavior" for an RN in the ICU. Noble was not terminated, but suspended for one day. In November 1994, when Hanley was also employed by defendant, Noble twice gave a patient medication without a doctor's order. Although this behavior was called "unacceptable," Noble was merely given a warning that another such incident could result in termination. Noble was still employed by defendant at the time of trial.
The jury heard testimony that in February 1996, the month of Hanley's termination, the central line in a patient's jugular vein was pulled out while Katherine *522 Behan, an ICU nurse, was turning the patient, who began to bleed profusely. Because the nurse could not re-insert the central line, a doctor had to be called in. Despite committing this serious error, which placed the patient at risk for infection, Behan was not counseled or disciplined in any manner.
The evidence also demonstrated that Clements, an RN who worked in the ICU, committed a series of errors over an extended period of time. In February 1998, she was counseled for sleeping on duty and in May 1998, she failed to record a patient's vital signs. In July 1998, Clements missed giving medication to a patient for three consecutive days. In September and October 1998, she again failed to give prescribed medication to patients. After each of these errors, the supervisor counseled Clements, who continued to work. In November 1998, Clements was placed on three-months probation during which her work was monitored.
The defendant contends the multiple errors committed by Hanley over two days are not comparable to the series of errors made over a longer time period by other nurses. However, the jury could reasonably have concluded that the several errors made by Hanley were not more detrimental to patient care than another nurse's error of pulling the central line from a patient's neck, giving a patient the wrong medication or giving medicine which was not prescribed by a physician. Thus, the evidence supports a finding that Hanley was disciplined in a much different manner than the previously discussed nurses, who were given numerous chances to improve their performance. In contrast, Hanley was not given a chance to improve or even to explain the circumstances of the listed errors, as neither Shelton, Nettles nor James spoke to Hanley prior to the decision to terminate.
The factfinder's disbelief of the reasons asserted by defendant may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the jury to infer the fact of retaliation. Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Here, Shelton testified that Hanley's termination was necessary because of several "potentially serious" errors and the fear that there "would be" patient injury. The testimony demonstrated that this preemptive approach was quite different from the discipline applied to other nurses whose performance was labeled "unacceptable," and who actually injured patients, but who were not terminated because of their errors. In addition, when asked why Hanley had been disciplined concerning errors for which other nurses generally were not counseled, James testified that it appeared that when Nettles and Shelton compiled the list of Hanley's errors, "they were trying to stress the severity of the mistakes she was making." This statement, along with the evidence of disparate treatment of Hanley and her prior satisfactory performance evaluation could support a jury's finding that the employer intentionally discriminated against Hanley.
The jury heard the conflicting testimony and evaluated the parties' competing theories of the meaning of the evidence. After reviewing the record and applying the manifest error standard of review, we cannot say that the jury was clearly wrong in finding that the reasons offered by defendant for firing Hanley were pretexts for unlawful retaliation and that Hanley would not have been terminated but for her sexual harassment complaint. The assignment of error lacks merit.
Jury Instructions
The defendant contends the trial court erred in instructing the jury on the *523 duty to mitigate damages. Defendant argues that the jury's excessive back pay award resulted from the court's incorrect statement of law.
After presentation of all the evidence and arguments at trial, the court shall instruct the jurors on the law applicable to the cause submitted to them. LSA-C.C.P. art. 1792. Adequate jury instructions are those which provide the correct principles of law for the jury to apply to those issues reasonably raised by the pleadings and evidence. The trial court is not required to give the precise instruction submitted by a litigant, but need only give instructions which properly reflect the applicable law. Wilson v. National Union Fire Ins. Co., 27,702 (La.App.2d Cir.12/6/95), 665 So. 2d 1252.
The adequacy of jury instructions must be determined in light of the instruction as a whole. Belle Pass Terminal Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir.3/11/94), 634 So. 2d 466, writ denied, 94-0906 (La.6/17/94), 638 So. 2d 1094. A jury verdict will not be set aside because of an incorrect jury instruction absent a showing of prejudice such that the jury was misled and was unable to render a just verdict. Roger v. Dufrene, 97-1946 (La.App. 4th Cir.9/9/98), 718 So. 2d 592. Appellate courts exercise great restraint before overturning a jury verdict on the suggestion that the instructions were so erroneous as to be prejudicial. Wilson, supra.
In the present case, the court instructed the jury that a plaintiff seeking an award of lost wages has a duty to mitigate those damages by using reasonable diligence to find other substantially equivalent employment. Defendant contends the court misstated the law in the portion of its instruction stating that plaintiff's damages could be reduced only if she voluntarily left her employment from positions held after her termination from defendant and failed to pursue other work. However, defendant has not shown how that part of the instruction was inconsistent with the law's requirement that plaintiff use reasonable exertion to find similar employment.
The defendant also contends the trial court erred in denying the requested jury instructions on the issues of burden of proof, course and scope of employment and vicarious liability. Defendant asserts that the jury should have been told that defendant would only be liable for Paxton's harassment if it were separately negligent and he was in the course and scope of his employment, and that the instruction failed to explain to the jury that once defendant gave a legitimate non-discriminatory reason, the plaintiff bears the burden of proving that the reason given was a pretext.
Here, the trial court instructed the jury that one of the elements of sexual harassment the plaintiff was required to prove was that defendant knew or should have known about the harassment. This is a correct statement of the law and addresses the issue of whether defendant acted reasonably under the circumstances, which is the proper negligence inquiry.
Contrary to defendant's assertion, the court instructed the jury that if Hanley presented evidence that she was terminated in retaliation, the burden shifts to defendant to present a non-discriminatory reason and if the jury finds that defendant "has met this standard, the burden shifts back to the plaintiff, Mrs. Hanley." Considering the jury instruction as a whole, we conclude the court adequately expressed the applicable law and did not err in refusing to give the requested instructions.
Emotional Distress Damages
The defendant contends the jury erred in awarding Hanley a total of $180,000 in *524 emotional distress damages. Defendant argues that the evidence does not support any damage award, or alternatively, that the awards are excessive and should be reduced.
General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment or other losses of lifestyle that cannot be definitively measured in monetary terms. Robbins v. State Dept. of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So. 2d 991. Before an appellate court may disturb such an award, the record must clearly show that the factfinder abused its broad discretion in making the award. Robbins, supra. The finding of an abuse of much discretion must be based on the particular injuries sustained and their effect on the particular injured person. After a determination that an award constitutes such an abuse of discretion, the appellate court may reduce or increase the award to the highest or lowest amount reasonably within the factfinder's discretion. Wilson, supra.
The United States Supreme Court has held that compensatory damages such as emotional harm caused by discrimination may be awarded only when claimants submit proof of actual injury. Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). The existence, nature and severity of emotional harm must be proved. Such harm may manifest itself as anxiety, stress, depression or humiliation. Physical manifestations of emotional harm may consist of gastrointestinal disorders or headaches. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir.1996). To prove a claim for mental distress damages, there must be a specific discernable injury to a claimant's emotional state. Therefore, a claimant must present testimony or other evidence to show the nature and extent of the emotional harm caused by the alleged violation. Vadie v. Mississippi State Univ., 218 F.3d 365 (5th Cir.2000); Patterson, supra.
In the present case, Hanley's friend, Pamela Raspberry, testified that she was told about Paxton's inappropriate conduct by Hanley, who was "visibly affected" and troubled by the harassment. Raspberry stated that after the termination, Hanley was "really down, not motivated and obviously depressed."
Linda Ellis, a nurse and Hanley's sister-in-law, testified that she observed Paxton inappropriately touch Hanley, who became upset and went outside to cry. Ellis stated that the harassment caused Hanley to feel anxious, upset and sometimes depressed. Hanley's former boyfriend, Donald Miller, testified that as a result of the harassment, Hanley did not want to leave the house to go shopping or to eat. Miller stated that Hanley became solemn and was not happy.
Hanley's daughter, April Hanley, testified that after some of the incidents of harassment, her mother became upset and cried and that after the termination, Hanley was humiliated. April stated that her mother went through a period of depression at the time.
Hanley testified that Paxton's harassment caused her stress and that when they were required to work together on a regular basis she experienced "constant headaches, constant stomach aches, diarrhea, high blood pressure, [and] nausea. He made me sick." Hanley stated that she did not have any psychiatric or psychological therapy while working at Doctors Hospital, but had continued taking Prozac and Xanax.
Defendant cites Brady v. Fort Bend County, 145 F.3d 691 (5th Cir.1998), in support of its argument that the evidence *525 does not justify a compensatory award. However, the present factual situation can be distinguished from that of Brady, where the employee's own testimony was the sole source of evidence on emotional distress. Here, Hanley's testimony that the harassment caused her stress, headaches and high blood pressure was corroborated by other witnesses who observed that Hanley appeared anxious, depressed and solemn during the time that she was harassed. Her daughter testified that Hanley was humiliated as a result of the harassment and her termination.
We note that pursuant to Patterson, expert or medical evidence is not a prerequisite for an award of emotional distress damages. After reviewing the entire record, we conclude that the foregoing testimony was sufficient to support a finding that Hanley sustained an actual injury to her emotional state, as manifested by evidence that she experienced stress, anxiety depression and headaches. Consequently, we cannot say the jury abused its broad discretion in awarding this plaintiff emotional distress damages of $100,000 for the sexual harassment claim and $80,000 for the retaliation claim. The assignment of error lacks merit.
Allocation of Damages
Defendant contends the trial court erred in allocating all except $100 of the compensatory damages award to plaintiff's state law claims. Defendant points out that the issue of allocation has apparently not been addressed in a published opinion of Louisiana state courts or the U.S. Fifth Circuit Court of Appeal.
The U.S. Ninth Circuit has stated that generally, the district court has discretion regarding the allocation of the damage award. Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493 (9th Cir. 2000). In the absence of a statutory prohibition, we are persuaded that the trial court has the discretionary authority to allocate the damage award among the state and federal claims as would be consistent with the jury's verdict. Consequently, we conclude that the trial court did not abuse its discretion in its allocation of damages. The assignment of error lacks merit.
Punitive Damages
The defendant contends the jury erred in awarding punitive damages. Defendant argues that the evidence does not support such an award.
In order to recover punitive damages under 42 U.S.C. § 1981a(b)(1), the complaining party must demonstrate that the defendant engaged in a discriminatory practice with malice or with reckless indifference to the federally protected rights of the employee. Kolstad v. American Dental Assoc., 527 U.S. 526, 119 S. Ct. 2118, 144 L. Ed. 2d 494 (1999); Patterson, supra. In addition, the plaintiff must show that the discriminatory act was committed by a managerial agent acting within the scope of his employment. Kolstad, supra. In the punitive damage context, an employer may not be vicariously liable for the discriminatory employment decision of managerial agents where those decisions are contrary to the employer's good-faith efforts to comply with Title VII. Kolstad, supra; Rubinstein v. Administrators, 218 F.3d 392 (5th Cir.2000).
Here, the record shows that Nettles and Shelton were acting in their supervisory capacity in making the decision to terminate Hanley and that Boyd possessed the final authority to dismiss employees as hospital administrator. Thus, the decision was made by defendant's managerial agents acting within the scope of their employment. We must next consider whether the discriminatory act was committed *526 with malice or with reckless indifference to Hanley's rights.
The evidence shows that prior to termination, the employer did not ask Hanley for an explanation of the errors which were purportedly the basis for her firing and did not allow her an opportunity to improve her performance. This procedure significantly departed from the defendant's usual practice at the time. Additionally, the termination memo expressly misrepresented that Hanley had been previously warned about the listed errors. The memo stated that patient safety required Hanley's immediate termination, but the testimony demonstrated that Hanley did not cause harm to any patient. The jury heard the explanations of the supervisory employees for their actions and weighed their credibility. Based on the evidence, the jury could have reasonably concluded that the defendant's representatives were consciously indifferent to the truth and legality of their actions with respect to Hanley's rights.
Defendant asserts that it should not be liable for the discrimination of its agents because it offered evidence of good faith efforts to comply with Title VII, including its written policy prohibiting sexual harassment and the presence of a human resources director. However, other than showing the policy was handed out to employees when hired, the evidence indicates that the defendant did not provide further training to employees regarding sexual harassment issues and failed to take even the minimal steps of posting the harassment policy in staff areas or periodically scheduling employee group conferences to review the policy.
In addition, the human resources director, Gail Modisette, testified that she knew Hanley had complained about inappropriate sexual behavior by Paxton, but did not ask him about his activities. Modisette stated that she understood Hanley was fired because of errors detrimental to patient care, but admittedly was unaware of whether any patient was actually placed at risk of harm by Hanley's conduct. Based upon this record, the jury could have inferred that defendant's policy against harassment was inadequately enforced and the assessment of punitive damages was warranted.
Defendant contends the punitive damages award is excessive. In determining whether a punitive damage award is reasonable, the court must consider: (1) the degree of reprehensibility of defendant's conduct; (2) the disparity between the harm suffered and the punitive damage award; and (3) the difference between the award in this case and comparable cases. We review the reasonableness of the jury's punitive damage award for an abuse of discretion. Patterson, supra.
In the present case, although the jury could infer that the defendant acted with indifference toward Hanley's rights, the record does not demonstrate a high degree of reprehensibility. As previously noted, the defendant had developed a policy against sexual harassment and provided notice to each employee. Regarding the second factor, we note that under the trial court's allocation of compensatory damages, there is a significant disparity between the emotional distress damages awarded for the federal claims and the punitive damage award of $299,900. In comparing the award in this case to that in comparable cases, we are guided by the punitive damage awards found reasonable in Title VII cases decided by the U.S. Fifth Circuit Court of Appeal. In Deffenbaugh-Williams v. Wal-Mart Stores Inc., 188 F.3d 278 (5th Cir.1999), an employment discrimination case, the court awarded $75,000 in punitive damages after reducing the jury's award.
*527 Applying the foregoing factors to the facts of the present case, we must conclude that the punitive damage award of $299,900 is an abuse of discretion. After reviewing the record, we find that the highest amount of punitive damages the jury reasonably could have awarded is $100,000. This amount will serve the purpose of the legislation, which is to penalize the defendant and deter other employers from engaging in such conduct in the future. In reaching this conclusion, we pretermit a discussion of the assignment of error concerning the application of the statutory damages cap under 42 U.S.C. § 1981a(b)(3).
Attorney Fees
The defendant contends the trial court erred in assessing attorney fees of $127,966. Pursuant to 42 U.S.C. § 1988(b), courts may award reasonable attorney fees to prevailing parties in civil rights cases. We review a district court's award of attorney fees for abuse of discretion. Giles v. General Electric Co., 245 F.3d 474 (5th Cir.2001). To determine a reasonable award, the district court should consider the twelve factors of Johnson v. Georgia Hwy. Express, 488 F.2d 714 (5th Cir.1974), including the novelty and difficulty of the case, the skill required to perform the legal services, the customary fee, the amounts involved and results obtained, the time and labor required and awards in similar cases.
First, the court calculates a "lodestar" fee by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers. Migis v. Pearle Vision Inc., 135 F.3d 1041 (5th Cir.1998). An appropriate hourly rate is based on prevailing community standards for attorneys of similar experience in similar cases. Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.1990). The court then considers whether the lodestar figure should be adjusted upward or downward depending on the circumstances of the case. Migis, supra.
In the present case, plaintiff's counsel sought the hourly rate of $175 for herself and $110 for co-counsel. Defendant complains the court abused its discretion in setting the hourly rate and allowing recovery for both of plaintiff's attorneys to attend the entire trial.
The court set the hourly rate for attorney Lyons at $150 based upon her 19 years of experience and her performance during the trial. The court found that plaintiff's use of two lawyers throughout the six-day trial was reasonable given the complexity of the issues and the fact-intensive nature of the case. The court found that Hanley's attorneys shared responsibility in questioning witnesses and that the hourly rate of $110 for attorney Walker was reasonable. The trial court declined to enhance the lodestar figure for delay in the payment of damages as requested by plaintiff, but assessed legal interest from the date of judicial demand. The court found that although the costs for paralegal work and photocopying seemed slightly high, they were not excessive.
We note that the court reviewed the plaintiff's attorney fee application, which included detailed records of the hours expended by her counsel in the case and a comprehensive discussion applying the Johnson factors. The record shows that the discovery process was extensive, with 36 depositions by the parties and disputes resulting in two applications for supervisory writs to this court. Plaintiff's counsel successfully opposed two motions for summary judgment and the jury instructions were strongly contested.
Applying the Johnson factors, the time and labor required and the skill and *528 experience of the attorneys are reflected in the lodestar figure computed by multiplying the hours expended by attorneys Lyons and Walker by their respective hourly rates. The court addressed defendant's objection that the time charged for preparing the pre-trial order was duplicative, specifically finding that the time expended by plaintiff's lawyers was appropriate.
In reviewing the time sheets for the paralegal services, we note numerous entries labeled as "summarize depositions," "preparation for trial" and "work on exhibit books." Such general labels do not give the court sufficient information to determine the specific service performed or whether the work was reasonably necessary. Consequently, the trial court erred in allowing full recovery for the total amount of those hours. We shall subtract 76 hours, or $3,800, from the total amount for paralegal services to adjust for the excessive award. We shall also delete the amount of $36.44 charged for attorney meals.
Defendant also contends the court erred in assessing interest on the attorney fees from the date of judicial demand. The interest on an attorney fee award runs from the date of the judgment establishing the right to the award. Jenkins by Agyei v. Missouri, 931 F.2d 1273 (8th Cir.1991); Sharbono v. Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So. 2d 1382. Thus, we shall amend the judgment to assess interest on the award of attorney fees from the date of judgment.
In light of the detailed records submitted by plaintiff's counsel and the trial court's review of the documentation, with the exception of the reductions in the paralegal fees and meal costs, we shall otherwise affirm the trial court's fee award.
CONCLUSION
For the foregoing reasons, that part of the judgment awarding punitive damages is amended and the amount of $100,000 in punitive damages is hereby awarded to plaintiff. Additionally, the attorney fee award is reduced by the amount of $3,836, resulting in an attorney fee award of $124,130. Interest on the award of attorney fees is assessed from the date of judgment. The judgment is in all other respects affirmed. Costs of this appeal are assessed to the appellant, Doctors Hospital of Shreveport.
AMENDED AND AFFIRMED AS AMENDED.
CARAWAY, J., concurs in part and dissents in part with reasons.
CARAWAY, J., concurring in part and dissenting in part.
I concur with the majority's rulings regarding Hanley's sexual harassment claim for hostile work environment and her claim for the defendant's retaliation. Nevertheless, I respectfully dissent regarding the award for punitive damages, based upon the discussion of the requirement for malice or reckless indifference in Kolstad v. American Dental Association, 527 U.S. 526, 119 S. Ct. 2118, 144 L. Ed. 2d 494 (1999).
In this type of case, inferences properly drawn from circumstantial evidence are essential for the trier of fact to determine that an illegally motivated employment decision occurred. A crucial fact, setting the bar high for any inference of corporately motivated malice in this case, is the perpetrator/co-worker's relatively insignificant position in the organization. This is not a case of a highly positioned agent/supervisor, who not only directly sexually harasses the employee, but also influences the corporation for an adverse employment action. *529 An employee's accusation against such a powerful corporate official is effectively a charge directly against the corporation, and malicious actions may ensue. This is not a case like Kolstad, where the corporate decision maker directly and intentionally denied the plaintiff an employment promotion based on her sex. This is a case where a group of three female supervisors negligently minimized charges against a male minion whose lewd conduct violated Title VII by creating a hostile work environment. It is difficult enough to transform the supervisors' negligent indifference to the charge against this subordinate into intentional deliberations to retaliate against Hanley for bringing up the charge in the first place. It is most difficult, and unsubstantiated in this case, to infer that the retaliation was not merely intentional, but made with malice or with reckless indifference to Hanley's federally protected rights.
While this is a clear situation of corporate negligence for allowing Hanley to suffer sexual harassment by Paxton, the retaliation claim is a much closer case. Hanley sought to enforce her Title VII protection to prevent Paxton's conduct. Some six months later, after Paxton and Hanley were no longer working together and the hostile environment might be considered by the hospital as a thing of the past, the negligent staff, which at first had placed little significance on Paxton's conduct, develops newfound concerns causing a retaliatory discharge of Hanley. Why? The inferences that flow from these circumstances are mixed. There is no direct evidence that Hanley had ever threatened the hospital for its negligence in allowing the hostile work environment. She may not have even understood at the time that she had a claim against the hospital for her co-worker's actions. Thus, the inference that the hospital retaliated after the co-workers were no longer working together is rather weak. Most parties avoid the "sleeping dog."
More significantly, the hospital met its burden of showing that Hanley was discharged for legitimate, nondiscriminatory reasons. Regardless of the comparison that was made concerning the hospital's disciplinary actions towards other nurses that made medical errors, Hanley's medical errors were serious mistakes. Those mistakes, coupled with her overall employment record before and after her report of Paxton's conduct, gave the hospital real cause to discharge her. In the absence of her standing as a person who had asserted her Title VII protections, the fact that the hospital discriminated in its employment decisions concerning her and other nurses was irrelevant since our employment law does not otherwise involve itself with such unfair and subjective treatment. See, Stevenson v. Lavalco, Inc., 28,020 (La.App.2d Cir.2/25/96), 669 So. 2d 608. Hanley was an at-will employee who could be dismissed for no reason or unfairly in relation to others. The fact that the evidence of the other discipline against nurses was relevant to show that retaliation in this Title VII setting may have in part prompted the hospital's action does not diminish the seriousness of Hanley's medical mistakes.
I agree with the majority that the jury could decide this rather close issue of whether a retaliatory motive for Hanley's discharge existed. However, with the hospital's evidence of Hanley's medical malpractice, I do not find that the malice or reckless indifference standard under Kolstad was proven. As the Kolstad ruling stated:
There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the *530 employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized,
. . .
Id. at 536-537, 119 S. Ct. 2118. I find it much more likely that the negligent hospital staff was still unaware of the full extent of Hanley's federally protected rights and made the decision to discharge her, believing that her serious mistakes justified their decision, regardless of whether they were also motivated in part by her complaint of Paxton's harassment. I do not find sufficient evidence of malice or reckless disregard for her rights and would reverse the award of punitive damages.
APPLICATION FOR REHEARING
Before BROWN, WILLIAMS, STEWART, GASKINS, and CARAWAY, JJ.
Rehearing denied.
CARAWAY, J., would grant rehearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613508/ | 821 So. 2d 1264 (2002)
Dianne F. PEGRAM, n/k/a Dianne Fay, Appellant,
v.
William L. PEGRAM, Appellee.
No. 2D00-1631.
District Court of Appeal of Florida, Second District.
August 2, 2002.
Christopher G.L. Titus, Fort Myers, for Appellant.
Robert B. Burandt of Roose, Sutton, Burandt, Adamski & Roland, LLP, Cape Coral, for Appellee.
NORTHCUTT, Judge.
Dianne Fay obtained judgments in New Mexico for unpaid alimony and attorney's fees against her former husband, William Pegram. She petitioned the circuit court *1265 in Lee County to domesticate these judgments in 1992. In 1995, the court entered an amended judgment that domesticated both New Mexico judgments as valid Florida judgments. That Florida judgment also stated: "All other creditor remedies are available to the Former Wife to collect on the judgments against William L. Pegram found in paragraph 1 above [the New Mexico judgments], including an equitable lien on Mr. Pegram's real property interest located at 1205 S.E. 46th Lane, # 203, Cape Coral, Florida 33904." When Fay attempted to foreclose an equitable lien in 1997, the circuit court denied relief, finding that the lien had not attached to Mr. Pegram's real property. Although we disagree with the court's reasoning, we affirm.
At the time the New Mexico judgments were domesticated, Mr. Pegram owned the real property in Cape Coral in a tenancy by the entireties with his second wife, Judy. Later in 1995, Judy and William Pegram filed a joint petition for a simplified divorce. Eventually, in May 1996, they participated in mediation and reached a property settlement agreement. The relevant portion of that agreement stated "Husband shall execute a Quit Claim Deed to the Wife for the marital condominium located at 1205 S.E. 46th Lane # 203, Cape Coral FL 33904." Mr. Pegram signed the deed sometime in June 1996, but Judy Pegram, as co-tenant by the entireties, did not sign it until August 14, 1996. The court entered a final judgment of dissolution on July 8, 1996. Concerning the parties' property, it provided "[t]he Mediation Agreement entered into by the parties on May 31, 1996, and filed in this matter, is adopted by the Court and incorporated herein, and the parties are ordered to comply with the terms of the same."
In the proceedings on Fay's motion to enforce an equitable lien, the parties and the court focused on whether the Cape Coral property was held as a tenancy in common between the date of dissolution of Mr. Pegram's second marriage, July 8, 1996, and the date Judy Pegram took title to the property individually, August 14, 1996. While a lien against only one spouse cannot attach to entireties property, if William Pegram, at any time, held the property as a tenant in common, a lien could attach to his interest. See Liberman v. Kelso, 354 So. 2d 137, 139 (Fla. 2d DCA 1978). The circuit court found that William Pegram's interest was conveyed to Judy Pegram by the final judgment of dissolution and that they never held the real property as tenants in common.
We disagree. It is true that a judgment of dissolution may convey real property from one spouse to another and, if it does, liens that pertain only to the spouse who conveys the property will not attach. See Sharp v. Hamilton, 520 So. 2d 9, 10 (Fla.1988) (rejecting the notion that "there is a moment in time in which a judgment lien ... held against one of the tenants attaches to the entireties property upon dissolution when sole title to the property is awarded to one spouse in settlement of divorce by a final decree of dissolution"). Section 61.075(4), Florida Statutes (1995), provides that a "judgment distributing assets shall have the effect of a duly executed instrument of conveyance." But the judgment dissolving William and Judy Pegram's marriage did not distribute assets. Instead, the settlement agreement required William to "execute a quit claim deed" and the judgment ordered him to "comply with the terms" of the settlement agreement.
Neither did the agreement provide that Judy Pegram would obtain sole title to the real estate on dissolution. Cf. Sharp, 520 *1266 So.2d at 10; see Hadden v. Cirelli, 675 So. 2d 1003, 1005 (Fla. 5th DCA 1996) (noting that judgment "directing" husband to convey real property to wife did not "distribute assets" as contemplated under section 61.075). Nor would title vest in Judy Pegram under Florida Rule of Civil Procedure 1.570(d). That rule concerns vesting of title when the judgment "is for a conveyance." But this dissolution judgment did not operate as a conveyance. See Hadden, 675 So.2d at 1005; Williams v. Shuler, 551 So. 2d 585, 587 (Fla. 1st DCA 1989) (stating that a final judgment of dissolution could not act as a conveyance under rule 1.570(d) because it did not contain a legal description of the property).
Because Mr. Pegram's conveyance of his interest in the Cape Coral property to Judy Pegram was not effective until August 14, 1996, the property was held in a tenancy in common for the period between the date of the dissolution judgment and that date. Thus, a lien could have attached to Mr. Pegram's interest in this interim. The problem in this case is that Fay sought to foreclose an equitable lien. Contrary to the circuit court's finding in the order on appeal, she does not have an equitable lien.
A court can impose an equitable lien when general considerations of right and justice require it. Plotch v. Gregory, 463 So. 2d 432, 436 (Fla. 4th DCA 1985). To obtain such a lien, the party must prove fraud, misrepresentation, or affirmative deception. Rinker Materials Corp. v. Palmer First Nat'l Bank & Trust Co. of Sarasota, 361 So. 2d 156 (Fla.1978); Gordon v. Flamingo Holding P'ship, 624 So. 2d 294, 297 (Fla. 3d DCA 1993). Fay did not offer proof on these points; she merely domesticated New Mexico judgments for alimony arrearages and attorney's fees. Because she does not have an equitable lien, we affirm the circuit court's denial of her motion to enforce such a lien, albeit for a different reason than that court announced. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla.1999) ("It is elementary that the theories or reasons assigned by the lower court as its basis for the order or judgment appealed from, although sometimes helpful, are not in any way controlling on appeal and the appellate court will make its own determination as to the correctness of the decision of the lower court, regardless of the reasons or theories assigned therefor.").
Our record does not disclose whether Fay has a valid judgment lien that may have attached to William Pegram's property after the dissolution of his marriage to Judy Pegram. See § 55.10, Fla. Stat. (1995). Our affirmance in this case does not prejudice Fay's rights, if any, to enforce such a judgment lien.
Affirmed.
WHATLEY and STRINGER, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613504/ | 821 So. 2d 903 (2002)
In the Matter of the CONSERVATORSHIP OF Arthur R. MORAN.
Daphne Barrios, Reggie Barrios and Alden R. Morgan, Appellants,
v.
Regina C. Necaise and Garrie D. Necaise, Appellees.
No. 2001-CA-00532-COA.
Court of Appeals of Mississippi.
July 16, 2002.
*904 William W. Dreher, Jr., Gulfport, attorney for appellants.
Ronald J. Artigues, Jr., Waveland, attorney for appellees.
Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.
SOUTHWICK, P.J., for the court.
¶ 1. Arthur R. Moran conveyed two tracts of land to his daughter, Regina C. Necaise. Other relatives brought suit, claiming that Moran was not mentally competent when he executed the deeds or that undue influence was used to obtain them. From a decision upholding the deeds, the other relatives appeal. There was sufficient evidence to support the chancellor's decision. We affirm.
*905 STATEMENT OF FACTS
¶ 2. Arthur Moran conveyed to his daughter Regina Necaise two tracts that became the focus of this litigation. They were contiguous blocks in the Clearmont Highlands Subdivision in Hancock County, Mississippi, being Blocks 20 and 21. They were conveyed in 1997 and 1995, respectively. Moran is now deceased, having died while this case was pending on appeal. In his will, executed in 1986 before any doubts about mental competence existed, Moran provided that Block 21 would be devised to Regina Necaise. The appellants have abandoned any claim to that land. Block 20 was under the will devised to the appellant Alden Moran and to Alden's sister Wilma, who died in 1997.
¶ 3. Arthur Moran was in his late eighties at the time of the trial. In addition to other ailments, Moran suffered from Alzheimer's disease. The uncertain evidence on when the disease became sufficiently advanced as to render him incompetent will be discussed below. In February 1998, the chancery clerk was appointed as conservator to manage Moran's affairs.
¶ 4. Moran conveyed Block 20 to his daughter Regina Moran Necaise on October 17, 1997. Mrs. Necaise testified that her father on his own initiative decided to make this conveyance; she did not coax him. Necaise believed that her father wanted her to have this parcel of land because it was directly in front of and adjoining the other tract that he had deeded to her in 1995. Under his direction, Mrs. Necaise had the deed prepared by a local attorney, Gerald Gex.
¶ 5. Attorney Gex testified that because Arthur Moran was advanced in age, he interviewed Moran outside the presence of Mrs. Necaise prior to preparing the deed, to determine if he understood the nature and consequences of the conveyance as well as to assure that he was acting independently of any outside influences. In Gex's opinion, on the date of the deed, Moran was lucid, acting under his own free will, and able to understand the nature and results of his actions.
¶ 6. Mary Beth Arnold, who was Gex's legal secretary and the notary public on the 1997 deed, stated that before Moran signed the deed, she ascertained that he was lucid and acting voluntarily. Arnold based this determination on a conversation that she had with Moran of approximately ten to fifteen minutes in length. This conversation occurred outside the presence of any other person. On the day that Moran executed the deed, he had an injured leg, which prevented him from getting out of Necaise's vehicle. Arnold went out to the car to have Moran execute the deed. Arnold testified that she and Moran were alone when he signed the deed and that she had no doubt that he was aware of his actions.
¶ 7. The three plaintiffs in this litigation are Daphne Barrios and Reggie Barrios, who are Arthur Moran's grandchildren, and Arthur's brother, Alden Moran. Daphne Barrios's mother, Wilma Barrios, was Moran's primary care giver until she died in August of 1997. After that time, Daphne had the responsibility of Moran's care. Shortly after Wilma Barrios's death, home health care personnel advised the family that Arthur Moran needed constant supervision.
¶ 8. Daphne Barrios testified that for a two-week period prior to Moran's coming to live with her, that Mrs. Necaise stayed with Moran. There was conflicting testimony as to exactly what time period this two week visit encompassed. Both of the plaintiff-grandchildren stated that it was during his stay with Mrs. Necaise that Moran deeded Block 20 to her.
*906 ¶ 9. Dr. Irene Koskan, who was Moran's physician for more than a decade, provided testimony by way of a deposition. Dr. Koskan stated that she first diagnosed Moran as having Alzheimer's in 1997. She described his then-current mental state at the time of the 2000 deposition as confused and disoriented. Further, she testified that Moran's mental condition had progressively diminished over the previous five years. She believed that the stress of losing two close family members had accelerated the effects of Alzheimer's on Moran. Dr. Koskan stated that she examined Moran in February and in December of 1997, and he was confused and agitated on both dates. She did not state that he was incompetent to understand the execution of a deed, however.
¶ 10. After a hearing in January 2001, the chancellor upheld the deed to Block 20. Daphne Barrios, Reggie Barrios and Alden Moran appeal.
DISCUSSION
I. Mental Capacity
¶ 11. A properly executed deed carries with it a presumption that the grantor was mentally competent at the time of execution. Richardson v. Langley, 426 So. 2d 780, 786 (Miss.1983). To show otherwise requires clear and convincing evidence. In re Estate of Green, 755 So. 2d 1054, 1055 (Miss.2000). It is not enough to show that at the time of the conveyance the grantor was suffering from a general mental weakness or condition; mental incapacity and insanity are not always permanent and a grantor may experience a lucid interval when he would possess the mental capacity to understand the legal consequences of his actions. Whitworth v. Kines, 604 So. 2d 225, 228 (Miss.1992). It must be shown that, at the moment of execution, the grantor lacked the required mental capacity or was permanently insane. Id. at 229.
¶ 12. The deed was executed on October 17, 1997. Medical testimony was presented from Dr. Koskan that she examined Moran twice in 1997, once in February and again in December. Her notes revealed that he was confused and agitated on those dates. There was no testimony from Dr. Koskan, or any other source, that would establish that Moran was mentally incompetent on the date he executed the deed. Dr. Koskan's testimony did not provide a specific date as to when Moran was diagnosed with Alzheimer's.
¶ 13. Conversely, there was testimony from the attorney and a secretary who participated in the preparation and execution of the deed that Moran appeared competent at that time to them.
¶ 14. The chancellor found insufficient evidence of mental incapacity. A chancellor's fact-findings will be upheld absent manifest error or the lack of substantial evidence to support them. Whitworth v. Kines, 604 So.2d at 228. We find substantial evidence and no manifest error.
II. Weakness of Intellect
¶ 15. Even if Moran were not completely incompetent, the plaintiffs argue that he suffered from a weakness of intellect. Such a weakness, when coupled with some other factor such as grossly inadequate consideration or the existence of a confidential relationship, may lead to setting aside a deed. In re Estate of Green, 755 So.2d at 1055.
¶ 16. Confidential relationship. A confidential relationship exists "when a dominant over-mastering influence controls over a dependent person or trust, justifiably reposed." In Re Estate of Dabney, 740 So. 2d 915, 919 (Miss.1999). The following factors must be considered:
*907 (1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
Id. The chancellor made specific findings of fact to support his conclusion that no confidential relationship existed. Among the matters relied upon were these:
(1) Moran was alert and in good spirits when the deed was executed;
(2) Moran drove his own car (though perhaps not far), and handled his finances;
(3) Moran eventually became dependent but not upon Regina Necaise; instead, he depended upon the appellant Daphne Barrios;
(4) Mrs. Necaise was not given any authority over bank accounts, or to handle his finances.
¶ 17. What the chancellor faced was conflicting testimony and an elevated evidentiary standard of clear and convincing proof of a confidential relationship. The chancellor analyzed the Dabney factors and made reasonable and explicit findings of fact to support that no confidential relationship existed between Mrs. Necaise and Moran. We find no manifest error in the findings.
¶ 18. Inadequate consideration. Weakness of intellect that does not fall to the level of incompetence may still invalidate a conveyance if inadequate consideration existed. Love and affection will suffice as consideration. Holmes v. O'Bryant, 741 So. 2d 366, 370 (Miss.Ct.App. 1999). That a father would wish to give land to his daughter is not unreasonable, though we accept that other and perhaps equally beloved family were thereby provided less. "A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice." Herrington v. Herrington, 232 Miss. 244, 250-51, 98 So. 2d 646, 649 (1957) (quoting Burnett v. Smith, 93 Miss. 566, 47 So. 117, 118 (1908)).
¶ 19. Moran may have suffered from weakness of intellect. That standing alone, and we find that it did stand alone, is insufficient here. In re Estate of Green, 755 So.2d at 1055.
III. Undue Influence
¶ 20. The plaintiffs argue that Regina Necaise used undue influence on Mr. Moran. This is defined as an "improper use of power or trust in a way that deprives a person of free will and substitutes another's objectives." BLACK'S LAW DICTIONARY, 1529 (Bryan A. Garner ed., 7th ed., West 1990). There is a presumption of undue influence where a confidential or fiduciary relationship is shown to exist between a grantor and grantee. Vega v. Estate of Mullen, 583 So. 2d 1259, 1263 (Miss.1991).
¶ 21. We have already upheld the chancellor's finding that no confidential relationship existed. The chancellor was concerned that Mrs. Necaise had been actively involved in the procuring of the deed, but determined ultimately that these circumstances were "adequately explained."
¶ 22. We find substantial evidence to support that undue influence did not arise from the assistance that Regina Necaise provided to Mr. Moran in having the deed prepared and executed.
*908 ¶ 23. The chancellor had to determine whether Mr. Moran was mentally incompetent or had been improperly influenced when executing the 1997 deed. There was inconclusive evidence on which inferences had to be drawn. Perhaps largely relying on the burden of proof, the chancellor found that insufficient evidence was presented to cause the setting aside of the deed. In this family dispute, it is likely that whatever conclusion was reached would not have been accepted as fair by the unsuccessful party. We are one step removed from the presentation of evidence and must give deference to the fact-finder regarding the evidence. We find no basis for reversal.
¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613502/ | 513 F. Supp. 35 (1980)
John J. CUMMINGS, Plaintiff,
v.
Patricia R. HARRIS, Secretary of Health and Human Services, Defendant.
No. C-1-79-420.
United States District Court, S. D. Ohio, W. D.
November 3, 1980.
*36 David J. Boyd, Cincinnati, Ohio, for plaintiff.
James C. Cissell, U. S. Atty., Cincinnati, Ohio, and Joseph E. Kane, Asst. U. S. Atty., Columbus, Ohio, for defendant.
OPINION
PORTER, Senior District Judge:
Plaintiff, a Social Security disability claimant, brought this action under 42 U.S.C. § 405(g), seeking review of the Secretary's decision finding that plaintiff is not disabled and denying Social Security benefits. The parties have filed cross-motions for summary judgment, supported by supplemental memoranda (docs. 4 and 5), thereby putting the action before this Court for general judicial review. 42 U.S.C. § 405(g). The issue confronting us is whether the Secretary's final decision denying plaintiff disability benefits is supported by substantial evidence.
The question before the ALJ was whether, while in an insured status, plaintiff was "disabled" i. e., unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1). Under the statute, a "physical or mental impairment" is "an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The standard which we must apply on review is whether there was "substantial evidence" to support the findings of the Secretary. 42 U.S.C. § 405(g). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is more than a scintilla of evidence but less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence. Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Combs v. Gardner, 382 F.2d 949 (6 Cir. 1967); Miracle v. Celebrezze, 351 F.2d 361 (6 Cir. 1965). The elements of proof to be weighed in determining whether there is substantial evidence to support the Secretary's determination are: (1) the objective medical facts; (2) the diagnosis and expert opinions of the treating and examining physicians on subsidiary questions of fact; (3) the subjective evidence of pain testified to by the plaintiff; and (4) the plaintiff's educational background, age and work history. Blalock v. Richardson, 483 F.2d 773 (4 Cir. 1972); Miracle v. Celebrezze, 351 F.2d 361 (6 Cir. 1965); Van Fleet v. Weinberger, 1 Unempl.Ins.Rep. (CCH) ¶ 12,429.27 (E.D. Mich. Sept. 30, 1974).
The burden of proof is on the plaintiff to show that he is disabled from engaging in his former employment. Once this occurs, the burden of going forward shifts to the *37 Secretary to demonstrate the existence of available employment compatible with the plaintiff's disability, while the burden of persuasion remains with the plaintiff to demonstrate that he cannot perform it. Noe v. Weinberger, 512 F.2d 588 (6th Cir. 1975); Gray v. Finch, 427 F.2d 336 (6th Cir. 1970).
Plaintiff applied for disability benefits on August 2, 1978, alleging that he became unable to work on March 6, 1978, at age 55 (tr. 54-57). The Social Security Administration denied plaintiff's application initially (tr. 60) and on reconsideration (tr. 64-65). An Administrative Law Judge (ALJ), before whom plaintiff and his attorney, appeared, considered the case de novo, and, on June 11, 1979, ruled that plaintiff was not disabled (tr. 5-12). The ALJ's decision became the final decision of the Secretary of Health, Education and Welfare when the Appeals Council approved it on July 13, 1979 (tr. 3).
Plaintiff is a fifty-seven-year-old man with a college education (tr. 29). He has worked as an accountant (tr. 29). Plaintiff alleges that he became disabled on March 6, 1978, at the age of 55, from heart disease, high blood pressure and hypertension (tr. 54). Plaintiff submitted several medical reports in connection with his claim for disability benefits. We will briefly review those reports.
Patient records from the Providence Hospital in Cincinnati, Ohio, show that plaintiff visited the hospital on June 22 and June 26, 1978, for a Holter monitor scan (tr. 91-94). Plaintiff's electrocardiogram was unremarkable except for minimal nonspecific S.T. segment changes (tr. 92). Dr. Michael Truman, one of plaintiff's treating physicians, reported on August 30, 1978, that he had treated plaintiff from March 2, 1976 through February 1, 1978 (tr. 95). Dr. Truman took four blood pressure readings during this period: 165/105 (March 2, 1976); 140/100 (March 23, 1976); 180/90 (April 20, 1976); and 230/130 (February 1, 1978). Dr. Truman diagnosed plaintiff's condition as hypertension (tr. 95). Dr. Truman referred plaintiff to Dr. Vlado Gracinin, of Cincinnati, Ohio, for treatment of plaintiff's excessive blood pressure and chest pains. Dr. Gracinin, an internist, reported on September 30, 1978 that he treated plaintiff from February 2, 1978 through September 7, 1978 (tr. 96). Dr. Gracinin took three blood pressure readings during this period: 180/120 (February 2, 1978); 186/114 (March 8, 1978); and 162/102 (September 7, 1978) (tr. 96). Dr. Gracinin diagnosed plaintiff as having angina pectoris, hypertension, and substantial pain in his left arm and shoulder, necessitating treatment with Aldomet, Hygroton, Digoxin, and nitroglycerine pills, as well as rest (tr. 96, 97, 99).
Dr. Steven H. Grendel, a medical advisor for the Social Security Administration, reported on October 20, 1978 that plaintiff appeared to have chest pain, probably angina (tr. 98).
In response to a letter from the ALJ (tr. 104), Dr. Gracinin completed a physical capacities evaluation form on March 17, 1979 (tr. 106-105). On that form Dr. Gracinin noted that plaintiff could engage in sedentary work activity, however, in a letter accompanying that form Dr. Gracinin states that he did not think that the form was applicable to plaintiff's case (tr. 105, 106). In that letter Dr. Gracinin went on to state that plaintiff suffered from hypertensive arteriosclerotic heart disease with anginal syndrome and that the stress and strain of his profession in association with the emotional make-up had been a precipitating factor in his symptoms. In a letter to plaintiff's attorney dated May 3, 1979, Dr. Gracinin stated that plaintiff was "continually totally disabled since March 6, 1978 and was unable to engage in any substantial gainful activity for which he is qualified, based on his past education and experience" (tr. 112).
At the administrative hearing plaintiff testified that he is currently taking several medications: 6 Inderal tablets, 2 Aldomet pills, 1 Hygroton tablet, and 1 Digoxin tablet per day, as well as periodic nitroglycerine pills as needed (tr. 31). He testified that he experiences considerable dizziness, pain in his chest and left arm, fluttering of the heart, and shortness of breath (tr. 32).
*38 The ALJ recognized that the plaintiff was unable to return to his former employment. At this point, the burden shifted to the Secretary to go forward with the evidence to show that plaintiff could engage in substantial gainful work in his physical condition and that there are jobs in the national economy he can perform. Hephner v. Mathews, 574 F.2d 359, 361-62 (6th Cir. 1978); Garret v. Finch, 436 F.2d 15, 18 (6th Cir. 1970); Gray v. Finch, 427 F.2d 336, 338 (6th Cir. 1970). In this case, the ALJ concluded that plaintiff could perform certain sedentary jobs.
In reaching his conclusion, the ALJ did not rely on the testimony of a vocational expert, indeed, no such testimony was offered, but rather looked to regulations recently promulgated by the Secretary. Those regulations, which are found at 20 C.F.R. Appendix 2, contain tables that indicate what findings should be made regarding disability given particular facts. From Table No. 1, which is to be used for claimants whose work capabilities are limited to sedentary work, the ALJ applied Rule 201.08. This rule dictates that a claimant of "advanced age" whose education is that of a high school graduate or more and provides for direct entry into skilled work, and whose previous work experience is either skilled or semi-skilled but the skills are not transferable, is not disabled. Plaintiff in this case is 57 and thereof of "advanced age," i. e., older than 55. Id. § 201.00(f). He is a college-educated accountant, so his education is that of a high school graduate or more and provides direct entry into skilled work. His previous work experience (accountant/comptroller) is certainly in skilled work, but an application of Rule 201.08 requires a finding that skills be non-transferable. This last requirement raises an issue in this case which is discussed below.
The introductory regulations for the tables state that the tables are to be used in instances where it is shown that the claimant cannot return to his/her past work. These regulations acknowledge that there must be a showing at that point that a job exists in the national economy for the claimant. They go on, however, to state that the "existence of such jobs is established" when the particular individual's vocational factors, i. e., age, education, and work experience, coincide with the criteria of a rule in the table and that rule directs the conclusion that the individual is not disabled. Id. § 200.00. It is apparent that these tables are meant to preclude use of vocational expert testimony, and provide a conclusive presumption as to whether alternative work is available.
As a general matter, use of the tables can be viewed as conflicting with statutory requirements and Sixth Circuit precedents. 42 U.S.C. § 423(d)(2)(A) provides that a person is disabled when he can neither return to his former job nor, considering his age, education and work experience, engage in any other "gainful work which exists in the national economy" (emphasis added). Under the shifting burden of production rule in this Circuit, the emphasized language would seem to put the burden on the Secretary to show (a) that claimant could perform some job and (b) that job exists in the national economy. The tables stop short of this. Essentially they look at the claimant's age, education and work experience and determine whether or not the plaintiff can do something. They do not go the second step and determine whether that "something" amounts to a job in the national economy.
Sixth Circuit precedents appear to require that the Secretary provide specific evidence on the claimant's employability. Most notable is Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978). In that case the ALJ found that claimant could not resume his former job but could do "light work" and therefore was not disabled. Judge Weick wrote:
"A finding of a capability to do light work does not constitute evidence that a person can engage in substantial gainful activity, nor is such a finding sufficient to rebut a prima facie case disability. A claimant's capacity to perform work must be evaluated in light of his age, his education, *39 his work experience, and his impairments, including his pain. This requires a finding of capacity to work which is expressed, not in terms of a vague catch-all phrase such as `light' work, but in terms of specific types of jobs. [Citations omitted.]
574 F.2d at 362-363. The Court held that the Secretary's finding that the claimant was not disabled was not supported by substantial evidence and that the case should be remanded for further evidentiary development. The holding of Hephner v. Mathews was reiterated in Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980). These cases require that, when the burden of production shifts to the Secretary, the Secretary must come forward with evidence that a claimant can do a particular type of job and that job exists in the national economy. The tables in the regulations do not amount to this type of evidence.
Looking specifically at this case, the use of the sedentary work table was inappropriate for two reasons. First, the table does not have a category for plaintiff. As noted above, the rule applied by the ALJ required that the claimant's skills be nontransferable. Nevertheless, both in his discussion and in his findings the ALJ noted that plaintiff's skills were transferable. Thus, one of the requirements for application of Rule 201.08 was not met. The introductory regulations for the tables specifically require that "[w]here any one of the findings of fact does not coincide with the corresponding criterion of the rule, the rule does not apply in that particular case, and accordingly, does not direct a conclusion of disabled or not disabled." Id. § 200.00(a). This requirement, then, precludes application of Rule 201.08. Furthermore, none of the rules in the table apply to plaintiff's particular age, education, and work experience. Therefore the sedentary work table cannot be used in this case to direct a conclusion regarding disability. The ALJ actually recognized that all the criteria of Rule 201.08 were not met. He reasoned, apparently, that since someone with plaintiff's age and educational background who had nontransferable skills was not disabled under the rule, then someone with transferable skills was certainly not disabled (tr. 11). This logic is appealing, but it nevertheless contravenes the specific dictates of the regulations.
The second reason for finding that use of the table was inappropriate in this case is that the context is inapplicable. The introductory regulations state,
[s]ince the rules are predicated on an individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be wholly applicable where the nature of an individual's impairment does not result in such limitations, e. g., certain mental, sensory, or skin impairments. In addition, some impairments may result solely ... environmental restrictions ...
The rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments.
Id. § 200.00(e). The findings of the ALJ in this case did not deal with plaintiff's physical strength. Rather, they noted that plaintiff could work only in situations free of "undue emotional stress and strain" and of "dust, fumes, and gasses" (tr. 12). These findings indicate plaintiff's difficulties are related to mental and environmental factors, not physical strength requirements. The sedentary work table therefore is not applicable to plaintiff's situation and should not have been relied on by the ALJ.
In reaching the conclusion that plaintiff was not disabled, the ALJ specifically disregarded Dr. Gracinin's opinion that plaintiff was totally disabled, holding that the doctor had exceeded his area of expertise (tr. 11). The ALJ was apparently adhering to a Social Security regulation which states,
The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary. A statement by a physician that an individual is, or is not, `disabled' ... being a conclusion upon the ultimate issue to be decided by the Secretary, shall not be determinative *40 of the question of whether or not the individual is under a disability.
20 C.F.R. § 404.1526.
This regulation does not exactly comport with Sixth Circuit holdings. In Walston v. Gardner, 381 F.2d 580, 585 (6th Cir. 1967), the Court said,
The Act vests in the Secretary the function of determining whether an applicant is statutorily `disabled.' Physicians' statements to the effect that an applicant is unable to engage in substantial gainful employment are not binding on the Secretary. However where the expert medical opinions expressed by doctors who have examined and treated an applicant state that he is disabled[,] ... a contrary finding by a hearing examiner is in the realm of speculation and reversible error in the absence of countervailing substantial evidence. (Emphasis added.)
In order for a physician's conclusion as to disability to have credence, however, it must be supported by "specific and complete clinical findings." Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir. 1973); see LeMaster v. Weinberger, 533 F.2d 337, 340 (6th Cir. 1976). If the physician's opinion is credible, then the Secretary must come forward with testimony from a medical expert who is "prepared to commit his professional opinion as to whether or not applicant is capable of working and as to what he can do." Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971). Anything less is not "substantial evidence." Id. In effect, a credible finding by a physician that a claimant is disabled is binding on the Secretary unless contrary medical opinion evidence is offered.
In this case plaintiff's treating physician, Dr. Gracinin, stated in his letter to plaintiff's attorney that plaintiff "was continually totally disabled since March 6, 1978 and was unable to engage in any substantial gainful activity for which he is qualified, based on his past education and experience" (tr. 112). This letter does not cite any specific findings, however the record discloses that Dr. Gracinin, who specializes in cardiology, reviewed the results of the Holter monitor scan (a sophisticated heart disease diagnosis device) (tr. 92) and examined plaintiff, checking his blood pressure several times (tr. 96). Dr. Gracinin concluded that plaintiff was suffering from "hypertensive arteriosclerotic heart disease with anginal syndrome" (tr. 95), i. e., hypertension, hardening of the arteries, and a periodic fluttering heart beat. Dr. Gracinin also prescribed the various medications plaintiff used (tr. 96). It is fair to conclude that Dr. Gracinin's opinion as to disability was based upon specific and complete clinical findings.
We note, of course, that Dr. Gracinin indicated on the physical capacities evaluation form for plaintiff that plaintiff could perform sedentary work (tr. 106). The letter accompanying that form, however, fairly well indicates that Dr. Gracinin did not firmly believe that the indication was supported by his clinical findings (tr. 105).
The only medical evidence provided by the Secretary was the report of Dr. Grendel who stated that plaintiff had chest pain and concluded, "[s]uggest GXT if possible, if not impairment only slight" (tr. 98). GXT stands for "graduated exercise test," a means of checking for heart disease. Dr. Grendel's report is fairly cryptic. It does not make any statement as to disability, but by stating that the impairment was slight he implies there is no disability. This implication is undercut, however, by the suggestion of further testing. We cannot conclude that the report of Dr. Grendel amounts to a medical expert committing his professional opinion as to plaintiff's disability. His report makes no statement regarding plaintiff's work capabilities. On this ground alone, under Sixth Circuit precedents, his report does not amount to "substantial evidence" and does not contradict Dr. Gracinin's finding of disability. Thus the ALJ's conclusion of no disability "is in the realm of speculation and reversible error." Walston v. Gardner, 381 F.2d at 585.
For the reasons stated above, we hold that the Secretary's conclusion of no disability is not supported by substantial evidence. It is therefore reversed and this action is *41 remanded to the Secretary for award of benefits.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613515/ | 821 So. 2d 219 (2000)
Anthony Keith BROWN
v.
STATE.
CR-99-1713.
Court of Criminal Appeals of Alabama.
December 1, 2000.
*221 Damon Q. Smith, Florence, for appellant.
Anthony K. Brown, pro se.
Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
FRY, Judge.
The appellant, Anthony Keith Brown, appeals from his convictions for one count of receiving stolen property in the first degree, a violation of § 13A-8-17, Ala. Code 1975; one count of receiving stolen property in the second degree, a violation of § 13A-8-18, Ala.Code 1975; one count of conspiracy to unlawfully possess or receive a controlled substance, a violation of §§ 13A-12-212 and 13A-12-204, Ala.Code 1975; three counts of burglary in the third degree, a violation of § 13A-7-7, Ala.Code 1975; one count of theft of property in the first degree, a violation of § 13A-8-3, Ala. Code 1975; one count of theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975; one count of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975; and three counts of criminal mischief in the second degree, a violation of § 13A-7-22, Ala.Code 1975. Brown was sentenced pursuant to the Habitual Felony Offender Act to life imprisonment for each conviction except for the criminal-mischief convictions, for which he received a sentence of one year for each count, in accordance with § 13A-5-7, Ala.Code 1975. All the sentences were to be served consecutively. He was also assessed fines.
The evidence tended to show the following. During the evening of December 10, 1998, Regan Lee Jones and Steve Hampel broke into the Ken Nix Pharmacy in Florence. Jones threw a cinder block through the window of the pharmacy and he and Hampel stole large quantities of drugs. Later that night, Jones and Hampel met Brown, and Brown bought some of the stolen drugs from them. (R. 186.)
On December 30, 1998, Brown, Hampel, and Jones agreed to break into the Ken Nix Pharmacy a second time. (R. 191.) Brown participated in the offense by supplying gloves, masks, bags, and transportation. *222 (R. 191.) Brown, Hampel, and Jones divided the drugs obtained as a result of the burglary. (R. 197.)
On January 21, 1999, Brown, Hampel, Jones, and Dennis Nichols decided to burglarize Ken Nix Pharmacy a third time. (R. 201, 204.) Brown again participated in the offense by supplying equipment and transportation. (R. 201.) The four men divided the drugs acquired from the pharmacy. (R. 211.)
On February 28, 1999, Brown, Hampel, and Jones burglarized Northgate Pharmacy in Florence. (R. 211.) Brown again provided the transportation and the supplies. (R. 216.)
Officer Scott Perkins of the Florence Police Department investigated the Northgate Pharmacy burglary. (R. 81.) While at the pharmacy around 11:00 p.m. conducting his investigation of the burglary, he saw a black Ford Bronco sport utility vehicle driving past the pharmacy. (R. 82.) After Perkins left the pharmacy and resumed his patrol, he received information that Brown and Hampel were wanted as suspects in the pharmacy burglaries. (R. 84.) At approximately 3:30 a.m. on March 1, 1999, Perkins again saw the black Ford Bronco. (R. 83.) When Perkins saw the vehicle stop at a green light, weave into the right lane, and turn left on a red light, he made a traffic stop. (R. 84-85.) During the stop, he recognized Hampel, a passenger in the vehicle, as a suspect in the burglary, and he arrested him. (R. 87.) Brown was also in the vehicle. Upon returning to the car, Perkins noticed Brown's hands between his legs and, for safety reasons, ordered him to get out of the car. (R. 88.) A pill bottle from the Northgate Pharmacy was discovered in plain view on the driver's seat.
The testimony indicated that after Brown was read his Miranda[1] rights, he signed a waiver and he voluntarily gave a statement to Officer Keith Terry of the Florence Police Department. (R. 378-80.) In Brown's statement, he explained his involvement in all four burglaries. (R. 382-389.) A search of Brown's residence revealed many of the stolen drugs. (R. 377.)
I.
Brown contends that the trial court erred in conducting a portion of his trial when he was not present in the courtroom. Specifically, he argues that he could not be tried in absentia and that he was not present at the commencement of trial. The record indicates that Brown was present when the venire was qualified and when the jury was struck. The trial court recessed for the evening. During the recess, Brown escaped from custody. The next morning, although Brown was not present, the trial continued.
Rule 9.1, Ala.R.Crim.P., states:
"Rule 9.1 Defendant's Right to be Present.
"(a) Right to be present. The defendant has the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing.
"(b) Waiver of the Right to be Present.
"(1) Except as provided in subsection (2), a defendant may waive the right to be present at any proceeding in the following manner:
". . . .
*223 "(ii) By the defendant's absence from any proceeding, upon the court's finding that such absence was voluntary and constitutes an understanding and voluntary waiver of the right to be present, and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present."
Another factor to consider in deciding whether a defendant's absence is voluntary is whether the defendant knew the proceeding would go forward in his absence. See Russell v. State, 665 So. 2d 994 (Ala. Crim.App.1995). It is not, however, incumbent on the court to expressly warn the defendant of the factors of Rule 9.1(b), Ala.R.Crim.P., where the defendant has appeared at the commencement of trial and it can reasonably be assumed that the defendant knew he had a right to be present. See Committee Comments, Rule 9.1, Ala.R.Crim.P. See also Russell, 665 So.2d at 996.
Brown was present on Monday, December 13, 1999, when the venire was qualified and the jury was selected. He was also present when the trial court announced that the trial would be adjourned until Wednesday, December 15, 1999, at 1:30 p.m. The record indicates that the trial court stated:
"Ladies and gentlemen, for those of you whose names have been called you've been selected to serve as jurors in the case of State v. Anthony Keith Brown. As I told you earlier the trial of this case will not start right away. So with that instruction you are excused to be back here Wednesday afternoon at 1:30 unless I tell you otherwise by jury phone line."
The trial court then adjourned for the day. (R. 69.)
Clearly when the jury has been selected and the jury recessed for the day, Brown's trial had commenced; it was reasonable for him to expect that his trial would continue as the trial court instructed. Therefore, we conclude that he knew of his right to be present and that he knew that the trial would continue in his absence. Brown voluntarily waived his right to be present at his trial under Rule 9.1(b)(ii), Ala.R.Crim.P., by escaping custody. (R. 169-170.) "A defendant cannot invite error by his conduct and later profit by the error." Timmons v. State, 487 So. 2d 975, 979 (Ala.Crim.App.1986). Under these facts, the trial court did not err in conducting Brown's trial without his being present.
II.
Brown contends that the stop that led to his arrest was unlawful. Specifically, he argues that because the law-enforcement officer who stopped him did not issue a citation during the stop, the officer did not have probable cause to stop his vehicle.
"The Fourth Amendment guarantees `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of the provision. An automobile stop is thus subject to the constitutional imperative that it not be `unreasonable' under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."
Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996) (citations omitted). An officer who sees a person committing a traffic offense has probable cause to stop that person for the traffic offense. Smith v. State, 606 *224 So.2d 174, 176 (Ala.Crim.App.1992). This showing of probable cause can be made through the officer's testimony. Id.
Here, Officer Perkins testified that he saw the sport utility vehicle Brown was driving stop at a green light, weave in the right lane, and then turn left on a red light. (R. 84-85.) Failure to obey a traffic-control device is a violation of §§ 35-5A-3 and 32-5A-31, Ala.Code 1975. Thus, Officer Perkins had probable cause to believe a traffic violation had occurred and to stop Brown's vehicle. We reject Brown's contention that because Officer Perkins did not issue a traffic citation the stop was unlawful. Probable cause to stop Brown's vehicle was established when Officer Perkins witnessed the traffic offense. The failure to issue a traffic citation does not negate Officer Perkins's probable cause to stop Brown's vehicle. Based on the record before us, the initial stop of Brown's vehicle was legal. Adams v. State, 815 So. 2d 574 (Ala.Crim.App.1999).
III.
Brown contends that the trial court erred in denying his motion to suppress his statement because, he says, he was under the influence of drugs when police questioned him. This court stated in Seawright v. State, 479 So. 2d 1362, 1367 (Ala. Crim.App.1985):
"`In considering whether a confession or inculpatory statement is voluntarily made, the trial judge need only be convinced from a preponderance of the evidence.'"
When a defendant claims his statement was involuntary because he was under the influence of drugs when he made it, "it must be shown that the mind of the defendant was substantially impaired when the confession was made." Moore v. State, 488 So. 2d 27, 30 (Ala.Crim.App.1986).
Nothing in the record indicates that Brown's mind was "substantially impaired" when he was questioned by law-enforcement officers. Officer Keith Terry of the Florence Police Department questioned Brown, and although Brown maintained that he had taken morphine and heroin in the hours before questioning, Terry saw no evidence that "would make [him] think [Brown] wasn't aware of what's going on." (R. 411.) Brown gave a detailed statement. Brown was given his Miranda warnings twice and both times he indicated that he understood those warnings. (R. 368, 380.) Indeed, the detail in Brown's confession and his statement that he understood his Miranda warnings indicates that he was cognizant of his surroundings and that his mind was not "substantially impaired." Brown has presented no evidence to support his argument that his statement was involuntary because he was under the influence of drugs when he made it; therefore, the trial court did not err in denying his motion to suppress.
IV.
Brown contends that the trial court erred by admitting into evidence testimony of his escape from custody. (R. 170.)
It is within the trial court's discretion whether to admit relevant evidence. "The determination of whether evidence is relevant and therefore admissible rests within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion." Jennings v. State, 513 So. 2d 91, 95 (Ala.Crim.App.1987). Rule 404(b), Ala. R.Evid., provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, *225 such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
Rule 403, Ala.R.Evid., provides:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
"Any conduct or declaration of a person having relation to the offense he is suspected of or charged with, indicating a consciousness of guilt, is admissible evidence against him." Sparks v. State, 376 So. 2d 834, 843 (Ala.Crim.App.1979). "The flight of the accused is admissible whether it occurred before or after his arrest." Sartin v. State, 615 So. 2d 135, 137 (Ala. Crim.App.1992), quoting C. Gamble, McElroy's Alabama Evidence § 190.01(1)(4th ed.1991) (citations omitted).
Brown's escape from custody can be inferred as showing a consciousness of guilt. Ex parte Clark, 728 So. 2d 1126, 1136 (Ala. 1998). Based on caselaw and Rule 404(b), Ala.R.Evid., we conclude that the trial court did not abuse its discretion by admitting into evidence testimony about Brown's escape from custody.
V.
Brown contends that the trial court erred in adjudging him guilty of burglary, theft of property, and receiving stolen property because, he says, his convictions for theft and receiving stolen property are lesser-included offenses of the burglary convictions and he should not be punished separately for those offenses.
It is proper for a defendant to be convicted of both burglary and theft where the crimes arose from the same transaction. Vason v. State, 574 So. 2d 860, 863 (Ala.Crim.App.1990).
Section 15-3-8, Ala.Code 1975, provides:
"Any act or omission declared criminal and punishable in different ways by different provisions of law shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision."
The Supreme Court, in Ex Parte McKelvey, 630 So. 2d 56, 57 (Ala.1992), said:
"In accordance with [§ 15-3-8, Ala.Code 1975], the appellate courts of this state have consistently held that where a defendant is charged with both burglary and theft (or larceny) arising from a transaction that is the foundation for both charges, the defendant may only receive one punishment."
A court may sentence a defendant for burglary and theft if the sentences are made concurrent, rather than consecutive. Pardue v. State, 571 So. 2d 320, 330 (Ala.Crim. App.1989).
Brown was convicted of third-degree burglary and first-degree theft of the Ken Nix Pharmacy, which occurred on January 21, 1999. (Counts 9 and 11). The trial court ordered consecutive sentences of life imprisonment for these convictions. While Brown can be convicted of both burglary and theft, he can receive only one punishment. The trial court may either set aside one of Brown's convictions or order the sentences to run concurrently. Ex parte McKelvey, 630 So.2d at 57-8.
*226 Likewise, Brown was convicted for second-degree theft and third-degree burglary of the Northgate Pharmacy, which occurred on February 28, 1999. (Counts 13 and 15). The trial court ordered consecutive sentences of life imprisonment for these convictions. As in Ex parte McKelvey, supra, the trial court may either set aside one of Brown's convictions or order the sentences to run concurrently.
With regard to Brown's convictions for third-degree burglary (Count 7) of the Ken Nix Pharmacy on December 30, 1999, and second-degree receiving of stolen property (Count 6), we conclude that Brown's conviction for second-degree receipt of stolen property must be set aside and the sentence vacated.
In Ex parte Thomas, 445 So. 2d 939, 940-41 (Ala.1983), this Court stated:
"The dispositive issue [raised by Thomas] is whether the evidence presented by the state which proved Thomas came into possession of the property described in the indictment solely by burglarizing a house precluded a conviction of receiving stolen property. We hold that it did.
". . . .
"... The undisputed testimony here is: that a house was burglarized and a television set stolen; that the defendant admitted that he broke into the house, took a television, and transported it to his house; and that the stolen television set was found in his house. On the basis of these facts and the foregoing discussion, we hold that the defendant cannot be convicted of receiving stolen property."
A similar issue was discussed in Mills v. State, 581 So. 2d 1126, 1127 (Ala.Crim.App. 1987):
"The appellant alleges that because the evidence tended to show that he actually participated in the burglary and theft, his conviction for receiving stolen property was contrary to the law. Where the evidence is undisputed that the appellant committed the theft, he cannot be convicted of receiving the same stolen property from that theft. Ex parte Thomas, 445 So. 2d 939 (Ala. 1983)."
From the evidence presented, the jury concluded that Brown committed the burglary of the Ken Nix Pharmacy on December 30, 1998. In a statement offered into evidence by the state, Brown detailed his involvement in the burglary and theft of the drugs committed on December 30, 1998. Thus, the evidence unequivocally indicated that Brown was involved in the burglary and that he stole the drugs from the pharmacy.
The drugs taken during this burglary are the subject of second-degree-receiving-stolen-property conviction. The offense of receiving stolen property requires that the defendant, with knowledge of the facts and without intent to return the property to the owner, bought or obtained property that had been stolen by some person other than the defendant. George v. State, 410 So. 2d 476 (Ala.Crim.App.1982)(one cannot be convicted of receiving stolen property when the evidence establishes that he participated in the theft). Therefore, Brown cannot be convicted of second-degree receiving stolen property; the judgment of the trial court is reversed as to that conviction. Cf. The People v. Jimmy Lee Stewart, 185 Cal. App. 3d 197, 202, 229 Cal. Rptr. 445 (1986).
VI.
Brown contends that the State's evidence was insufficient to sustain his convictions. This issue, having been raised first on appeal, was not preserved for our review. Review by this court is *227 limited to matters properly raised before the trial court. Carter v. State, 627 So. 2d 1027, 1028 (Ala.Crim.App.1992). The record indicates no objection was made at trial concerning the sufficiency of the evidence. (R. 421.) Although Brown raised this issue in his pro se motion for a new trial, his motion was untimely. A motion for a new trial must be filed within 30 days of "pronouncement of sentence." Rule 24.1, Ala.R.Crim.P. Wilson v. State, 659 So. 2d 152 (Ala.Crim.App.1994). Brown was sentenced April 18, 2000, and did not file his motion for a new trial until June 16, 2000. Brown's motion for a new trial was therefore untimely and preserved nothing for our review.
This cause is remanded to the trial court to vacate its judgment with regard to Count 6 in the indictment and for proper sentencing as set out in Part V of this opinion. The trial court shall take all necessary action to ensure that the circuit clerk makes due return to this court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a new sentencing order and a transcript of the proceedings.
REMANDED WITH DIRECTIONS.[*]
LONG, P.J., and McMILLAN, COBB, and BASCHAB, JJ., concur.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).
[*] Note from the reporter of decisions: On May 18, 2001, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On June 29, 2001, that court denied rehearing, without opinion. On November 16, 2001, the Supreme Court denied certiorari review, without opinion (1001799). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613755/ | 258 So. 2d 531 (1972)
260 La. 1143
Herbert BAKER and Mrs. Gertrude Baker Paynter
v.
CHEVRON OIL COMPANY.
No. 51381.
Supreme Court of Louisiana.
February 21, 1972.
*532 Holloway, Baker, Culpepper, Brunson & Cooper, William H. Baker, Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants-applicants.
Madison, Files, Garrett, Brandon & Hamaker, H. Flood Madison, Jr., Monroe; Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for defendant-appellee-respondent.
McCALEB, Chief Justice.
On March 29, 1956 Herbert Baker and his brother, Guy Baker, sold a sixty-acre tract of land, located in Section 4 T 18 N R 1W Lincoln Parish, to James V. and John M. Hinton, reserving to themselves (the vendors) a one-half mineral interest, in equal portions. Guy Baker died and his widow in community, Mrs. Gertrude Baker Paynter, is presently the record owner of one-half of his interest, or one-eighth of the entire minerals. His surviving daughters own the other one-eighth interest. The Hinton title was subsequently acquired by the Hinton Seed and Feed Store, Inc.
More than ten years after the sale of the property, Herbert Baker and Mrs. Paynter instituted this suit against Hinton Seed and Feed Co., Inc. and the Chevron Oil Co. seeking to have recognized as still outstanding the mineral servitude created by the reservation in the 1956 deed and to have cancelled a mineral lease covering this interest executed by Hinton in favor of Chevron.[1] Their suit was dismissed by the district court on a plea of liberandi causa for non-user. Judgment was affirmed on appeal. 245 So. 2d 457. We granted certiorari. 258 La. 703, 247 So. 2d 584.
There is little dispute as to the salient facts. It is conceded that no drilling or any other physical acts which might have interrupted prescription running against the Baker servitude were ever conducted on the Baker-Hinton property. However, in the latter part of 1965 the Wheless Oil Company, under a lease from R. Atley Donald, commenced drilling on Donald's property which is somewhat distant from the Baker-Hinton tract but in the same Section. After drilling to a depth of 9,000 feet without securing production, Wheless abandoned the well as a dry hole. Thereafter, Chevron Oil Company undertook operations at its own risk, and on January 6, 1966 brought in a producing gas well.
In conformity with a condition of the drilling permit issued by the Department of Conservation, it was necessary for Chevron to form a production unit before it commenced actual, commercial production. After studying the situation, Chevron's Drilling Program Committee determined that all of Section 4 should constitute the unit, and it drew up multiple originals of a Voluntary Declaration of Pooling and Unitization Agreement, which were dated March 4, 1966 and distributed by Chevron to the other lessees of the property in the SectionTenneco Oil Company, Southern Natural Gas Company and Wheless. In their respective leases, these companies and Chevron were authorized by their lessors to form a voluntary pooling agreement without further consent of the lessors. The leases covered all property within the Section except a one-half acre tract owned by the Lincoln Parish School Board on which there was no lease.
After legal procedures required for such leasing of public lands were complied with, Chevron, on March 4, 1966, acquired a lease on the School Board property, and on the same day the Board, through its President, signed a voluntary pooling agreement affecting its property in the section. Wheless *533 also signed the unitization agreement for its lessors in the early part of March. The Court of Appeal found, however, that Tenneco Oil Company did not sign the pooling agreement until April 25, 1966 and Southern Natural Gas Company did not sign until April 14, 1966. Their declarations were acknowledged by Chevron on May 9, 1966. All the declarations, executed in counterparts, were filed in the conveyance records on May 12, 1966.
Despite the assertion to the contrary by plaintiffs, we are of the opinion that the record amply sustains the factual finding of the Court of Appeal that Tenneco and Southern did not sign the voluntary pooling agreement until the April dates indicatedmore than ten years after the plaintiffs' mineral servitude was created.[2]
Inasmuch as no drilling operations or any other physical acts were conducted on the Baker-Hinton tract during the ten-year period, plaintiffs' mineral interest has expired, unless the forming of the voluntary unit containing both that tract and the Donald property (on which a producing well had been drilled within the ten-year period) effected an interruption of prescription.
The Court of Appeal correctly held that "Since the well was on property other than on the property in which plaintiffs claim a mineral interest, unitization must have been completed prior to March 29, 1966." (Emphasis added)
United Oil Company of California v. Touchet, 229 La. 316, 86 So. 2d 50 (1956), which was approved in Viator v. Haynesville Mercantile Company, 230 La. 132, 88 So. 2d 1, is full authority for the appellate court's resolution. For those cases make it clear that the legal execution of a unitization declaration subsequent to the date on which prescription accrues cannot have a retroactive effect, so as to breathe life into an already expired servitude.
The instant case is even stronger than the two authorities cited. In those matters, the oil company's pooling declaration was filed in the public records before prescription accrued, and included all of the land in the unit. It was defective, however, in that the oil company did not have authority to pool one tract. It later acquired that right and thereafter refiled the declaration; but by that time the ten-year prescriptive period had passed. In the case at bar the unitization declaration was not signed by all interests in the unit until after prescription had run, and no declaration had been filed until after that date.
Therefore, because a legal unit had not been established on or before March 29, 1966, the ten-year prescription accrued, its course not having been interrupted by the drilling and production on land other than the Baker-Hinton tract.[3]
We are unimpressed with plaintiff's argument that R.C.C. Article 792 provides for a suspension of prescription in such cases as this one.[4] In this connection, plaintiffs' counsel state in their brief that:
"From the evidence herein, it is apparent that up through March 29, 1966, there was absolutely nothing that the *534 Bakers could have done to protect their interest and to keep the ten year period from running. They could not execute another lease; they could not have gotten anyone to drill on the property in question, particularly since a producing gas well was in existence on January 6, 1966 which well, of course, would have been designated as a unit well."
It is immediately apparent that there was nothing to prevent drilling by plaintiffs' lessee on the Baker-Hinton tract until it had been validly unitized. As a matter of fact, it was not until after the well had been brought in as a producer that a determination was made as to just which properties would be included in the voluntary unit. It is true that plaintiffs could not drill or execute another lease, but this was because they themselves had previously executed a lease. But there was no obstacle to their lessee's drilling on the property. If plaintiffs had considered it expedient to drill on the tract they had a right to demand such action from their lessee. But clearly, a mineral servitude owner cannot take the benefits derived from leasing his interest (bonuses, delay rentals, etc.) and then claim that the lease constitutes an obstacle to his drilling on the property. For, if the leasing of a mineral interest combined with failure of the lessee to develop the property constitutes an obstacle which could suspend the running of prescription on an outstanding mineral servitude, then such mineral interest could be kept in effect indefinitely by the simple expedient of arranging for a lease of the interest prior to its expiration.
Alternatively, the plaintiffs urge that if their mineral interest has prescribed, Chevron is liable to them for $15,000 for failing to timely establish the unit so as to protect their interest. This claim is based on the premise that an implied covenant of a lease is that "the lessee should do nothing to harm the interest of the lessor." And they argue that "The evidence herein shows that the defendants did not use due diligence to obtain the execution of the pooling agreement."
Conceding solely for purposes of discussion, that plaintiffs' premise is correct, the contention must fail as it does not appear from the record that Chevron held a lease from plaintiffs. To the contrary, the testimony establishes that Wheless was plaintiffs' lessee. Therefore, Chevron was under no duty to rush the unitization through to protect plaintiffs' interest. In any event, our review of the record satisfies us that the Court of Appeal correctly found that the delays involved in completing the unitization were not caused by the negligence of Chevron.
For the reasons assigned, the judgment of the Court of Appeal is affirmed.
NOTES
[1] Guy Baker's heirs did not join as parties-plaintiff. However, they were cited by plaintiffs as parties-defendant.
[2] This was established by the answer of plaintiffs to a "Request for Admissions" propounded by defendants. Moreover, both in its brief to the Court of Appeal, and in its application for certiorari, plaintiffs stated that whereas Wheless had executed the agreement prior to March 29, 1966, Tenneco and Southern had "executed after that date."
[3] Because of our holding that all parties had not signed until after March 29, 1966, we pretermit the question of whether the effective date of such a declaration is delayed until the instrument is filed, even though all parties timely signed.
[4] That Article reads: "If the owner of the estate to whom the servitude is due, is prevented from using it by any obstacle which he can neither prevent nor remove, the prescription of non-usage does not run against him as long as this obstacle remains." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613752/ | 258 So. 2d 923 (1972)
Joe POWELL
v.
STATE.
3 Div. 80.
Court of Criminal Appeals of Alabama.
February 29, 1972.
William P. Haney, Jr., Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
HARRIS, Judge.
On March 2, 1970, Appellant was convicted for possession of drugs denounced by the Alabama Drug Abuse Law as set forth in Section 5(c) of Act No. 252, General Acts of Alabama, 1967, and was sentenced to a term of four (4) years in the penitentiary. He gave notice of appeal and requested suspension of sentence pending appeal. Sentence was suspended and bond fixed at $8,000.00. Being unable to make bond, he appeared in open court with his attorney on March 5, 1970, and withdrew his request for suspended sentence and was on that date ordered by the court to begin serving his sentence pending appeal. Appellant was unable to employ counsel and the trial court appointed counsel to represent him in the court below and on appeal. Also, a transcript of all proceedings was furnished Appellant, all in compliance with Act No. 525, Acts of Alabama 1963, Vol. 2, p. 1129, Title 15 Section 380(14)-380(25), Code of Alabama 1958, Recompiled, and Act No. 526, Acts of Alabama 1963, Vol. 2, p. 1136, Title 15 Section 318(1)-318(11), Code of Alabama 1958, Recompiled.
The record reflects that on August 16, 1969, Appellant was arrested on the porch of his home at 337 Clayton Street, in the City of Montgomery, on a warrant charging him with the offense of Assault and Battery. The arresting officer gave him the warnings sanctioned in Miranda, gave his person a cursory search for weapons and put him in the patrol car and carried him to the City jail. According to the arresting officer, Sterling G. Shipman, Appellant was "pretty drunk" and Shipman steadied him to the police car.
At the City jail, Appellant was delivered to Police Officer A. J. Kenda, who was the Security Officer on the floor at that time. Kenda searched the clothing of Appellant in the presence of the Desk Officer, Jesse B. Mainor, removing all items of personal property and gave them to Mainor to be inventoried in the name of Joe Powell. In *924 one of Appellant's pockets was a vial or bottle containing approximately fifteen (15) assorted tablets which was placed on the Booking Desk with Appellant's name written on a piece of paper. Mainor attempted to call the Vice Squad but was unable to locate them before his tour of duty was over. Police Officer William Morgan Harris relieved Mainor on the Booking Desk and subsequently contacted the Vice Squad and Officers Barfoot and Terry came to the jail where they received the bottle of pills and the paper bearing Appellant's name. Officer Charles Paul Barfoot physically took charge of the evidence and placed it in an envelope used by the Police Department for sealing evidence. The envelope was sealed, taped and stapled and cross X marks made over the gum sealed part and initialed C.P.B. The envelope was then carried to the Office of the Vice Squad and put in a desk drawer and the office locked. Lt. Paul Headley was in charge of the Vice and Narcotics Division of the Montgomery Police Department in August of 1969. Lt. Headley delivered the sealed envelope to the Department of Toxicology in the City Hall on August 19, 1969, and got a signed receipt for it bearing a number that was identical with the number placed on the envelope in the Office of the Toxicologist. At the trial, Headley identified the envelope and bottle that he delivered to the Toxicologist.
In August, 1969, Carlos L. Rabren was employed as a Toxicologist with the State of Alabama, Department of Toxicology and Criminal Investigation at Auburn. Rabren received a degree from Auburn University in 1966 and is (was) now working towards a Master's Degree in Toxicology with a minor in Pharmacology, which he expected to receive in August, 1970. He made an analysis of the tablets made the basis of Appellant's conviction. He testified:
"The envelope when I first saw it was sealed as you see it on the rear with a clear tape and the initials across the seal and I opened the envelope on this end.
"As I observed it, there were no openings in the envelope. It had been mutilated to the extent that it was creased and crushed in places."
Rabren testified that he made an examination of the capsules and spansules in the vial to determine if there were any illegal active drug ingredients contained in them. There were four different types of capsules or tablets and
"The examination revealed first that the five small white capsules contained in this bottle were found to contain amphetamine and are consistent in the physical and chemical characteristics with bi-amphetamine as produced by the Strassenberger Laboratory. The analyses of the two pink, heart shaped tablets which was contained in the vial revealed that they also contained amphetamine. The laboratory analyses of the brown, clear Spansules which were found to contain light green, orange and yellow as well as white pellets revealed the presence of amphetamine and phenothiazine."
Further,
"Q. I will ask you whether either of the terms depressant drugs or stimulant drugs would be applicable to the capsules which you examined?
A. Yes, sir. Stimulant would be applicable to the capsules and the tablets.
Q. Now, during your examination was it necessary to use any of the items found in there?
A. Yes, it was."
"Q. How many pills did you find and how many was it necessary to use in your analyses?
A. We found that there were five of these solid white capsules and we *925 consumed one in the analyses and there were two of the heart shaped pink tablets and we consumed one complete of those and there was one of these brown and clear Spansules and it was consumed in the analyses and there were seven of the clear and white Spansules and again we used one completely."
We have set out the evidence in this case in some detail for the reason that Appellant urges a reversal on two grounds:
1. Refusal of the trial court to exclude the State's evidence.
2. Overruling Appellant's objection to the introduction in evidence of the State's exhibits one and twobeing the envelope and the bottle of pills or tablets.
The evidence adduced by the State was uncontradicted as there was not a thread of testimony offered on behalf of Appellant. The probative force and weight of the evidence was for the jury and the court did not err in overruling the Motion to exclude.
Appellant strenuously insists that a sufficient predicate was not made for admission into evidence the capsules or tablets taken from his person while under arrest and in the City jail contending there was insufficient identification of the State's exhibits due to a break in the chain of custody. The evidence as to custody and possession of Exhibits One and Two unequivocally shows there is no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance of the authenticity of the capsules or tablets and the analyses conducted by the Toxicologist. Green v. State, 42 Ala. App. 439, 167 So. 2d 694; Dennison v. State, 259 Ala. 424, 66 So. 2d 552; Lackey v. State, 41 Ala.App. 46, 123 So. 2d 186; Jemison v. State, 40 Ala.App. 581, 120 So. 2d 748; Aaron v. State, 271 Ala. 70, 122 So. 2d 360; 22A C.J.S. Criminal Law § 709; 29 Am.Jur.2d, Section 774, page 844.
In Dennison the Supreme Court said:
* * * "The preliminary proof identifying and describing the considered articles fully complied with the rule and under no sort of theory would the trial court have been warranted in refusing their admission." * * *
The above is fully applicable to the instant case.
Mindful of the duty enjoined upon us by the provisions of Section 389, Title 15, Code of Alabama 1940, we have carefully searched the record for errors injuriously affecting the substantial rights of Appellant and have found none.
In his petition for indigent transcript and appointment of attorney, Appellant states that he was sentenced to serve three (3) years in the State Penitentiary, and in the order granting the petition, the trial judge recited that the defendant (Appellant) was sentenced by "the undersigned Circuit Judge to a term of three (3) years in the State Penitentiary."
The judgment entry shows that Appellant was sentenced to a term of four (4) years. In this instance, the judgment entry speaks absolute verity and controls. Noah v. State, 38 Ala.App. 531, 89 So. 2d 231; Keeton v. State, 280 Ala. 140, 190 So. 2d 694, certiorari denied 388 U.S. 914, 87 S. Ct. 2123, 18 L. Ed. 2d 1354.
The refused charges do not state correct principles of law or were abstract or were fairly and substantially covered in the given charges and the oral charge of the Court. The Court in its oral charge failed to charge the jury that the law requires unanimity before any verdict can be returned. Appellant did not except to that portion of the oral charge and did not request a written instruction on the requirement of a unanimous verdict.
*926 On Page Three of the Record, there appears a "Motion for the Affirmative Charge". This writing did not meet the statutory requirement that charges must be given or refused in the terms in which they are written. Emergency Aid Ins. Co. v. Plummer, 35 Ala.App. 520, 49 So. 2d 680.
This Court and the Supreme Court have repeatedly held that the correctness of the trial court's oral charge cannot be raised for the first time on appeal. Alabama Digest, Criminal Law.
No error requiring reversal has been found in the record.
Affirmed.
All the judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613750/ | 258 So. 2d 857 (1972)
261 La. 20
Barbara N. ESTES (Jumonville)
v.
Donald O. ESTES.
No. 51300.
Supreme Court of Louisiana.
February 21, 1972.
Rehearing Denied March 27, 1972.
*858 Burton, Roberts & Ward, John F. Ward, Jr., Baton Rouge, Duval, Arceneaux & Lewis, Claude B. Duval, Houma, for plaintiff-appellee-applicant.
Howell & Brown, William H. Brown, Baton Rouge, for defendant-appellant-respondent.
TATE, Justice.
This is a child custody proceeding. The essential issue concerns the proof necessary for a mother to regain custody of two young children when she had temporarily surrendered custody of them to the children's father. Reversing the trial court, the court of appeal held that the mother had the burden to prove that a change (restoring custody to her) would benefit the children. Since both parents could provide equally good homes, the court felt that the mother had not borne such burden. 244 So. 2d 902 (La.App. 1st Cir. 1971), certiorari granted 258 La. 354, 246 So. 2d 679 (1971).
The mother was initially awarded custody of the two small children of the marriage, then aged 4 and 2, at the time she obtained a judicial separation on the ground of abandonment in February 1964. Custody was maintained in her when a final divorce was decreed in May 1965.
In May 1966, the mother and father filed a joint petition by which they secured an order amending the custody decree so as to give custody of the children to the father "until such time as [the mother] can provide a proper home for said children." The record explains that, at the time, the mother was unemployed and unable to provide for the children. Thereafter, the mother regularly visited the children, and the children visited with her at least one weekend per month.
The mother was remarried on August 5, 1967. She filed a rule to regain custody of the children in June 1969, a little less than two years later. She explains that the delay was due in part to her former husband being in California with the children when she had first remarried, to her unwillingness to interrupt their school year upon their return, to her pregnancy, and to a serious illness of her second husband.
As both the trial and appellate courts found, the homes of both parents are good, comfortable, and moral. The children are loved by both parents, and each parent can provide a fine home for them.
The trial court, which saw and heard the witnesses and which interviewed the children (then aged 10 and 8), concluded that returning custody of the children to their mother is "in the ultimate best interest of two very lovely little children." The court pointed out that the consent amendment of 1966 was intended by the parties to transfer custody temporarily only, with the children to be returned to the mother at such time as she could provide for them a good and comfortable home.
*859 The court further stated that: "It finds and believes from the record, pleadings, and testimony of this case that the mother of these children loves them dearly, as does the father, that she has visited them regularly, cared for them and provided for them regularly, has never abandoned her children nor neglected the same and that as a mother of children of tender years, she has a greater right to the custody thereof than does the father."
In reversing, the court of appeal felt that the mother's delay in attempting to regain custody of the children forfeited any rights she had under the temporary-custody agreement to regain the custody of the children. It concluded that the mother in such circumstances "must bear the burden of proving that a change in custody is in the best interest of the children" and that she had failed to do so, since both homes were equally good.
The court of appeal erred in reversing the trial court's considered determination under such circumstances. In Fulco v. Fulco, 259 La. 1122, 254 So. 2d 603 (1971), we summarized the applicable legal principles as follows: (extensive citation of authorities omitted):
"(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. * * *
"(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. * * *
"(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. * * *
"(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. * * *"
The trial court correctly held that, under the recited circumstances, the courts should apply the usual presumption that the interest of the children of tender years is best served by granting the mother the custody of the children of the marriage. This was, in fact, done at the time of the initial separation and divorce. The mother's temporary inability to care for them due to economic distress[1] did not transform her into an unworthy parent, nor alter her custody as being in the ultimate best interest of these young children.
It is true that stability in environment is an important value, so that a party seeking to change a considered determination of the permanent custody of children bears a heavy burden to justify such *860 change as being in their best interest. Nevertheless, here, both parents and children realized at the time of the 1966 change of custody that it was temporary only.
There is no showing that, because of this temporary custody, the children's ultimate best welfare is not better served by returning them to their mother's care in accord with the initial custody determination and in accord with their justified expectations. Their ties with their mother remained warm and strong through their repeated visitations to and with her, and through her love and care for them.
See: Nugent v. Nugent, 232 So. 2d 521 (La.App. 3d Cir. 1970); Malpica v. Puig, 166 So. 2d 546 (La.App. 4th Cir. 1964); Tullier v. Tullier, 140 So. 2d 916 (La.App. 4th Cir. 1962).
We do not hold that variant circumstances might never justify a denial of the return of children to their mother when she has temporarily surrendered their custody. We hold only that no such exceptional circumstances are shown here.
Further, an appellate court must give great weight to the trial court's considered determination of custody. If the trial court decides which parent should best have custody for the children's sake after it has applied correct principles of law, a reviewing court should disturb such custody determination only where there is a clear abuse of the trial court's discretion in the matter, even though reasonable minds might differ as to the children's best interest under the variant circumstances suggested by a particular record.
Accordingly, the judgment of the court of appeal is reversed, and the trial court's decree awarding custody to the mother and providing for visitation rights of the father is reinstated and is affirmed. The defendant father is to pay all costs of these proceedings.
Court of Appeal decree annulled, and trial court judgment reinstated.
BARHAM, Justice (dissenting).
I am of the opinion that the majority has made a grave error of law in its determination in this case, and that its reasoning, the jurisprudence, and, even more important, the Code do not support the result it reaches.
The mother and father of two small children separated in fact on December 30, 1963. When the mother filed for legal separation, she was apparently granted the provisional custody of the children, and the judgment of separation of February 25, 1964, maintained that custody as did a divorce judgment rendered on May 4, 1965. Each judgment of custody was uncontested by the defendant, and the resolution of other matters ancillary to the separation and the divorce were resolved amicably.
On March 27, 1966, the plaintiff mother voluntarily surrendered the custody of the children to the defendant father, who had meanwhile married his second and present wife. On joint motion of both parties that voluntary surrender by the mother was given the form of a judgment of court by which the custody of the two minor children was transferred to the father until such time as the mother could provide a proper home for them. It is conceded that the mother was without moral fault, but that because of work, absence from home, and other such circumstances she felt the children would be better cared for by the father.
On August 5, 1967, a little more than a year later, the mother married her present husband, and it was apparently recognized by the Court of Appeal and the trial court that, from that point on, whatever disability she had at the time of the surrender of the children had disappeared. However, as the Court of Appeal found, she waited two more years before she filed this rule to have custody returned to her. She explained that her delay in bringing the action was caused by her unwillingness to have the children change schools in the fall of 1967, by the birth of a child to her in *861 the summer of 1968, by her second husband's illness in the winter of 1968, and by the unavailability of her lawyer in the spring of 1969.
It is to be noted that when the rule for change of custody was heard, the minor children were then aged ten and eight, and that they had been in their father's custody for over three years in a home where his second wife provided the mother figure and a child born of that second marriage offered another sibling relationship. As noted previously, the mother was at that time remarried and also had a child of her second marriage.
The trial court and the Court of Appeal found that both sets of parents offered good, comfortable, moral, and secure homes. The trial court, after deciding that there was no difference in the parental relationships and other qualities which could be offered in either home, determined that the consent decree of 1966 "must be given full force, weight and effect". The Court of Appeal believed the trial judge committed manifest error in awarding custody on this basis. That court was correct in holding that a consent judgment changing a judgment of permanent custody should not be accorded such dignity as was given it by the trial court. The trial court made no finding of fact which shows that the best interest of the children would be served by a change of custody in this case, but simply concluded that the ultimate best interest of the children would be served by returning them to their mother. The majority opinion reverses the Court of Appeal judgment and reinstates the trial court judgment.
The majority totally errs in citing one of the propositions it quotes as determinative of the issue before us. That quote speaks of the paramount right of the mother in the cases where change of custody is sought from the mother to the father, and is here inapplicable. The other three legal principles cited by the majority are correct, but they would support a determination contrary to that made by it. Although our Civil Code provides in Article 146 that the mother is preferred over the father when the "provisional keeping is claimed by both", once custody is adjudicated on a permanent basis our courts have said repeatedly, as the majority has recognized, that the paramount consideration in the determination of custody is the best interest of the child. It is not to overstate the proposition to say that the sole concern of a court in determining change of custody is the consideration of what will best serve the interest of the minor children.
I am in complete agreement with the majority's statement of law that after a trial court has determined permanent custody, "* * * the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed". (Emphasis here and elsewhere has been supplied.) Children should not be uprooted and removed from a loving and secure environment afforded by one parent unless there are exceptional and substantial reasons advantageous to the welfare of the children for making the change. In deciding what are the good and substantial reasons for change of child custody, if there is any legal advantage with either parent it is with the one in whose custody the children have been for some time.
I would also agree with the majority's legal proposition that when the trial judge determines upon evaluation of the evidence what will serve the best interests of the child, his determination is entitled to great weight. However, as the Court of Appeal found and as the majority must note, the trial court here made no evaluation to support its decision that removal from the father's home to the mother's home would serve the best interest of the children. The majority falls into legal error under the facts of this case in its statement: "* * * The courts should apply the usual presumption that the interest of the *862 children of tender years [ten and eight] is best served by granting the mother the custody of the children of the marriage." The literally Janus-tongued part of the opinion is this: The majority recognizes that a party seeking to change permanent custody "bears a heavy burden to justify such change" as being in the children's best interest, which would place that burden on the mother here; but in the next paragraph the majority says, shifting the burden to the father: "There is no showing that, because of this temporary custody [three years with the father], the children's idtimate best welfare is not better served by returning them to their mother's care in accord with the initial custody determination and in accord with their [whose?] justified expectations." The majority then discusses the appellate court's interference with "the trial court's considered determination of custody * * * after it has applied correct principles of law". As I have previously noted, these are the two failings of the trial court: It erred as a matter of law, and it made no factual evaluation which would warrant a change of custody under the correct legal principles.
Neither the trial court nor the majority has given one single reason why the ultimate best welfare of these children will be served by removing them from an ideal home situation where they lived happily and securely over three years. Both have simply decided that because the mother is woman, some superior right rides with her. The preference of the mother under Civil Code Article 146 when "provisional keeping is claimed by both" has been carried far beyond its purpose, which is simply to resolve the difficulties of child custody in the immediacy of the breakup of a marriage. In this day and time there is less and less reason for granting preference to the mother. The physiological basis which once existed for very young infants has almost disappeared. For infants not nursing there is no physiological basis. The social basis for favoring the mother which once existed because the mother was the homemaker and child-tender while the father was the breadwinner has almost totally disappeared.[*]
In the recent case of Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225, the statutory preference accorded the father as administrator of his minor's estate was struck down by the United States Supreme Court. The court held that the discriminatory classification on the basis of sex was a denial of equal protection, saying: "* * * By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause."
The trial court here found that the father had for over three years provided, and was at the time of trial providing, excellent care and environment for the children. The record reflects that the children had even blossomed and improved in many respects during this custody. There was absolutely no showing that the children needed to be removed. Moreover, there was no showing that removal would be beneficial to the children. The trial court stated not one advantage which would obtain in the mother's custody. There was *863 no basis for changing the custody of these children. The Court of Appeal was correct in reversing upon finding manifest error.
For the reasons stated I respectfully dissent.
NOTES
[1] In the proffer of testimony the defendant husband suggested other reasons for the temporary change of custody, but we agree with the trial court that this testimony is irrelevant as constituting a belated attempt to contradict the joint pleadings filed in 1966. Further, this proffer of testimony shows that the intention of counsel at the time the 1966 pleadings were framed was to permit the mother to take the children back when she could again provide a suitable home for them.
[*] Time Magazine, January 28, 1972, quoting from a number of sources states: "Though many state laws make sex irrelevant in determining custody, judges have traditionally taken the view that only mothers can give youngsters the attention they need. The theory has been that mothers are inherently better fit to provide care and are at home regularly enough to ensure that the children get it. These days, however, Women's Lib has led many men and women to question conventional notions of sex roles. Increasing numbers of wives have simply abandoned home and hearth, leaving husband and children to fend for themselves (TIME, Dec. 20). There are other factors too. Since increasing numbers of women work, the traditional rationale for giving women custody now applies to fewer cases. Ralph Podell, chairman-elect of the American Bar Association's family law section, reports that more men are asking for custody and more judges are granting it." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613630/ | 258 So.2d 562 (1972)
Samuel L. WOMACK et al.
v.
The TRAVELERS INS. CO. et al.
No. 8682.
Court of Appeal of Louisiana, First Circuit.
January 31, 1972.
Rehearing Denied March 22, 1972.
Writ Refused May 1, 1972.
*564 W. Henson Moore and E. Leland Richardson, Dale, Owen, Richardson, Taylor & Mathews, Baton Route, for J. H. Jenkins Contractor, Inc. and Travelers Ins. Co.
Henry D. Salassi, Jr., and Victor Sachse, Breazeale, Sachse & Wilson, Baton Rouge, for Samuel L. Womack, and others.
Gerald L. Walter, Jr. and Carlos G. Spaht, Kantrow, Spaht, Walter & Weaver, Baton Rouge, for Craig, Laird, Pearson & Fournet and Continental Cas. Co.
Edward W. Gray, Percy, Macmurdo & Gray, Baton Rouge, for Hartford.
Calvin E. Hardin, Jr., Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for Hanover.
Frank J. Gremillion, Baton Rouge, for Craig, Laird, Pearson & Fournet.
Joseph F. Keogh, City Parish Atty., Baton Rouge, for City-Parish.
Ashton L. Stewart, Laycock & Stewart, Baton Rouge, for Plantation Pipeline Co.
John Tharp and Tom F. Phillips, Taylor, Porter, Brooks & Phillips, Baton Rouge, for Plantation Pipeline and Travelers Ins. Co.
Before LOTTINGER, SARTAIN and ELLIS, JJ.
SARTAIN, Judge.
This case is one of four consolidated cases, three of which have been appealed, for personal injuries, wrongful death and property damage arising out of an accident which occurred on August 18, 1967. The other two cases appealed are Plantation Pipeline Company v. J. H. Jenkins Contractor, Incorporated, et al., Number 8683 on the docket of this court, 258 So.2d 571, and Hanover Insurance Company v. Travelers Insurance Company et al, Number 8684 on the docket of this court, 258 So.2d 571.
In this case, the plaintiffs are the surviving spouse and children of Virgil V. Womack, Sr., who died as a result of injuries sustained when his house was destroyed in an explosion and fire. His wife also sustained injuries in the accident and sues for those damages as well as for substantial damage to the house and surrounding property, including the loss of some livestock.
Of the several defendants sued, the trial court cast in judgment only J. H. Jenkins Contractor, Inc., and its insurer, The Travelers Insurance Company. These defendants appealed contesting the finding of liability and also seeking a reduction in the awards made to the plaintiffs. The plaintiffs also appealed from that portion of the judgment dismissing their suit as to the other defendants and also seek an increase in the amount of the awards.
Except with respect to one item of damages awarded, which all parties agree resulted from an oversight by the trial judge, and except to the rate of interest set by the court on all awards in these three consolidated cases, we affirm the judgment in all respects. We are favored with extensive, detailed written reasons for judgment, a substantial portion of which we adopt as written in this opinion:
"On the morning of August 18, 1967, a piece of earth moving equipment being used in the construction of Joor Road in the Parish of East Baton Rouge ruptured an underground high pressure gas transmission line in front of the Virgil Womack property resulting in an explosion and fire causing the destruction of the Womack homestead and grievous injuries to both Mr. and Mrs. Womack, ultimately terminating in the death of Mr. Womack. Four consolidated suits emanating from the effects of the holocaust are now before this court for decision. Recovery of damages for the Womacks and others sustaining losses is assured and the principal determination to be made is who will bear the responsibility for this grim tragedy.
"As one of the projects provided for under the recent Capital Improvement Program, *565 a contract was entered into in December of 1965 between the Parish of East Baton Rouge and Craig, Laird and Pearson, Inc., Consulting Engineers, for the design and preparation of construction plans for the improvement of Joor Road from the McCullough Road to the Greenwell Springs-Port Hudson Road. (Womack Exhibit #2) These plans were completed and accepted by the Department of Public Works for the Parish of East Baton Rouge on February 14, 1967. (Plantation Exhibit #4). Following the completion of the plans and their acceptance, a contract for the construction of the improvement of Joor Road was awarded by the Parish of East Baton Rouge to J. H. Jenkins, Contractor, Inc. (Plantation Exhibit #5). During the course of construction of the road an employee of Jenkins, while cutting a ditch with a scraper, ruptured Plantation Pipe Line's twelve inch gasoline transmission pipe line which crossed under the Joor Road in front of the Womack residence. A cloud of gas drifted with the wind to their home where it immediately ignited causing an explosion and fire. Both Virgil Womack and his wife, Lottie Batts Womack, were engulfed in the fire and suffered serious burns and other injuries.
"Primarily, the Womacks rely on the doctrine of res ipsa loquitur as a basis for recovery against the various named defendants; however, in the alternative they contend that these defendants: J. H. Jenkins, Contractor, Inc., as the contractor (hereinafter described as `Contractor'), Craig, Laird and Pearson, Inc., as the design engineers (hereinafter described as `Engineers'), the Plantation Pipeline Company, as owner of the transmission line (hereinafter described as `Plantation'), and the Parish of East Baton Rouge, as the governing body contracting for the project (hereinafter described as `Parish') were all guilty of specified acts or omissions constituting negligence which proximately caused the explosion. To the extent that the blame is foisted on other defendants excluding itself, the Contractor joins in these contentions and, in addition, has named McLord's Aero service, Inc. in a Third Party Demand, alleging that it failed to notify Plantation, with whom it had a contract to fly the pipeline right of way, as to the existence of road building activity in the vicinity of Plantation's right of way. While the court is not satisfied that the doctrine of res ipsa loquitur is appropriate in this case, and examination of the applicability of the doctrine will not be made because of its determination that negligence attributable to one of the defendants is manifest.
"Essentially, the negligence ascribed to the several defendants is described by the plaintiff as follows: It is contended that the Contractor through its agents, servants or employees operated road grading machinery in such a way as to strike and rupture the pipeline despite the fact that the existence and location of the pipeline was either known to them or should have been known to them. It is further contended that the Engineers were negligent in failing to properly mark the location of the pipeline on the construction plans and in failing to notify Plantation as called for under its contract. Plantation is alleged to have been negligent in failing to see that the location of its pipeline was properly marked. Finally, the Parish's liability is based upon the allegations that it did not properly supervise the engineers in the preparation of the construction plans and in not complying with the prerequisites of R.S. 38:2219 requiring governmental bodies to notify in writing all utilities, communication and public service companies which may have underground installations in the right of way of impending construction projects.
"At the outset let the Court make it abundantly clear that it has no reservations concerning the liability of the Contractor for the occurrence of the rupture of Plantation's gas line. Under the provisions of its contract with the Parish, the Contractor was required to become familiar with the plans and the site itself in order to determine existing structures, sub-surface obstructions *566 and to provide protection for pipes, drains, etc. Particularly, there are several provisions in its contract establishing its responsibility in this respect:
"CONFLICT WITH SUB-SURFACE OBSTRUCTIONS: Care shall be taken by the Contractor not to injure any oil, gas or water pipe, sewer drain, or conduits or other underground structures known to exist in the proximity of the work of this contract ... (Page Two Special Provisions, Plantation Exhibit #5)
and further:
"* * * The Contractor shall be responsible for notifying the owners of these utilities in advance of any required moving and/or adjustments so as to allow the owners of the utilities ample time to schedule work forces to perform the work. * * *
"The Contractor will be responsible for any damage done by him to utility structures where the existence of the facility or structure has been made known to the Contractor prior to his working in the immediate vicinity. (Page Four of Special Provision, Plantation Exhibit #5)
"But moreover, aside from the responsibility which the Contractor had insofar as discovering and communicating information concerning any underground obstructions present, the Contractor, through his job supervisor, did have actual knowledge of the presence of the Plantation pipeline in the immediate vicinity of the construction project. Herman Morgan, a man with a wealth of practical experience in road building, was Jenkins' supervisor on the Joor Road project. He acknowledged not only in his testimony in court, but in a previous deposition, that he had seen the notation `Plantation pipeline' on the construction plans and was well aware of its existence. He further admitted he did not tell anyone about the presence of the pipeline. The employees directly under him said that they relied on Morgan to alert them to any pipeline right of ways or other possible underground obstructions. Morgan made no inquiry of either the City-Parish project engineer or of Plantation as to whether the pipeline posed any risk or threat in the construction of the road. Mr. J. H. Jenkins, Sr., candidly acknowledged that he did not see the notation of the pipeline on the plans, but had he or his employees seen the notation on the plans, he would have gotten in touch with the project engineer or the utility owner because he recognized it as a warning or sign of danger dictating the need for caution. His attitude in this regard is consistent with the opinion of all of the engineers who testified on the trial to the effect that the indication of a pipeline on a set of plans is a `red flag' calling for the utmost in care and precaution on the part of everyone involved. Consequently, the knowledge of Morgan and his failure to act must be considered as negligence imputed to his employer, Jenkins."
At this point, we feel that an amplification should be made of the duty of the Contractor under the contract. As noted by the trial judge, Mr. Jenkins did not see the notation when he reviewed the plans preparatory to submitting a bid and commencing work. It is argued that the notation was made on the extreme left side of the particular page and was relatively inconspicuous, considering its importance. Nevertheless, it was within the heavy blue-line rectangle containing all the plan data and it was not the only notation so located on the same page: directly above it was a notation, "Rough grade existing Road" with an arrow pointing to approximately the same area of the plan. The failure of Mr. Jenkins to see the pipeline notation, although he should have seen it, led to his failure to notify Plantation, as required by the contract clause quoted above. Further, he is charged with constructive knowledge of the existence of the facility prior to the commencement of the work in the vicinity and under the contract he is responsible for the damage done by his employee. In these respects, the responsibility of the contractor is independent *567 of and broader than that of the Engineers or Parish in notifying the owner of an affected structure or facility. Whether the duties of the Engineers and the Parish were to communicate the existence and hazard of the pipeline or only the existence of it, the Contractor had an independent contractual duty to determine the hazard once the existence of the facility was known or should have been known.
The trial judge continued as follows:
"The remaining parties to the suit, being the Engineers, the Parish, and Plantation, as well as the Third Party Defendant, McCord's Aero Service, Inc., were named as defendants predicated upon the contention that they failed to furnish an adequate warning that the pipeline constituted a hazard to the construction of the road. Therefore, the gravamen of the complaint against them deals with the sufficiency or lack of notice to the Contractor, being the agency which was constructing the improvement and which caused the actual occurrence. Absent knowledge on the part of the Contractor as to the existence of the pipeline, the Court believes that a sound case could be made against the Engineers and the Parish in that they failed in regard to the respective duties owed by each of them. But no useful purpose would be served in documenting their deficiencies in failing to fully signal the presence of the pipeline and to bring it to the attention of the Contractor. Suffice it to say that the Contractor, through its employee, was indeed apprised of the possible conflict and yet neglected to take proper care and precaution. The Contractor's inaction in this regard constitutes the efficient cause in fact of the occurrence without which it would not have happened. In the Court's opinion, its negligence superceded any which may have been found on the part of the Engineers and the Parish.
"Having disposed of the question of liability, the Court now addresses itself to the various claims set forth in the respective suits. Suit No. 128,336 [No. 8684 on the docket of this court] represents the subrogation claim of the Hanover Insurance Company to recover the sum of $7,000.00 which it paid to the Administrator of the Succession of Virgil Womack under the provisions of its fire insurance policy for the destruction of the Womack residence. The amount of the claim has been stipulated to by the parties to the suit and is therefore established as being due by the defendants, J. H. Jenkins Contractor, Inc., and its insurer, The Travelers Insurance Company.
"Suit No. 128,718 [No. 8683 on the docket of this court] represents a claim by the Plantation Pipeline Company for the losses sustained by it as a result of the rupture of its twelve inch line. Since no negligence assessable to this plaintiff was found by the court, it too is entitled to recover as against Jenkins and Travelers. Essentially Plantation's demand may be divided into the cost of fighting the fire and repairing the transmission line, and for the loss of product discharged through the rupture in the line. Supporting testimony and invoices substantiate all of its claim of $23,579.69; however, there are three items included which the court believes should be disallowed. The first two relate to a 15% overhead charged on labor and materials furnished by Plantation in fighting the fire and repairing the rupture. These sums amounted to $364.42 and $398.91, respectively, or a total of $763.33. In addition, the amount of $153.22 representing travel expense of the company's counsel from its home office in Atlanta, Georgia, is not granted in that investigative expenses toward the preparation of a law suit are not generally allowed. Therefore, the total amount awarded, after making the proper deductions, is $22,663.44.
* * * * * *
[Omitted is the disposition of the case not appealed.]
*568 "Finally, Suit No. 128,784 [the instant case, No. 8682 on the docket of this court] represents the claims of the surviving widow and four surviving children of the decedent, Virgil V. Womack, Sr. Mrs. Lottie B. Womack has a claim for not only her own injuries, but her claim as the surviving widow for the loss of her husband and special damages sustained by the community existing between her and her husband. Samuel Womack, Virgil V. Womack, Jr., Libby Amanda Womack Millican and Louis M. Womack sue for the loss of their father.
"There existed a close knit family relationship among the Womack parents and their children. The children were devoted to their father and mother and visited them frequently, and particularly Mr. Womack's sons assisted their father in working his cattle farm. Testimony of neighbors attested to the high regard and esteem in which the family was held in that sector of the community. It is fair to state that the Womack family is the type of family which has heretofore constituted the strength of the fabric which has held our nation together and made it great.
"Mr. Womack was a retired employee of Standard Oil Company however he was an extremely active person at the time of his death. He raised cattle on an approximately 500 acre tract he owned on the Joor Road. Mr. Womack was 65 years of age at the time of his death and had been married to his wife for approximately 46 years.
"At the time of the rupture of the pipeline, Mr. Womack was working out in the yard and Mrs. Womack was just coming out on the porch. As a result of the explosion and fire Mr. Womack sustained first, second and third degree burns over more than 50% of his body. Mrs. Womack, while not quite severely burned, suffered a fracture of the right ankle and a sprain of the left ankle. She and Mr. Womack were both hospitalized in the Baton Rouge General Hospital and treated by Doctors J. C. Werner and Arthur A. Mauterer.
"Mr. Womack lived for one month to the day following the explosion. His stay at the hospital was marked by extensive treatment for his severe burns. According to the testimony of the attending physicians, his nurse and family, Mr. Womack remained conscious the entire time during his hospital confinement. Considering the seriousness of his burns and the constant cleaning and dressing procedures undertaken as treatment, it is obvious that Mr. Womack must have suffered intense pain and discomfort as a result of his injuries. Complications set in on September 7, 1967, and his condition worsened and finally on September 18th he died of heart failure.
"Mrs. Womack suffered 25 to 30% first and second degree burns about her body which required treatment, but not as extensively as that of Mr. Womack. The fracture of her right ankle was immobilized and her hospitalization continued until October 4, 1967, when she was discharged. Dr. Werner testified that her burns have healed satisfactorily; however, there still remains some sensitivity. The Court observed that the scars on her arms were quite noticeable, but were not grotesque in appearance. Mrs. Womack had an infection of the urinary tract following her hospitalization which Dr. Werner associated with her recovery period in the hospital. In addition, Mrs. Womack said that she still had some difficulty in the use of her right ankle. In regard to her injuries, Dr. Werner estimated her disability originally at 40% and indicated that her disability at the present time may have been reduced to 20%, but in any event she now has reached maximum recovery. Although Mrs. Womack has indeed made a remarkable recovery, the effects of the ordeal on her physical condition were and are considerable.
"The Court has given considerable thought in regard to the items of damages sought by the plaintiffs, and recognizes *569 those elements of damages such as: the pain and suffering of Virgil V. Womack, Sr., prior to his death; loss of love and affection sustained by Mrs. Womack and her children as a result of his death; loss of future support to Mrs. Womack; and Mrs. Womack's claim for her own injuries. Rather than breaking down these elements of damages into artificial categories as is conventional in these matters, the court believes that a sensible and reasonable approach toward fixing damages is to award a gross sum as damages for each plaintiff, exclusive of special damages. Therefore, the court is of the opinion that the evidence warrants a finding as to damages to be awarded each of the plaintiffs in this case as follows: Mrs. Lottie B. Womack $100,000; Samuel L. Womack$15,000; Virgil V. Womack, Jr.$15,000; Mrs. Libby Womack Millican$15,000; and Louis M. Womack$15,000.
* * * * * *
[Omitted is an itemized list of stipulated funeral and medical expenses incurred by plaintiffs.]
"The only item of [the above omitted] special damages which has been seriously questioned by the defendant relates to amount of the Baton Rouge General Hospital bill paid by Medicare. As pointed out by counsel for the plaintiffs, the jurisprudence is to the effect that a plaintiff's tort recovery is not diminished because of payments made through insurance benefits received from other collateral sources independent of the wrongdoer's procuration or contribution. See Hall v. State of La., through Dept. of Highways, 213 So.2d 169 ([La.App,] 3rd Cir. 1968) Writ refused, [252 La. 959], 215 So.2d 128.
"Further in this regard, it has been held that where a charity hospital did not intervene in a suit under R.S. 46.8 et seq., an award to the plaintiff for the medical expenses of hospitalization was proper. See Leonard v. Travelers Insurance Company, 183 So.2d 447 ([La.App.] 2nd Cir., 1966). Also Pea v. Smith, 224 So.2d 37 ([La. App.] 1st Cir., 1969). Apparently there are no Louisiana cases in point, but using the foregoing cases as a criteria, it would appear that there is justification for requiring the tort feasor to satisfy those medical expenses incurred, though not paid. The total funeral, medical and other expenses therefore amount to $20,788.93.
"As a result of the fire and explosion, the Womack's house and most of the farm buildings were destroyed. In addition, the trees and shrubs in the vicinity of the house were ravaged to the extent that the majority have died leaving a scene reminiscent of a wartime battlefield.
"Generally speaking, if property or improvements cannot be restored, the value to be established as damages should be the cost of replacement, less depreciation. Davis v. Roberts, 194 So.2d 772 ([La.App.] 1st Cir., 1967). The Womack home, while an old house, had been completely remodeled shortly before the fire and was in excellent condition. In addition, the barns and other outlying farm structures, including the fences, were in fine condition before the fire. Two contractors, John Moore for the plaintiffs and Lucius Odom for the defendants, Jenkins and Travelers, testified concerning the replacement cost of the house and outbuildings. Although very qualified, both men were at a distinct disadvantage in that neither had inspected or were familiar with the home before the fire. Although there was not a significant difference in their estimates, in the court's opinion Moore's estimate, though based on 1970 costs was the more informed of the two estimates. He estimated the cost of reconstruction of the house at $27,620.00 and $19,573.50 for replacement of the other farm buildings and fences.
"Moore's estimates did not include any deduction for depreciation and accordingly the court deducts a sum roughly equivalent to 10% on the house and 30% on the other structures to reach the value of these improvements. Consequently, the *570 value determined for the house is $24,800.00 and $13,700.00 for the other farm structures."
At this point, we note that the trial judge inadvertently failed to deduct from the award for the damage to the house the sum of $7,000.00 which was recovered by the Wamacks from their insurer. This portion of the judgment will be amended to limit the recovery for the house to $17,800.00.
We continue with the opinion of the trial judge:
"The plaintiffs have made a substantial demand for the loss of trees and shrubs and submitted a leading expert in the field of forestry, Frank W. Bennett. While the court readily acknowledges that Mr. Bennett is well qualified to speak on trees and their values, nonetheless, as pointed out by the defendants, he did not follow the jurisprudential rules in regard to obtaining a proper value. The general test for the value of trees is the measure of the difference in the value of the property with and without the shade or ornamental trees. Davis v. Chicago R. I. & P. Ry. Co., 13 So.2d 389, ([La.App.] 2nd Cir. 1943). Actually Bennett acknowledged he did not make a study of land values and his estimate of $10,702.00 for the value of the trees obviously is in excess of the value of the land alone upon which the trees were located. Considerable discretion is left to the trial judge in these matters and the court believes that the sum of $2,500.00 for the loss of trees and shrubs is a more realistic and reasonable amount. See City of New Orleans v. Shreveport Oil Co., 128 So. 35, 70 [170] La. 432 (1930). Also Morgan v. Dixie Electric, 112 So.2d 315, ([La.App.] 1st Cir., 1959).
"In addition to the destruction of the improvements and vegetation in the area, the Womacks lost a number of their cattle in the fire. A veterinarian, Dr. Donald Winkler, who was familiar with the Womack's herd of cattle testified as to their worth. While there were some definite questions raised about his valuation of some of the animals, in the absence of any opposing testimony of a qualified expert, the court is of the opinion that the value of $11,130.00 set by him must stand."
After making the awards to the several plaintiffs in the several consolidated cases arising out of this accident, the trial judge ordered that those awards should bear interest at the rate of 5% per annum from the dates of judicial demand until July 29, 1970, the effective date of Acts 1970, No. 315, which raised the rate of legal interest, and at the rate of 7% per annum thereafter until paid. The latest cases interpreting this Act have held that under L.R.S. 13:4203 the legal interest in ex delicto cases attaches from the date of judicial demandnot from the date of judgment. Hebert v. Travelers Insurance Company, 245 So.2d 563 (2nd La.App. 1971), writ refused; Vonderbruegge v. Bethea, 250 So.2d 407 (1st La.App.1971). Legal interest is a matter of substantive law. Williams v. Petroleum Helicopters, Inc., 234 So.2d 522 (3rd La.App. 1970), writ refused. And a change therein should not be given retroactive effect unless the legislature so provides. This judgment accordingly will be amended.
Accordingly, and for the above and foregoing reasons, the judgment of the trial court is amended to reduce the award in favor of Mrs. Lottie B. Womack from $181,918.93 to $174,918.93 (representing the insurance proceeds recovered by her for damage to her house) and the judgment is further amended to provide that all awards shall bear interest at the rate of 5% per annum from date of judicial demand until paid. As amended, the judgment is affirmed, at costs of the defendants-appellants, J. H. Jenkins Contractor, Inc., and The Travelers Insurance Company.
Amended and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613781/ | 258 So. 2d 694 (1972)
Maurice L. DEVILLE, Plaintiff-Appellee,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Defendants-Appellants.
No. 3734.
Court of Appeal of Louisiana, Third Circuit.
March 2, 1972.
*695 Stafford, Pitts & Bolen by John L. Pitts, Alexandria, for defendant-appellant.
Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for defendant-appellee-appellant.
Neblett, Fuhrer and Hunter by Leonard Fuhrer, Alexandria, for plaintiff-appellee.
Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for defendant-appellee.
Before CULPEPPER, MILLER and DOMENGEAUX, JJ.
DOMENGEAUX, Judge.
Plaintiff, having been injured in an automobile accident, filed suit against Horace W. Rand, John C. Defee, Southern Chevrolet Company, Inc., Hartford Accident and Indemnity Company and United States Fidelity and Guaranty Company.
The facts show that on the morning of August 2, 1969 Horace W. Rand was the owner of an automobile which he had taken to Southern Chevrolet for service involving periodic routine maintenance. Southern Chevrolet habitually afforded its customers the convenience of picking up and delivering the automobiles to be serviced, and at the time employed John C. Defee, among others, for that purpose. Hartford was the liability insurer of the Rand automobile and Fidelity was the liability insurer of Southern Chevrolet.
Rand was driven to his office, in his automobile, by Defee. The latter was on his way back to the place of business of Southern Chevrolet, driving the Rand vehicle, when he came to a red semaphore light at which plaintiff was sitting in his stopped automobile. For some reason he failed to stop behind plaintiff's automobile, but instead struck its rear with the front end of the Rand automobile. Plaintiff alleges that he sustained injuries to his cervical spine as a result of the rear end collision.
Prior to trial Horace W. Rand was dismissed from the suit by a summary judgment *696 in his favor. Hartford filed a third party demand, in the alternative, against Fidelity, asking that if liability on its part should be found to exist, it be considered an insured of Fidelity and entitled to reimbursement from it for any sums paid out, as well as attorney's fees and other expenses incurred.
Following a trial on the merits judgment was rendered in favor of plaintiff and against Southern Chevrolet, Defee, and Fidelity jointly, severally and in solido in the amount of $25,581.15. Hartford was let out under an exclusion in its policy which denied coverage in the circumstances presented. The judgment was appealed by those defendants cast as well as by Hartford, the latter seeking to protect its third party demand in the event that coverage on its part should be found by this court. Plaintiff answered the appeals seeking an increase in the damages awarded him.
The liability vel non of Defee and Southern Chevrolet is not disputed, nor is there any serious denial of coverage on the part of Fidelity under the garage policy that it issued to Southern Chevrolet. The evidence is clear that the picking up and delivering of automobiles serviced by Southern Chevrolet was part and parcel of its "garage operations". It in fact had from two to four employees whose sole duty was to pick up and deliver customer's vehicles for service purposes, and a dispatcher who spent 90 per cent of his time attending to that operation. Accordingly the sole issues herein treated are those of insurance coverage on the part of Hartford and quantum.
The Hartford policy was determined not to afford coverage under an exclusionary clause therein contained which provides as follows:
"5. Exclusions: This policy does not apply under Section 1: ....
(g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which the named insured or such resident is a partner, or any partner, agent or employee of the named insured, such resident or partnership;"
Under the heading "Definitions" in Section I of the policy we find, inter alia, the following:
"`automobile business' means the business or occupation of selling, repairing, servicing, storing or parking automobiles;"
In asserting that the exclusionary clause above quoted does not encompass the circumstances of this case, Fidelity cites two cases, Wilks v. Allstate Insurance Company, La.App., 177 So. 2d 790, writ refused, 248 La. 424, 179 So. 2d 18; and Dumas v. Hartford Accident & Indemnity Company, La. App., 181 So. 2d 841. Both cases held that under facts similar to those in the case at bar, exclusionary clauses of the type before us were ineffective.
The clause in the Wilks case was substantially different from the instant one. Therein the policy stated that it did not apply to, "... an owned automobile while used in the automobile business,.." The key word was "used", and this court indicated that in a fact situation nearly identical to the one before us the automobile was not being "used in the automobile business" and, concluding that the clause was at least ambiguous, denied the defendant insurer a summary judgment dismissing it from the suit.
The clause found in the instant policy was apparently designed to replace the clause of the Wilks case and to be a clear statement of the intentions of the parties to the insurance contract. We think that purpose was achieved and find no ambiguity in the present clause.
Our esteemed brothers of the Court of Appeal of Louisiana, Second Circuit, opined *697 otherwise in Dumas v. Hartford Accident & Indemnity Company, supra. Presented with a clause identical to the one now under consideration, and a fact situation differing from ours only in that the automobile therein had already been serviced and was on its way back to the owner, they concluded that the exclusion did not apply and "... out of an abundance of precaution..." that the exclusionary clause was at least ambiguous.
The decision in Dumas was based on the court's determination that the work on the insured vehicle had been completed and that therefore the service station attendant who was driving it back to its owner's residence was not "employed or otherwise engaged in the automobile business." Although the trial judge and counsel for Hartford have made valiant attempts to distinguish the Dumas case, we think it unnecessary to do so since we opine, as the trial judge evidently ended up doing, that the Dumas opinion is in error.
The exclusionary clause is clear and completely devoid of ambiguity. There is no liability coverage of the owned automobile while being used by any person while such person is employed or otherwise engaged in the automobile business. Surely an employee of the servicing concern, in our case Southern Chevrolet, is employed in the automobile business. The evidence adduced at trial leaves no doubt but that the pick up and delivery of vehicles to be serviced is a routine and significant portion of the activities of Southern Chevrolet. The conclusion is therefore inescapable that when the employee of Southern Chevrolet, whose only duties consist of picking up and delivering automobiles to be serviced is engaged in driving an automobile to his employer's premises or from there to its owner's premises, he is employed and engaged in the automobile business as such is defined in the policy.
Accordingly we hold the exclusionary clause contained in the Hartford policy to be applicable and affirm the trial judge in his conclusion that the policy affords no coverage in this case. We therefore need not consider the points raised by Hartford's appeal and we turn now to the issue of quantum.
Plaintiff testified that the impact of the collision twisted or jerked his neck producing a peculiar sensation therein, but one which he could not really call pain until later in the day. Around two or three o'clock that afternoon his neck had become increasingly sore and painful and he therefore consulted Dr. Edward R. Villemez, a general surgeon.
Dr. Villemez testified that he examined plaintiff, took x-rays which were negative, and diagnosed his ailment as a cervical strain. He prescribed heat and muscle relaxants. He examined plaintiff again on September 9, 1969 and on November 24, 1969, reaching the same diagnosis and prescribing the same treatment, except that on the latter occasion he recommended cervical traction. If the traction did not afford him relief, said Dr. Villemez, it would indicate the presence of a condition more serious than a cervical strain, and an orthopedic consultation would be warranted.
On January 8, 1970, plaintiff was evaluated by an orthopedic specialist, Dr. C. W. Lowrey, who found diminution in the disc space at the C-5, 6 level with posterior lipping. He also found tenderness and tightness in the neck as well as atypical sensitivity in the right arm and hand corresponding roughly to the C-6 sensory pattern. Dr. Lowrey considered plaintiff to be suffering from a cervical strain with cervical radiculitis and degenerative disc disease and arthritis at the C-5, 6 level. He stated that plaintiff was still demonstrating some residual findings and possibly radicular symptoms as a result of the accident and pre-existing degenerative changes. Being of the opinion that traction treatments *698 would be beneficial, he referred plaintiff to one Jeff Hunt, a physical therapist.
Dr. Lowrey saw plaintiff again on February 17 and March 31, 1970. The plaintiff seemed to be much improved as a result of the traction treatments and the doctor felt that it was no longer necessary that plaintiff return to see him. It was his opinion that the accident had aggravated a preexisting condition. He advised plaintiff that if the symptoms should recur it would be well to consult a neurosurgeon and with that, discharged him.
Finally, Dr. Lowrey re-examined plaintiff at his attorney's request on January 5, 1971, after he had consulted two neurosurgeons. On that occasion he found plaintiff possibly feeling somewhat better but still having considerable difficulty. He still had decreased sensation in his arm, forearm, and hand, and his neck motion was slightly more limited than on previous examinations. He told plaintiff that he concurred in the diagnosis made by the neurosurgeons.
The neurosurgeons that he referred to were Dr. Loyd C. Megison, Jr., to whom Dr. Lowrey referred plaintiff in May, 1970, and Dr. John D. Jackson, who examined plaintiff on July 8, 1970 at defendants' request. Both neurosurgeons diagnosed plaintiff's trouble as being a C-6 nerve root compression probably caused by a ruptured disc at the C-5, C-6 level. Both recommended that a myelogram be performed and, if warranted, a surgical procedure referred to as an anterior fusion. The result of such an operation was said to normally be approximately 15% disability, but in plaintiff's case, it could be greater because both neurosurgeons suspected that the pressure on the C-6 nerve root had already produced some degree of permanent damage.
Plaintiff himself testified that he has had pain in varying degrees of severity continuously since the accident and that he has frequently been forced to stop working because of it. He stated that his occupation as a draftsman requires constant turning of his head, an activity made extremely difficult by the pain in his neck. Besides the rest periods he often takes, he testified to having missed eight or nine work days because of this pain.
He admitted to having had a previous episode of pain in his shoulder and arm, that his physician had diagnosed as bursitis, some months before the accident, but specifically denied ever having experienced pain in his neck before the accident of August 22, 1969. Additionally he said that all symptoms of that previous difficulty had disappeared before the date of the accident. This was corroborated by the testimony of Herbert B. Day, plaintiff's boss, and Sidney L. Bertheaud, a co-employee. Both of these men had considered plaintiff to be in good health and free from physical problems before the accident, and both noted evidence of physical difficulty in him after the accident. Mr. Day additionally confirmed plaintiff's absences and periods of inability to do the work.
With regard to the proposed operation plaintiff stated that he was afraid and reluctant to have it. This was in accord with the testimony of the various medical specialists, all of whom testified that plaintiff was emphatic in his refusal to submit to the surgical procedure.
The award made by the trial court was said, in the able district judge's reasons for judgment, to be composed of the sums of $338.43 for loss of wages, $242.72 for medical expenses, and $25,000.00 for general damages. The defendants-appellants urge vigorously that the last item is grossly excessive.
They argue that what plaintiff suffered in the collision was at most an aggravation of a pre-existing condition, but neglect that principle of our tort law, too well known to require citation, that a tort *699 feasor takes his victim as he finds him. We think the evidence is clearly convincing that plaintiff has suffered pain and disability since the accident which was unknown to him previously.
Defendants cite a number of cases in which lesser awards were made to plaintiffs suffering from similar maladies but we are not thereby persuaded to reduce the award, as we do not consider it to be abusive of the much discretion afforded the trial court in determining the quantum of damages by La.C.C. Art. 1934(3). Matthews v. F. Miller & Sons, Inc., La.App., 146 So. 2d 522 (certiorari denied, January 14, 1963.)
We were recently reminded of the extent of that discretion by our Supreme Court in Miller v. Thomas, 258 La. 285, 246 So. 2d 16. After quoting from a number of previous cases on the subject, that opinion stated the rule of appellate review of quantum of damages to be as follows:
From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the `much discretion' accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity."
We are unable to say that the award presented for review, while it appears to approach the upper limits thereof, was abusive of the trial court's discretion. On the other hand, we consider plaintiff's contention that it is inadequate to be without merit.
For the above and foregoing reasons the judgment of the district court is affirmed at the costs, both in this and in the trial court, of those defendants thereby cast.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613563/ | 821 So.2d 730 (2002)
Bertha HANKTON
v.
CITY OF NEW ORLEANS (Department of Public Works & Parking).
No. 2001-CA-0714.
Court of Appeal of Louisiana, Fourth Circuit.
June 19, 2002.
*731 Joseph G. Albe, Ben E. Clayton, Metairie, LA, Counsel for Plaintiff/Appellee.
Wayne J. Fontana, John M. Daves, Courtenay, Forstall, Hunter & Fontana, Texaco, New Orleans, LA, Counsel for Defendant/Appellant.
(Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
*732 Judge PATRICIA RIVET MURRAY.
The City of New Orleans appeals suspensively from the decision of the workers' compensation court holding that claimant Bertha Hankton is entitled to receive temporary total disability and medical benefits for a work-related mental injury sustained by her while she was employed by the City in the Department of Public Works and Parking. Ms. Hankton answers the appeal seeking a reversal of those portions of the judgment denying her additional compensation for a work-related physical injury claimed by her, and declining to award her penalties or attorney fees. For the reasons that follow, we reverse the judgment of the workers' compensation court insofar as it finds Ms. Hankton entitled to compensation for mental injury, and affirm the judgment in all other respects.
FACTS
Bertha Hankton began working for the City as a parking ticket writer in 1975. In 1981, she was promoted to Parking Supervisor I, in which position she supervised field personnel who went out and ticketed illegally parked vehicles. In 1996, she was promoted to the classification of Parking Supervisor II. Shortly thereafter, new management in the department changed her job to that of training coordinator, a newly-created position which consisted of training parking ticket writers. After a few months in that position, Ms. Hankton's supervisor suggested she become a complaint officer, which she did. In April 1998, however, Ms. Hankton was transferred to field supervisor in the abandoned vehicles unit. On April 29, she attended a meeting at which each supervisor was given a written memorandum outlining the procedures to be followed in the abandoned vehicles section. About three weeks later, Ms. Hankton attended a follow-up meeting where she expressed discomfort and a lack of understanding as to what was expected of her and asked for guidance. As a result, a Parking Operations Analyst was sent to meet with Ms. Hankton individually and discuss her concerns. On June 30, 1998, another followup meeting was held, at which Ms. Hankton asked how she should handle a specific situation regarding overtime pay for a certain employee, LaShay Johnson, who worked primarily in Ms. Hankton's section but also served as a backup in other sections. Ms. Hankton was instructed to write Ms. Johnson a memo informing her of the procedures she should follow in the future to properly document her overtime. Instead, Ms. Hankton sent Ms. Johnson a memo the same day telling her that she could not be compensated for a prior Saturday that she had worked because she did not have a time card to verify her presence.
On July 15,1998, Ms. Hankton met with Ms. Rhonda Thompson, who was her immediate supervisor, and Ms. Lynn Simon, the Deputy Parking Administrator. During this meeting Ms. Hankton was handed a memorandum dated July 7, 1998, addressed to her from Ms. Simon. The memorandum acknowledged that Ms. Hankton had expressed confusion about her job description, but also noted that, in her meeting with the Parking Operations Analyst, she had not indicated any specific areas in which she needed further clarification of her responsibilities. It further noted that Ms. Hankton was not taking responsibility for the completion of work orders to remove abandoned vehicles. The memorandum concluded, in pertinent part:
Given the caliber of job performance thus far, we have developed serious concern as to your ability to handle this position. Moreover, your memo dated June 30, 1998 to LaShay Johnson (see attached) creates even further cause for *733 concern relative to your supervisory skills and decision making ability.
As a Parking Supervisor II with extensive supervisory experience, it would seem that you would fully realize we cannot refuse to pay someone (as implied by the memo) for work that was performed, especially when they have not been warned in writing of such a possibility if they do not follow procedures....
* * * * *
Given your overall job performance during the past (9) nine weeks, and most especially your lack of sound judgement in the situation concerning Ms. Johnson, I believe discipline is necessary. Therefore, you are being suspended for (1) day, next Thursday, July 16, 1998.
The memorandum also informed Ms. Hankton of her right to appeal the one-day suspension to the Civil Service Commission. Ms. Hankton became very upset at this meeting and was outraged by her suspension. She went on sick leave the day following her suspension. On July 20, she saw Dr. Theresa Adderley, complaining of headaches, chest pains, heart palpitations and elevated blood pressure, which symptoms Ms. Hankton said began right after she learned of her suspension. Ms. Hankton also saw a psychologist, Dr. Yvonne Osborne, in July, who treated her for depression, accompanied by feelings of rage and hostility over the fact that she had been suspended after 23 years on the job without any prior problems. Dr. Osborne opined that Ms. Hankton was too depressed to work. On July 24, 1998, Ms. Hankton applied for medical leave claiming she suffered from work-related stress and was granted leave. She remained on sick leave and then was placed on medical leave without pay in June, 1999. At some point she stopped seeing Dr. Osborne, to whom she had been referred by the City, and began seeing Dr. Kevin Jackson for the treatment of her depression. She also continued to see Dr. Stallworth for back and leg pain. Ms. Hankton had injured her back in two prior automobile accidents while driving City vans, one in 1980 and one in 1990. She claimed this condition worsened and she began having shooting pains down her right leg about one month prior to her suspension, when she had to stretch her leg to reach the pedals of the vehicle the City had assigned to her for her job in the abandoned vehicles section.
Ms. Hankton appealed her suspension to the Civil Service Commission, which rendered a decision on June 9, 1999, upholding the suspension. She also filed the instant claim for worker's compensation. She claimed physical disability due to her leg pain and aggravation of her preexisting back condition, and mental disability due to her depression. In relation to the filing of her claim, Ms. Hankton was seen by three additional doctors at the request of the City: Dr. Mimeles (an orthopedist), Dr. Colomb (a psychiatrist) and Dr. Barber.
Ms. Hankton's claim was tried to the hearing officer on April 27, 2000, and June 16, 2000. Witnesses included Ms. Hankton, Ms. Simon, Mr. Robert Miller (the head administrator of the Parking division) and Ms. Bonin, a claims adjuster for the City's workers' compensation carrier. The deposition testimony of Dr. Colomb was submitted, as were written records and reports of all the other physicians. On October 2, 2000, the court rendered judgment finding that the claimant had proved by clear and convincing evidence that she had sustained a compensable mental injury on July 15, 1998, when she was reprimanded and given a one-day suspension, and that she was, therefore, entitled to temporary total disability benefits and related medical benefits beginning on that date *734 and continuing until such time as she is released by her treating psychologist to return to work. Additionally, the court found that Ms. Hankton had failed to prove that she had sustained a compensable physical injury while operating a City vehicle in 1998, and further, that the City had not acted arbitrarily or capriciously by failing to pay benefits while it disputed the claim.
On appeal, the City argues that the OWC erred by finding that Ms. Hankton's mental injury was the result of "a sudden, unexpected, and extraordinary stress" related to her employment such as would entitle her to benefits under the Louisiana Workers' Compensation Act, La. R.S. § 23:1021 et seq. Answering the appeal, Ms. Hankton seeks reversal of those portions of the OWC's judgment holding that she did not sustain a compensable physical injury and that the City did not act arbitrarily or capriciously in disputing her claim.
STANDARD OF REVIEW
A workers' compensation case is subject to the "manifest errorclearly wrong" standard, which precludes the appellate court from setting aside findings of fact unless they are clearly wrong in light of the record reviewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (:La.1/14/94), 630 So.2d 706,710.
THE CITY'S ASSIGNMENT OF ERROR
The City contends the workers' compensation court was clearly wrong in finding that the claimant's mental injury was compensable. Ms. Hankton's entitlement to benefits for what the jurisprudence has termed a "mental/mental" injury is governed by La. R.S. § 23: 1021(7)(b), which reads:
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence. (Emphasis added.)
Generally, for a claimant to be entitled to benefits under this provision, the mental injury must be precipitated by an accident, i.e., an unexpected and unforeseen event that occurs suddenly or violently. Favorite v. Louisiana Health Care Authority, 98-721, p. 4 (La.App. 5 Cir. 12/16/98), 725 So.2d 556, 558 (citing Sparks v. Tulane Med. Center Hosp. & Clinic, 546 So.2d 138 (La.1989).) Therefore, a mere showing that the claimant's mental condition is related to general conditions of employment, or to incidents occurring over an extended period of time, is insufficient to justify compensation under the Act. Id.; Edwards v. Ficshbach & Moore, Inc., 31,372 (La. App. 2 Cir. 12/9/98), 722 So.2d 344. Moreover, Louisiana courts have uniformly held that an objective test (rather than merely the subjective viewpoint of the claimant) is used to determine whether the stress that triggers a mental injury is "extraordinary;" thus, it must be stress that would be considered "sudden, unexpected and extraordinary" by a reasonable person of usual sensibilities. See, e.g.: Tranchant v. Environmental Monitoring Service, Inc., 00-1160 (La.App. 5 Cir. 12/13/00), 777 So.2d 516; Edwards v. Fischbach & Moore, Inc., supra; Aucoin v. Dow Chemical Co., 98-1912 (La.App. 1 Cir. 9/24/99), 745 So.2d 682.
Ms. Hankton contended that the meeting at which she was reprimanded and then handed the letter informing her of her suspension constituted "sudden, unexpected and extraordinary" stress because *735 it was the very first time she was given any indication that her employer was not satisfied with her job performance. The testimony confirmed that Ms. Hankton became very upset when she was told of the suspension, but there was no yelling or profanity used at the meeting. Ms. Hankton also admitted that her memorandum to LaShay Johnson was a mistake, but claimed that she had simply failed to proofread it.
The City refuted Ms. Hankton's contention that the disciplinary action was sudden and unexpected by presenting testimony from Ms. Simon that Ms. Hankton had complained that she did not understand the written procedures she was given to follow in April, but then had declined to name any specific concerns when she was assigned an analyst to help her. The City also presented evidence that Ms. Hankton was moved from two prior positions (training coordinator and complaint officer) into the abandoned vehicles section because, at least from the employer's perspective, she had difficulty meeting the expectations of her supervisors in those jobs. On appeal, the City also relies on Ms. Hankton's own testimony that ever since the new management had taken over at the Department, she had felt that she was always under stress, which she attributed to being in a new situation, not knowing what to do, and not feeling as if she could ask questions of her supervisors. Based on this testimony, the City argues that not only was the stress experienced by Ms. Hankton subjective, it clearly had developed over a period of time and, therefore, cannot be considered "sudden" or "extraordinary" from an objective standpoint.
Recently, in Partin v. Merchant & Farmers Bank, XXXX-XXXX (La.3/11/02), 810 So.2d 1118, the Louisiana Supreme Court confirmed that an objective standard must be applied to determine whether the mental stress suffered by the claimant meets the criteria established by La. R.S. § 23: 1021(7)(b) for a compensable injury. In that case, the plaintiff, Ms. Partin, claimed she suffered a compensable mental injury when her employer, a bank, demoted her for lack of managerial skills after eighteen years of employment. Id., p.l, 810 So.2d at 1119. Ms. Partin had been promoted numerous times over the years, from bookkeeper to teller to various supervisory positions, and eventually, to branch officer. She testified that she had never been reprimanded or told that her managerial skills were unsatisfactory. However, while conducting a surprise audit, Ms. Partin had discovered a five dollar imbalance and then had instructed two tellers involved to write handwritten "cash in" and "cash out" tickets to cover up the reporting error made by one of them. The bank had a policy against such forced balancing, however, and when Ms. Partin's action was discovered, she was called to a meeting and was told she was being demoted to teller because of her lack of managerial skills. Ms. Partin never returned to work after that meeting; she immediately saw her doctor, was referred to a psychiatrist, and was ultimately diagnosed with a major depressive disorder triggered by her demotion. Id., pp. 1-6, 810 So.2d at 1119-1121.
The OWC found that Ms. Partin had demonstrated by clear and convincing evidence that she had sustained a mental injury caused by extraordinary stress, noting that even though her demotion was handled in a professional, private and calm manner, Ms. Partin had become hysterical at the news. Id., p. 6, 810 So.2d at 1121-1122. The Third Circuit Court of Appeal affirmed. That court held that an objective standard must be employed, but nevertheless determined that an ordinary, reasonable person would have considered the demotion "sudden, unexpected and extraordinary" *736 because the discipline was not commensurate with the infraction. Id., pp. 6-7, 810 So.2d at 1122.
The Supreme Court reversed, holding that the claimant's injury was not compensable. The Supreme Court first analyzed the legislative history of subsection (7)(b) and concluded that it "reveals an active decision on the part of the legislature to so condition compensability in order to tighten the reigns of recovery for mental/mental claims." Id., p. 12, 810 So.2d at 1125. The Court went on to state that the legislature intended that the nature of the stress itself be evaluated, rather than evaluating the stress from the employee's perspective, an approach that would most certainly result in wider recovery because "nearly every employee would consider extraordinary a stress that caused him mental injury." Id. Turning to the particular case before it, the Court concluded:
In this case, Claimant personally found her demotion to be extraordinary and unexpected because she did not know that the bank was displeased with her management skills and she was quite settled in her career. Yet by its nature, a demotion for failing to satisfactorily perform one's job creates stress that is neither unexpected nor extraordinary in the usual course of employment at a bank. That is not to say that a demotion could not be handled in such a way that would make it unexpected or extraordinary. For example, if an employer used violence in demoting an employee, it would perhaps cause [such] stress
* * * * * *
The court of appeal's analysis went beyond evaluating the nature of the stress into evaluating the wrongfulness or unfairness of the bank's personnel action, which is properly the subject of an action at tort law rather than a workers' compensation claim Considering simply the nature of the stress itself in this case, we find that a demotion for lack of managerial skills creates stress that is neither unexpected nor extraordinary We conclude, therefore, that Claimant's mental injury is not compensable (Emphasis added.)
Id., pp. 14-15,810 So.2d at 1126.
In all pertinent respects, the facts of the instant case are virtually indistinguishable from those of Partin. Ms. Hankton contends that her one-day suspension (which cannot be considered as serious a penalty as the demotion in Partin) was sudden and unexpected because she was not previously made aware that her managerial/supervisory skills were lacking or that her supervisors were dissatisfied with her job performance. Just as in Partin, the claimant had a long history of employment, which included a series of promotions. Just as in Partin, the disciplinary action was precipitated by a specific incident of misconduct (in this case, Ms. Hankton's handling of the La Shay Johnson situation), which the employee considered too minor to warrant the punishment received. Just as in Partin, there was no evidence that the manner in which the claimant was informed of the employer's disciplinary action was anything other than courteous, private and professional. Just as in Partin, the claimant was diagnosed with disabling depression that her doctor attributed to the disciplinary action (although in Ms. Hankton's case, it is not as clear as in Partin that the claimant's depression was caused by the disciplinary action, rather than by work-related stress in general). For purposes of our determination, there is no pertinent distinction between Ms. Partin's position as a bank officer and Ms. Hankton's position as a supervisor in the City's Department of Public Works and Parking.
*737 Therefore, in light of Partin, we conclude that the OWC committed manifest error by finding, apparently based on a subjective standard, that Ms. Hankton's mental injury was the result of sudden, unexpected and extraordinary stress as required by La. R.S. § 23:1021(7)(b). Accordingly, we reverse the judgment of the OWC court insofar as it awards Ms. Hankton benefits for mental injury.
THE CLAIMANT'S ASSIGNMENTS OF ERROR
Ms. Hankton contends the OWC committed manifest error by failing to find that she sustained a compensable physical injury when she aggravated her back condition by having to stretch her right leg to reach the pedals of the City vehicle she was assigned to drive. In her testimony, Ms. Hankton was unable to give an exact time when she was injured, merely stating that she attributed her increased back and leg pain to being forced to drive a substandard vehicle. She testified that she had requested another vehicle, but had been refused. The City presented testimony that Ms. Hankton had actually requested an air-conditioned vehicle.
La. R.S. § 23:1031 limits recovery to situations where an employee has received "personal injury by accident arising out of and in the course of his employment." An "accident" is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. § 23:1021(1).
Considering the record, we cannot say that the OWC was clearly wrong in finding that Ms. Hankton did not sustain a compensable physical injury. Because Ms. Hankton could not point to any specific incident that triggered her pain, the court could have reasonably concluded she failed to meet her burden of proving she was injured by an "accident." Moreover, there was no medical evidence to corroborate Ms. Hankton's claim that she re-injured her back by stretching to reach the gas pedal of the vehicle. The report of Dr. Mimeles, an orthopedist who examined the claimant at the request of the City, reflects that there was no significant trauma that caused Ms. Hankton's back pain, which Dr. Mimeles believed was consistent with ordinary wear and tear and degenerative arthritis; the report also indicates Dr. Mimeles found no objective reason to explain the numbness Ms. Hankton reported having in her leg.
Based on the evidence, we decline to overturn the judgment of the OWC denying Ms Hankton's claim of a physical injury.
Additionally, Ms. Hankton contends the OWC erred by failing to find that the City acted arbitrarily and capriciously in denying her benefits, and she, therefore, claims she is entitled to an award of penalties and attorney fees pursuant to La. R.S. § 23:1201(F). We reject this contention in light of our conclusion that Ms. Hankton suffered no compensable physical or mental injury and is, therefore, not entitled to benefits.
CONCLUSION
For the reasons stated, we reverse the judgment of the OWC insofar as it finds that Ms. Hankton sustained a compensable mental injury and awards her temporary total disability benefits and medical benefits. In all other respects, the judgment is affirmed.
AFFIRMED IN PART AND REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613574/ | 821 So.2d 853 (2002)
Charles CARNEY a/k/a Cool Charles, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2000-KA-01638-COA.
Court of Appeals of Mississippi.
January 22, 2002.
Rehearing Denied April 2, 2002.
Certiorari Denied July 18, 2002.
*854 Glenn Louis White, Petal, Attorney for Appellant.
Office of the Attorney General, by Deirdre McCrory, Attorney for Appellee.
*855 Before McMILLIN, C.J., LEE, and MYERS, JJ.
LEE, J., for the Court.
¶ 1. Charles Carney a/k/a Cool Charles was convicted of the sale or transfer of a controlled substance within 1,500 feet of a church as a habitual offender. Since the sale occurred within 1,500 feet of a church and Carney was a habitual offender, the trial judge sentenced him to the maximum sentence of 120 years. Feeling aggrieved, Carney has filed a timely appeal and asserts the following: (1) whether the trial judge improperly allowed the admission of evidence regarding prior bad acts without performing a balancing test and granting a limiting instruction, (2) whether the trial judge abused his discretion when he denied Carney's motion for directed verdict, (3) whether the trial judge's imposition of the 120 year sentence violated Carney's Eighth Amendment right. Finding these issues without merit, we affirm the decision of the trial judge.
FACTS
¶ 2. On the day in question, Officer Robert Cooper was working undercover with the Pearl River Basin Narcotics Task Force. Cooper met with officers to discuss the purchasing of drugs in Marion County. At this meeting, Officer Cooper obtained a twenty dollar bill to purchase drugs. Before Officer Cooper left the meeting the serial number from the twenty dollar bill he had been given was recorded, and he was given a hand held, high-band radio.
¶ 3. Officer Cooper proceeded to Short Owens Road and while traveling on this road a man later identified as Michael Stovall "hollered" and waved Cooper back. Stovall was standing in the roadway near Carney's house. Cooper drove back to where Stovall was standing.
¶ 4. Stovall approached the window of the vehicle and asked Cooper what he wanted. Cooper responded that he wanted a "twenty." This meant he wanted a twenty dollar rock of crack cocaine. Cooper testified that Stovall opened a matchbox and handed him a rock and then he gave Stovall the twenty dollar bill. Once in possession of the cocaine Cooper drove away.
¶ 5. As Cooper was driving away he radioed other officers involved in the drug operation and provided a description of Stovall. Cooper stated that as he drove away he saw officers approach Carney's residence and witnessed Stovall going inside of Carney's house. Cooper guessed that it took the officers approximately twenty to thirty seconds to arrive at Carney's residence. Thereafter, Cooper parked his vehicle and rode back to Carney's residence.
¶ 6. Cooper stated that the drug transaction took place near two churches. Greater Faith Ministry Church was 812 feet from where the sale occurred, and Greater Temple Church of Christ was 119 feet away from the location of the sale.
¶ 7. As a result of the search performed on Stovall, a homemade bong was found; however, no drugs or money were found on Stovall. Eventually, officers asked Carney for permission to search his residence.
¶ 8. Cooper testified that Carney gave verbal permission for the search to be conducted; nonetheless, before the search occurred Cooper discovered the twenty dollar bill he had given to Stovall to purchase the cocaine balled up tightly in Carney's fist. Cooper said that once he took the money out of Carney's hand, Carney told him that he had gotten the money as change for groceries he had purchased at the Piggly Wiggly earlier that day.
*856 ¶ 9. No cocaine was recovered.
¶ 10. Julie Nibert, one of the officers on patrol, who aided in arresting Stovall, stated that Stovall was standing in Carney's doorway at the time she and other officers approached Carney's house. Nibert confirmed that a bong was found on Stovall; however, no drugs were recovered. Nibert estimated that less than a minute had passed from the time she saw Stovall in the door until she was removing Stovall from the doorway.
¶ 11. Stovall testified that on the day in question he was at Carney's house. Stovall stated that typically before he went out he would go by Carney's house and Carney would give him drugs to sell. However, on the day in question Stovall did not stay at Carney's to sell the drugs he had received. Instead, Stovall went elsewhere and returned later that night to give Carney the money for the drugs he had sold. While Stovall was there to give Carney the money from the sale of the drugs a truck passed Carney's house. Carney essentially asked Stovall if he could "catch" the truck and he did. This resulted in the sale of crack cocaine Stovall made to Officer Cooper.
¶ 12. Stovall explained that once he received the twenty dollar bill from Cooper he gave it to Carney, because that was what he always did. Stovall contended that when he gave Carney the twenty dollar bill he also gave Carney cocaine. Stovall explained that he and Carney were standing in the kitchen and about ten minutes later the police arrived. Stovall stated that he went to the door carrying a pill bottle containing cocaine; however, upon opening the door he saw the police officer. Thereafter, he shut the door. Stovall then threw the pill bottle behind him to Carney and re-opened the door and let the officer take him outside.
¶ 13. On cross-examination, counsel for Carney questioned Stovall about whether he had informed his girlfriend Linda Ellis that he had gotten the cocaine from a Jeffery Brown. Stovall denied making this statement, and contended that Linda Ellis was there when Carney gave him the drugs.
¶ 14. Beverly Hall testified on behalf of Carney. Hall asserted that Stovall did not sell drugs for Carney. Hall explained that on the day in question, Stovall had arrived at the house asking for change for a twenty dollar bill. Hall stated that she took the twenty dollar bill and placed it on the kitchen table where Carney was eating. However, Stovall changed his mind and told Carney to keep the twenty dollar bill because he might need Carney to bail him out of jail later due to potential domestic problems with Linda Ellis.
¶ 15. Linda Ellis testified that Stovall had told her that he received the cocaine from Jeffery Brown. However, she did not see Jeffery Brown give Stovall the drugs. Additionally, Ellis denied that Stovall was selling drugs for Carney. However, Ellis stated that she had observed Stovall go into Carney's apartment twice that day.
¶ 16. Ricky Fulgham testified that he was in jail on a trespassing charge at the time it was rumored that Stovall and Carney had been arrested. Fulgham contended that later that same night Stovall was put in his cell block and was talking about how he had sold drugs to an undercover cop and had given the twenty dollar bill to Beverly Hall who was residing with Carney at the time.
¶ 17. Carney testified that on the day in question he did not have the opportunity to see Stovall until between 11:30 and 12:00 p.m. Carney repeated the version of events told by Hall. Carney also denied that he had given any controlled substances *857 to Stovall, or that he was even in possession of any controlled substances.
DISCUSSION
I. WHETHER THE TRIAL JUDGE IMPROPERLY ALLOWED THE ADMISSION OF EVIDENCE REGARDING PRIOR BAD ACTS WITHOUT PERFORMING A BALANCING TEST AND GRANTING A LIMITING INSTRUCTION.
¶ 18. Carney argues that the trial court improperly allowed Stovall to testify regarding a prior drug transaction. Carney contests the admission of the statement regarding Stovall owing Carney money for drugs and that normally before Stovall went out Carney gave him drugs to sell. Carney argues that allowing this testimony implied that Stovall and Carney had been involved in other unlawful business transactions, and that the Mississippi Rules of Evidence Rules 403 and 404 balancing test should have been conducted by the trial judge.
¶ 19. In particular, Carney complains of the following responses from Stovall:
Q: And I'll ask you again, what were you doing there that day?
A: Well, normally before I go out he have me drugs to sell. And that particular day
MR. WHITE: To which we'd object, Your Honor.
THE COURT: I'll overrule the objection.
BY MR. MILLER: And that particular day what?
A: That particular day I decided not to stay there, which is normally what I do. So I had went elsewhere.
Q: Okay. And what happened then?
A: I came back later on that evening. Well, it was after dark. And I went and I give the money for what I had sold. And a truck passed by and he said, "You want to catch that." I said, "I might as well," so I went and caught it.
¶ 20. The State contends the questions asked by the State were not designed to elicit testimony of other offenses on the part of Carney. Therefore, the trial judge was correct in determining that the questions were proper and the objections should have been overruled. Additionally, the State asserts that the testimony was proper because it told a complete story of the crime.
¶ 21. Support for the State's argument is found in Craft v. State, 656 So.2d 1156, 1165 (Miss.1995). In Craft, the Mississippi Supreme Court had to decide whether the district attorney had wrongfully alluded to other illegal acts which prejudiced Craft. The contested testimony in Craft was as follows:
Q: And what did you talk to her about?
A: I told her that I'm sorry for bothering her because they was moving in and stuff, I told her that the other rocks that I had purchased from her was very powerful and I wanted to get two more
BY MR. OTT: Object to the statement as being irrelevant, unduly prejudicial, hearsay and move to strike.
BY THE COURT: Overrule the objection.
Id. The Mississippi Supreme Court noted that the above questioning only "involved one incident in which the witness alluded to another possible crime for which the defendants were not charged." Id. The court also noted that the district attorney's questions were not deliberately asked or meant to infer that the defendants had been involved in any other offenses. Id. The same can be said in the case at bar.
¶ 22. The questions asked of Stovall by the prosecution were not intended to elicit *858 a response of prior illegal conduct. Additionally, there was no testimony regarding any prior charges or jail time. Furthermore, the trial judge granted jury instruction seven which stated: "The Court instructs the Jury that the testimony of the alleged accomplice [i.e., Stovall] should be weighed with great care and caution and the jury may disbelieve his or her testimony altogether if they believe it untrue, the Jury being the sole judge of the credibility of the witnesses." Therefore, we find no error, and this issue is without merit.
II. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE DENIED CARNEY'S MOTION FOR A DIRECTED VERDICT.
¶ 23. Carney contends that the evidence presented by the State was not sufficient to support the verdict of guilty of the sale or transfer of a controlled substance within 1500 feet of a church. Carney seems to base his argument on the contention that Stovall's testimony was improbable, self-contradictory, and substantially impeached and was therefore, insufficient. This argument is directed at the overwhelming weight of the evidence instead of the sufficiency.
¶ 24. The State contends just the opposite.
¶ 25. In the case at bar, Carney not only made an oral motion for a directed verdict during the trial, but he also filed a motion for judgment notwithstanding the verdict. A judgment notwithstanding the verdict challenges the sufficiency of the evidence. Sherrod v. State, 755 So.2d 569, 571(¶ 7) (Miss.Ct.App.2000). To test the sufficiency of the evidence,
we must, with respect to each element of the offense, consider all of the evidence not just the evidence which supports the case for the prosecutionin the light most favorable to the verdict. The credible evidence which is consistent with guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.
Wetz v. State, 503 So.2d 803, 808 (Miss. 1987) (citations omitted).
¶ 26. The Mississippi Supreme Court has held that "a conviction may be supported by the testimony of an accomplice, even when it is uncorroborated." Winters v. State, 449 So.2d 766, 771 (Miss. 1984). However, there was some corroborating evidence.
¶ 27. Stovall testified that he had given Carney the twenty dollar bill for drugs he had sold for Carney. Officer Cooper testified that he found the twenty dollar bill used in the purchase in Carney's hand, and that originally, Carney had stated a falsehood because he claimed he had received the twenty dollar bill earlier that day at the Piggly Wiggly. Additionally, Officer Cooper explained that the sale occurred not only within 1,500 feet of a church, but it occurred within 1,500 feet of two churches. Therefore, the State presented sufficient evidence for a reasonable and fair-minded juror to find Carney guilty. The trial judge was required to leave the determination of guilt or innocence to the jury. The next contention asserted by Carney deals with the denial of the motion for a new trial and regards the credibility of Stovall's testimony.
¶ 28. Carney disputes the credibility of Stovall's testimony. Carney attacks *859 such facts as Stovall testifying that the drugs were in a pill bottle while Officer Cooper testified the drugs were in a matchbox, as well as Stovall's and the officer's statements regarding the lapse of time that occurred while Stovall was in Carney's house. Since Carney is attacking the credibility of Stovall we look to the standard for when a new trial will be granted.
¶ 29. In Benson v. State, 551 So.2d 188, 193 (Miss.1989), the Mississippi Supreme Court provided the following explanation of when it would grant a new trial:
This Court will not order a new trial "unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Factual disputes are properly resolved by the jury and do not mandate a new trial. Temple v. State, 498 So.2d 379, 382 (Miss. 1986).
A motion for a new trial is within the sound discretion of the trial court. Burge v. State, 472 So.2d 392, 397 (Miss.1985). Any discrepancies were properly resolved by the jury as fact finder because questions regarding weight and worth of witness testimony or witness credibility are for the jury to settle. Eakes v. State, 665 So.2d 852, 872 (Miss.1995). This Court accepts as true all evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Id. Therefore, it was within the purview of the jury to decide the weight and worth of Stovall's testimony. Upon reviewing all of the evidence we find that the trial court did not abuse its discretion in denying the motion for new trial. Accordingly, this issue is without merit.
III. WHETHER THE TRIAL JUDGE'S IMPOSITION OF THE 120 YEAR SENTENCE VIOLATED CARNEY'S EIGHTH AMENDMENT RIGHT.
¶ 30. Carney's brief delineates more arguments in issue three than stated in this opinion; however, Carney only presents actual argument regarding the 120 year sentence imposed by the trial judge. Therefore, we too will only address the sentencing issue. See Reaves v. State, 749 So.2d 295, 297(¶ 10) (Miss.Ct.App.1999).
¶ 31. Carney argues that the 120 year sentence imposed on him is excessive and constitutes cruel and unusual punishment. Carney concedes that pursuant to such case law as Wallace v. State, "that the sentence will usually not be disturbed if it does not exceed the maximum period allowed by statute." Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). However, Carney wishes to attack his sentence on Eighth Amendment grounds.
¶ 32. In White, the supreme court discussed Miss.Code Ann. § 41-29-142 (enhanced penalties for the sale of a controlled substance within 1,500 feet of a church) and whether the maximum penalty of sixty years, for a first-time offender could be considered excessive and cruel and unusual punishment. White v. State, 742 So.2d 1126, 1135 (¶¶ 33-48) (Miss. 1999). The court in White reaffirmed that generally a sentence that does not exceed the maximum period under the statute will not be disturbed on appeal. Id. at 1135(¶ 35). However, if a sentence may be classified as "grossly disproportionate" to the charge it may be attacked under the Eighth Amendment. Id. If a comparison of the sentence imposed for the crime the individual is convicted leads to an inference of gross disproportionality the Solem three-prong analysis is applied. Id. at *860 1135 (¶ 37); see Hoops v. State, 681 So.2d 521, 538 (Miss.1996).
¶ 33. Carney's sentence is the maximum penalty under the law; however, because of public policy, the legislature's sentencing authority, and the trial judge's failure to surpass sentencing guidelines, it is not grossly disproportional and does not trigger further discussion of the Solem test. See Stromas v. State, 618 So.2d 116, 123 (Miss.1993).[1]
¶ 34. The Mississippi Supreme Court acknowledged in White, that the "Legislature wisely provided ... a broad range of sentences to allow trial judges, using their discretion, to issue appropriate sentences in each individual case. It is incumbent upon those trial judges to use this power wisely." White, 742 So.2d at 1137(¶ 45). The Legislature has provided an array of possible sentences for those convicted of sale of cocaine. Id. at 1137(¶ 48). "[T]he public has expressed grave concern over the growing drug problems, and, it was the Legislature's prerogative, and not that of this [c]ourt, to set the length of sentences." Id. at 1136(¶ 39).
¶ 35. Carney argues that like Davis v. State, the sentence is obviously not proportionate to the offense committed. Davis v. State, 724 So.2d 342, 344-45 (Miss.1998).
¶ 36. In Davis, a mother of a small child was sentenced to sixty years in prison for the sale of two rocks of crack cocaine within 700 feet of a church. Id. at 344(¶ 8). Under this sentence she would not be eligible for parole until she was seventy-six years old. Id. The Mississippi Supreme Court reviewed the record and concluded that there was a lack of information in the record to explain the severity of the sentence and it should be remanded. Id. at (¶ 9).
¶ 37. There was no information regarding how many prior offenses Davis had committed or the history or nature or punishment for the offenses. Id. Additionally, Davis was not tried as a repeat offender. Id. Furthermore, at the time of sentencing, the trial judge gave no explanation, and the Mississippi Supreme Court did not have the benefit of a pre-sentence investigation. Id. at (¶ 10). Based on the facts in the case, and the lack of information justifying such a lengthy sentence, the Mississippi Supreme Court determined that it could not conclude whether the trial judge abused his discretion; therefore, the court reversed and remanded for re-sentencing. Id. at (¶ 17).
¶ 38. Unlike the facts in Davis, Carney was tried as a habitual offender. Additionally, the trial judge was given the benefit of what prior offenses were committed by Carney. The record discloses that Carney's prior convictions also dealt with the possession of controlled substances.
¶ 39. The jury found Carney guilty of the sale or transfer of a controlled substance within 1,500 feet of a church as a habitual offender. The 120 year sentence imposed on Carney by the trial judge did not exceed the punishment allowed under Miss.Code Ann. § 41-29-139 (Supp.2000), which was enhanced by § 41-29-142 (Rev. 1993) and then enhanced again by § 99-19-81 (Rev.2000). The trial judge specifically discussed the sentencing guidelines under each prong of his offense and properly enhanced Carney's penalties with each prong. Finding no abuse of discretion, this issue is without merit.
*861 ¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF THE SALE OR TRANSFER OF A CONTROLLED SUBSTANCE WITHIN 1,500 FEET OF A CHURCH, SECOND AND SUBSEQUENT OFFENDER AND HABITUAL OFFENDER, AND SENTENCE OF 120 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS, CHANDLER and BRANTLEY, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT A SEPARATE WRITTEN OPINION.
NOTES
[1] It is noted, that while Carney argues for the application of the Solem factors in the case at bar, he has only made a general argument regarding the proportionality of the sentence. Carney did not present any specific evidence to meet the criteria. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613584/ | 23 So.3d 535 (2009)
Walter CONLEE, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-CP-00724-COA.
Court of Appeals of Mississippi.
May 26, 2009.
Rehearing Denied September 22, 2009.
Certiorari Denied December 17, 2009.
*537 Walter Conlee (pro se).
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
Before KING, C.J., ROBERTS and CARLTON, JJ.
KING, C.J., for the Court.
¶ 1. Walter Conlee pled guilty to a two-count indictment: Count I, manslaughter, and Count II, transfer of a controlled substance. Conlee was sentenced to serve twenty years on Count I and thirty years on Count II in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently. Conlee timely filed a motion for post-conviction relief. The Rankin County Circuit Court held an evidentiary hearing on Conlee's motion on March 18, 2008, and denied relief. Conlee appeals, raising the following issues: (1) whether Conlee was indicted by a legally convened grand jury; (2) whether the trial court erred in accepting Conlee's guilty plea; and (3) whether there is a factual basis to support the charge of transfer of a controlled substance. Finding no error, we affirm.
FACTS
¶ 2. In December 2002, a Rankin County grand jury indicted Conlee for the murder of Connie Bounds and three counts of the transfer of a controlled substance, hydrocodone and cocaine. On March 9, 2005, Conlee entered a guilty plea in Count I to manslaughter as a lesser-included offense of murder, and in Count II, the transfer of a controlled substance, hydrocodone. Conlee was sentenced to serve twenty years on Count I and thirty years on Count II in the custody of the MDOC, with the sentences to run concurrently.
¶ 3. On January 17, 2008, Conlee filed a petition styled "Motion to Correct Sentence/Habeas Corpus." The trial court treated the motion as a request for post-conviction relief. On March 17, 2008, the trial court held an evidentiary hearing on the motion. As a result of the evidentiary hearing, the trial court found that Conlee's claims for relief were without merit and denied relief.
STANDARD OF REVIEW
¶ 4. When reviewing a trial court's denial of a petition filed pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act (MUPCCRA), Mississippi Code Annotated section 99-39-1 to -29 (Rev.2007), "[t]his Court will not disturb the trial court's decision to deny post-conviction relief unless the trial court's decision proves to be clearly erroneous. The Court, however, reviews questions of law de novo." Johnson v. State, 962 So.2d 87, 88-89(¶ 8) (Miss.Ct.App.2007) (internal citations omitted).
DISCUSSION
I. Whether Conlee was indicted by a legally convened grand jury.
¶ 5. Conlee was indicted by the July 2002 term grand jury, which was recalled on December 19, 2002. Conlee contends that he was indicted by an illegally convened grand jury because the July 2002 term grand jury had completed its *538 duties and the indictment was not signed and filed until January 13, 2003. Conlee argues that the grand jury was not legally convened because the Rankin County judiciary calendar shows that the term of court ended on December 17, 2002, and a new term started on the first Monday in January 2003. Conlee claims that there is no evidence to suggest that a new grand jury convened on December 19, 2002, or that the term of the July grand jury was extended to January 13, 2003.
¶ 6. "Once a grand jury is impaneled, it continues to serve during each successive term of court until a subsequent grand jury is impaneled." Gray v. State, 819 So.2d 542, 546(¶ 21) (Miss.Ct.App. 2001). The supreme court held that:
A grand jury may be impanelled at a regular term of court, and it may be recalled at any time before the next criminal term of court in term time or in vacation, but when a new criminal court is convened, a new grand jury must be impanelled. The old grand jury may, however, report indictments obtained in vacation when it makes its final report for final discharge, but, the old grand jury cannot hear evidence and obtain indictments at the second term of the criminal court.
Ingram v. State, 330 So.2d 602, 604 (Miss. 1976). "[O]nce empaneled or recalled, a grand jury is in session for the duration of the term or until discharged." Oates v. State, 421 So.2d 1025, 1028 (Miss.1982). The record does not indicate that the circuit court had discharged the July 2002 term grand jury from its duties before it was recalled on December 19, 2002. Conlee provided no evidence to prove that a new criminal court had convened, which would trigger the empanelling of a new grand jury. Thus, this argument is without merit.
¶ 7. Alternatively, Conlee contends that if the grand jury was legally convened, the indictment was void because the affidavit of the grand jury foreman was neither signed nor filed until January 13, 2003, after the grand jury had adjourned. According to Rule 7.06 of the Uniform Rules of Circuit and County Court, an indictment shall include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment was brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed ...;
6. The signature of the foreman of the grand jury issuing it; and
7. The words "against the peace and dignity of the state."
Conlee's indictment met these requirements. Pursuant to Mississippi Code Annotated section 99-7-9 (Rev.2007), "the endorsement by the foreman, together with the marking, dating, and signing by the clerks shall be legal evidence of the finding and presenting to the court of the indictment." Conlee argues that his indictment was not endorsed by the foreman of the grand jury and filed by the court's clerk until January 13, 2003, which was not the same date as the grand jury returned the indictment. According to Gray v. State, 728 So.2d 36, 70 (¶ 169) (Miss.1998), "[d]efects on the face of an indictment must be presented by way of demurrer." "When `the formal defect is curable by amendment... the failure to demur to the indictment in accordance with our statute' will waive the issue from consideration on appeal." Id. See Wilson v. State, 904 So.2d 987, 995(¶ 27) (Miss.2004) (an indictment *539 which was not marked filed was procedurally defective and objections, therefore, could not be raised for the first time on appeal).
¶ 8. There is no indication that Conlee presented this matter to the trial court. Because Conlee failed to object prior to his appeal, his arguments about the timeliness of the grand jury foreman signing the affidavit and the clerk stamping the indictment filed are procedurally barred. Accordingly, we find this issue is without merit.
II. Whether the trial court erred in accepting Conlee's guilty plea.
¶ 9. Conlee claims that his guilty plea was not knowingly and voluntarily given because: (1) he was not informed about the minimum and maximum sentence for possession; (2) the earned-time statute changed between the time of his indictment and the time of his guilty plea; (3) the indictment was defective because it failed to list the correct controlled substance and the weight, amount, or dosage of the drug; and (4) he improperly pled guilty to a Schedule II controlled substance instead of Schedule III controlled substance.
A. Minimum and Maximum Sentence
¶ 10. Conlee asserts that his guilty plea was not voluntary because the trial court failed to inform him of the statutorily required minimum and maximum sentence provided by law for delivery of a controlled substance. The plea transcript in this case is not contained in the record presented to this Court. Because the record is inadequate, it is impossible for this Court to make a determination of whether Conlee was informed of the maximum and minimum penalties associated with his offense. It was Conlee's responsibility to be sure that the plea transcript was placed before this Court. See Harwell v. State, 817 So.2d 598, 600(¶ 11) (Miss.Ct.App.2002). "As a general rule, when an appellate record contains no transcript of a plea hearing, this Court must presume that the trial court acted properly." Bates v. State, 914 So.2d 297, 299(¶ 7) (Miss.Ct.App.2005) (citing Ford v. State, 708 So.2d 73, 75(¶ 9) (Miss.1998)). Therefore, we find that this issue is without merit.
B. Earned-time statute
¶ 11. Conlee asserts that at the time that he was indicted for the transfer of a controlled substance, Mississippi Code Annotated section 41-29-139 (Rev.2001), allowed him to receive "earned time." Conlee was sentenced in 2005, but Mississippi Code Annotated section 47-7-3(g) (Rev.2004) changed in 2004, making him ineligible for earned time. Conlee alleges that his guilty plea was not voluntary because the trial court failed to inform him of a statutory and administrative change that required him to serve 85% of his sentence and eliminated the possibility of parole that had previously existed.
¶ 12. As this Court stated in Robinson v. State, 964 So.2d 609, 613(¶ 16) (Miss.Ct.App.2007) that "[e]arly release and parole are matters of legislative grace and are not consequences of a guilty plea." Because it is not a consequence of a guilty plea, a trial court is not required to explain it. Because the trial court is not required to explain administrative matters such as early release to the defendant, we find that this issue is without merit.
C. Defective Indictment
¶ 13. Conlee argues that his guilty plea was involuntary because the indictment was defective. Conlee asserts that the indictment erroneously stated that *540 he willfully, unlawfully, feloniously, knowingly, and intentionally transferred a quantity of hydrocodone. Conlee claims that he had dihydrocodeinone (Lortab). Conlee also claims that the indictment failed to list the weight, amount, or dosage of the drug.
¶ 14. "Defects in the indictment that are non-jurisdictional are waiveable by a valid guilty plea.... Furthermore, defects in the indictment that do not go to the merits or elements of a charge are amendable." Richardson v. State, 769 So.2d 230, 233(¶ 4) (Miss.Ct.App.2000) (internal citations omitted). The record does not contain a transcript, nor is there any evidence which indicates that prior to entering his guilty plea, Conlee made an objection to the indictment or informed the trial court that he had Lortab or that the weight, amount, or dosage of the drug was not contained in the indictment. However, the record does indicate that Conlee did enter a guilty plea on March 9, 2005; thus, this issue has been waived.
¶ 15. Notwithstanding this Court's finding that this issue is waived, Conlee's argument fails because after our examination of Conlee's indictment, we find that the indictment meets the requirements contained in Rule 7.06, which are necessary for an indictment to be valid. We have previously listed and discussed those requirements under Rule 7.06 in Issue I. Therefore, Conlee's claim for a defective indictment lacks merit.
D. Hydrocodone v. Lortab
¶ 16. Conlee claims that he improperly pled guilty to the transfer of hydrocodone, a Schedule II controlled substance instead of dihydrocodeinone (Lortab), which Conlee alleges is a Schedule III controlled substance. Conlee is incorrect in his position. According to Mississippi Code Annotated section 41-29-115(A)(1)(x) (Rev.2005), hydrocodone is a Schedule II controlled substance. Hydrocodone is the narcotic component of Lortab. Rushing v. State, 711 So.2d 450, 452(¶ 5) (Miss.1998). In other words, "Lortab is a pain reliever which contains hydrocodone, thus making it a Schedule II drug." Rushing v. State, 911 So.2d 526, 529 n. 4 (Miss.2005). Although Conlee mistakenly believed that Lortab was a Schedule III controlled substance, that does not entitle him to relief. "A mere expectation of a lesser sentence than the sentence imposed will not render a plea unknowing or involuntary." Mullins v. State, 859 So.2d 1082, 1084(¶ 7) (Miss.Ct.App.2003). Therefore, this claim is without merit.
III. Whether there is a factual basis to support the charge of transfer of a controlled substance.
¶ 17. Conlee claims that there is no factual basis for his guilty plea because no drugs were recovered; no drugs were transferred; and no drugs were tested. Conlee asserts that no independent evidence was obtained other than his confession.
¶ 18. According to Uniform Rule of Circuit and County Court 8.04(A)(3), the trial court must determine that there is a factual basis for a plea before a trial court may accept a plea of guilty. "[T]his Court is not limited to the transcript of the guilty plea hearing, but we are allowed to review the record as a whole." Ealey v. State, 967 So.2d 685, 690(¶ 12) (Miss.Ct.App. 2007). In the instant case, because the record does not contain a plea transcript, plea petition, or evidentiary hearing transcript, this Court cannot make a determination of whether a factual basis exists to support the charge against Conlee. "[T]he necessary transcripts are to be made part of the record, and [sic] [Clark] bears the burden of presenting a record which is *541 sufficient to undergird his assignment of error." Harwell, 817 So.2d at 600(¶ 11). Generally, when the record does not contain the necessary transcripts, "this Court must presume that the trial court acted properly." Bates v. State, 914 So.2d at 299(¶ 7). Therefore, we find that there was sufficient factual basis to support Conlee's conviction of the transfer of a controlled substance.
CONCLUSION
¶ 19. We find that the judgment of the trial court to deny Conlee's motion for post-conviction relief is proper. Therefore, we affirm the judgment of the trial court.
¶ 20. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.
LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613719/ | 23 So.3d 237 (2009)
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Petitioner,
v.
Gaea J. GARRITY, Respondent.
No. 3D09-2092.
District Court of Appeal of Florida, Third District.
December 16, 2009.
Richard A. Sherman, Sr., Fort Lauderdale; Law Offices of Patricia E. Garagozlo, and Daniel P. Stiffler, for petitioner.
Justin C. Leto, Miami, for respondent.
Before SUAREZ, LAGOA, and SALTER, JJ.
SALTER, J.
Nationwide Mutual Fire Insurance Company seeks a writ of certiorari quashing a circuit court order denying a motion for judgment on the pleadings. The underlying complaint by the respondent, Ms. Garrity, sought recovery under a $50,000 uninsured motorists endorsement for bodily *238 injuries sustained in a single-vehicle automobile accident in which she was the passenger and Nationwide's insured was the driver. Ms. Garrity had already received from Nationwide the full policy limit ($100,000) under the liability provisions of the policy.
The pertinent clause in the uninsured motorists endorsement in the policy is not ambiguous. It states:
We will not consider as an uninsured motor vehicle: ... (d) any motor vehicle owned by, or furnished for the regular use of [the insured] or a relative; nor (e) any motor vehicle insured under the liability coverage of this policy unless your auto is being operated by a non-family member causing bodily injury to you or a relative.
On the face of the pleadings, it was undisputed that the vehicle in the accident was owned by the insured, that it was insured under the liability coverage of the policy, and that the vehicle was operated by the insured, causing injury to a person who was not a named insured or a relative of a named insured. Here, as in Travelers Insurance Company v. Warren, 678 So.2d 324 (Fla.1996), the respondent may not obtain a further recovery under the uninsured motorists endorsement and the existing pleadings.
We must nevertheless deny the petition, as Nationwide has not established the irreparable harm that is a requisite element of such an application. The prospect that Nationwide may be put to the expense and inconvenience of a trial does not satisfy this element. Riano v. Heritage Corp. of S. Fla., 665 So.2d 1142, 1145 (Fla. 3d DCA 1996). Any misinterpretation or misapplication of the policy provisions in a final judgment in the case can be remedied in a plenary appeal.
Nor may we treat the trial court's order as a judgment determining the existence or nonexistence of insurance coverage and appealable under Florida Rule of Appellate Procedure 9.110(m). That provision requires an explicit ruling on coverage in a case in which a claim has been made against the insured. Here, the respondent's claim was only asserted against the insurer, not the insured. See USAA Cas. Ins. Co. v. Jones, 946 So.2d 1127 (Fla. 1st DCA 2006).
Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2080211/ | 448 N.E.2d 1094 (1983)
INTERSTATE AUCTION, INC., Appellant (Plaintiff below),
v.
CENTRAL NATIONAL INSURANCE, Group, Inc., Appellee (Defendant below).
No. 4-681A42.
Court of Appeals of Indiana, Fourth District.
May 12, 1983.
Rehearing Denied June 30, 1983.
*1096 James E. Freeman, Jr., Sansberry, Dickmann, Dickmann & Freeman, Anderson, George P. Dickmann, Dickmann, Dickmann & Reason, Greenfield, for appellant.
Jeffrey C. Burris, Burris, Gross, Burris & Margerum, Indianapolis, George B. Davis, Greenfield, for appellee.
MILLER, Judge.
Plaintiff-appellant Interstate Auctions, Inc. (Interstate) appeals an adverse summary judgment rendered in favor of its insurance carrier, Central National Insurance Group, Inc. (Central Insurance). Interstate, an auto auction dealer, filed the instant lawsuit to recover damages for an alleged breach of a contract to insure against bad check losses. Central Insurance moved for summary judgment, contending Interstate had breached a contractual obligation to initiate suit on the policy within one year of its discovery of the loss. Central Insurance claims the loss was discovered when the checks were returned because of insufficient funds. Interstate, on the other hand, contends the loss was discovered when a judgment against the third-party check writer was returned unsatisfied. The trial court granted Central Insurance's motion, and on appeal, Interstate raises the following issues:
1. whether the insurance policy is ambiguous on its face as to when the one-year time limitation begins to run;
2. whether the trial court improperly struck affidavits containing extrinsic evidence proffered by Interstate which tended to show latent ambiguity in the policy as to when such time limitation begins to run;
3. whether genuine issues of material fact remain regarding waiver and estoppel.
For the reasons stated below, we affirm.
FACTS
The matters properly before the trial court most favorable to Interstate, the non-moving party in this summary judgment proceeding, revealed the following:
Interstate received seven checks totaling $54,020.00 from Carl Bair, d/b/a Carl Bair Motors between October 16, 1978, and November 13, 1978. These checks were given in payment for automobiles purchased through Interstate and were returned shortly thereafter marked "non-sufficient funds." During this period, Interstate held an insurance contract issued by Central Insurance, whereby Central Insurance agreed "to pay the Assured all sums which the Assured shall itself lose because of its acceptance ... of a bad check or sight draft." Upon return of the checks, Interstate notified Central Insurance *1097 first by telephone on November 16, 1978, and then by a letter of November 28, 1978.
Central Insurance began its investigation of the claim on November 20, 1978, pursuant to a reservation of rights agreement, and on January 12, 1979, it denied coverage, asserting that Interstate's business practices contravened certain policy conditions.[1] On May 22, 1979, Interstate submitted a reevaluation of the facts to Central Insurance challenging the earlier denial of liability and requesting additional response to its claim. Central Insurance wrote Interstate on June 8, 1979, to repeat its denial of coverage but offered $7,500 to settle the controversy. Interstate did not respond to this letter but subsequently obtained an Ohio judgment against Carl Bair on the checks in question. It notified Central Insurance of the judgment on August 20, 1979, and forwarded a copy of the Ohio decree to Central Insurance on September 20, 1979.
Interstate then filed suit on the policy January 21, 1980 more than a year after 1) the checks were returned for insufficient funds, 2) Interstate first notified Central Insurance of the loss, and 3) Central Insurance's initial denial of the claim. Central Insurance moved for summary judgment, asserting Interstate's suit was barred by a policy provision requiring legal action to be initiated within one year after the date of the discovery of the loss. The clause stated in relevant part:
"Section XIII Suit and Limitations of Actions... . `In the event that loss shall have been sustained by the Assured then no action shall lie against the Company unless suit is commenced against the Company within one year after the date of discovery of the loss. In the event that the loss shall have been sustained by a third person claiming against the Assured then no action shall lie against the Company until the amount of the Assured's obligation to pay after actual trial or by written settlement of the claimant submitted to and approved in writing by the Company." (Emphasis added.)
Central Insurance's motion was supported by the insurance contract, the reservation of rights agreement and copies of correspondence between the parties relating to the claim, as well as an affidavit by Jeffrey C. Burris, Central Insurance's attorney.
Interstate responded and filed a cross-motion for partial summary judgment on the issue of the timeliness of the complaint, offering the affidavits of Cameron C. Cherry and Donald S. Riggs. The Cherry affidavit averred that Cherry, an insurance agent, was an expert in the insurance field and that in his professional opinion, the limitations period did not begin to run until a determination of Interstate's loss on the bad check was "made by a court of law." Riggs's affidavit recited that he was the president of Interstate and that as a result of 1) his experience with Central Insurance and with a prior bad check incident 2) his reading of the policy and 3) Interstate's legal liability to its bank because of its deposit of the bad checks, he opined that Interstate had either one year and 60 days after it had furnished Central Insurance with proof of loss or, in the alternative, one year after the amount of Interstate's loss was determined by a court of law within which to bring the suit.
On November 6, 1980, the court, on motion by Central Insurance, struck both the Cherry and Riggs affidavits, and on December 9, 1980, the court granted summary judgment to Central Insurance. It concluded the insurance policy was unambiguous, the loss was discovered November 16, 1978, and the suit against Central Insurance was untimely filed. This judgment forms the basis for the instant appeal.
DECISION
Because the case was disposed of by summary judgment, we apply the same standard of review as the trial court, and we will sustain the judgment only if no genuine issue exists as to any material fact and the party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C); Matter of Belanger's Estate, (1982) Ind. App., 433 N.E.2d 39; Donahue v. Watson, (1980) Ind. App., 411 N.E.2d 741. The moving party bears the burden of establishing that no material facts are at issue and any doubts are to be resolved against him. Moll v. South Central Solar Systems, Inc., (1981) Ind. App., 419 N.E.2d 154; Lee v. Weston, (1980) Ind. App., 402 N.E.2d 23. Evidence, pleadings and inferences must be viewed in a light most favorable to the non-moving party. Randolph v. Wolff, (1978) 176 Ind. App. 94, 374 N.E.2d 533. We further note that the motion for summary judgment in insurance contract actions presents a different approach than in negligence actions. Ross v. Farmers Insurance Exchange, (1971) 150 Ind. App. 428, 277 N.E.2d 29, explained the difference in this manner:
"Unlike negligence cases, the undisputed facts are not juxtaposed against the standard *1098 of a reasonable man, but rather such facts are interpreted against a specific policy provision, and there are certain situations which clearly show that the insured has not brought himself within the confines of the policy."
Id. at 442, 277 N.E.2d at 37. See also South Tippecanoe School Building Corp. v. Shambaugh & Son, Inc., (1979) Ind. App., 395 N.E.2d 320.
Issue One Ambiguity in Insuring Agreement
On appeal, Interstate disputes the trial court's conclusion that the insurance contract was clear and unambiguous. To preface our discussion of its arguments in this regard, we recite some of the basic principles utilized in constructing an insurance contract. The law is established that ambiguity exists when reasonably intelligent men, upon reading the policy, would honestly differ as to its meaning. Barmet of Indiana, Inc. v. Security Insurance Group, (1981) Ind. App., 425 N.E.2d 201. However, the mere existence of a controversy as to the meaning of an insurance policy does not establish an ambiguity. Northland Ins. Co. v. Crites, (1981) Ind. App., 419 N.E.2d 164. This court must reasonably construe the language of the policy and may not find coverage unless the language of the policy admits liability. Stockberger v. Meridian Mutual Insurance Co., (1979) Ind. App., 395 N.E.2d 1272. Where an insurance contract is ambiguous so as to be susceptible of more than one meaning, it is to be interpreted most favorably to the insured. Utica Mutual Insurance Co. v. Ueding, (1977) 175 Ind. App. 60, 370 N.E.2d 373. An unambiguous policy, on the other hand, must be enforced according to its terms, Drake Insurance Co. of New York v. Carroll County Sheriff's Department, (1981) Ind. App., 427 N.E.2d 1153, even if this results in a limitation of the insurer's liability. American States Insurance Co. v. Aetna Life & Casualty Co., (1978) 177 Ind. App. 299, 379 N.E.2d 510.
a. "Indemnity" policy. Interstate argues that ambiguity arises in the insurance contract because of its characterization as an "indemnity policy," pointing to the following policy language:
"An Indemnity Policy. All claims payable hereunder are payable solely by the Company to the Assured to indemnify the Assured against actual loss suffered. No person other than the Assured may make any claim under this policy."
Interstate argues the instant policy is an indemnity policy rather than a liability policy and contends that under an indemnity policy no action lies against an insurer unless the action is brought to recover monies actually paid in satisfaction of a final judgment after trial. It further contends that Indiana courts have given a specialized meaning to indemnity policies and that an insured could reasonably infer from policy language referring to an indemnity policy that any claim thereunder would have to be reduced to judgment before it could bring an action on the policy. Thus, Interstate urges that under the facts of the case at bar it could not have made any claim against Central Insurance under the indemnity policy until it received a judgment against Carl Bair and that judgment was returned unsatisfied.
To support its argument, Interstate relies on Iroquois Underwriters v. State ex rel. Morgan, (1937) 211 Ind. 463, 5 N.E.2d 908, wherein our supreme court construed an auto insurance policy indemnifying the policyholder against loss from liability imposed by law for damages on account of bodily injury. The policy in Iroquois provided no action would lie against the insurer unless brought to recover monies actually paid in satisfaction of a final judgment after trial. The court distinguished "liability" and "indemnity" policies in the context of casualty policies, pointing out that the former indemnified against liability while the latter indemnified against loss.
The distinction made by the court in Iroquois has no application to the loss incurred here, however. In this case, we are not confronted with policy language describing a casualty insurance situation where an insured is a named defendant. The instant *1099 policy provision does not purport to cover only those losses "imposed by law" or those for which the insured is "legally liable." Instead, the insuring agreement contemplates a situation where the insured has passed valuable goods in reliance on a bad check and seeks recovery for the amount he would have received but for the drawer's defalcation. This type of coverage is more akin to the theft and forgery coverage found in fidelity bonds than to the casualty policy before the Iroquois court. Accord, American National Insurance Co. v. United States Fidelity & Guaranty Co., (1968) Miss., 215 So. 2d 245.[2] Consequently, we conclude that the insurer's characterization of this policy as one of indemnity has no bearing upon when the one-year limitations period began to run.
b. Point of Loss. Interstate's second argument regarding ambiguity centers on the policy's failure to specifically define "loss." Interstate argues the word "loss" is used in various contexts in the policy. To support this contention, it points to a contract phrase which states that the company will indemnify the insured against "actual loss suffered" and to another contract phrase which requires notice of claim of "any loss or claim for which the company may be liable." In its argument on appeal, Interstate refers to the latter context as a "potential loss" and urges there is a dual usage of the word "loss" in the policy "actual loss" and "potential loss." From this, it urges an "actual loss" from the acceptance of a bad check does not occur until a judgment against its writer is returned unsatisfied. Thus, insofar as the policy's one-year limitation period commences upon the "date of the loss," it would begin to run at the time this judgment is returned.
While our research has revealed no case which defines "loss" in connection with the type of coverage involved here, a number of cases instruct that a "loss" occurs in the context of insurance and bonding upon the happening of the contingency stipulated in the policy, regardless of whether the insured has recourse against a third party. Citizens Bank of Oregon v. American Insurance Co., (D.Or. 1968) 289 F. Supp. 211; Fitchburg Savings Bank v. Massachusetts Bonding & Insurance Co., (1934) 274 Mass. 135, 174 N.E. 324; Smith v. Federal Surety Co., (1932) 60 S.D. 100, 243 N.W. 664. Indiana case law indicates a similar analysis of "loss" is used in this state. In Fletcher Savings & Trust Co. v. American Surety Co of New York (1931) 92 Ind. App. 651, 175 N.E. 247, the court defined the policy term "loss" in its discussion of a fidelity bond which required the insured to give notice to the underwriter as soon as possible after learning of a loss. The court said:
"The word `loss' as used in the above provision of the contract, means a pecuniary damage to the insured for which the insurer may, under the provisions of the policy, be liable, though at the time the extent of the loss may not be ascertainable." (citation omitted) (emphasis added.)
Id. at 665, 175 N.E. at 252.
Here, Central Insurance became liable in the event of a bad check loss sustained by Interstate. It seems clear that Interstate suffered pecuniary damage when it accepted the bad checks in exchange for its goods. The return of the checks by the drawee bank signaled the "discovery of the loss" within the intendment of the limitations provision.
The provisions of the policy provide support for Central Insurance's argument that "loss" under the policy occurred when the checks were returned unpaid and marked "NSF." By the policy's coverage terms, Central Insurance agreed to indemnify Interstate "for the face amount of a bad *1100 check given in payment of automobile(s)," (our emphasis) rather than for any amount irrecoverable against the check writer. In its policy, Central Insurance agrees to pay
"all sums which the Assured shall itself lose because of its acceptance ... of a bad check or sight draft ... given by the purchasing authorized automobile dealer in payment of the purchase price of the automobile(s) purchased at the Assured's auction in a transaction covered hereunder, where the negotiability of such check or sight draft is guaranteed by the Assured." (Emphasis added.)
No policy provision requires Interstate to reduce its claim against the third-party check writer to judgment in order to call upon Central Insurance for payment. Indeed, an examination of the policy discloses that the parties intended Central Insurance, rather than Interstate, to assume the principal role in recovering from the third party. The insuring agreement affords Central Insurance comprehensive subrogation rights Interstate must transfer its rights and remedies against the purchaser to Central Insurance and must secure to Central Insurance the right to use its name for the recovery of such rights and remedies. The policy also prohibits Interstate from issuing a release to any person. Thus, the parties clearly intended that Central Insurance's liability under the policy was to arise immediately upon dishonor of a check by the drawee bank not upon some future date when Interstate was unable to execute on a judgment against a third party. To recover under the policy, Interstate needed only to show the acceptance of a bad check, the contingency insured against. The later judicial determination of the drawer's liability on the check was relevant only to a determination of the extent of Interstate's loss.[3]
Additional support for this analysis can be found in Section IV of the policy. That section regards notice of claim and states:
"The Assured shall notify the Company of any loss or claim for which the Company might be liable within two business days of information of such loss or claim."
The point at which a loss or claim occurs is clarified in Section X, Rights and Responsibilities of the Assured, which instructs:
"The Assured by acceptance of this policy agrees to:...
D. Report to the company all pertinent facts (not more than two (2) business days thereafter) upon receipt of information that an insured check has not been paid upon presentation to the bank. ..."
From the foregoing discussion of the policy, we conclude that the "loss" referred to in the policy arose upon the acceptance of the bad checks, and the discovery of the loss occurred when the checks were returned to Interstate. Our consideration of all of the terms of the policy supports the trial court's conclusion as to lack of ambiguity as to when the loss occurs. In reaching our conclusion, we have given effect to the intent of the parties as reflected by the language used in the contract, Ohio Casualty Insurance Co. v. Ramsey, (1982) Ind. App., 439 N.E.2d 1162, and we have viewed all of the contract's provisions in order to ascertain its meaning, not just individual words, phrases or paragraphs. Michigan Mutual Insurance Co. v. Combs, (1983) Ind. App., 446 N.E.2d 1001; Loving v. Ponderosa Systems, Inc., (1983) Ind. App., 444 N.E.2d 896, transfer pending. Finally, we have not ignored Interstate's arguments relating to a possible conflict among the provisions, Jeffries v. Stewart, (1974) 159 Ind. App. 701, 309 N.E.2d 448, but have accepted a construction of the policy which harmonizes the provisions of the agreement rather than one which views the provisions as conflicting. Loving v. Ponderosa Systems, Inc., supra.
Issue Two Striking of Affidavits
Interstate disputes the trial court's striking of Riggs and Cherry's affidavits, arguing *1101 these affidavits were extrinsic evidence tending to show the policy was latently ambiguous as to when the limitations period would begin to run. Additionally, it claims Riggs's affidavit, established waiver and estoppel.
In addressing this issue, we must consider Ind.Rules of Procedure, Trial Rule 56(E), which requires that supporting affidavits be made on personal knowledge, affirmatively show the affiant is competent to testify and set forth such facts as would be admissible in evidence. The requirements of T.R. 56(E) are mandatory therefore, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. Coghill v. Badger, (1982) Ind. App., 430 N.E.2d 405 (on rehearing).
We do not believe either affidavit submitted by Interstate proffers any specific facts tending to refute Central Insurance's reliance on the contractual limitations clause. The Cherry affidavit describes the affiant's background as well as his employment history in the insurance field and his familiarity with insurance policy terms. It then sets forth his "professional opinion" as to the proper construction of the policy in question. In Riggs's affidavit, he avers that he is president of Interstate Auction, Inc. and is familiar with the insurance policy involved in the suit. The affidavit then incorporates Interstate's answers to interrogatories propounded by Central Insurance, which describe the processing of prior claims under the policy, wherein Riggs admits notifying Central Insurance within two days of the return of the checks and cooperation between Central Insurance and Interstate to collect on the bad checks.[4] In the remaining portion of the affidavit, Riggs avers the following:
1. he, as corporate representative, relied on Central Insurance to assist him as it did in previous claims;
2. Interstate became "legally obligated" to its depository bank by its deposit of the Bair check;
3. in his opinion, Interstate had either one year and 60 days after it furnished Central Insurance with proof of loss or one year after the amount of its loss was determined by a court of law to bring suit on the policy;
4. Central Insurance collected premiums for the automobile checks in question and has failed to return the same;
5. Interstate entertained a reasonable expectation that coverage would be provided.
We believe that the trial court was correct in striking these affidavits as they were merely opinions of the affiants as to how the contract should be interpreted. Neither sets forth any facts which would tend to controvert Central Insurance's assertion that the contractual limitations period had run prior to the filing of the suit. Although termed "extrinsic evidence" by Interstate, the averments consist mainly of conclusions of law regarding the construction of the contract, which do not advance Interstate's position herein. City of Gary v. State ex rel. Condron, (1980) Ind. App., 406 N.E.2d 1231, 1235; Podgorny v. Great Central Insurance Co., (1974) 160 Ind. App. 244, 311 N.E.2d 640. We observe that where no ambiguity is found in the terms of a contract, its construction is a matter of law to be determined by the trial court. Piskorowski v. Shell Oil Co., (1980) Ind. App., 403 N.E.2d 838. Further, since we have found the instant contract to be clear and unambiguous on its face, any offer of extrinsic evidence to prove a different construction placed upon it by the parties could not have been considered by the trial court. Id.
Issue Three Waiver and Estoppel
Interstate claims that an issue of material fact remains concerning Central Insurance's waiver of or estoppel to assert the time limitation. First, Interstate contends *1102 in its brief that a prior course of dealings between the parties disclosed that neither party considered that there had been an actual loss "until such time as the plaintiff [Interstate] or defendant [Central Insurance] received information indicating the bad check writer would not make good on the check." Interstate urges that Central Insurance waived its right to rely on the policy terms by conducting itself in a manner that led Interstate to believe that it would not assert that the limitations period began running on the date the checks were returned "NSF." Interstate further argues that Central Insurance should be estopped from doing so, absent evidence that it clearly notified Interstate of its intent to rely on the clause in such manner. Additionally, Interstate claims that waiver and/or estoppel is established because Central Insurance "stood idly by and tacitly encouraged the insured's action to recoup directly from the bad check writer before proceeding with an action on the policy."
To establish waiver, an insured must show that conduct or acts of the insurer were sufficient to justify a reasonable belief on the part of the insured that the company would not insist on compliance with the policy terms. Wallace v. Indiana Insurance Co., (1981) Ind. App., 428 N.E.2d 1361. To constitute estoppel, the insurer's acts or statements must be of a caliber calculated to mislead the insured to its prejudice. C.A. Enterprises, Inc. v. Employers Commercial Union Insurance Co. of America, (1978) 176 Ind. App. 551, 376 N.E.2d 534. We do not believe that Interstate has established either in the instant case.
The facts here show that Central Insurance explicitly and unequivocally rejected Interstate's claim under the policy on January 12, 1980, over ten months before the one-year period expired. By his letter of June 8, 1977, responding to Interstate's request for reevaluation of its claim, Central Insurance's counsel reiterated the company's position that it was not liable on the Bair checks and explained in detail its reasons for this denial. Although the letter contained an offer to settle the controversy for $7,500, it cautioned that such offer was "in the spirit of compromise and not intending to admit any liability whatsoever." The letter requested that Interstate's counsel advise him as to the status of all efforts taken by the assured against Carl Bair Motors. It further advised Interstate that Central Insurance did not intend to limit or waive any other reasons or defenses for denying the claim. Interstate made no reply to the settlement offer but wrote Central Insurance's counsel on August 20, 1980, and September 20, 1980, advising him that it had obtained on Ohio judgment against Bair and repeating its contention that Central Insurance was liable under the policy for the checks.
Without further conduct on Central Insurance's part, its June 8, 1977 letter is insufficient to render the limitations defense unavailable to it. The letter repeats the denial of liability in no uncertain terms and cannot be considered of a caliber to "lull Interstate into inaction." It is also insufficient to support Interstate's contention that Central Insurance "tacitly encouraged" Interstate to seek recovery against Carl Bair before bringing suit on the policy.
In Collins v. Dunifon, (1975) 163 Ind. App. 201, 323 N.E.2d 264, this court held that an insurer's indication of a mere willingness to discuss settlement at a time several months before the expiration of the statute of limitations was insufficient to constitute the basis for estoppel. See also Martin v. Levinson, (1980) Ind. App., 409 N.E.2d 1239, where this court, in addressing a related estoppel issue in connection with a statute of limitations defense quoted with approval the following passage from an Illinois case:
"`The fact that an insurer negotiates with a claimant is not conduct amounting to waiver by estoppel unless the negotiations contain statements or conduct which are calculated to lull the claimant into a reasonable belief that his claim will be settled without suit. If there is evidence of such conduct which exceeds mere investigation and negotiation an issue is made for determination by the trier of facts; if not, the defense may be disposed *1103 of by the court as a matter of law.' (Citations omitted) Flagler v. Wessman (2nd Dist. 1970), 130 Ill. App. 2d 491, at 494, 263 N.E.2d 630, at 632, as cited in Doll v. Farmers Auto Ins. Ass'n, (3rd Dist. 1977), 54 Ill. App. 3d 868, 12 Ill. Dec. 635, 370 N.E.2d 258." (Emphasis added.)
Id. at 1243.
Interstate contends that Indiana case law requires an insurer to notify the insured of its intent to rely on the contractual limitation period. While this is the law in certain situations where no denial of liability was made by the insurer, Huff v. Traveler's Indemnity Co., (1977) 266 Ind. 414, 363 N.E.2d 985; Schafer v. Buckeye Union Insurance Co., (1978) 178 Ind. App. 70, 381 N.E.2d 519, such are not the facts in the case at bar.
The "prior dealings" which Interstate refers to (and which are revealed in Riggs's answers to interrogatories) are also insufficient to establish any waiver of compliance with the policy on Central Insurance's part. Although Riggs seems to imply Central Insurance waived the limitations provision by encouraging him to pursue the drawer of the checks, he admits in the interrogatories that Central Insurance's position was "one of non-assestance [sic], disclaimer of liability under the policy, and general recalcitrance in attempting mutual mitigation." The evidence merely indicates that upon being notified by Interstate that a check had been returned, Central Insurance routinely requested that Interstate process the check a second time, a procedure which usually took an additional three days, and that Interstate sometimes made additional efforts to persuade the drawer of a bad check to make good on his debt.[5] The trial court correctly held that these facts were insufficient to raise a triable issue as to Central Insurance's waiver of or estoppel to assert the limitation provision.
The decision of the trial court is affirmed.
YOUNG, P.J., and CONOVER, J., concur.
NOTES
[1] The business practices included Interstate's acceptance of post dated checks, its failure to deposit checks within seven days of the auction at which they were received, and its acceptance of checks from Bair after Bair's previous checks had been dishonored.
[2] In other separate coverage enumerated in the policy, Interstate is indemnified for sums it becomes legally obligated to pay because of 1) a loss arising from a seller's acceptance of a bad check, where Interstate guarantees the negotiability of such check, or 2) its warranty or guaranty of title to an auto sold at one of its auctions. Neither party argues or suggests the language in these other coverages is pertinent to the interpretation of the bad check coverage at issue here. Thus, all references in this opinion to the policy coverage provisions apply to coverage on bad checks accepted by Interstate.
[3] As discussed previously, Interstate interprets "loss" as occurring when a judgment against a third party check writer is returned unsatisfied. We note that great potential for confusion would arise if "loss" were given the meaning urged by Interstate if bankruptcy were to intervene, a determination of the amount of "loss" could be a lengthy process spanning several years.
[4] These answers to interrogatories allegedly establish waiver and estoppel and will be discussed infra, under Issue Three.
[5] We do not construe Interstate's activities as a delay of assumption of liability by Central Insurance. Under the policy, Central had the right to request cooperation of Interstate in collecting from the bad check writer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919954/ | 245 Pa. Super. 116 (1976)
369 A.2d 320
COMMONWEALTH of Pennsylvania
v.
Gerald R. LEONHARD, Appellant.
Superior Court of Pennsylvania.
Submitted June 14, 1976.
Decided November 22, 1976.
*117 William F. Ochs, Jr., Public Defender, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.
*118 Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge:
Appellant was convicted by a jury of disorderly conduct[1] and failure of a disorderly person to disperse upon official order.[2] Following the denial of a new trial and an arrest of judgment, this appeal was taken challenging the sufficiency of the evidence.
During the evening of December 22, 1974, the officials of the Berks County Prison distributed Christmas packages to the prison inmates. The packages contained bottles of mouthwash with an alcoholic content of 17%. After consuming the mouthwash, a group of inmates became boisterous, overturning tables and benches, and scattering empty mouthwash bottles and other debris around the prison. Deputy Warden High testified that the men were "shuffling around", that some inmates were hitting each other, and that the inmates refused to return to their cells. Prison officials called the state police to the prison and recalled off-duty guards to aid in returning the prisoners to their cells.
On December 23, 1974, appellant, an inmate, was charged in a criminal complaint with riot, disorderly conduct, and failure to disperse. On March 13, and 14, 1975, appellant was tried in the Court of Common Pleas of Berks County. The jury acquitted him of the charge of riot but convicted him of disorderly conduct and failure to disperse. Appellant moved for a new trial and arrest of judgment. After argument, the lower court denied both motions. Appellant argues that the evidence produced at trial was insufficient to sustain his conviction.
*119 In reviewing the sufficiency of the evidence, we must examine the evidence in a light most favorable to the verdict winner, together with all reasonable inferences flowing therefrom. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1971). It is clear that evidence to convict an accused of a crime must be based on facts and conditions proved; mere conjecture or surmise is insufficient. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). Further, mere presence at the scene of a crime without affirmative evidence of participation is insufficient to convict. Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966).
Because appellant was convicted of disorderly conduct and failure to disperse, we must consider the elements of each offense separately. To prove an accused guilty of disorderly conduct under § 5503 of the Crimes Code the Commonwealth must establish that the person, acting "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; (4) or creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor."
It is undisputed that a disturbance occurred in the prison on December 22, 1974. The only issue is whether the accused was an active participant in that event. The Commonwealth produced four witnesses at trial. Two of them arrived at the prison after the disturbance had occurred and therefore could not identify appellant as having performed any act which constitutes one of the elements of disorderly conduct. The third witness, Assistant Warden Santoro stated that appellant was not with the group of men who were boisterous and did not see appellant engage in other conduct which would constitute disorderly conduct under § 5503.
*120 The fourth witness, Deputy Warden High, was present in the prison throughout the disturbance. On direct examination he testified as follows:
"Q. [by the district attorney] Warden High, tell me what occurred on that day that was out of the ordinary?
"A. At approximately 7 p.m. or 6:30 to 7 p.m., the men got very boisterous and loud and started shuffling around, even some inmates hitting each other and things like that. Different scuffles, and they were it appeared in a drunken mood.
"THE COURT: Drunken mood?
"THE WITNESS: Yes, I would say.
"Q. [by the district attorney] Warden High, did you see the defendant personally on that occasion?
"A. Yes I did.
"Q. What area was he located when you saw him, sir?
"A. At one time I saw him up in the A block area milling around before while we had before we got the police and things like that. He was in with the other group of men that were causing the disturbance. . . .
"Q. Warden High, on these hours of about 7 to 9:30 that evening on the 22nd of December, did you see anything out of the ordinary as far as the physical appearance of the prison?
"A. Well, it was all upset from them refusing to go in and things like that. It was, windows broken, there was benches upset, tables upset.
"Q. When you say `they', who do you mean? I think you said about ten prisoners?
"A. Yeah, the general group.
"Q. And was this defendant one of those ten prisoners?
"A. Earlier before I had told him, he was in the A block area with this group."
*121 On cross-examination Deputy Warden High testified to the following:
"Q. [by the public defender] Did you actually see anyone or did you pick anyone out who was becoming boisterous? Did you see someone or did you hear someone shout or was everyone shouting?
"A. Well, there was a few of them. Some were shouting at me and everything else.
"Q. Were there any fights between the inmates?
"A. Yeah, different places, yes.
"Q. Did you see the defendant fighting with anyone?
"A. No, sir. . . .
"Q. Did you see him [meaning the appellant] upsetting any of the tables or breaking any windows or doing anything to destroy the prison property?
"A. No, I didn't see him do that."
Thus, Deputy Warden High did not specifically identify the appellant as having engaged in fighting, making unreasonable noise, using obscene language or creating a hazardous or physically offensive condition. The evidence shows that appellant was milling around in the common area of the prison and that he may have been slightly intoxicated. There is no evidence that appellant personally committed any act of disorderly conduct; the Commonwealth only proved his presence on the scene. See Commonwealth v. Garrett, supra. The evidence is, therefore, insufficient to convict appellant on this charge.
In the crime of failure to disperse, the Commonwealth must prove that "three or more persons are engaging in a course of disorderly conduct which causes substantial harm or serious inconvenience. A peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse and a refusal to obey *122 such order is a violation of § 5502." Thus a person may unlawfully refuse to disperse even if he is merely present during a disturbance.
In the instant case all four Commonwealth witnesses testified that appellant refused to return to his cell upon request. Deputy Warden High testified on direct examination as follows:
"Q. Tell me what you said to him. [meaning the defendant]
"A. When I saw him in the TV room, I said, `You will have to go in and lock in.' Everybody was locking in because we had been given an order for all people to lock in prior to that.
"Q. For the benefit of the jury, what do you mean by lock in?
"A. They have to go into their cell and be locked in.
"Q. Their own individual cells?
"A. Yes, individual cells.
"Q. Did the defendant go into his cell and lock in?
"A. No, refused me.
"Q. What words did he say, if you recall?
"A. He said, `I won't lock in.'"
Ultimately, state policeman Seese escorted appellant to his cell on the evening in question. Appellant clearly refused to return to his cell upon official order. This conduct is a violation of § 5502.
The judgment of sentence on the charge of disorderly conduct is reversed. When the invalidity of a conviction on one count which may have influenced the sentence becomes apparent on appeal, the proper course is to vacate the sentences and to remand for resentencing on the valid counts without consideration of the invalid one. Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972). The sentence is, therefore, vacated and the case remanded for resentencing.
*123 PRICE, J., files a concurring and dissenting opinion in which WATKINS, President Judge, and JACOBS, J., join.
PRICE, Judge, concurring and dissenting:
I would hold that appellant was properly convicted by the jury on both counts. As the majority properly observes, disorderly conduct[1] is that action done "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Focusing solely on that testimony quoted by the majority, there is, to my view, sufficient evidence to sustain appellant's conviction of this crime.
Deputy Warden High, after describing the start of this occurrence in the jail, testified that appellant "was in with the other group of men that were causing the disturbance." Further after describing certain damage within the jail as being the responsibility of a "general group" of prisoners, the warden identified this appellant as being seen after the start of the disturbance "with this group."
The test of the sufficiency of the evidence is whether, accepting as true all the evidence upon which, if believed, the fact-finder could properly have based his verdict, it is sufficient in law to prove the defendant guilty of the crime charged beyond a reasonable doubt. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972). It is axiomatic that the evidence is to be reviewed in a light most favorable to the verdict winner (Commonwealth). Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). In so doing, we will *124 accept as true the Commonwealth's evidence and all reasonable inferences arising therefrom. Commonwealth v. Portalatin, 223 Pa.Super. 33, 297 A.2d 144 (1972).
Viewed in that light I have no difficulty in holding the evidence sufficient to specifically identify appellant as an actor in the occurrence involved herein. And there can be no doubt that the occurrence involved meets the definition as set forth in the definition of disorderly conduct, and in particular Section 4 above. It is of no importance to this decision that appellant was not specifically identified as having engaged in fighting, making unreasonable noise or using obscene language. Appellant was specifically identified as a member of a group of prisoners that created a hazardous or physically offensive condition, and as such it was properly accepted by the jury. I believe that the evidence not only proved appellant's presence on the scene, it formed a proper basis for a finding that appellant, as a member of the group at the core of the hazardous or physically offensive condition, was an actor in the creation of that condition.
I would affirm the judgment of sentence on both disorderly conduct and failure of a disorderly person to disperse upon official order.
WATKINS, President Judge and JACOBS, J., join in this concurring and dissenting opinion.
NOTES
[1] The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 5503.
[2] The Crimes Code, supra; 18 Pa.C.S. § 5502.
[1] The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, Section 1; 18 Pa.C.S. Section 5503. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613651/ | 258 So. 2d 421 (1972)
Mrs. Pauline McCARLEY, Administratrix of the Estate of Robert McCarley, Deceased
v.
IUKA SHIRT CO. and United States Fidelity & Guaranty Company.
No. 46540.
Supreme Court of Mississippi.
February 28, 1972.
Clark & Clark, Iuka, for appellant.
Scribner & Brewer, Tupelo, for appellees.
INZER, Justice:
This is an appeal by Mrs. Pauline McCarley, dependent wife of Robert McCarley deceased, from a judgment of the Circuit Court of Tishomingo County affirming an order of the Workmen's Compensation Commission denying her dependent benefits. We affirm.
Prior to his death on March 17, 1970, Robert E. McCarley had been employed by appellee, Iuka Shirt Company, as a mechanic for about thirteen years. At about 10 A.M. on March 17, 1970, while repairing a sewing machine, he suddenly gasped and slumped to the floor. Dr. Harry Cosby, a general practitioner, was called and he arrived at the plant in a short time. He testified that when he saw the deceased he was on a couch in the lounge. His testimony as to what transpired is as follows:
As soon as I entered the scene, I began to give him external cardiac massage. His blueness began to clear. We began to get a pulse that was produced only by our compression. As soon as we would quit, there would be no pulse. We continued with that a short length of time, 10 or 15 minutes, and continued to do that as the ambulance came there. The ambulance trip was about a mile and a half, we continued with external cardiac massage and brought him into our emergency room, where we put him on a resuscitator, called a crash cart, and then by hydraulic pressure we continued with external cardiac massage and artificial respiration on the machine for about 30 minutes until we were satisfied that he would not revive.
*422 Q. What was
A. It may have been longer than 30 minutes I would say 30 to 45 minutes but a good adequate length of time that we saw separation of the blood in the retina of the eyes, which is paramount to death.
Dr. Cosby stated that from a clinical standpoint he diagnosed the cause of McCarley's death the result of a coronary thrombosis or occlusion which are the same. When asked a hypothetical question covering the deceased's work activities on the day in question, Dr. Cosby did not relate the deceased's work activities to his heart attack, but did not entirely exclude his activities as having some relation thereto. However, the same hypothetical question was propounded to two medical experts in this field, and they stated in their opinion McCarley's work activities did not cause or contribute to his death.
Several employees at the plant testified relative to the work activities of McCarley on the day in question, and their testimony showed without any material conflict that he was engaged in his usual work activity. In fact, when he was stricken he was using an ordinary ten inch screw driver to adjust a buttonhole chute on a machine. There was nothing strenuous about the work he was doing or had done on this day.
Since appellant died while at work, the sole question involved in this appeal is whether the employer-carrier rebutted the presumption of causal connection between the death and the employment. It is a well-settled rule in this state that when an employee dies while about his employment, a presumption arises that his death was causally related to his work activity. This is a rebuttable presumption, but before it can be overcome, the employer must explain fully the cause of death and the work activities of the employee to show that there was no causal connection between the death and the work activity. City of Okolona v. Dependent of Harlow, 244 So. 2d 25 (Miss. 1971); Washington v. Greenville Manufacturing & Machine Works, 223 So. 2d 642 (Miss. 1969); and Mississippi State University v. Hattaway, 191 So. 2d 418 (Miss. 1966).
Appellant does not argue that the cause of McCarley's death was not fully explained and that he died of a coronary thrombosis. Therefore, the only question involved is whether the evidence on behalf of the employer-carrier is sufficient to fully explain the work activities of the deceased on the day in question. Appellant argues that the fact that McCarley was required to service over 200 machines with only one helper put an undue mental strain on him. However, McCarley never complained about being under any particular strain and he was not a nervous or excitable person. His fellow employees and his supervisor all said he was a devoted employee and very diligent in his work. The ladies who operated the machines would often ask him to hurry and get their machines back in working order, but insofar as the record shows, this did not seem to unduly upset or disturb him.
While our sympathy is with the appellant, the widow, we cannot say after a careful review of the evidence in this case that there was not substantial evidence from which the commission could find that the employer met the burden placed upon him to overcome the presumption of causal connection. We are constrained to affirm the judgment of the circuit court.
Affirmed.
GILLESPIE, C.J., and JONES, BRADY and ROBERTSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613671/ | 258 So. 2d 277 (1972)
Charles WEATHERS, Appellant,
v.
MISSION INSURANCE COMPANY, Appellee.
No. 71-645.
District Court of Appeal of Florida, Third District.
February 15, 1972.
Rehearing Denied March 15, 1972.
Fromberg, Fromberg & Roth, Miami, for appellant.
Preddy, Haddad, Kutner & Hardy, Miami, for appellee.
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
HENDRY, Judge.
This is an appeal from a summary final judgment for the defendant insurance company in an action brought by the insured claiming uninsured motorist coverage. The appellant was the plaintiff in an action for declaratory relief. He alleged that the policy of insurance had been issued to him but that his wife had signed a "Rejection of Uninsured Motorists Coverage." Appellant was involved in an automobile collision with an uninsured motorist. The appellee denied his claim for coverage.
The facts are in the main undisputed. The plaintiff, Charles Weathers, was involved in an accident on June 7, 1970, at which time he was uninsured. He was employed *278 at the time as a truck driver and it was necessary for him to obtain insurance to preserve his driving license and to continue his employment. Mr. Weathers authorized his wife, Betty J. Weathers, to obtain an insurance policy for him. He instructed her to get "liability insurance." Mrs. Weathers went to the James A. Cole Insurance Agency in Miami, where she requested liability insurance sufficient to keep her husband from losing his license. Mrs. Weathers was asked to sign a rejection of uninsured motorist coverage. She read the rejection form; she said that she understood that she was waiving all other coverage but for liability, and signed same. It is as follows:
"Rejection of Uninsured Motorists (Family Protection) Coverage. In accordance with the provisions of Florida Insurance Code, Section 627.0851 Part X of Chapter 627 permits the Insured named in the policy to reject the uninsured motorists (Family Protection) coverage, the undersigned Insured (and each of them) does hereby reject such coverage, being the coverage provided for the protection of persons insured under this policy who would be legally entitled to recover damages from the owner or operator of an insured motor vehicle because of bodily injury, sickness or disease, including death resulting therefrom.
/s/ Betty J. Weathers
Signature of Insured"
Based upon the application of Mrs. Weathers, the insurance policy was issued.
The policy contains the following definition:
"... `named insured' means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household."
Mr. Weathers testified that he had no knowledge of his wife's rejection of the uninsured motorist coverage and that a copy of the rejection by his wife was not provided to him.
The appellant and the appellee each moved for a summary final judgment. The court granted the motion of the appellee, insurance company and this appeal followed.
Appellant urges: (1) His wife who was not the insured named in the policy could not reject uninsured motorist coverage because F.S.A. § 627.0851 requires that the rejection be by the named insured. (2) The summary judgment was improperly entered because there was a genuine issue of material fact as to whether appellant's wife intentionally and knowingly rejected uninsured motorist coverage.
The first point presented requires a consideration of the applicable statute. It is F.S.A. § 627.0851 and because of its importance to the decision it is set out in full.
"627.0851 Automobile liability insurance; uninsured vehicle coverage; insolvent insurer protection.
(1) No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any 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 not less than limits described in § 324.021(7), under provisions filed with and approved by the department, 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, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage; provided further that, unless the named insured requests such coverage in writing, the coverage need not be provided in or supplemental *279 to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer."
Appellant urges that the statute provides for the protection of "persons insured" under the terms of the policy who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. It is designed to afford the public generally the same protection that it would have if the uninsured motorist had carried the minimum limits as public liability coverage.[1]
The statute evolves from public policy considerations and must be broadly and liberally construed to accomplish this purpose.[2] Conversely, that portion of the statute permitting rejection of uninsured motorist coverage detracts from the public policy considerations and must therefore be narrowly and strictly construed.
The proviso states that the coverage "required under this section shall not be applicable where any insured named in the policy shall reject the coverage." It should be noted that the portion of the statute creating coverage uses the term "persons insured thereunder" and the portion allowing rejection uses the term "any insured named in the policy." The obvious reason for the difference in terminology is that the first portion is designed to create the maximum exposure and therefore extends coverage to any person who may be regarded as an "insured" under the terms of the policy whereas the proviso, detracting from this legislative intent, is specifically limited in scope and can be accomplished only by any "insured named in the policy."
Appellee argues that a principal is bound by the acts of his agent, within the scope of the agent's real or apparent authority, regardless of whether the principal had knowledge of the agent's act. Thus, a principal is bound by, and is liable upon, a contract executed in his behalf by his agent when acting within the scope of his actual or apparent authority.
We hold that F.S.A. § 627.0851 is clear and unambiguous. It makes uninsured motorist coverage mandatory unless specifically rejected. The statute need not be interpreted because it clearly states that the coverage can be rejected only by "any insured named in the policy." Mrs. Weathers was not named in the policy. Any coverage that she received under the policy was because she was incidentally covered as the wife of the person named in the policy. Thus, if there was no valid rejection in the instant case, the plaintiff is entitled to uninsured motorist coverage notwithstanding that he did not pay a premium for such coverage.
Having determined that the trial court incorrectly applied the applicable statute, we reverse the summary judgment and need not discuss appellant's second point. The judgment is reversed with directions to enter a judgment for the plaintiff.
Reversed.
CARROLL, Judge (concurring specially).
I concur in the opinion and judgment. The added question of whether a written rejection of the uninsured motorists coverage can be made by the "insured named in the policy" through the signing thereof by another person acting as his agent is not involved here. This is so because in signing the rejection of such coverage Mrs. Weathers did not do so in Mr. Weathers' name as his agent, or otherwise in a manner to indicate she was acting in an agency capacity.
*280 PEARSON, Judge (dissenting).
I would affirm the judgment. First, I think that the policy description of "named insured" included the wife. Second, it is a well settled general rule that knowledge of, or notice to an agent is imputed to the principal when it is received by the agent while acting within the course and scope of his authority and when it is in reference to matters over which his authority extends, even though such knowledge or notice is not actually communicated to the principal.
Where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business, is justified in assuming that such agent has authority to perform a particular act and deals with the agent upon that assumption, the principal is estopped as against such third person from denying the agent's authority.
An examination of this record does not reveal the genuine issue of material fact claimed in appellant's second point.
I would affirm the judgment.
NOTES
[1] Chandler v. Government Employees Insurance Co., 342 F.2d 420 (5th Cir.1965).
[2] Kohly v. Royal Indemnity Company, Fla. App. 1966, 190 So. 2d 819 at 822; and First National Ins. Co. of America v. Devine, Fla.App. 1968, 211 So. 2d 587. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613670/ | 23 So. 3d 675 (2009)
J. BRYANT, LLC
v.
CITY OF BIRMINGHAM.
2070553.
Court of Civil Appeals of Alabama.
May 1, 2009.
Ferris S. Ritchey, Jr., and Nicholas J. Ritchey of Ritchey & Ritchey, P.A., Birmingham, for appellant.
Jeffrey P. Gilliam, City of Birmingham Law Department, Birmingham, for appellee.
THOMAS, Judge.
In August 1992, the City of Birmingham granted an adult-entertainment establishment named Lynn's Den a division I and a division II dance permit. In September 1993, the area in which Lynn's Den was located was designated a part of a Commercial Revitalization District ("the district"). Zoning regulations applicable to the district prohibited the operation of adult-entertainment establishments like Lynn's Den within the district. At the time the zoning regulations governing the district were established, Lynn's Den, because it existed legally at its location before the enactment of the zoning regulations, was permitted to continue operating as a legal nonconforming use.
In 1997, Lynn's Den was purchased by Lady's, Inc., and Lady's, Inc., continued to operate the establishment as The Play Late Club for nine more years. In September 2006, Brian Crain purchased all the outstanding stock in Lady's, Inc., and he changed the name of the establishment to Johnny B's. On September 19, 2006, John Bryant purchased 50% of the stock in Lady's, Inc., from Crain.
At some point in September 2006, Crain sought renewal of the establishment's liquor license from the Alcohol Beverage Control Board ("the ABC Board"), because the license was set to expire on September 30. Crain was informed that the ABC Board renewed licenses in July of each year and that, because he had failed to seek renewal in July, the ABC Board would treat his request for renewal as a new application. In order to secure a liquor license from the ABC Board, the owner of an establishment in the City of *676 Birmingham seeking such a license must first gain the approval of the Birmingham City Council. When Crain contacted the city council, he was informed that, because the liquor license had expired on September 30, 2006, the establishment's division I and division II dance permits had expired as well, and that he would need to submit new applications for those permits along with his request for approval of a liquor license. Crain applied for a liquor license and both a division I and a division II dance permit on October 13, 2006.
The city council approved Crain's application for the liquor license and his application for a division I dance permit. However, the city council declined to approve the division II dance permit. A division II dance permit permits dancing for entertainment purposes on the premises. The reasons for the denial appear to have been neighborhood objection to the adult-entertainment business.
In February 2007, J. Bryant, LLC ("the LLC"), purchased Johnny B's from Lady's, Inc. On February 13, 2007, the LLC applied to the city council for a transfer of the liquor license and the division I dance permit from Lady's, Inc., to the LLC. The LLC also applied for a division II dance permit.
On March 10, 2007, a representative of the LLC met with the neighborhood association about the request to transfer the liquor license and the division I dance permit and the application for a division II dance permit. The neighborhood association recommended that the city council grant the requests to transfer the existing liquor license and division I dance permit to the LLC. However, the neighborhood association declined to recommend approval of the division II dance permit on the ground that the neighborhood association did not desire an adult-entertainment establishment in the neighborhood.
On April 24, 2007, the city council approved the transfer of the liquor license and the division I dance permit. The city council considered, but decided to postpone the decision on, the application for the division II dance permit until further investigation could be made. On June 20, 2007, the City's public-safety committee held a hearing at which it recommended denial of the LLC's application for a division II dance permit. On July 17, 2007, the city council, acting on the recommendation of the public-safety committee, denied the LLC's application.
On August 10, 2007, the LLC filed a complaint in the Jefferson Circuit Court challenging the city council's denial of its application for a division II dance permit.[1] In its complaint, the LLC sought a judgment declaring that the city council's denial of the division II dance permit violated the 14th Amendment to the United States Constitution because it failed to recognize the LLC's vested property right in the legal nonconforming use of the property. The LLC also complained that the city council's denial of the division II dance permit was arbitrary and capricious. After a brief trial at which only Bryant testified, the trial court rendered a judgment on February 1, 2008, determining that the *677 LLC had not proven by clear and convincing evidence that the city council's denial of the division II dance permit was arbitrary, unreasonable, or capricious; the trial court did not address the LLC's constitutional claim in its judgment. The LLC filed a notice of appeal on March 11, 2008. However, the trial court's judgment was not entered into the State Judicial Information System ("SJIS") until August 20, 2008.[2] Until that date, the judgment had not yet been "entered," see Rule 58(c), Ala. R. Civ. P., and the notice of appeal was therefore premature. Under Rule 4(a)(4), Ala. R.App. P., the LLC's notice of appeal was deemed to have been filed on August 20, 2008.
On appeal, the LLC argues that it has a constitutionally protected property right in using its property as an adult-entertainment establishment because that use has been and continues to be a legal nonconforming use under the City's zoning regulations. However, as noted above, the trial court's judgment addresses only whether the city council's denial of the division II dance permit was arbitrary or capricious and does not address the LLC's claim that the city council's denial of the permit unconstitutionally deprived the LLC of its property rights. Although neither party addresses this court's jurisdiction over this appeal, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So. 2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep't of Human Res., 988 So. 2d 555 (Ala.Civ.App. 2007). Because the trial court's judgment adjudicated only one of the two claims the LLC presented in its complaint, we conclude that the judgment is not final and that the appeal must be dismissed.
An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So. 2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So. 2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.
Because the judgment does not adjudicate all the claims raised by the LLC and because record does not contain a Rule 54(b) certification, we dismiss this appeal.
APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Although the body of the complaint indicated that the LLC was naming fictitiously named parties and although the complaint contained a count based on the alleged actions of those fictitiously named parties, the record does not reflect that the complaint was ever amended to substitute any actual parties for the fictitiously named parties. Because "[t]he beginning of trial operates as a dismissal of fictitiously named parties," Ex parte Dyess, 709 So. 2d 447, 452 (Ala. 1997) (citing Rule 4(f), Ala. R. Civ. P.), the existence of the fictitiously named parties does not affect the finality of the judgment entered by the trial court.
[2] A supplemental record containing the judgment was filed in this court on April 14, 2009. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613680/ | 258 So. 2d 162 (1972)
STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant,
v.
Habeeb MONSUR, Jr., et al., Defendants-Appellees.
No. 3725.
Court of Appeal of Louisiana, Third Circuit.
February 7, 1972.
Rehearing Denied March 1, 1972.
Writ Refused April 6, 1972.
*163 Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
Alfred Mansour, of Mansour & Lauve, Alexandria, for defendants-appellees.
Before FRUGE, SAVOY and HOOD, JJ.
HOOD, Judge.
This is an expropriation suit instituted by the State of Louisiana, through the Department of Highways, under the provisions of LSA-R.S. 48:441 et seq. The defendants are Habeeb Monsur, Jr., and Neil Daspit. A part of defendants' property was taken by the state for use in improving and relocating a section of U.S. Highway 71 in Rapides Parish.
The suit was filed and the order of expropriation was signed on November 12, 1969. Plaintiff deposited $39,156.00 in the registry of the court, representing its estimate of the value of the property taken and severance damages. Defendants answered, praying that they be awarded $110,100.00, less the amount deposited in the registry of the court.
The case was tried on March 31, 1971, and thereafter judgment was rendered by the trial court condemning plaintiff to pay defendants $70,809.00, less the amount previously deposited. Plaintiff appealed. Defendants have answered the appeal, praying that the amount of the award be increased to $86,650.00.
The issue, generally, is whether the award made by the trial court is either excessive or inadequate.
The parent tract which defendants owned at the time of the taking contained 10.27 acres. It was located about threefourths of a mile south of the corporate limits of the City of Alexandria, on the west side of U.S. Highway 71, in Rapides Parish. It had a frontage of 670.56 feet on that highway, by a depth of 646.80 feet, extending from the highway to the right of way of the Chicago Rock Island and Pacific Railway Company. It was bounded on the east by Highway 71, on the south by property owned by Joseph J. Medica, on the west by the railroad right of way and on the north by property owned by Chester D. Wells, et al. A moderately high pressure gas pipe line ran on and along the west side of this 10.27 acre tract, parallel to and near the railroad right of way.
Defendants purchased this 10.27 acre parent tract from Josephine Medica Genova on February 6, 1969, or about nine months before this expropriation suit was filed. The purchase price for the entire tract was $60,000.00, or a little less than $6,000.00 per acre.
On the day the property was purchased, defendants recorded in the clerk's office a plat which subdivides the 10.27 acre tract into 20 lots and two streets, and designates that area as the Renee Subdivision. The plat was prepared by Louis J. Daigre, Civil Engineer, on February 3, 1969. The two streets shown on the plat are each 50 feet wide, and they run east and west through the proposed subdivision, extending from the highway on the east to the railroad right of way on the west.
In this expropriation proceeding plaintiff has taken the full ownership of practically all of the east part of defendants' parent tract. The property being taken includes all of the Renee Subdivision lots which have a frontage on U.S. Highway 71, except for a part of Lot 20, in the southeast corner of that subdivision, which has a frontage of 150 feet on the highway. The property which is being expropriated is to be used for relocating, improving and *164 four-laning U.S. Highway 71. When the construction of this new highway is completed, of course, defendants' remaining property will have access to it.
The land being taken here comprises 5.12 acres of the original 10.27 acre parent tract. The expropriation order, however, decrees plaintiff to be the owner of three separate parcels of land, so as to exclude from the taking the dedicated public streets shown in the plat of the Renee Subdivision. These three parcels contained a total of 181,863 square feet. There remained after the taking a part of Lot 20, containing 12,750 square feet, located in the southeast corner of the parent tract and having a frontage of 150 feet on Highway 71. There also remained the western part of the parent tract, containing 134,666 square feet and including the entire frontage of the parent tract on the railroad right of way.
A plat showing the 10.27 acre tract involved in this suit, and the adjoining tract of land owned by Joseph J. Medica, is attached hereto and marked "Appendix A." This plat shows the subdivision of defendants' parent tract into 20 lots, with the dedication of two streets running east and west through it. The plat also shows the part of the Medica tract and the portions of defendants' property which have been taken by plaintiff. The three parcels of land which plaintiff has taken from defendants in the instant suit are designated on the attached plat as Tract "9-4," Tract "9-9" and Tract "9-10."
Defendants' property is level and is generally well drained. It is located in a rural area, and up to the time of the taking it had never been used for any purpose other than for farming. There were no improvements on the land, except for a frame house located partly on that land and partly on the adjoining Medica tract. No value was attached to that house.
Shortly after defendants purchased the property they cut two dirt streets running east and west in the locations shown on the plat. They never received a permit to install culverts in the ditches along the west side of the highway, however, so there has never been any access to these streets, and they apparently have never been used. No improvements, other than the cutting of these streets, were made on the property between the time defendants purchased it and the date of the taking. One appraiser stated that "the dirt streets were simply ditched in," and the photographs in the record show that only a minimum amount of dirt work was done to identify these two strips of land as streets.
Lots Five and Six of this subdivision were sold by defendants on February 18, 1969. These two lots were located in the extreme northwest corner of the parent tract, adjoining the railroad right of way, and no part of either of those lots has been expropriated by plaintiff. Both lots were reconveyed to defendants at a later date, so at the time of the trial defendants still owned all of the remainder of the parent tract. None of the appraisers attached any significance, insofar as determining value is concerned, to the fact that two lots had been sold by and returned to defendants.
The appraisers who testified at the trial concluded that the highest and best use of the subject property was for commercial and industrial use, although no property in that immediate vicinity had been developed for that purpose. They apparently reached that conclusion because the land fronted on a public highway and on a railroad, it had ready access to a railroad siding or spur track, natural gas was available for commercial or industrial use, and very little land with immediate access to a railroad and a good highway was available in that area.
Darrell V. Willet, a real estate expert called by plaintiff, appraised defendants' property twice, the first appraisal being made as a unit or as open acreage, without considering the plat of Renee Subdivision. The second appraisal was made as subdivision property, on a lot or front foot or *165 square foot basis. On his first appraisal, he concluded that the 10.27 acre parent tract had a total value of $72,063.00, or an average per acre value of $7,017.00. He felt, however, that the part of the property which fronted on U.S. Highway 71, to a depth of 200 feet (and containing 3.145 acres), had a value of $68,500.00, or more than $22,000.00 per acre, while the rear land, comprising 7.125 acres, had a value of only $500.00 per acre, or a total value of $3,563.00. On that basis, he appraised the 5.12 acres taken by plaintiff at $62,890.00, since it consisted mostly of "front land," and he valued the remainder at $9,173.00.
In re-appraising the property as a subdivision, Willet concluded that the division of the parent tract into streets and relatively small lots reduced its value. He felt that the lots were too small to serve any industrial or commercial purpose, that it would be necessary for the dedication of the two streets to be revoked in order to get the best use of the property, and that a prospective purchaser might have some difficulty in getting such a revocation. Willet estimated the value of all 20 lots in the subdivision at $49,228.00. He felt that the lots fronting on the highway, being 130 feet deep, had a value of $50.00 per front foot, or 38 per square foot, while the other lots had a value of only 7.7¢ per square foot. On the basis, he valued the three parcels taken by plaintiff at $32,900.00.
Perry E. Futtrell, Jr., another real estate expert, appraised the property for plaintiff, and his report was submitted in evidence. He estimated the value of the parent tract at $65,200.00 before it was subdivided. He felt, like Willet, that the land fronting on the highway, to a depth of 200 feet, had a greater value than did the rear land. He valued the front land, containing 3.145 acres, at $90.00 per front foot, amounting to $61,650.00, and he valued the rear land, containing 7.125 acres, at $500.00 per acre, amounting to $3,563.00. Based on this "front land-rear land" concept, he concluded that the value of the property taken was $56,715.00, and that defendants suffered no severance damages.
Futtrell re-appraised the property later as "subdivision property," and he concluded that as subdivided the entire parent tract had a value of only $60,978.00. He felt that the lots fronting on the highway were worth more than the rear lots, and according to his computations the value of the property, computed as a subdivision, was $39,335.00.
Donald L. Chambers, a real estate expert called by defendants, appraised the property only as a subdivision. He concluded that the total value of all of the lots would be $160,768.00 when the subdivision was completed. He then estimated the cost of developing the subdivision, and after deducting those costs he concluded that the entire parent tract had a net value of $143,461.60. He estimated the value of the "front land," to a depth of 180 feet from the highway, at 61¢ per square foot, or a total of $60,968.00, and he valued all other land in the subdivision at 30½¢ per square foot. Using these valuations, he concluded that the three parcels of land taken by plaintiff had a value of $86,449.64 or $82,630.41, there being some confusion as to how much should be deducted for development costs.
W. C. Webb, a realtor called by defendants, also valued the property as a subdivision. He concluded that the lots in the subdivision had a value of $181,088.00 before the taking, that the property fronting on the highway was worth substantially more than the rear property, and that the property taken had a value of $105,563.00.
Defendant Monsur, who is an experienced real estate appraiser as well as a defendant in this suit, felt that the lots fronting on the highway, to a depth of 130 feet, had a value of $80.00 per front foot, and that the back lots had a value of $55.00 per front foot. On that basis, he felt that the value of the property taken was $78,718.00, and that he sustained severance damages *166 of $5,814.00, entitling him to a total award of $84,532.00.
The trial judge, obviously concluding that the land taken should be appraised as subdivision property, concluded that if the development of the parent tract into a subdivision should be completed the lots which faced on the highway would have a value of $65.00 per front foot, and that the rear lots would have a value of $50.00 per front foot. After computing the ultimate value of the developed property on that basis, he then deducted the estimated cost of developing each lot in the subdivision, and concluded that the value of the property taken and severance damages amounted to $70,809.00. Judgment accordingly was rendered condemning plaintiff to pay defendants that amount, less the sum previously deposited in the registry of the court.
We have concluded that the trial judge erred in valuing the subject property as a subdivision, in speculating as to the future value of lots if the development of the subdivision is completed, and in holding that the "front land" had a greater value than did the "rear land."
The law is settled that if the potential use of property for subdivision purposes is remote or speculative, or if its use for that purpose would require the concurrence of so many extrinsic conditions or happenings that it would have no effect on the present market value, then the property should not be valued for expropriation purposes on a per lot or square foot basis, as being subdivision property, but instead it should be valued as a unit. On the other hand, if the potential use of the property for subdivision purposes is reasonably prospective, as distinguished from remotely prospective, so as to remove its potential use or classification as a subdivision from the realm of guess work, speculation and conjecture, then the property may properly be classified and valued as subdivision property. State, Through Department of Highways v. Mouledous, 200 So. 2d 384 (La.App. 3 Cir. 1967); Parish of Iberia v. Cook, 238 La. 697, 116 So. 2d 491 (1959).
While the evidence in this case shows that the highest and best use of defendants' property is for industrial or commercial purposes, the property has never been used for anything except for farming, and there has been no commercial or industrial development in that immediate vicinity. It is true that defendants have filed a plat subdividing the property into small lots, and they have "ditched in" two dirt streets, but that is all that has been done to the property in the way of developing it.
Defendants were aware of the fact that a substantial portion of this property might be expropriated for highway purposes when they bought the parent tract on February 6, 1969. Defendant Monsur concedes that he and Daspit talked to Mrs. Genova about "the road" when they bought the property, and that Mrs. Genova told them, "they have been talking about building this highway for twenty years and I don't want to bother with it, I want to go ahead and sell it." If defendants had any doubts at that time as to the plan of the state to expropriate a substantial part of this property, however, those doubts were removed a few days later, when the Department of Highways wrote to both defendants, sending them copies of the plat showing the portion of the 10.27 acre tract it proposed to expropriate, and stating:
"As shown on the attached plat, approximately one-half of this ten-acre tract is required for highway purposes, and you are hereby required to cease improvements to that portion required which may incur additional cost in public funds when the Department purchases the required area."
This letter was written on February 11, 1969, five days after defendants bought this property. It was sent by certified mail to each of the defendants, and the return receipts show that each received that letter and the plat on the following day, *167 February 12. The plat of the Renee Subdivision was filed on February 6, 1969, that being the same day on which the property was purchased, and although the record does not show when the two dirt streets were roughed in, we conclude that that was done before defendants received the above mentioned letter, because we do not believe that they would have proceeded to develop the property as a subdivision after they received such a formal notice from plaintiff. One of the real estate experts who testified at the trial estimated that the preparing and filing of the plat, and the cutting of the two streets, with all of the legal expenses which might have been involved, could not have amounted to more than $800.00.
Although the filing of the plat effectively subdivided the parent tract into lots, the question presented is whether the mere filing of that plat increased the market value of the property. We are convinced that it did not. The evidence shows that a great deal of work would have to be done and substantial expenses would have to be incurred in order to complete the development of a commercial and industrial subdivision. The experts disagree as to whether the subdivision of this property into small lots, with most of them cut off from any highway or railroad frontage, increases or decreases the value of the tract as a whole. There are no other commercial or industrial subdivisions in that vicinity, and the property is in a rural area. Even if the subdivision is completed, it is highly speculative as to whether any of the lots in it could be sold within a reasonable period of time for industrial or commercial purposes. Our conclusion, therefore, is that the potential use of the property for subdivision purposes is only remotely prospective, that the filing of the plat and the cutting of streets did not increase the value of any part of the parent tract, and that the property should be valued as a unit.
The case of State of Louisiana, Through Department of Highways v. Medica, 257 So. 2d 450 (No. 3724 on our docket), involved the expropriation of a part of the 10 acre tract of land which is located immediately south of and adjoining the property affected by this suit. The parent tract in Medica was almost identical in size and in physical characteristics to the parent tract being valued here. Both pieces of land are located on the west side of U.S. Highway 71, they fronted on that highway, and they extend westward to the railroad right of way. About the same amount of property was taken from each tract, and the taking in both cases occurred at about the same time. The Medica case was tried just 15 days before this one was tried, and both cases were argued before us on the same day. Mr. Willet and Mr. Chambers testified as experts in both cases. Mr. Willet's testimony as to the value of the subject property here is consistent with the opinions he expressed in Medica. There is a substantial difference, however, between the values expressed by Mr. Chambers in the two cases.
Mr. Chambers valued the Medica 10 acre tract at $6,000.00 per acre, basing that appraisal on a finding that the adjacent Monsur-Daspit 10.27 acre tract, involved in this suit, had a value of $60,000.00, or about $6,000.00 per acre. He also testified in Medica that there was no difference in the values of the "front land" as compared to the "rear land," but that the average value of $6,000.00 per acre was applicable to all parts of that property. In the instant suit Chambers valued defendants' property at more than twice as much as he valued it in Medica, and he states here, contrary to the views he expressed in Medica, that the "front land" has a much higher value than does the "rear land." His principal explanation for these major inconsistencies was that he was asked to appraise only the "back land" for Medica, and that "one had been subdivided into a subdivision and the other was one whole tract." When asked why he did not consider as a prime comparable the February 6, 1969, sale of the same property which was being appraised, especially since he used it as the main comparable *168 in valuing the Medica tract, he explained, "Mr. Monsur is a developer and.... I don't think that there is anyone who is going to buy land for sixty thousand dollars and subdivide it and hope to just get sixty thousand dollars out of it, they would be foolish to do it, this is what they are in the business for...." The explanations given by this witness do not convince us that there should be such a great difference between the values of the Medica tract and the property involved in this suit, or that the "front land-rear land" concept should be applied here although it should not be, and was not, applied in Medica.
We think the sale of the parent tract to defendants on February 6, 1969, is the best evidence of the present market value of that property. Both of the expert witnesses called by plaintiff, however, placed a higher value on that entire tract when they appraised the property as a unit. In view of the fact that defendants have had the property subdivided and have done a small amount of dirt work on it, we have decided that the entire 10.27 acre parent tract had a value of $72,063.00, or $7,017.00 per acre, at the time of the taking, that being the total value placed on that entire tract by Mr. Willet.
In the Medica case we determined that the "front land" should not be valued higher than the "rear land," but that all of the property, wherever located within the parent tract, should be valued at the same amount per acre. For the reasons which we assigned in that case, we conclude that the "front land-rear land" concept is not applicable here.
Although the property taken here is described as being three separate parcels, the area taken is equivalent to 5.12 acres out of the 10.27 acre parent tract. According to our computations, the parcels taken had a value of $35,927.00. The same figure would result if we should compute the value per square foot of the entire subdivision and award defendants the amount due per square foot for the parcels actually taken. We conclude that defendants are entitled to an award of $35,927.00 for the property taken.
A small part of Lot 20, located in the southeast corner of defendants' parent tract, remains after the taking. This remaining tract has a frontage of 150 feet on old U.S. Highway 71, and it also will front on the new highway when that thoroughfare is constructed. This remaining property is so small and so irregular in shape, however, that its value is substantially reduced. The trial judge determined that the severance damages to this remaining parcel of land amounted to $2,949.00, and we will not disturb that finding.
The trial judge also found that the property remaining to defendants, located west of the land being taken, sustained severance damages of $974.00. We agree that this remaining tract will sustain very little damage as a result of the taking. It will continue to have frontage on the new highway and on the railroad right of way. Since it will be irregular in shape, however, we cannot say that the trial judge erred in awarding $974.00 as severance damages to this tract.
Our ultimate conclusion is that defendants are entitled to an award of $35,927.00 for the property taken, plus severance damages in the sum of $3,923.00, making a total award of $39,850.00.
For the reasons herein assigned, the judgment appealed from is amended by reducing the amount of the award made to defendants from $70,809.00 to the sum of $39,850.00, subject to a credit for the amount deposited in the registry of the court by plaintiff. In all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.
Amended and affirmed.
*169 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304709/ | HOWELL, J.
This is one of three lawsuits growing ont of an .accident on the Murfreesboro Road in Davidson County at a point where Thompson Lane intersects the Murfreesboro Road. The accident happened about 12 o’clock on the night of September 20, 1950. Norman Harding, a son of J. W. Harding, was driving his father’s automobile toward Nashville and was on the east lane of the four lane highway and the defendant was driving his truck on the west lane going south and crossed over on a paved strip between the northbound and southbound lanes of the highway. He stopped his truck and then proceeded into the northbound lane when the collision occurred.
J. W. Harding sued to recover for the damages to his Pontiac automobile.
Norman Harding, the minor who was driving his father’s car, sued for personal injuries.
C. H. Moore sued J. W. and Norman Harding for damages to his truck and for personal injuries.
In the case of J. W. Harding v. C. H. Moore the jury returned a verdict of $1,750 and upon motion a new trial was granted. Upon the second trial the Court sustained a motion of the defendant made at the close of plaintiff’s proof, directed a verdict for the defendant and dismissed the case. By proper procedure this case has been appealed in error to this Court .and assignments of error have been filed.
In the case of Norman Harding by next friend v. O. H. Moore the jury found in favor of the defendant and the case was dismissed.
In the case of C. H. Moore v. J. W. and Norman Harding, the jury found for the defendants and this case was dismissed.
Motions for new trials were made in the last mentioned *274two cases and overruled. No appeals were perfected on these cases.
The assignments of error in this case raise the question whether or not the trial Court erred in granting defendant’s motion at the close of plaintiff’s proof and directing a verdict for the defendant.
The Murfreesboro Highway is composed of two concrete roads of two lanes each, the east two lanes for traffic north toward Nashville and the west two lanes for traffic south, away from Nashville. There is a parkway of grass about 30 feet wide between the two roads. Thompson’s lane intersects the Murfreesboro Road and ends at the east margin of the northbound lanes. There is a concrete strip across the parkway where Thompson’s lane intersects.
The plaintiff’s son, Norman Harding, who was driving his father’s car at the time of the accident was not available to testify in person and his deposition was read. He testified in substance that he was nineteen years of age at the time of the taking of the deposition in March 1952 and that at the time of the accident he was working in Nashville on what is called a third shift from 1 o’clock A. M. until 8 o ’clock A. M. and was on his way to work at about 12 o ’clock Midnight and that he was driving on the northbound lane of the two lanes of'traffic and toward Nashville.
He then testified as follows:
“Q. Now, as you approached the intersection of Thompson Lane, driving in a northern direction, did you notice any other vehicles as you approached that intersection1? A. Tes, sir.
“Q. What was it and where was it? A. It was a truck, two and a half ton truck coming out of the in*275tersection, it was in tlie island between the two lanes moving ont on the highway.
‘ ‘ Q. When yon say it was moving out on the highway, what do yon mean1? What was moving into what lane, which side, the northbound or the southbound? A. Northbound lane.
‘ ‘ Q. When you first saw it was it standing still or proceeding? A. It was moving .at a slow rate of speed.
“Q. Were your lights on? A. Yes, sir.
“Q. Both headlights? ■ A. Yes, sir.
“Q. Did you give any signal? A. Yes, sir. As I approached this intersection I blew my horn and blinked my lights.
“Q. At approximately what speed were you traveling at the time you first saw this vehicle? A. I was driving 45 miles an hour.
“Q. Go ahead and state what happened then? A. Well, I blinked my lights and blew my horn, I thought the truck was going to stop, so I just slowed up a little, I didn’t try to stop, and when I got right at the intersection he hit the left front fender of the car with the right-hand front of the truck.”
He also said that he was about 200 feet from the truck when he first saw it approaching .and it was between the northbound and southbound traffic lanes and that he could have stopped but did not because it was not “his place to stop”.
The only other witness who saw the accident w.as Jennings Taylor who was riding a motorcycle and proceeding behind the defendant’s truck south on the west lane of traffic, when defendant’s truck turned to its left to cross to the east lane. The witness then testified in part as follows:
*276“A. Tlie truck went up as far as Thompson Lane and Murfreesboro Koad and made a left turn; the car was coming towards town at a pretty good rate of speed, the truck stopped for a few seconds, then started to make a left turn back towards town, while in the meantime I was approximately half way between the service station and the truck, about 300 feet, I will say, and the collision took place, just as well as I could see at night, the automobile’s left fender hit the right front fender of the truck and tore the truck’s front bumper off.
£<Q. Where was the truck at the time it was hit, with reference to the north or inbound highway of the Murfreesboro Road? A. It was approximately right on the center line.
“Q. Had the truck got across the center line? A. Not to my knowledge, no, sir?
“Q. Not to your knowledge? A. No, sir.
“Q. You drive an automobile, don’t you? A. Yes, sir.
“Q. How long have you been driving? A. Since I was 15.
“Q. State how fast in your opinion the automobile, the Harding automobile, was going when you first saw it? A. It was at night, and dark, of course, but to my best knowledge I would say he was going close to 50 miles an hour.
‘ ‘ Q. What happened .after the car hit Mr. Moore’s truck?
i£Mr. Polk: I object to the form of the question, he can state what happened when they came in collision. He hasn’t stated the automobile hit the truck, I don’t believe.
*277“Q. Did the automobile of the plaintiff hit the truck of Mr. Moore ? A. I would say the truck was stopped at the time of the collision.
“Q. It was standing still? A. Yes, sir.
“Q. Where did the automobile of Harding stop?
A. When the collision occurred, it made a turn in the road, a half turn, and hit into a telephone pole his back door hit the pole.
“Q. Which side was the telephone pole on? A. On the right side of the road coming in.
“Q. What did he do to the pole, if anything? A. Broke the pole half in two.
“Q. About where were you on your motorcycle when the car and this truck collided? A. I was approximately 75 to a 100' feet on this side.
“Q. Back towards Nashville? A,. Yes, sir.”
Thus it is seen that the plaintiff himself testified that he was driving about 45' miles per hour at midnight and that he saw the defendant’s truck about 200 feet away moving into the intersection and that he did not try to stop. His witness Jennings Taylor says that plaintiff was “going close to 50 miles an hour”. It is noted that in the case of Norman Harding against this defendant for damages for personal injuries the jury found against the plaintiff and dismissed the suit.
In this case we think the negligence of the driver of plaintiff’s car in driving 50 miles an hour at midnight and not making any effort to stop when he says he saw defendant’s truck moving into the highway from a point 200 feet south was the proximate cause of the accident and that the trial Judge did not err in directing a verdict for the defendant.
The rule is well stated by Paw, Presiding Judge, *278in the case of Patillo v., Gambill, 22 Tenn. App. 485, on page 492, 124 S. W. (2d) 272, on page 276, where it is said:
“It is a well settled rule, arising ont of the constitutional right of trial by jury, that, in disposing of a motion for a directed verdict, the trial judge must take the most favorable view of the evidence supporting the rights asserted by the party against whom the motion is made, .and disregard all countervailing evidence. Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 556, 249 S. W. 984; Elmore v. Thompson, 14 Tenn. App. 78, 81.”
The only witnesses introduced in this case who saw the accident were the plaintiff’s son who was driving plaintiff’s car and Jennings Taylor whose deposition was read by plaintiff. We find no evidence of negligence on the part of the defendant, taking the most favorable view of the testimony.
The assignments of error are overruled and the judgment of the Circuit Court is affirmed.
The plaintiff in error will pay the costs.
Affirmed.
Felts and Hickerson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1613661/ | 258 So. 2d 283 (1972)
Robert QUARTZ, a/k/a Edward Forcer, Appellant,
v.
The STATE of Florida, Appellee.
No. 71-436.
District Court of Appeal of Florida, Third District.
February 15, 1972.
Rehearing Denied March 15, 1972.
Carr & Emory, Miami, for appellant.
*284 Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and Edward D. Gewirtz, Legal Intern, for appellee.
Before SWANN, C.J., and PEARSON and BARKDULL, JJ.
SWANN, Chief Judge.
Robert Quartz, a/k/a Edward Forcer, appeals from his judgment of conviction for the crime of possession of a narcotic drug and for the sale of such drug.
He claims the court committed reversible error when it did not interrogate him as to whether he had intelligently and knowingly waived his right to a jury trial. He relies upon Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854 (1930); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The record shows the defendant signed the information on which was stamped "waived trial by jury with approval of court and consent of state" and that oral waiver of trial by jury was made by private counsel for defendant. Defendant concedes these facts but contends this is not sufficient to show an intelligent waiver by a defendant who understood his rights.
The state relies on Rule 3.260 CrPR, 33 F.S.A., which states:
"Defendant may, in writing, waive a jury trial with the approval of the court and the consent of the state;"
and on State v. Garcia, Fla. 1969, 229 So. 2d 236, where the Supreme Court said:
"Inherent in the privilege of a jury trial constitutionally preserved for the defendant is the right to waive it. By his waiver of a jury, when understandably made, the defendant foregoes the participation in his trial of an instrumentality provided for his protection and the court, constitutionally created and vested with jurisdiction of the matter of the cause from its inception, will hear and determine it... . The waiver of a jury trial is a procedural matter, and Rule 1.260 CrPR sets forth the manner in which this is accomplished." p. 238
We don't think Garcia answers the point or that the authorities relied on by defendant mandate reversal.
The better view in our opinion is that set forth in United States v. Hunt, 4th Cir.1969, 413 F.2d 983 and Pool v. United States, 9th Cir.1965, 344 F.2d 943. Hunt, supra, held in summary that when a defendant advises a district court judge that he desires to waive his right to a jury trial it is a better practice for the judge to interrogate the defendant so as to satisfy himself that the defendant is fully apprised of his rights and freely and voluntarily desires to relinquish them. However, the execution of a written waiver of jury trial in open court by the defendant will constitute full compliance with the rule and no grounds for reversal will result from the judge's failure to interrogate the defendant concerning the voluntariness of the waiver.
Pool, supra, says in essence, that a jury trial is sufficiently waived when the defendant signs a written waiver with knowledge of its content and effect. Any inadequacy as to such a waiver is at best formal or harmless error.
On these authorities we find defendant has failed to demonstrate reversible error under this point.
Defendant also seeks reversal because the trial court denied his motion for a new trial. He argues on appeal that the judge denied him the right to make a motion for a new trial and avers this is error under Rule 1.590(b) CrPR, 33 F.S.A. The record does not sustain this contention but does reflect the trial court denied the motion for new trial which was requested orally. Defendant's private counsel did not set forth any grounds in the oral motion for new trial; he did not proffer any grounds for a new trial and he did not file a written motion setting forth any grounds *285 for a new trial within four days after the verdict. See Rules 3.590 and 3.600 CrPR.
In Tibbits v. State, 146 Fla. 69, 200 So. 373 (1941), the question before the court was the same as in the instant case but that appeal was based on a prior but similar provision of the criminal procedure act which was in effect at that time. The Supreme Court, in affirming a conviction of the defendant therein, stated:
"We find no provision that requires the trial court to hear arguments of counsel on the motion for a new trial."
This court followed that ruling in Johnson v. State, Fla.App. 1971, 248 So. 2d 208. We hold there was no error in the trial court's ruling under the authority of Tibbits and Johnson, supra.
In addition, we cannot hold the trial court in error for denying a motion for new trial where no grounds are presented by the defendant's motion to the trial court. See Silver v. State, Fla. 1966, 188 So. 2d 300 and Shea v. State, Fla.App. 1964, 167 So. 2d 767.
For the reasons herein stated, the final judgment herein appealed is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613692/ | 23 So. 3d 682 (2009)
Johnnie Marie McGUGIN
v.
Larry Edwin McGUGIN.
2071188.
Court of Civil Appeals of Alabama.
May 8, 2009.
*683 Floyd C. Enfinger, Jr., Montrose, for appellant.
Submitted on appellant's brief only.
THOMAS, Judge.
In October 2007, Johnnie Marie McGugin ("the ex-wife") instituted an action seeking to have Larry Edwin McGugin ("the ex-husband") held in contempt for failure to pay support due under the parties' divorce judgment. The case was set for a trial on December 20, 2007; the ex-husband failed to appear, prompting the trial court to make an entry of default on December 20 and to order that the ex-wife's attorney prepare a more detailed default judgment.
On December 27, 2007, the ex-husband filed a motion to set aside the "default judgment" under Rule 55(c), Ala. R. Civ. P. On that same date, the ex-husband filed his answer to the ex-wife's complaint and a counterclaim, in which he sought to have the ex-wife held in contempt for failing to pay off the debt associated with an automobile she had been awarded in the parties' divorce judgment and to have his obligation to pay alimony to the ex-wife terminated on the ground that she had openly cohabited with a member of the opposite sex. The ex-wife filed a response opposing the ex-husband's motion and an answer to his counterclaim on January 2, 2008. The trial court set the ex-husband's Rule 55(c) motion for a hearing to be held on February 7, 2008. A default judgment awarding the ex-wife $6,354 in past-due alimony and ordering the ex-husband to resume monthly alimony payments in the amount of $1,059.50 was entered into the State Judicial Information System ("SJIS") on January 4, 2008.
The record reflects that the hearing scheduled on February 7, 2008, was continued to April 10, 2008, and that the hearing scheduled for April 10, 2008, was continued to May 27, 2008. On May 27, 2008, the trial court tried the contempt issues raised by the parties in their respective pleadings. A judgment finding the ex-husband in contempt for failing to pay his obligations under the divorce judgment and determining that the ex-wife had cohabited with a member of the opposite sex was entered on September 3, 2008; that judgment did not address the ex-husband's contempt claim. The ex-wife appealed on September 11, 2008.
*684 In the ex-wife's statement of the case in her brief on appeal, she notes that the trial court failed to rule on the ex-husband's Rule 55(c) motion. She further states that "the parties tried the case." The ex-wife fails to appreciate the import of the trial court's failure to rule on the ex-husband's Rule 55(c) motion.
A Rule 55(c) motion, like most postjudgment motions, must be ruled upon within 90 days of its filing or it is denied by operation of law. Rule 59.1, Ala. R. Civ. P. Because the ex-husband's Rule 55(c) motion was filed before the entry of the default judgment, it is treated as if it was filed on the date of the entry of the judgment itself. New Addition Club, Inc. v. Vaughn, 903 So. 2d 68, 72 (Ala.2004). Based on a filing date of January 4, 2008, the ex-husband's motion was deemed denied by operation of law on April 3, 2008. The trial court lost jurisdiction to act at that point, rendering its later actions in conducting a trial on the contempt issues on May 27, 2008, and in entering a judgment on those issues on September 3, 2008, void for want of jurisdiction. Ex parte Caterpillar, Inc., 708 So. 2d 142, 142 (Ala.1997); Newman v. Newman, 773 So. 2d 481, 483 (Ala.Civ.App.1999). This court may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So. 2d 564, 568-69 (Ala. Civ.App.2003), abrogated on other grounds by F.G. v. State Dep't of Human Res., 988 So. 2d 555 (Ala.Civ.App.2007).
Our analysis is not impacted by the filing of the ex-husband's counterclaim on December 27, 2007, before the entry of the default judgment. The trial court's December 20, 2007, order noted the ex-husband's failure to appear and indicated that the court viewed the failure to appear as a default, serving as an entry of default under Rule 55(a). After an entry of default, the defaulting party "loses his standing in court, cannot appear in any way, cannot adduce any evidence and cannot be heard at the final hearing." Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665, 670 (Ala. 1981) (equating an entry of default with a decree pro confesso under former practice); see also 10A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2681 (3d ed.2001); and 2 Champ Lyons & Ally W. Howell, Rules of Civil Procedure Annotated 55.1, p. 220 (4th ed.2004). Thus, the ex-husband's counterclaim did not serve to prevent the January 4, 2008, default judgment from becoming a final judgment.
The ex-wife has appealed from a void judgment. Because a void judgment will not support an appeal, we dismiss this appeal. Newman, 773 So.2d at 484.
APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613676/ | 258 So. 2d 555 (1972)
George GULOTTA et al.
v.
Lelia O. CUTSHAW.
No. 8677.
Court of Appeal of Louisiana, First Circuit.
January 31, 1972.
Rehearing Denied March 22, 1972.
Writ Granted April 18, 1972.
*556 William O. Templet, of Middleton & Templet, Plaquemine, for appellant.
Joseph B. Dupont, of Dupont & Dupont, Plaquemine, for appellees.
Before LANDRY, BLANCHE and TUCKER, JJ.
LANDRY, Judge.
Defendant appeals from a declaratory judgment rendered in favor of plaintiffs decreeing null and void, for lack of assessment, a tax sale to defendant's author in title, and decreeing plaintiffs owners of certain real property situated in Iberville Parish. We reverse and dismiss plaintiffs' action as of nonsuit on the ground that an action for declaratory judgment is not appropriate in this instance.
The allegations of plaintiffs' petition and the evidence show that petitioners claim ownership of property described as the first and second lots 14, Marengo Subdivision, Iberville Parish, each containing 25 acres of land, as heirs of Carlo Gulotta, husband of Mary C. Gulotta. The property was acquired by Gulotta on December 21, 1904. Subsequently Gulotta conveyed a one-third interest in the land to third parties but reacquired same in 1907. The property was duly assessed in Gulotta's name for the years 1907 through 1911, and taxes paid thereon. Thereafter the property disappeared from the tax rolls of Iberville Parish and did not reappear thereon until 1958, in which year it was assessed in the name of the Estate of Walter S. Row. Taxes assessed in Row's name for the year 1958 were not paid, the property was duly advertised for sale for nonpayment of the taxes assessed in Row's name, and sold to defendant Lelia O. Cutshaw on March 20, 1959, after full compliance with all legal requirements. Neither plaintiffs nor defendant *557 were in physical possession of the property when this action was instituted.
It is alleged and conceded that Row had no record title of subject property when the assessment thereon was made in his name for the year 1958. Judgment was rendered December 10, 1951, placing Row's heirs in possession of his estate. The judgment does not include subject property. It appears, however, from argument of counsel for defendant before the trial court that in a proper action, when the tax sale is directly attacked, that subject tracts were inadvertently omitted from a sale wherein Row acquired other tracts in Marengo Subdivision.
The date of Carlo Gulotta's death is not of record. The judgment of possession rendered in his succession August 3, 1925, does not include subject property. On February 23, 1959, judgment of possession was rendered in the Succession of Angelina Gulotta, daughter of Carlo and Mary C. Gulotta, and wife of Antonio Rizzo, recognizing her named children as owners of their mother's share in subject property, and placing them in possession thereof. By judgment dated June 18, 1962, judgment was rendered in the Succession of Mary C. Marino, widow of Carlo Gulotta, recognizing plaintiffs as owners of all said decedent's interest in subject property. On February 19, 1959, supplemental judgment was rendered in the Succession of Carlo Gulotta recognizing his widow, M. Marino Gulotta, and the remaining plaintiffs herein, as decedent's heirs, and as such, owners and entitled to possession of subject property in certain proportions. By letter dated March 23, 1960, the assessor of Iberville Parish directed the Sheriff to assess subject property to plaintiffs for the years 1957, 1958 and 1959. Pursuant thereto the property was placed on the rolls as directed and taxes for the years 1957, 1958, and 1959 paid thereon that same date by plaintiffs. Since defendant's acquisition in 1959, taxes on subject property have been annually assessed to her and paid. The property has also been assessed to plaintiffs for the years 1957, to date, it being noted, however, that taxes assessed to plaintiffs for the years 1957, 1958 and 1959 were not assessed and paid until March 23, 1960, after defendant had acquired the property at a tax sale.
Plaintiffs' petition alleges a dispute of ownership, that a justiciable issue exists between the parties, and that plaintiffs are entitled to a declaratory judgment determining the rights of the litigants regarding the property. It is significant that nowhere in plaintiffs' petition is the tax sale to defendant assailed as being void. The sole reference to any purported infirmity in defendant's tax title is contained in paragraph 8 of the petition which reads in full as follows:
"8.
The following described property, appeared again on the tax rolls in the year 1958, without an indication of acquisition by Row such as a sale, succession, etc., in the estate of Walter S. Row and was sold for taxes, March 20, 1959, in sale #6886, recorded in C. B. 148, E. 204, for $15.28 to Leila O. Cutshaw and has been assessed in Leila O. Cutshaw's name ever since, to-wit:
"`Front and back lot 14 plantation Maringo 50 acres.'"
During trial plaintiffs attempted to introduce evidence: (1) which would show that defendant was in bad faith and guilty of fraud in conspiring to have the property assessed in Row's name for the year 1958, knowing that Row had no interest in the land, and (2) that the tax sale was an absolute nullity and therefore not immune from attack after expiration of the five year prescriptive period provided for in La.Const. Art. X, Section 11.
Defendant timely objected to any and all evidence which would show her alleged fraud or that the tax sale in question was an absolute nullity and therefore exempt from the effect of the prescriptive period of the cited constitutional provision. The *558 basis of defendant's objections was that such proof would constitute a prohibited enlargement of the pleadings. Counsel for defendant pointed out to the trial court that the petition was devoid of either allegations of fraud or contention that the tax sale was a nullity and should be declared so.
Over defendant's objections, the trial court permitted plaintiffs to introduce evidence to establish fraud on defendant's part. After hearing the evidence, the court concluded plaintiffs failed to prove the charge and dismissed this issue from the suit.
Despite defendant's timely objection, the lower court also permitted plaintiffs to introduce evidence to establish that the estate of Walter S. Row never owned an interest in subject property because the records of Iberville Parish failed to disclose any acquisition of the land by said decedent. Despite defendant's protests that the evidence was inadmissible because the tax sale was not directly attacked as being void, the lower court also ruled that evidence of Row's lack of ownership was admissible. The court so held on the ground that an assessment in the name of one who has no title to property is an absolute nullity as reputedly held in Gilmore v. Frost-Johnson Lumber Company, 139 La. 354, 71 So. 536; Cordill v. Quaker Realty Co., 130 La. 933, 58 So. 819; Lague v. Boagni, 32 La.Ann. 912; Robertson v. Zor, Inc., 174 So. 2d 154; Nipper v. Ferguson, La.App., 148 So. 2d 316; Scheller v. Goode, La.App., 69 So. 2d 96. Finding the sale an absolute nullity, the trial court reasoned it was not subject to the five year prescriptive period provided for by the above cited constitutional provision. On this basis, the lower court held the tax sale null and rendered judgment decreeing plaintiffs owners of the property in dispute.
In brief and oral argument before this court, counsel for defendant urges that the trial court erred in admitting evidence to establish the alleged nullity of the tax sale to defendant because such evidence enlarged the pleadings. Although counsel for defendant has filed no plea of prescription either in the trial court or this court, he contends before us that the trial court also erred "in allowing plaintiffs to introduce any evidence whatsoever to attack the validity of a tax sale which appears to be regular on its face and which had been duly recorded more than five years prior to the time of the filing of the suit."
In effect the action of the trial court was tantamount to disposing of the issue of the alleged invalidity of the tax sale as though defendant had pleaded the constitutional prescriptive period of five years in bar of any attack thereon. In so doing, the lower court was manifestly in error. The plea of prescription is a peremptory exception which must be specially pleaded. LSA-C.C.P. art. 927. A court may not supply a plea of prescription which must be specially pleaded, even though it may appear valid. Gallo v. Sorci, La.App., 221 So. 2d 570. Nor can defendant's reference to a plea of prescription in brief before this court take the place of an express peremptory exception of prescription. LSA-C.C.P. art. 927. We must therefore consider this matter as though no plea of prescription is before us in this instance.
It is settled jurisprudence that a litigant is not entitled to institute an action for declaratory judgment as a matter of absolute right. LSA-C.C.P. art. 1871 states that the courts may entertain an action for declaratory judgment notwithstanding the existence of other forms of relief when an action for declaratory judgment is an appropriate remedy.
The function of a declaratory judgment is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. The distinctive characteristic of a declaratory judgment is that it stands by itself, and no executory *559 process follows as a matter of course. A declaratory judgment action is distinguished from a direct action in that the former does not seek execution or performance from the defendant or the opposing litigants. Succession of Rickerfor, La. App., 120 So. 2d 320.
Within its scope, our Declaratory Judgment Act provides a simplified procedural device for trial of all classes of civil cases and vests in the courts a wide discretion in each instance to determine whether the action is properly one for declaratory relief as distinguished from a direct action. Superior Oil Company v. Reily, 234 La. 621, 100 So. 2d 888; State v. Board of Supervisors, Louisiana State University & Agricultural & Mechanical College, 228 La. 951, 84 So. 2d 597.
Appellate, as well as trial courts, may exercise the broad discretionary power to decide whether a suit for declaratory judgment is one in which such relief may be appropriate. Orleans Parish School Board v. City of New Orleans, 238 La. 748, 116 So. 2d 509; Michell v. Louisiana State Board of Optometry Examiners, La. App., 128 So. 2d 825.
In legal effect the pleadings constitute this matter a petitory action wherein both plaintiff and defendant claim title to the property in dispute. This circumstance alone does not per se render an action for declaratory judgment inappropriate inasmuch as declaratory relief may be sought in any civil action. LSA-C.C.P. arts. 1871 and 3654. Rather, it is the nature of the relief sought and the character of the issues involved that determines whether an action for declaratory judgment is appropriate in a given case, or whether plaintiff should be required to bring a direct action under ordinary procedure. In addition, the intent of the Declaratory Judgment Act is to promote the simple, expedient trial of cases where the nature of the questions involved lend themselves readily to trial without the usual formalities to the end that resolution may be speedily achieved. The case at hand does not fall into that category.
In this matter, plaintiffs, while not expressly pleading the invalidity thereof, seek to attack as null a tax deed which appears regular on its face. As such, the tax title is clothed with the rebuttable presumption of validity. Gibbs v. Roos, La. App., 178 So. 674; State ex rel. McGregor v. Diamond, La.App., 167 So. 760. Defendant, while not expressly pleading prescription, takes the position that her tax deed may not be attacked on the ground advanced by plaintiffs because such attack is barred by prescription. In addition, plaintiffs have made the serious charge that defendant fraudulently participated in having property assessed to someone known by defendant not to have an interest therein. It is elementary that fraud, being extremely serious in nature, must be specially pleaded and proven by clear and convincing evidence.
We hold, therefore, that this case is not appropriate for trial pursuant to our Declaratory Judgment Law but one which, if tried, must be brought by a direct action pursuant to ordinary rules of procedure.
The judgment of the trial court recognizing plaintiffs as owners of the property involved in this litigation is annulled, reversed and set aside, and judgment rendered herein dismissing and rejecting plaintiffs' suit, without prejudice; all costs of these proceedings to be paid by plaintiffs in proportion to their asserted interests in subject property.
Reversed and rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613702/ | 258 So. 2d 55 (1972)
GILMORE INDUSTRIES, INC., a Corporation,
v.
RIDGE INSTRUMENT COMPANY, a Corporation.
8 Div. 421.
Supreme Court of Alabama.
January 20, 1972.
*56 Smith & Huckaby, P. A., Huntsville, for appellant.
Humphrey, Lutz & Smith, Huntsville, for appellee.
HARWOOD, Justice.
Ridge Instrument Company, hereinafter referred to as Ridge, filed a two count complaint against Gilmore Industries, Inc., seeking to recover the amounts Ridge claimed to be due it as commissions earned as sales agent for Gilmore.
Count 1 was in code form and claimed $37,082.82 due and owing under an account stated. A verified copy of the account stated was made a part of this count.
Count 2 claimed $37,082.82 as damages for breach of an agreement entered into between the parties on 10 March 1964, which agreement was subsequently amended as to territorial boundaries, by which Ridge was to serve as Gilmore's exclusive sales agent within the geographical limits described in the agreement and its amendments.
The count avers that on 11 January 1965, the sales agreement was amended, and this amendment was made a part of the count. In parts pertinent to this review this amendment reads:
"VI. TerminationTermination of this agreement can be made at any time by either party effective on mailing of written notice. Fees or commissions on all outstanding quotations on record prior to notice of termination will be honored for a period of sixty (60) days after date of termination.
"VI. LiteratureGilmore Industries will furnish all literature support as reasonably requested. All literature, price schedules, selling aids, etc. will remain the property of Gilmore Industries, Inc. and will be treated as company confidential."
The count sets forth some eight orders on which commissions in varying amounts were due and unpaid, and one bid dated 19 September 1965 on which the commission would be $7,488.69.
The count further avers that the plaintiff has complied with the agreement on its part, but the defendant has refused to pay the commissions on the eight orders and one bid specified in the count.
Interest on the amount of each commission is claimed from its respective due date.
The count further avers that on 24 September 1965, the sales agreement was canceled by Gilmore by letter of that date. A copy of this letter was made a part of the *57 count, and in parts pertinent to this review reads:
"Effective this date, the sales agreement with your company is terminated in accordance with the provision of Paragraph VI of the agreement. You will be credited with and commissions paid on any outstanding quotation of record for which orders are placed within sixty (60) days from this date.
"We would like to continue to work together on the installation contract on S.O. 2161 and if agreeable to you, will expect your assistance on this project. Your fee will be in accordance with the existing schedule or as negotiated at time of award.
"Very truly yours,
"GILMORE INDUSTRIES, INC.
"D. T. Stone
Southwest Regional Manager"
Demurrers to the complaint being overruled, the defendant filed several pleas. Pleas 1 and 2 were pleas of the general issue. Plea 7 was a plea of confession and avoidance, and Pleas 8, 9, and 10 were pleas of recoupment.
Plea 7 (confession and avoidance) admitted the allegations of the complaint, but as grounds of avoidance set up that before the termination of the sales agreement the plaintiff (Ridge) acted in bad faith toward the defendant in that the plaintiff as defendant's agent possessed confidential information regarding the defendant's price sheets, pricing policies, product line, schematics, diagrams, parts lists, and special requirements of defendant's customer, the National Aeronautics Space Administration (NASA) and by use of such confidential information the plaintiff submitted bids and quotes to NASA at prices slightly below defendant's bids and thereby secured orders for itself to defendant's damage. The plea further alleges that such confidential information was used by the plaintiff in submitting bids from 1 September 1965 through 20 May 1966.
Pleas 8, 9, and 10 (recoupment) aver that the plaintiff acted in bad faith before the termination of the agency by wrongfully using the confidential information it had acquired as agent of Gilmore (the same confidential information as alleged in Count 7) in submitting bids to NASA in competition with the defendant, and at slightly lower prices than the bids of the defendant.
Each plea sets up a particular bid made by the plaintiff in competition with the defendant. Plea 8 specifies a bid made on 23 November 1965, Plea 9 a bid made on 3 February 1966, and Plea 10 a bid made on 20 May 1966.
Each plea asserts that the defendant was caused to lose profits by the plaintiff's wrongful actions, and claimed different amounts of damages under each plea.
The plaintiff filed a general traverse to each of defendant's special pleas, and issue was joined.
After a lengthy trial, the jury returned a verdict in favor of the plaintiff and assessed damages at $44,268.81. Judgment was entered pursuant to the verdict.
Gilmore thereafter perfected this appeal.
The only points raised on this appeal relate to alleged deficiencies in the court's oral instructions, and to certain written charges given at the request of the plaintiff, and to certain other written charges requested by the defendant and refused by the court.
At the conclusion of the court's oral instructions, counsel for Gilmore stated that he excepted to the oral charge given by the court, and as ground for his exception, counsel enumerated some five matters or legal principles upon which, counsel asserted, the court had omitted to instruct the jury.
*58 Assignments 5, 6, and 7 claim error because of the failure of the court to charge respectively as to three of these asserted omissions.
If a party believes a court's oral instructions to be inadequate because of failure to sufficiently cover the legal principles he thinks applicable, he should request appropriate explanatory charges remedying such defect. In the absence of such requests, and none were made in this case, no ground for a reversal is presented. Beavers v. Southern Ry. Co., 212 Ala. 600, 103 So. 887; Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So. 2d 90; Revel v. Prince, 37 Ala.App. 457, 69 So. 2d 470.
No merit therefore attaches to assignments of error 5, 6, and 7.
Appellant's assignment of error No. 11 asserts as error the court's action in giving the following charge (No. 12) requested in writing by the plaintiff:
"I charge you that, unless the defendant reasonably satisfies you from the evidence that the plaintiff acted in bad faith prior to the date of termination of the agency agreement by the defendant, then you cannot find the issues in favor of the defendant under its pleas Nos. 7, 8, 9 and 10."
Count 2 of the complaint avers that the plaintiff had complied with the terms of the sales agreement. In Plea 7 the defendant confessed this averment. Pleas 8, 9, and 10 aver that the plaintiff submitted three bids to NASA in competition with the defendant, the first being on 23 November 1965. The sales agreement was canceled by the defendant on 25 September 1965. The evidence is in uniform accord with these averments. Both D. T. Stone, the author of the cancellation letter, and Richard Carleton, the President of Gilmore testified that the agreement between Ridge and Gilmore was terminated as of 25 September 1965.
Counsel for defendant argues:
"But the agency relationship was not terminated instantaneously. The jury could believe the sales agency agreement was terminated on September 25, 1965, and still find that the agency relationship between the parties was not terminated until after that date."
The entire agency arose out of the sales agency agreement, and cancellation of the agreement canceled the agency. Counsel for defendant contends that because of the provision in defendant's letter canceling the sales agreement, requesting the plaintiff to continue work on the installation contract, the general agency was thereby continued. The clear language of the letter is otherwise. The general sales agency was canceled as of 24 September 1965, though a special and limited agency to continue assistance on the installation contract was offered.
Under the pleading and evidence the charge was therefore not misleading, and even if it had been, no explanatory charge was requested. No reversible error arises from assignment of error No. 11.
Assignment of error 14 relates to given charge No. 16 requested by the plaintiff.
This charge reads:
"I charge you ladies and gentlemen of the jury, that there was nothing confidential in the relationship between the plaintiff, Ridge Instrument Company, and the defendant, Gilmore Industries, Inc."
Ridge was clearly the exclusive sales agent for Gilmore until Gilmore canceled the sales agency on 24 September 1965.
Confidential and fiduciary relations are in law ordinarily synonymous. Stevens v. Marco, 147 Cal. App. 2d 357, 305 P.2d 669; Fipps v. Stidham, 174 Okl. 473, 50 P.2d 680. Our decisions have stated that the relationship of principal and agent is one demanding trust and confidence. Lauderdale v. *59 Peace Baptist Church of Birmingham, 246 Ala. 178, 19 So. 2d 538.
Plaintiff's charge No. 16 therefore was erroneous and should not have been either requested or given. We do not see, however, that the defendant could have probably been injured in any substantial right in this instance for the reasons hereinafter set forth.
There is not a scintilla of evidence that Ridge competed with Gilmore during the period of the agency. The complaint avers that Ridge had complied with the agency agreement. The defendant's plea 7 (confession and avoidance) admits this averment. This would seem to foreclose any inference or contention that Ridge had been unfaithful to its agency prior to the termination thereof.
Counsel for Gilmore argues, however, that Ridge had been furnished confidential information by Gilmore, and since this information was designated "company confidential" in the sales agreement, the question of continuance of the agency beyond the date of termination should have been left to the jury.
In this regard the President of Ridge testified that the literature furnished Ridge by Gilmore was done with instructions from Gilmore to give such literature to prospective customers, and this was done; that upon termination of the agency all such literature was promptly returned to Gilmore. This testimony was not contradicted by any of Gilmore's witnesses.
This is not a case where a fiduciary had abstracted or copied confidential materials from his principal's files and later used such materials for his own benefit nor is it a case where the fiduciary was guilty of self-serving bad faith during the term of the agency. The agency was terminated by Gilmore, apparently to Ridge's discomfiture and loss.
In James A. Head & Co. v. Rolling, 265 Ala. 328, 90 So. 2d 828, this court quoted the following from Scottish Union and National Ins. Co. v. Dangaix, 103 Ala. 388, 15 So. 956, as being "a very good statement" of the legal principles enunciated:
"* * * We have been unable to find any decided case, or to find the principle asserted in any text-book on agency, which lays down the proposition, that one who has acted as an agent of another, whose agency has terminated, may not, thereafter, if he act in good faith and without fraud, engage in business in competition with, and even to the injury of his former principal. The law has not attempted to prescribe rules for the conduct of one who leaves the service of his first employer and enters that of another.
* * * * * *
"* * * If he should cease to represent one company, and engage to represent another, to the great disadvantage of the first, there is no law to prevent his doing so. Every one who employs an agent does so with the certain knowledge that his agency may terminate at any time, except in so far as it is restrained by contract, and that the agent may transfer himself, with all his information, skill and patronage, to another rival in business, or set up on his own account, in a competing line. Such persons are hired, often, in consideration of the trade that follows them, and this is legitimate, to the extent that it is fairly influenced."
Simply because an agent has seen confidential data during the term of an agency does not mean that after termination of the agency the agent is precluded from competing with his former principal, even though confidential knowledge gained during the agency may be of use in forwarding the competitive position of the agent. As to what information an agent may use after termination of the agency, one writer after reviewing the authorities has stated:
"This test has been roughly summarized by saying that the fiduciary can carry with him any confidential information which he can remember but may take nothing that has been written down." *60 (See Dark, Termination of the Fiduciary Duty of Business Associates not to Compete, etc., 4 Duke Bar Journal 16 et seq.)
The matters raised by the defendant's pleas would avoid the defendant's liability for commissions, or recoup damages, because of alleged wrongful conduct of the plaintiff as an agent. Our examination of the record fails to reveal a scintilla of evidence tending to show bad faith on Ridge's part, either during the period of its agency, or after its termination when Ridge was free to compete with Gilmore.
Therefore, while plaintiff's requested charge 16 should not have been given, we are unwilling to reverse this judgment on this account, being of the conclusion that the defendant was not probably injured in any substantial right in light of the pleading and the undisputed evidence. Sup.Ct. Rule 45.
Assignment of error No. 16 asserts error because the court gave the following charge at the request of the plaintiff (Charge 21):
"I charge you that, if you believe that Gilmore terminated the sales agency agreement on September 24, 1965, and, further, if you believe that Ridge had acted in good faith up until that time, then Ridge was free to bid against Gilmore on NASA contracts after that date."
Charge 21 is ineptly drawn in that it is posited on "belief" by the jury. The correct predicate for a charge in a civil case is that the jury be "reasonably satisfied from the evidence." Otherwise the charge is not faulty in setting forth the legal principles sought to be enunciated.
A judgment will not be reversed or affirmed because of the giving or refusal of belief charges. Sovereign Camp, W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616; New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25, rev. on other grounds, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686.
Assignment of error 16 will therefore not cause a reversal of this judgment.
Assignments of error 22, 24, 25, and 26 assert error respectively because of the court's refusal of defendant's respectively requested charges 5, 11, 12, and 13.
The predicate of each of these charges instructs the jury that if the jury "find." These charges were refused without error in that the predicate for a jury's determination in a civil suit is that the jury be "reasonably satisfied from the evidence." A court cannot be reversed for its refusal of charges which are not expressed in the exact and appropriate terms of the law. W. P. Brown and Sons Lbr. Co. v. Rattray, 238 Ala. 406, 192 So. 851, 129 A.L.R. 526; New York Times Co. v. Sullivan, supra.
Assignment of error No. 38 asserts as error the refusal of defendant's requested written charge No. 29.
This charge instructs the jury as to the award of damages to the defendant in the event the jury should find for the defendant under its pleas of recoupment, or either of said pleas.
The court's oral instructions covered the principles sought to be enunciated in refused charge No. 29 as substantially as does the charge. No error therefore resulted in the refusal of said charge.
We have considered all assignments of error presented, and conclude that this judgment is due to be affirmed.
Affirmed.
LAWSON, MERRILL, MADDOX and McCALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613734/ | 488 N.W.2d 421 (1992)
John S. O'CONNOR, Petitioner and Appellant,
v.
Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.
No. 17455.
Supreme Court of South Dakota.
Considered on Briefs March 18, 1992.
July 22, 1992.
John A. Schlimgen of Stuart and Gerry Sioux Falls, for petitioner and appellant.
*422 Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for appellee.
GORS, Circuit Judge.
John S. "Jack" O'Connor (O'Connor) appeals from a trial court order denying his application for a writ of habeas corpus. We affirm.
FACTS
O'Connor, who is no stranger to this court,[1] was convicted of grand theft and conspiracy to commit burglary and grand theft arising out of a quarter million dollar theft on January 3, 1982, from the Minnehaha County Food Stamp Office. The conviction, State v. O'Connor, 378 N.W.2d 248 (S.D.1985), and resentencing, State v. O'Connor, 408 N.W.2d 754 (S.D.1987), were affirmed on direct review.
O'Connor applied for a writ of habeas corpus alleging an improper ex parte submission of a pretrial brief, incompetence of defense counsel, inaccurate descriptions of plea agreements with state witnesses and insufficiency of the evidence. Following an evidentiary hearing, the habeas corpus court entered findings of fact, conclusions of law and an order denying the application.
STANDARD OF REVIEW
Habeas corpus collaterally attacks a final judgment and is not a substitute for direct review. Habeas corpus only reviews jurisdiction, lawfulness of a sentence and whether an incarcerated defendant has been deprived of basic constitutional rights. Goodroad v. Solem, 406 N.W.2d 141, 143-44 (S.D.1987). The habeas corpus court's findings of fact and conclusions of law may not be overturned unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425, 427 (S.D.1988); Cowell v. Leapley, 458 N.W.2d 514, 516-17 (S.D.1990).
DECISION
DID THE STATE'S SUBMISSION OF AN EX PARTE PRETRIAL BRIEF DEPRIVE O'CONNOR OF BASIC CONSTITUTIONAL RIGHTS?
Prior to O'Connor's trial, a deputy state's attorney submitted an ex parte pretrial brief.[2] The ex parte submission of the state's pretrial brief was improper[3] because submission of the ex parte pretrial brief violated the Code of Professional Responsibility for lawyers in effect at the time of trial. SDCL 16-18, Appx. (1979 Revision), DR 7-110 contained the following:
DR 7-110 Contact with Officials.
* * * * * *
(B) In an adversary proceeding, a lawyer shall not communicate ... as to the merits of the cause with a judge ... before whom the proceeding is pending, except:
* * * * * *
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
The trial judge did not commit any ethical[4]*423 or legal[5] violation because a trial court has no duty to ascertain whether briefs have been properly served and there is no indication that the trial judge in this case knew that the state's pretrial brief had not been served on opposing counsel.
O'Connor argues that the submission of the ex parte pretrial brief was error as a matter of law and requires reversal of his conviction without showing prejudice. If an ex parte communication is invited or initiated by the judge, no prejudice needs to be shown.[6]State v. Barker, 227 Neb. 842, 420 N.W.2d 695, 699 (1988). However, where an ex parte communication is not invited or initiated by the judge, reversible error occurs only if the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence appears with reasonable certainty. State ex rel. Irby v. Israel, 100 Wis. 2d 411, 302 N.W.2d 517, 524-25 (App.1981).[7]
Since the trial court did not invite or initiate submission of the state's ex parte pretrial brief, O'Connor must show prejudice. The brief dealt with pretrial evidentiary issues and no facts were communicated to a jury. O'Connor raises an innuendo that the trial court must have been influenced because the trial court ruled adverse to O'Connor. At the habeas corpus trial, the trial judge testified he was not influenced by the state's ex parte pretrial brief. Faced with the contrast between the trial judge's testimony and O'Connor's innuendo, the habeas corpus court found that the trial court was not improperly influenced by the state's ex parte pretrial brief. This finding is not clearly erroneous.
O'Connor's contentions concerning defense counsel's failure to object to instructions and to propose alternatives to instructions, alleging inaccurate descriptions of plea agreements by state witnesses Severns and Cole and regarding insufficiency of the evidence are without merit.
Affirmed.
MILLER, C.J., and JOHNS, Circuit Judge, concur.
HENDERSON and SABERS, JJ., concur specially.
GORS, Circuit Judge for WUEST, Justice, disqualified.
JOHNS, Circuit Judge for AMUNDSON, Justice, disqualified.
HENDERSON, Justice (specially concurring).
By this opinion, I trust that it is abundantly clear that the prosecutors of this state (all lawyers for that matter) should not/cannot submit ex parte briefs to a judge. "Not only is it a gross breach of the appearance of justice when the defendant's principal adversary is given private access to the ear of the court, it is a dangerous procedure." Haller v. Robbins, 409 F.2d 857, 859 (1st Cir.1969).
"An ex parte communication between a trial court and government counsel `[i]n addition to raising questions of due process... involves a breach of legal and judicial ethics.[*] Regardless of the propriety of the court's motives in such a case ... the practice should be discouraged since it undermines confidence in the impartiality of the Court.'" Carroll v. Princess Anne, 393 U.S. 175, 183, 89 S. Ct. 347, 352, 21 L. Ed. 2d 325 (1968). Accord: In re Taylor, 567 F.2d 1183, 1188 (2nd Cir.1977).
*424 It is respectfully suggested that each of our trial judges in South Dakota carefully determine if counsel served a trial brief on his adversary; likewise, it is suggested that each lawyer reflect, by Certificate of Service, that service was made upon his adversary. With this type of legal mechanics, we should not have ex parte communications on briefs. Obviously, a Certificate of Service obviates all doubts on all legal documents. It proves service.
Although the habeas court found that the ex parte communication between the State and the trial court was "improper" and indefensible, it held:
In light of the record, the testimony of Judge Heege and the fact that there is [sic] no specific instances in the record which were pointed out to the court reflecting an impact on the trial due to submission of the brief, the court finds that such submission did not deprive applicant O'Connor of assistance of counsel as guaranteed by the Sixth Amendment.
For the consideration of any federal reviewing authority, I wish to point out that a full and fair factual hearing was held below (at the state habeas corpus hearing) and the impact of the state's ex parte brief was deeply probed by questioning Judge Heege. There is hard evidence to establish that Judge Heege made impartial, independent rulings in O'Connor's case, including very difficult evidentiary questions. Judge Heege testified that all rulings were made upon the evidence and controlling state law; further, O'Connor's counsel had the opportunity to make objections and present arguments. The point is: An open hearing was held and due process was afforded on the critical issues in the case. Where there is an ex parte communication, such as we have in this case, the burden of establishing a lack of prejudice rests upon the prosecution. Prejudice is presumed. See, United States v. Hackett, 638 F.2d 1179, 1189 (9th Cir.1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1709, 68 L. Ed. 2d 203 (1981). Here, this presumption fades because O'Connor's counsel was accorded the right to (1) cross-examine (2) present evidence (3) present legal authorities. A due process violation would be a constitutional violation. Prejudice must be established before a constitutional violation is established. State v. Wood, 77 S.D. 120, 86 N.W.2d 530, 533 (1957). There is no prejudice, in my opinion, because a full hearing was developed below, in the habeas corpus court, granting O'Connor a meaningful opportunity to be heard. If the habeas corpus court found that there was prejudice to O'Connor, the habeas court would have set aside O'Connor's convictions.
Under 28 U.S.C. § 2254(d) (1988) the findings of the habeas court, after a full and fair fact-finding hearing, "... shall be presumed to be correct" unless the applicant can establish one of eight exceptions under that federal statute. I would not presume to act as a federal judge but I am convinced that this Court, which is the highest court in this state, has deeply reflected upon all of O'Connor's contentions in his brief, and the habeas state court likewise accorded O'Connor a fair determination, after an exhaustive hearing. See, Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). I cannot find any of the eight exceptions lurking in the proceedings below which would open this Court's affirmance of the state habeas corpus court. Rather, I take comfort in the holding of Townsend v. Sain, supra.
Concerning Justice Sabers' special writing herein, it is noted that his special concurrence does not follow our rule in South Dakota, regarding habeas corpus relief, set forth in McCafferty v. Solem, 449 N.W.2d 590 (S.D.1989). Sabers, J.'s, special concurrence herein follows his special concurrences in Everitt v. Solem, 412 N.W.2d 119 (S.D.1987); Podoll v. Solem, 408 N.W.2d 759 (S.D.1987); and Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Everitt, Podoll, and Goodroad support the language of this Court's scope of review concerning the remedy of post-conviction habeas corpus, as restricted by the provisions of SDCL 21-27-16. If one reads Goodroad, 406 N.W.2d at 143, this comment looms: "While we have allowed for some expansion in the subject matter of habeas corpus, nonconstitutional, nonjurisdictional defects *425 cannot be reviewed on habeas corpus." (emphasis supplied mine).
SABERS, Justice (concurring specially).
I write specially again to point out that habeas corpus reaches jurisdictional error, constitutional error, all "causes" listed in SDCL 21-27-16(1) through (7) and other illegal detentions, including those resulting from failure to comply with "substantive statutory procedure." Podoll v. Solem, 408 N.W.2d 759 (S.D.1987); Goodroad v. Solem, 406 N.W.2d 141, 146 (S.D.1987) (Sabers, J., dissenting); and, Security Sav. Bank v. Mueller, 308 N.W.2d 761, 762-763 (S.D.1981).
NOTES
[1] O'Connor appears here for the ninth time. State v. O'Connor, 84 S.D. 415, 172 N.W.2d 724 (1969); State v. O'Connor, 84 S.D. 449, 173 N.W.2d 48 (1969); State v. O'Connor, 84 S.D. 638, 175 N.W.2d 604 (1970); State v. O'Connor, 86 S.D. 294, 194 N.W.2d 246 (1972); State v. O'Connor, 87 S.D. 77, 203 N.W.2d 183 (1973); State v. O'Connor, 265 N.W.2d 709 (S.D.1978); State v. O'Connor, 378 N.W.2d 248 (S.D.1985); State v. O'Connor, 408 N.W.2d 754 (S.D.1987). The last two citations refer to direct appeals in this case. The prior appeals are totally unrelated to this case.
[2] The state's ex parte pretrial brief argued that hearsay statements of an accomplice, Jim Severns, to Carol Monson, a co-conspirator, which were subsequently related to Margaret McCutcheon could be used to corroborate Severn's testimony.
[3] The habeas corpus court found that although submission of the ex parte pretrial brief was improper, O'Connor was not prejudiced and therefore his right to effective assistance of counsel was not violated.
[4] The Canons of Judicial Ethics in effect at the time of the trial appeared in SDCL 16-2, Appx. (1979 Revision), Canon 3, contained the following:
A Judge Should Perform the Duties of His Office Impartially and Diligently
* * * * * *
A. Adjudicative Responsibilities.
* * * * * *
(4) A judge should ..., except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.
[5] SDCL 22-11-17 makes receipt of an ex parte communication a class 1 misdemeanor. Knowledge that the communication is ex parte and intent to violate the law are required. Neither appear in the record.
[6] Prejudice is implicit in the judge's invitation or initiation of an improper ex parte communication.
[7] In Moore v. Moore, 809 P.2d 261, 264 (Wyo. 1991), the court required a showing of manifest injustice.
[*] It is respectfully suggested that Judge Heege is not accused of a breach of judicial ethics hereby. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645474/ | 994 So.2d 538 (2008)
SUCCESSION OF Joseph W. MERRICK, Sr.
No. 2008-C-1745.
Supreme Court of Louisiana.
October 31, 2008.
Denied.
VICTORY, J., would grant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919985/ | 369 A.2d 249 (1977)
Robert L. ARMSTRONG,
v.
Richard W. POLASKI.
No. 75-39-Appeal.
Supreme Court of Rhode Island.
February 14, 1977.
*250 John D. Lynch, Warwick, for plaintiff.
William Gerstenblatt, Providence, for defendant.
OPINION
JOSLIN, Justice.
This is a civil action to recover damages for injuries allegedly sustained as the result of a collision between a motorcycle operated by the plaintiff and an automobile owned and operated by the defendant. It was tried to a jury and resulted in a verdict and judgment for the defendant. The case then came here on the plaintiff's appeal, and we deferred consideration of the merits in order to afford the defendant an opportunity to file an additional brief. Armstrong v. Polaski, RI., 360 A.2d 558 (1976). He has now availed himself of that opportunity. The only errors assigned are to the trial justice's refusal to honor two requests to charge the jury.
The material facts may be briefly stated. On July 3, 1971, plaintiff, a Warwick police officer then on motorcycle patrol, and defendant were each proceeding in a westerly direction on Strawberry Field Road in the city of Warwick. The plaintiff was traveling at between 25 and 30 miles an hour and defendant was ahead of him and proceeding at a lesser speed. As they neared Ormsby Street, which intersects Strawberry Field Road on the north or to their right, the gap between their two vehicles narrowed to several automobile lengths. At that point, according to plaintiff, defendant first veered to the right as if to turn onto Ormsby Street, then suddenly headed left as if intending to make a left turn onto Hanover Street, which enters Strawberry Field Road from the south. In neither instance did he signal his intention to turn except by activating his brake lights. The plaintiff further testified that he had no idea what defendant would do next and that consequently, in the hope of avoiding a collision, he applied his own brakes; but his efforts were unavailing, and his cycle skidded and impacted with defendant's automobile.
The defendant's version of the occurrence differed. He denied veering right, said that he intended to turn left onto Hanover Street, and claimed that preparatory to doing so he turned on his directional lights, slowed down, moved to the center line of the roadway and started his left turn onto Hanover Street. It was then, he said, that his automobile was struck by plaintiff's motorcycle.
Our summary of the evidence, though brief, suffices to indicate that plaintiff's theory of the case was that his testimony, particularly that regarding defendant's failure to signal his intention to turn, would, if believed, have permitted the jury to find : (1) that the proximate cause of the collision was defendant's manner of operating his vehicle; and (2) that plaintiff's operation of his motorcycle was not a contributing factor.
The plaintiff argues that he was entitled to have the jury pass on his theory of the case and that therefore the trial justice, not having otherwise specifically instructed thereon, should have honored his request to explain to the jury that G.L. 1956 (1968 Reenactment) §§ 31-16-5[1] and 31-16-6[2] imposed upon defendant an obligation *251 to give an appropriate signal of his intention to turn his vehicle from a direct course or prior to moving right or left upon the roadway.[3]
It is, of course, axiomatic that the trial justice was obliged to instruct the jury with precision and clarity with respect to the rules of law applicable to the issues raised at trial. Smith Dev. Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 207-08, 308 A.2d 477, 480 (1973); Macaruso v. Massart, 96 R.I. 168, 172, 190 A.2d 14, 16-17 (1963). That obligation was not fulfilled, plaintiff contends, because the trial justice's refusal to charge as requested deprived the jury of an instruction on the law to be applied in the event it determined that defendant did not signal appropriately.
Although the precise issue raised by this contention is one of first impression in this state, other courts dealing with similar facts have generally held that an instruction that does not clearly explain the effect to be accorded to a motorist's failure to signal his intention to turn does not so clarify the issues as to make them comprehensible to a jury and is therefore inadequate and erroneous. Petrole v. George A. Fetter, Inc., 411 F.2d 5, 7 (3d Cir. 1969); MacDonald v. Hall, 244 A.2d 809, 814 (Me.1968); Olson v. Sutherland, 224 Or. 208, 210-11, 355 P.2d 774, 775 (1960); McMahon v. Young, 442 Pa. 484, 486-87, 276 A.2d 534, 535-36 (1971); Piper v. Miller, 154 W.Va. 178, 188-89, 173 S.E.2d 662, 668 (1970). We see no sound reason for concluding otherwise.
Although the foregoing discussion is dispositive of plaintiff's appeal, we consider his other assignment of error because the issue it raises will undoubtedly recur at the retrial. That assignment concerns that portion of the charge where, in language substantially tracking § 31-14-2,[4] the trial justice instructed the jury that speed in a residential or business area in excess of 25 miles per hour "* * * shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful." (Emphasis added.) The plaintiff's objection centers not on that instruction per se but on the trial justice's failure to grant his request that it be supplemented with a definition of the term "prima facie evidence." Those words, he contends, did not convey a simple, plain and sensible meaning and might have led the jurors to the erroneous conclusion that a finding that plaintiff's speed was in excess of 25 miles per hour required a further finding that he was contributorily negligent.
We need go no further than Wigmore to find support for that contention. He says that "[t] he term `prima facie evidence' or `prima facie case' is used in two senses, and it is often difficult to detect which of these is intended in the judicial passage in hand." 9 Wigmore, Evidence § 2494 at 293 (3d ed. 1940). In one sense, he continues, the term is applied so that if the plaintiff *252 makes out a "prima facie case" and the defendant does nothing in response, the plaintiff is entitled to a directed verdict; in the other sense, it denotes the stage of the case at which the plaintiff has produced enough evidence to get the case to the jury for its consideration.[5]Id. at 293-94.
"The difference between these two senses of the term," Wigmore concludes, "is practically of the greatest consequence; for, in the latter sense, it means merely that the proponent is safe in having relieved himself of his duty of going forward, while in the former sense it signifies that he has further succeeded in creating it anew for his opponent." Id. at 295-96. Certainly, in this case the jury was entitled, though not in the language suggested by the plaintiff,[6] to be advised of the sense in which the trial justice was using the term "prima facie evidence."
The plaintiff's appeal is sustained, the judgment appealed from is reversed, and the case is remitted to the Superior Court for a new trial.
NOTES
[1] General Laws 1956 (1968 Reenactment) § 31-16-5 provides :
"Turn signal required.No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in §§ 31-16-2 and 31-16-3, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement."
[2] General Laws 1956 (1968 Reenactment) § 31-16-6 provides :
"Time of signaling turn.A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning."
[3] The plaintiff protected his right to urge this asserted error on appeal, first by timely filing a written request for a detailed instruction, and then at the conclusion of the charge by objecting to the trial justice's failure to instruct accordingly. He thus complied with Super.R.Civ.P. 51(b); no more was required. Allen. v. D'Ercole Constr. Co., 104 R.I. 362, 370-72, 244 A.2d 864, 869-70 (1968).
[4] General Laws 1956 (1968 Reenactment) § 31-14-2 provides in pertinent part:
"Where no special hazard exists that requires lower speed for compliance with § 31-14-1 the speed of any vehicle not in excess of the limits specified in this section or established as hereinafter authorized shall be lawful, but any speed in excess of the limits specified in this section or established as hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:
(1) Twenty-five (25) miles per hour in any business or residence district * * * ."
[5] In this state, though no rule has been clearly articulated, we presently lean to use of the term in the latter sense. In State v. Lutye, 109 R.I. 490, 496, 287 A.2d 634, 638 (1972), we said :
"That kind of evidence is not synonymous with a presumption; as evidence it is no different from any other evidence of probative force; and it must be submitted to the trier of facts to be weighed by it together with all of the other probative evidence in the case."
See Rachiele v. McGovern, 107 R.I. 241, 246, 266 A.2d 36, 38 (1970). But earlier pronouncements of this court appear to support use of the term in both senses. See Kent v. Draper Soap Co., 75 R.I. 30, 36-37, 63 A.2d 571, 575 (1949); Gemma v. Rotondo, 62 R.I. 293, 301, 5 A.2d 297, 301 (1939); Hill v. Cabral, 62 R.I. 11, 19, 2 A.2d 482, 485 (1938).
[6] The plaintif's request was:
"Prima Facie Evidence`[E]vidence * * * which suffices for the proof of a particular fact until contradicted and overcome by other evidence.' Dodson v. Watson, 110 Tex. 355, 358, 220 S.W. 771, 772, 11 A.L.R. 583 (1920). `[A]n inference or presumption of law affirmative or negative of a fact, in the absence of proof; or until proof can be attained or produced to overcome the inference.' People ex rel. Judson v. Thacher, 1 Thompson & Cook 158, 167-68 (N.Y.Sup.Ct.1873)."
That instruction would have confused rather than assisted the jury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2690477/ | [Cite as In re Disqualification of McKay, 135 Ohio St.3d 1286, 2013-Ohio-1461.]
IN RE DISQUALIFICATION OF MCKAY.
COBB ET AL. v. SHIPMAN ET AL.
[Cite as In re Disqualification of McKay, 135 Ohio St.3d 1286,
2013-Ohio-1461.]
Judges—Affidavit of disqualification—R.C. 2701.03—Affidavit of disqualification
should be filed as soon as possible after incident giving rise to claim—
Affidavit of disqualification is not a vehicle to contest matters of
substantive or procedural law—Media reports standing alone are not
persuasive indicators of a public perception of partiality—Affidavit
denied.
(No. 13-AP-011—Decided March 6, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Trumbull County Court of Common Pleas
Case No. 2006-CV-2992.
__________________
O’CONNOR, C.J.
{¶ 1} Joseph A. Farchione, counsel for defendants in the underlying
case, Dr. Tara Shipman and Associates in Female Health, Inc., has filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge W. Wyatt McKay from presiding over any further proceedings in case No.
2006-CV-2992, now pending on plaintiffs’ motion for prejudgment interest in the
Court of Common Pleas of Trumbull County.
{¶ 2} Farchione alleges that throughout this lengthy litigation, plaintiffs’
counsel have engaged in “deceptive manipulations of the law and fact in their
arguments” and that Judge McKay has “almost universally accepted” their
representations. Farchione further claims that Judge McKay’s rulings have
SUPREME COURT OF OHIO
created an appearance of bias or prejudice against Shipman “to the point that an
entire medical community believes there is no way to get a fair trial in his
courtroom.”
{¶ 3} Judge McKay has responded in writing to the allegations raised in
Farchione’s affidavit, asserting that his rulings were not the result of any bias or
prejudice and that they have not created any appearance of impropriety. Judge
McKay further claims that “criticism in the community by certain interested
groups of people does not equal evidence of judicial bias or prejudice.”
{¶ 4} Martin F. White, one of the attorneys for plaintiffs in the
underlying case, has filed an affidavit and memorandum opposing Farchione’s
affidavit. White avers that Judge McKay has not shown any bias or favoritism
toward any party in the litigation.
{¶ 5} For the reasons explained below, no basis has been established to
order the disqualification of Judge McKay.
Judge McKay’s adverse rulings
{¶ 6} Farchione suggests that Judge McKay’s “consistently adverse and
prejudicial rulings” against Shipman have created an appearance of bias
mandating the judge’s disqualification. Farchione sets forth a long list of such
adverse rulings—including the judge’s refusal to declare a mistrial based on a
comment made by plaintiffs’ counsel during voir dire, his rulings on various
motions in limine and regarding witness testimony at trial, the judge’s final jury
instructions, his orders on posttrial motions, and his signing of a writ of execution
of judgment without a hearing. These allegations, however, do not establish bias,
prejudice, or a disqualifying interest under R.C. 2701.03.
{¶ 7} First, an affidavit of disqualification must be filed “as soon as
possible after the incident giving rise to the claim of bias and prejudice occurred,”
and failure to do so may result in waiver of the objection, especially when “the
facts underlying the objection have been known to the party for some time.” In re
2
January Term, 2013
Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996).
The events giving rise to Farchione’s affidavit occurred years ago. Specifically,
the underlying trial occurred in September and October 2010, and the most recent
challenged ruling was made in September 2011, when Judge McKay signed the
writ of execution. Yet Farchione did not file his affidavit until February 2013. If
Farchione believed that Judge McKay’s conduct demonstrated bias or prejudice,
he should have timely sought disqualification, i.e., “as soon as possible after the
incident giving rise to the claim of bias and prejudice occurred.” Id. Because
nothing in the record justifies the delay in filing the affidavit of disqualification,
Farchione has waived the ability to seek Judge McKay’s disqualification based on
his adverse rulings.
{¶ 8} Second, contrary to Farchione’s assertions, whether Judge McKay
erred in any of the various rulings cannot be litigated in an affidavit-of-
disqualification proceeding. It is well established that an affidavit of
disqualification “is not a vehicle to contest matters of substantive or procedural
law.” In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484,
798 N.E.2d 3, ¶ 4. And a party’s disagreement or dissatisfaction with a court’s
legal rulings, even if those rulings may be erroneous, is not grounds for
disqualification. In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-
Ohio-7351, 803 N.E.2d 818, ¶ 4. Farchione may submit his legal arguments to
the court of appeals, but the chief justice’s statutory and constitutional authority to
decide whether a judge can serve fairly and impartially does not authorize the
removal of a trial judge because a party is unhappy about a series of rulings.
Moreover, “[a] party is not entitled to a certain number of favorable rulings, and a
judge must be free to make rulings on the merits without the apprehension that a
disproportionate number of rulings in favor of one party will create the impression
of bias toward that party or against its adversary.” In re Disqualification of
3
SUPREME COURT OF OHIO
Lawson, 135 Ohio St.3d 1243, 2012-Ohio-6337, 986 N.E.2d 6, ¶ 7, citing Flamm,
Judicial Disqualification, Section 16.3, 449 (2d Ed.2007).
Alleged public reaction to Judge McKay’s rulings
{¶ 9} Farchione also argues that Judge McKay’s adverse rulings have
resulted in an “erosion of public faith” in the court’s ability to fairly adjudicate
Shipman’s case. Specifically, Farchione claims that the local medical community
has “waged a very public protest campaign” and that local physicians believe that
Shipman “cannot and will not get a fair trial or fair treatment after trial.”
According to Farchione, the fact that so many members of the medical
community have lost faith in Judge McKay demonstrates the existence of an
appearance of impropriety.
{¶ 10} “The proper test for determining whether a judge’s participation in
a case presents an appearance of impropriety is * * * an objective one. A judge
should step aside or be removed if a reasonable and objective observer would
harbor serious doubts about the judge’s impartiality.” In re Disqualification of
Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. In general,
media reports or editorials suggesting judicial bias, standing alone, are not
competent sources on which to base an affidavit of disqualification, and they
cannot act as a barometer of the reasonable-person standard. See Flamm, Section
5.7, at 131-133, citing TV Communications Network, Inc. v. ESPN, Inc., 767
F.Supp. 1077, 1080 (D.Colo.1991) (“articles and features in the media suggesting
impropriety cannot act as a barometer of the reasonable observer standard”); In re
Detroit, 828 F.2d 1160, 1168 (6th Cir.1987) (“letters and articles * * * do not
necessarily mean that the public believes [the judge] is biased”); Datagate, Inc. v.
Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir.1991) (“fact that the judge’s
decision was reported in the newspapers is not persuasive of a public impression
of partiality”).
4
January Term, 2013
{¶ 11} More important, Farchione has not substantiated his allegations on
these claims. He attaches to his affidavit items that he labels “protest materials,”
which he claims demonstrate that the local medical community believes that
Shipman will not receive a fair trial. The alleged protest materials—which
include newspaper letters to the editor and newspaper articles—for the most part
are not specifically directed against Judge McKay, but involve local physicians’
concerns regarding the rising cost of medical-malpractice insurance in Mahoning
and Trumbull counties. While most of the letters and articles mention the jury
verdict in the underlying case of Cobb v. Shipman, only one of the provided items
directly criticizes Judge McKay. Specifically, Farchione includes a copy of a
faxed letter, which appears to be dated September 16, 2011, from the president of
the medical staff at Trumbull Memorial Hospital. The author addressed the letter
to his colleagues and requested that they attend a staff meeting to discuss the
“latest OUTRAGEOUS ATTACK on Tara Shipman, M.D. by Marty White and
his bedfellow, Judge McKay.” (Capitalization sic.) This one letter does not
establish that the public—or even the local Trumbull County medical
community—questions the impartiality of Judge McKay or that the alleged public
protests against Judge McKay are so strong that disqualification is warranted.
Conclusion
{¶ 12} It has long been held that “absent extraordinary circumstances, a
judge will not be subject to disqualification after having presided over lengthy
proceedings in a pending case.” In re Disqualification of Celebrezze, 94 Ohio
St.3d 1228, 1229, 763 N.E.2d 598 (2001). No extraordinary circumstances are
present here. Farchione points to no action on the part of Judge McKay that
demonstrates bias, prejudice, or a disqualifying interest. Further, “[a] judge is
presumed to follow the law and not to be biased, and the appearance of bias or
prejudice must be compelling to overcome these presumptions.” In re
5
SUPREME COURT OF OHIO
Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d
23, ¶ 5. Those presumptions have not been overcome in this case.
{¶ 13} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge McKay.
______________________
6 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/473999/ | 796 F.2d 520
254 U.S.App.D.C. 229
ATTORNEY GENERAL OF the UNITED STATESv.IRISH PEOPLE, INC., Appellant.
No. 85-5883.
United States Court of Appeals,District of Columbia Circuit.
Argued April 24, 1986.Decided July 25, 1986.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 76-01518).
Charles S. Sims, New York City, with whom Mark H. Lynch and Susan Shaffer, Washington, D.C., were on brief, for appellant.
Brian K. Ahearn, Dept. of Justice, Washington, D.C., with whom Joseph E. Clarkson, Dept. of Justice, was on brief, for appellee.
Before BORK and SCALIA, Circuit Judges, and GESELL, District Judge.*
Opinion Per Curiam.
PER CURIAM:
1
The Irish People, Inc., which publishes a small weekly ethnic newspaper called The Irish People, appeals from an order of the District Court directing it to register as an agent of a foreign principal pursuant to the Foreign Agents Registration Act of 1938 (FARA), as amended, 22 U.S.C. Secs. 611-621 (1982 & Supp.1984). In this enforcement action brought by the Attorney General seeking an injunction to compel registration, Irish People contended that it was not an agent of a foreign principal within the meaning of the FARA and raised selective prosecution as an affirmative defense. On cross-motions for summary judgment the District Court rejected the selective prosecution defense and granted summary judgment for the Attorney General. Attorney General v. The Irish People, Inc., 595 F.Supp. 114 (D.D.C.1984), and 612 F.Supp. 647 (D.D.C.1985).1 We affirm the District Court's disposition of the selective prosecution defense but find that disputed issues of material fact oblige us to reverse and remand for trial on the issue of whether Irish People is an agent of a foreign principal under the FARA.
2
The FARA requires agents of foreign principals to file a registration statement with the Attorney General, file and identify their political propaganda, and make their books and records available for official inspections. 22 U.S.C. Secs. 612, 614, 615, 616; 28 C.F.R. Secs. 5.1-5.801 (1985). The Act defines "agent of a foreign principal" as
3
any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction of control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person--
4
(i) engages within the United States in political activities for or in the interests of such foreign principal;
5
(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
6
(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money or other things of value for or in the interest of such foreign principal; or
7
(iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States....
8
22 U.S.C. Sec. 611(c)(1).
9
The Attorney General claims that Irish People publishes as an agent of the Irish Northern Aid Committee (INAC), a group of Americans that raises funds for the Irish Republican movement and is the registered agent of the Irish Republican Army, a foreign principal. See Attorney General v. Irish Northern Aid Committee, 530 F.Supp. 241 (S.D.N.Y.1981), aff'd, 668 F.2d 159 (2d Cir.1982). To support this claim the Attorney General is required to prove two relationships: (1) that Irish People publishes its newspaper at the order, request or under the direction or control of INAC, for or in the interest of the IRA, and (2) that INAC's activities are directly or indirectly supervised, directed, controlled, financed or subsidized in whole or in major part by the IRA. In granting summary judgment for the Attorney General the District Court found that both these relationships had been established.
10
Irish People argues that the District Court erred and should have granted summary judgment for it and against the Attorney General because neither relationship was established by the facts presented by the government. In any event, Irish People argues, disputed issues of material fact concerning both relationships precluded summary judgment for the Attorney General. We consider whether summary judgment was appropriate based upon the facts presented concerning each relationship and then address Irish People's selective prosecution defense.
11
1. The Relationship between Irish People and INAC.
12
The Attorney General did not present any evidence that INAC had ever exercised any formal control over Irish People. Instead, he presented several undisputed events stretching back over the past ten years which the District Court found sufficient to establish that Irish People is currently acting at the request of INAC. First, it was undisputed that several of the officials or managing individuals of Irish People had also held official positions with INAC, including the editor of The Irish People who served as publicity chairman for INAC. Some of these individuals discontinued their role in Irish People during the pendency of the suit but the editor has maintained his position in both organizations. Second, Irish People received substantial financial support from INAC. From February, 1975 to March, 1976 the two organizations shared offices and telephones. Since that time, the Irish People has continued to receive substantial payments from INAC under an arrangement in which INAC pays the newspaper's operational budget. Third, there was a coincidence of editorial views of The Irish People and INAC.2
13
Irish People responded with affidavits from its officers and staff stating that the financial support was provided in exchange for advertising and that the sharing of office space in 1975-76 was done merely as a matter of accommodation. The editor and other American volunteer personnel declared that the paper operated independently in making editorial and reporting decisions; that INAC had never attempted to manage, direct or control the paper; and that, although the paper usually agreed with INAC's views, it had on several occasions published articles attacking INAC's actions or differing from its positions.
14
Although the District Court dismissed these affidavits as conclusory and lacking particularity, we find that they were adequate to raise a genuine issue of fact in light of the nature of the Attorney General's evidence and the issue involved. The undisputed facts offered to establish that the newspaper acted at INAC's order or request were entirely circumstantial. No request, order, command, or directive was ever shown. There was no indication that Irish People had printed any articles at INAC's request or sought INAC's approval of its editorial views. Nor was there any proof that Irish People had ever taken any action because it had been urged, prodded or instructed to do so by INAC.
15
Instead, what was shown was substantial financial support and a convergence of viewpoints coupled with some overlap of personnel. It is well established that on a motion for summary judgment the opposing party must be accorded the benefit of all reasonable doubts when inferences must be drawn from the undisputed facts. Goodrich v. International Brotherhood of Electrical Workers, AFL-CIO, 712 F.2d 1488, 1494-95 (D.C.Cir.1983). Inferences must be construed in the light most favorable to the party opposing the motion and summary judgment should not be granted where the undisputed facts support contradictory inferences. See Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164, 1171 n. 37 (D.C.Cir.1981); National Association of Government Employees v. Campbell, 593 F.2d 1023, 1027 (D.C.Cir.1978). The affidavits presented by Irish People declared that the undisputed facts reflect two separate, independent organizations which share similar political views, attracted some of the same Irish activists and were financially related only through paid advertising without any control by INAC of the sort that would render the Irish People an agent of a foreign principal. Since this was a reasonable inference and explanation of the circumstances, Irish People was entitled to attempt to prove at trial that this was the correct conclusion to draw from these facts.
16
Moreover, affidavits denying a particular state of mind are often by their nature somewhat conclusory. Since motivation and intent issues are involved in determining whether Irish People is acting independently or at the order, request, direction or control of INAC the affiants' denials were sufficient to create a triable issue of fact. Summary judgment is often inappropriate where state of mind is crucial to the ultimate factual issue. See, e.g., Briggs v. Goodwin, 698 F.2d 486, 491, vacated on another issue on reh'g, 712 F.2d 1444 (D.C.Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir.1984). In this case the officials and staff of the publication, all American citizens, strenuously emphasized that they acted independently of INAC and pointed to examples where they had opposed INAC. Given the nature of the issue, there is little more they could be expected to do to refute the Attorney General's circumstantial evidence. When, as here, circumstantial inferences of state of mind and motive are rebutted by denials supported by some particularized facts, the denials are enough to raise a factual issue necessitating trial.
17
We view Irish People's argument that First Amendment concerns require that the District Court apply a higher standard of "clear and convincing evidence" on summary judgment as inaccurate and unhelpful. Nonetheless, in determining whether any set of facts establishes that someone is acting as an agent for a foreign principal within the meaning of the Act it is important to consider the limitations on types of activity Congress intended to reach. Congress was particularly concerned that registration would not be imposed to stifle internal debate on political issues by citizens sympathetic to the views of foreigners but free from foreign direction or control. In amending the definition of agent in 1966 Congress emphasized that the Act should not require the registration "of persons who are not, in fact, agents of foreign principals but whose acts may incidentally be of benefit to foreign interests, even though such acts are part of the normal course of those persons' own rights of free speech, petition or assembly." H.R.Rep. No. 1470, 89th Cong.2d Sess. 5-6 (1966), reprinted in 1966 U.S. Code Cong. & Ad. News. 2397, 2401. Moreover, "mere receipt of a bona fide subsidy not subjecting the recipient to the direction or control of the donor does not require the recipient of the subsidy to register as an agent of the donor." Id.; see also S.Rep. No. 143, 89th Cong. 1st Sess. 6-8 (1965); Michele Amoruso E. Figli v. Fisheries Development Corporation, 499 F.Supp. 1074, 1081-82 (S.D.N.Y.1980) (corporation which receives financial support from foreign principal without being subject to its control and whose lobbying efforts benefit a foreign government but are not subject to the foreign government's control is not an agent under FARA). Consequently, the declarations that despite INAC's financial support and similar political views Irish People acts independently require that the issue proceed to trial so that the facts can be fully ventilated and the validity of these declarations discerned.
18
2. The Relationship between INAC and the IRA.
19
The District Court concluded INAC acts as an intermediary between Irish People and the IRA, requesting Irish People to act on behalf of or in the interests of the IRA. To establish this relationship the District Court relied solely on the fact that INAC is a registered agent of the IRA.3 Irish People argues that the fact that INAC is the registered agent of the IRA is not enough to establish that INAC is an intermediary for the IRA in the manner defined by the statute and there was no other proof offered on this issue.
20
Resolving this issue requires consideration of the slightly different language used by the statute to define when one is deemed the agent of a foreign principal or intermediary, and when one is deemed the intermediary of a foreign principal. Any person who acts "at the order, request, or under the direction or control of a foreign principal" or its intermediary may be an agent, but an intermediary is a person "whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal." 22 U.S.C. Sec. 611(c)(1). Thus, although a registered agent under the FARA will often also qualify as an intermediary for the foreign principal, this is not always or necessarily the case.
21
Under the circumstances the fact that INAC was registered was not enough to establish that INAC was acting as an intermediary because INAC was compelled to register as the IRA's agent on the deliberately narrow ground that it acted as "representative" for, or at the "request" of the IRA. Attorney General v. Irish Northern Aid Committee, 530 F.Supp. 241, 256-60 (S.D.N.Y.1981), aff'd, 668 F.2d 159, 161 (2d Cir.1982). In compelling INAC to register both the district court and the Second Circuit Court of Appeals emphasized that it was not necessary to make a finding that INAC was the IRA's agent in the traditional sense set forth in the Restatement (Second) of Agency requiring proof of control. Someone who merely responds to a "request" of a foreign principal is not an intermediary under the standards set forth in the FARA. Consequently, the fact that INAC has been compelled to register because it was found to have acted at the IRA's request alone is not sufficient to establish that it is an intermediary for the IRA.
22
Nonetheless, we believe it would be inappropriate to grant summary judgment to Irish People based on this point. In addition to the fact of registration, the record before the District Court contained numerous exhibits from INAC's files and information concerning its activities which at least raise an issue of fact as to whether INAC acts as an intermediary of the IRA, using Irish People as its agent. Consequently, we remand this issue for trial as well.
23
3. Selective Prosecution.
24
This Court has previously set forth the standard to be applied where selective prosecution is advanced as a defense to a FARA enforcement action:
25
If the district court were to identify evidence which colorably shows that this newspaper was singled out for enforcement while those expressing views on the other side of the controversy were left alone and " 'the prosecution was undertaken with the motive to suppress' protected expression," Mem.Op. at 4, J.A. at 115 (quoting United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975) (en banc)), the defendants would have made the requisite colorable showing of selective prosecution.
26
Attorney General v. The Irish People, 684 F.2d at 956. Thus, defendant has the burden of demonstrating both that it was selected out for prosecution and that the prosecution was improperly motivated by a desire to suppress its speech.
27
In rejecting Irish People's defense the District Court indicated some doubt as to whether Irish People could show selection, but found it unnecessary to decide this issue because it found that the circumstantial evidence relied on by Irish People to establish improper motive did not raise any factual issues and did not meet Irish People's burden to establish this second element. Although the proof was not unequivocal, we share the District Court's view that Irish People's showing on this element was not adequate to preclude summary judgment for the Attorney General.
28
The District Court noted that documents from the government's file explicitly expressed concern over gunrunning, terrorist activities and fund raising by agents of the Irish Republic Army and indicated that at the urging of some of our allies the government proposed using the FARA to alleviate this "Irish problem".4 This effort led to an investigation of the INAC and its fund raising efforts, FARA enforcement actions against INAC and its agents, and eventually to the investigation of Irish People that resulted in this lawsuit. The District Court acknowledged that it is possible to infer from the documents that the government's motive was, in part, to use the FARA to stem fund raising efforts by INAC for the IRA's activities, but rejected defendant's claim because, given the origins of the investigation, it could not infer that there was a desire to suppress the legitimate fund raising of Irish People, as opposed to a desire to inquire more generally into its activities.
29
In deciding that the Attorney General should have been granted summary judgment on this issue we note that the enforcement of the FARA for the purposes expressed in the statute does not infringe the exercise of constitutional rights. The documents presented by defendant demonstrate that the government was motivated by a desire to carry out the purposes of the FARA by identifying the agents of foreign principals and insuring that the people of the United States may appraise their statements in light of their source. Given the heavy burden that the defense of selective prosecution imposes on the right of Irish People to question whether a government inquiry was initiated for improper purposes and the paucity of proof of improper motive as well as the paucity of proof that others have been treated differently, the District Court's decision to reject Irish People's selective prosecution defense must be sustained.
30
Accordingly, the decision of the District Court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
31
It Is So Ordered.
*
Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. Sec. 292(a)
1
This case, initiated in 1976, was previously before this Court on issues related to the selective prosecution defense. Attorney General v. The Irish People, Inc., 684 F.2d 928 (D.C.Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983)
2
See 595 F.Supp. at 118-19; 612 F.Supp. at 649. The District Court found additional support for the Attorney General's position in correspondence of INAC which strongly indicated INAC's commitment to keep the paper going. 595 F.Supp. at 119-20
3
595 F.Supp. at 116
4
612 F.Supp. at 652-53 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/96081/ | 194 U.S. 205 (1904)
PETTIT
v.
WALSHE.
No. 563.
Supreme Court of United States.
Argued April 6, 1904.
Decided May 2, 1904.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.
Mr. Charles Fox for H.B.M., Consul General at New York, appellant.
Mr. Ferdinand Winter, with whom Mr. Addison C. Harris was on the brief, for appellee.
*210 MR. JUSTICE HARLAN delivered the opinion of the court.
This is a case of extradition. It presents the question whether a Commissioner specially appointed by a court of the United States under and in execution of statutes enacted to give effect to treaty stipulations for the apprehension and delivery of offenders, can issue a warrant for the arrest of an alleged criminal which may be executed by a marshal of the United States, within his District, in a State other than the one in which the Commissioner has his office. It also presents *211 the question whether a person, arrested under such a warrant, can be lawfully taken beyond the State, in which he was found, and delivered in another State before the officer who issued the warrant of arrest, without any preliminary examination in the former State as to the criminality of the charge against him.
By the tenth article of the treaty between the United States and Great Britain, concluded August 9, 1842, it was provided that upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, they shall "deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other." But by the same article it was provided that "this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed: and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive." 8 Stat. 572, 576.
A supplementary treaty between the same countries, concluded July 12, 1889, provided for the extradition for certain crimes not specified in the tenth article of the treaty of 1842, *212 and "punishable by the laws of both countries"; and, also, declared that the provisions of the above article "shall apply to persons convicted of the crimes therein respectively named and specified, whose sentence therefor shall not have been executed. In case of a fugitive criminal alleged to have been convicted of the crime for which his surrender is asked, a copy of the record of the conviction, and of the sentence of the court before which such conviction took place, duly authenticated, shall be produced, together with the evidence proving that the prisoner is the person to whom such sentence refers." 26 Stat. 1508, 1510.
By an act of Congress, approved August 12, 1848, c. 167, and entitled "An act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and delivering up of certain offenders," it is provided (§ 1): "That in all cases in which there now exists, or hereafter may exist, any treaty or convention for extradition between the Government of the United States and any foreign government, it shall and may be lawful for any of the justices of the Supreme Court or judges of the several District Courts of the United States and the judges of the several state courts, and the commissioners authorized so to do by any of the courts of the United States, are hereby severally vested with power, jurisdiction, and authority, upon complaint made under oath or affirmation, charging any person found within the limits of any State, district, or territory, with having committed within the jurisdiction of any such foreign government any of the crimes enumerated or provided for by any such treaty or convention to issue his warrant for the apprehension of the person so charged, that he may be brought before such judge or commissioner, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient by him to sustain the charge under the provisions of the proper treaty or convention, it shall be his duty to certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, *213 that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of said treaty or convention; and it shall be the duty of the said judge or commissioner to issue his warrant for the commitment of the person so charged to the proper gaol, there to remain until such surrender shall be made." "SEC. 6. . . . That it shall be lawful for the courts of the United States, or any of them, to authorize any person or persons to act as a Commissioner or Commissioners, under the provisions of this act; and the doings of such person or persons so authorized, in pursuance of any of the provisions aforesaid, shall be good and available to all intents and purposes whatever." 9 Stat. 302.
And by section 5270 of the Revised Statutes omitting therefrom the proviso added thereto by the act of June 6, 1900, c. 793, 31 Stat. 656, which applies only to crimes committed in a foreign country or territory "occupied by or under the control of the United States" it is provided: "Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within the limits of any State, District, or Territory, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the *214 proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." See also § 5273.
In the Sundry Civil Appropriation Act of August 18, 1894, will be found the following clause: "Provided, That it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest Circuit Court commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating the provisions hereof." 28 Stat. 372, 416.
Under these treaty and statutory provisions, complaint on oath was made before John A. Shields a Commissioner appointed by the District Court of the United States for the Southern District of New York to execute the above act of August 12, 1848, and the several acts amendatory thereof that one James Lynchehaun was convicted, in a court of Great Britain, of the crime of having feloniously and unlawfully wounded one Agnes McDonnell, with intent thereby, feloniously and with malice aforethought, to kill and murder said McDonnell; that the accused was sentenced to be kept in penal servitude for his natural life; that in execution of such sentence he was committed to a convict prison in Queens County, Ireland, and escaped therefrom, and was at large; and that he was a fugitive from the justice of the Kingdom of Great Britain and Ireland, and within the territory of the United States. It is admitted that the present appellee is the person referred to in the warrant as James Lynchehaun.
*215 Upon the complaint, Commissioner Shields, in his capacity as a Commissioner appointed by a court of the United States to execute the laws relating to the extradition of fugitives from the justice of foreign countries, issued on the sixth day of June, 1903, in the name of the President, a warrant addressed "to any marshal of the United States, to the deputies of any such marshal, or any or either of them," commanding that the accused be forthwith taken and brought before him, at his office, in the city of New York, in order that the evidence as to his criminality be heard and considered, and if deemed sufficient to sustain the charge, that the same might be certified, together with a copy of all the proceedings, to the Secretary of State, in order that a warrant might be issued for the surrender of the accused pursuant to the above treaty.
This warrant having been placed for execution in the hands of the appellant, as Marshal of the United States for the District of Indiana, he arrested the accused in that State. Thereupon the latter filed his application for a writ of habeas corpus in the Circuit Court of the United States for that District, alleging that his detention was in violation of the Constitution, treaties and laws of the United States. The writ was issued, and the Marshal justified his action under the warrant issued by Commissioner Shields. Referring to the warrant and averring its due service upon the accused, the Marshal's return stated that the warrant was "regular, legal, valid and sufficient in law in all respects to legally justify and warrant the arrest and detention of petitioner, and, under the laws of the United States, it was and is the duty of this defendant to arrest and detain said petitioner, and deliver him as commanded by said writ for hearing before Commissioner Shields, in New York city; that said writ runs for service in the State of Indiana, although issued by a commissioner of the United States for the Southern District of New York, by reason of its being a writ in extradition; that defendant is informed and believes, and therefore states the fact to be, that petitioner is the identical person commanded to be arrested by said warrant as James *216 Lynchehaun; . . . and that it is by virtue and authority solely of said warrant that defendant holds and detains petitioner; that defendant purposes, if not otherwise ordered by this honorable court, to obey, as United States marshal for the District of Indiana, the command of said warrant as set out therein, believing it to be his duty as said officer so to do."
The accused excepted to the Marshal's return for insufficiency in law, and the case was heard upon that exception. The court held the return to be insufficient; and the Marshal having indicated his purpose not to amend it, the accused was discharged upon the ground that the Commissioner in New York was without power to issue a warrant under which the Marshal for the District of Indiana could legally arrest the accused and deliver him before the court of that Commissioner in New York without a previous examination, before some proper officer in the State where he was found. In re Walshe, 125 Fed. Rep. 572.
The appellee contends that this case only involves a construction of certain acts of Congress, and that, therefore, this court is without jurisdiction to review the judgment on direct appeal from the Circuit Court. Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397, 407. We do not concur in this view. The treaties of 1842 and 1889 are at the basis of this litigation, and no effective decision can be made of the controlling questions arising upon the appeal, without an examination of those treaties and a determination of the meaning and scope of some of their provisions. A case may be brought directly from a Circuit Court to this court if the construction of a treaty is therein drawn in question. 26 Stat. 826, c. 517, § 5. The petition for the writ of habeas corpus and the warrant under which the accused was arrested both refer to the treaty of 1842, and the court below properly, we think, proceeded on the ground that the determination of the questions involved in the case depended in part, at least, on the meaning of certain provisions of that treaty. The construction of the treaties was none the less drawn in question because it became necessary *217 or appropriate for the court below also to construe the acts of Congress passed to carry their provisions into effect.
We now go to the merits of the case. It has been seen that the treaty of 1842 expressly provides, among other things, that a person charged with the crime of murder, committed within the jurisdiction of either country, and found within the territories of the other, shall be delivered up by the latter country; and that the provision shall apply in the case of one convicted of such a crime, but whose sentence has not been executed. But both countries stipulated in the treaty of 1842 that the alleged criminal shall be arrested and delivered up only upon such evidence of criminality as, according to the laws of the place where the fugitive person so charged is found, would justify his apprehension and commitment for trial, if the crime or offense had been there committed. As applied to the present case, that stipulation means that the accused, Walshe, could not be extradited under the treaties in question except upon such evidence of criminality as, under the laws of the State of Indiana the place in which he was found would justify his apprehension and commitment for trial if the crime alleged had been there committed. The words in the tenth article of the treaty of 1842, "as according to the laws of the place where the fugitive or person charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed," and the words "punishable by the laws of both countries," in the treaty of 1889, standing alone, might be construed as referring to this country as a unit, as it exists under the Constitution of the United States. But as there are no common law crimes of the United States, and as the crime of murder, as such, is not known to the National Government, except in places over which it may exercise exclusive jurisdiction, the better construction of the treaty is, that the required evidence as to the criminality of the charge against the accused must be such as would authorize his apprehension and commitment for trial in that State of the Union in which he is arrested.
*218 It was substantially so held in Wright v. Henkel, 190 U.S. 40, 58, 61, which was a case of extradition under the same treaties as those here involved. In that case the alleged fugitive criminal from the justice of Great Britain was found in New York. The court said: "As the State of New York was the place where the accused was found and, in legal effect, the asylum to which he had fled, is the language of the treaty, `made criminal by the laws of both countries,' to be interpreted as limiting its scope to acts of Congress and eliminating the operation of the laws of the States? That view would largely defeat the object of our extradition treaties by ignoring the fact that for nearly all crimes and misdemeanors the laws of the States, and not the enactments of Congress, must be looked to for the definition of the offense. There are no common law crimes of the United States, and, indeed, in most of the States the criminal law has been recast in statutes, the common law being resorted to in aid of definition. Benson v. McMahon, 127 U.S. 457." Again: "When by the law of Great Britain, and by the law of the State in which the fugitive is found, the fraudulent acts charged to have been committed are made criminal, the case comes fairly within the treaty, which otherwise would manifestly be inadequate to accomplish its purposes. And we cannot doubt that if the United States were seeking to have a person indicted for this same offence under the laws of New York extradited from Great Britain, the tribunals of Great Britain would not decline to find the offence charged to be within the treaty because the law violated was a statute of one of the States and not an act of Congress."
The above provision in the treaty of 1842 has not been modified or superseded by any of the acts passed by Congress to carry its provisions into effect. In our opinion, the evidence of the criminality of the charge must be heard and considered by some judge or magistrate, authorized by the acts of Congress to act in extradition matters, and sitting in the State where the accused was found and arrested. Under any other interpretation of the statute Commissioner Shields, proceeding *219 under the treaty, could by his warrant cause a person charged with one of the extraditable crimes and found in one of the Pacific States, to be brought before him at his office in the city of New York, in order that he might hear and consider the evidence of the criminality of the accused. But as such a harsh construction is not demanded by the words of the treaties or of the statutes, we shall not assume that any such result was contemplated by Congress. While the view just stated has some support in those parts of the act of 1848, and section 5270 of the Revised Statutes which provide for the accused being brought before the justice, judge or commissioner who issued the warrant of arrest, it is not consistent with the above proviso in the Sundry Civil Act of August 18, 1894, the language of which is broad enough to embrace the case of the arrest by a marshal, within the district for which he was appointed, of a person charged with an extraditable crime committed in the territories of Great Britain and found in this country. By that proviso it is made the duty of a marshal arresting a person charged with any crime or offense to take him before the nearest Circuit Court Commissioner or the nearest judicial officer, having jurisdiction for a hearing, commitment or taking bail for trial in cases of extradition. The commissioner or judicial officer here referred to is necessarily one acting as such within the State in which the accused was arrested and found. So that, assuming that it was competent for the Marshal for the District of Indiana to execute Commissioner Shields' warrant within his District, as we think it was, his duty was to take the accused before the nearest magistrate in that District, who was authorized by the treaties and by the above acts of Congress to hear and consider the evidence of criminality. If such magistrate found that the evidence sustained the charge, then, under section 5270 of the Revised Statutes, it would be his duty to issue his warrant for the commitment of the accused to the proper jail, there to remain until he was surrendered under the direction of the National Government, in accordance with the treaty. Instead of pursuing that course, the Marshal *220 arrested Walshe, and in his return to the writ of habeas corpus distinctly avowed his purpose, unless restrained by the court, to take the prisoner at once from the State in which he was found and deliver him in New York, before Commissioner Shields, without a hearing first had in the State of Indiana before some authorized officer or magistrate there sitting, as to the evidence of the criminality of the accused. The Circuit Court adjudged that the Marshal had no authority to hold the accused in custody for any such purpose; and, the Marshal declining to amend his return and not avowing his intention to take him before a judicial officer or magistrate in Indiana for purposes of hearing the evidence of criminality, the prisoner was properly discharged from the custody of that officer.
For the reasons above stated the judgment is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1619188/ | 303 S.W.3d 694 (2008)
Jackson O'DELL, Jr.
v.
Jackson C. O'DELL, III, et al.
E2007-02619-SC-R11-CV.
Court of Appeals of Tennessee, Eastern Section, at Knoxville.
June 18, 2008 Session.
August 21, 2008.
Permission to Appeal Denied by Supreme Court December 28, 2009.
*695 J.D. Lee and Travis E. Venable, Knoxville, Tennessee for the Appellant, Jackson O'Dell, Jr.
L. Caesar Stair, III and C. Scott Taylor, Knoxville, Tennessee for the Appellees, Jackson C. O'Dell, III and Calvin David O'Dell.
OPINION
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.
Jackson O'Dell, Jr., ("Plaintiff") sued Jackson C. O'Dell, III and Calvin David O'Dell ("Defendants") alleging civil conspiracy and outrageous conduct. Defendants filed a motion to dismiss, which the Trial Court granted. Plaintiff appeals to this Court. We affirm the dismissal of Plaintiff's claims for civil conspiracy and outrageous conduct, but hold that Plaintiff did state a claim for alleged violations of the Tennessee Limited Liability Company Act, Tenn.Code Ann. § 48-201-101 et seq.
Background
In 2001, O'Dell Farms, LLC ("the LLC") was formed having three members, Plaintiff and his two sons, Defendants. Originally, Plaintiff had 300 voting units and each Defendant had zero. Plaintiff later granted 100 of his voting rights to each Defendant so that Plaintiff and each Defendant now hold 100 voting rights apiece.
In October of 2006, Plaintiff sued Defendants, a number of other family members, and the LLC alleging claims for civil conspiracy and outrageous conduct. The named defendants jointly filed a motion to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted. After a hearing, the Trial Court entered an order dismissing all but *696 the two Defendants and allowing Plaintiff "to file additional facts and claims to support his claim for outrageous conduct or civil conspiracy against these two Defendants in their individual capacity and in their capacity as members of O'Dell Farms, LLC."
Plaintiff amended his complaint and Defendants filed another motion to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted. The Trial Court held a hearing and then entered an order on June 5, 2007 dismissing Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6). Plaintiff appeals to this Court.
Discussion
Although not stated exactly as such, Plaintiff raises one issue on appeal: whether the Trial Court erred in granting Defendants' motion to dismiss.
Our standard of review as to the granting of a motion to dismiss is set out in Stein v. Davidson Hotel Co., in which our Supreme Court explained:
A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a claim upon which relief can be granted tests only the legal sufficiency of the complaint, not the strength of a plaintiff's proof. Such a motion admits the truth of all relevant and material averments contained in the complaint, but asserts that such facts do not constitute a cause of action. In considering a motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and deny the motion unless it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). In considering this appeal from the trial court's grant of the defendant's motion to dismiss, we take all allegations of fact in the plaintiff's complaint as true, and review the lower courts' legal conclusions de novo with no presumption of correctness. Tenn. R.App. P. 13(d); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn.1996); Cook, supra.
Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997).
Plaintiff's Amended Complaint alleges that Defendants conspired to deprive Plaintiff of property and his rights as a member of the LLC. In support of this claim, Plaintiff alleges, among other things, that certain documentation with regard to the LLC was not completed by Defendants or furnished to Plaintiff; that Plaintiff has not been notified of LLC meetings; that Plaintiff spent his own money on LLC business and Defendants claimed these payments as tax deductions for the LLC without consulting Plaintiff; that Defendants have withheld information regarding the LLC from Plaintiff; that Defendants closed certain LLC accounts and opened new ones; that Defendants have not assisted Plaintiff with the day-to-day operations of the LLC; that Defendants have removed LLC property without Plaintiff's permission; that Defendants have "intimidated the Plaintiff to ensure that farming deadlines, such as finishing the hay, would be completed;" and that one of the Defendants came to Plaintiff's residence and "verbally assaulted" Plaintiff with regard to the LLC.
Plaintiff's Amended Complaint attempts to assert a cause of action for outrageous conduct. With regard to this tort, our Supreme Court has instructed:
We first recognized the tort of outrageous conduct in Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270, 274 (Tenn.1966), where we adopted the language of the Restatement (Second) of Torts, section 46, which provided: "One *697 who by extreme and outrageous conduct... causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm [to the other] results from it, for such bodily harm."
To state a claim for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant's conduct was intentional or reckless; (2) the defendant's conduct was so outrageous that it cannot be tolerated by civilized society; and (3) the defendant's conduct resulted in a serious mental injury to the plaintiff. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997).
In describing these elements, we have emphasized that it is not sufficient that a defendant "has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress." Id. (citations omitted). A plaintiff must in addition show that the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community." Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn.1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn.2004).
Even taking all of the allegations in Plaintiff's Amended Complaint as true and construing the complaint liberally in favor of Plaintiff, as we must at this stage, we agree with the Trial Court and hold that Plaintiff failed to state a cause of action for outrageous conduct. None of the acts of which Plaintiff complains, either individually or taken together, even begin to rise to the level of being "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. Rather, Defendants' actions of which Plaintiff complains are the same types of acts that occur in virtually every dispute that arises between members of a LLC. The fact that Plaintiff and Defendants are family members does not make these claimed acts any more or less outrageous than if Plaintiff and Defendants were not related. Plaintiff's Amended Complaint fails to state a cause of action for outrageous conduct.
Plaintiff's Amended Complaint also attempts to state a cause of action for civil conspiracy. As this Court explained in Kincaid v. SouthTrust Bank:
The elements of a cause of action for civil conspiracy are: (1) a common design between two or more persons, (2) to accomplish by concerted action an unlawful purpose, or a lawful purpose by unlawful means, (3) an overt act in furtherance of the conspiracy, and (4) resulting injury. Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 720 (E.D.Tenn.2001). Conspiracy claims must be pled with some degree of specificity. McGee v. Best, 106 S.W.3d 48, 64 (Tenn.Ct.App.2002) (citing Haynes v. Harris, No. 01A01-9810-CV-00518, 1999 WL 317946, at *2 (Tenn.Ct.App. 1999)) (citations omitted). Conclusory allegations, however, unsupported by material facts will not be sufficient to state such a claim. Id.
Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38 (Tenn.Ct.App.2006).
Once again taking all of the factual allegations in Plaintiff's Amended Complaint as true and construing the Amended Complaint liberally in favor of Plaintiff, as we must at this stage, we agree with the Trial Court and hold that Plaintiff failed to state a cause of action for civil conspiracy. None of Defendants' actions of which Plaintiff complains, either individually or taken together, even remotely constitute *698 either an unlawful purpose or unlawful means. Plaintiff failed to state a cause of action for civil conspiracy.
Plaintiff argues on appeal that his Amended Complaint states a cause of action for alleged violations of the Tennessee Limited Liability Company Act, Tenn. Code Ann. § 48-201-101 et seq. Although inartfully pled, Plaintiff's Amended Complaint, liberally construed, alleges potential violations of the Tennessee Limited Liability Company Act for such alleged actions as failure to complete and provide to Plaintiff documentation and failure to provide notice of meetings, among other things. Taking all of the factual allegations in Plaintiff's Amended Complaint as true and construing the complaint liberally in Plaintiff's favor, as we must, we hold that Plaintiff has stated, however barely, a cause of action for alleged violations under the Tennessee Limited Liability Company Act sufficient to survive a motion to dismiss under Tenn. R. Civ. P. 12.02(6).
Conclusion
The judgment of the Trial Court dismissing Plaintiff's claims for outrageous conduct and civil conspiracy is affirmed, and we further hold that Plaintiff's Amended Complaint states a cause of action for alleged violations under the Tennessee Limited Liability Company Act, Tenn.Code Ann. § 48-201-101 et seq., sufficient to withstand a Rule 12.02(6) motion to dismiss. This cause is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed one-half against the Appellant, Jackson O'Dell, Jr. and his surety, and one-half against the Appellees, Jackson C. O'Dell, III and Calvin David O'Dell. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619194/ | 303 S.W.3d 467 (2010)
Adolph PETZOLD, et al., Appellants,
v.
KESSLER HOMES, INC., Appellee.
No. 2008-SC-000106-DG.
Supreme Court of Kentucky.
January 21, 2010.
*468 William W. Allen, Lori Beth Shelburne, Gess, Mattingly & Atchison, PSC, Lexington, KY, Counsel for Appellant.
Albert F. Grasch, Jr., Grasch & Cowen, PSC, Lexington, KY, Counsel for Appellee.
Opinion of the Court by Justice VENTERS.
Appellants, Adolph and Marilyn Petzold, appeal from a decision of the Court of Appeals vacating a judgment of the Fayette Circuit Court against Appellee, Kessler Homes, Inc. (Kessler), on the grounds that the presiding Judge, Pamela Goodwine, was retroactively disqualified from presiding over the proceedings because the Petzolds are the parents of Judge Goodwine's campaign treasurer in her 2003 campaign run for the circuit court bench. It is undisputed that Judge Goodwine was unaware of the association during the period she presided over the case. We granted discretionary review.
Because we conclude that the lower court erred in its determination that Judge Goodwine was retroactively disqualified, we reverse and remand the cause to the *469 Court of Appeals for consideration upon the merits of the issues left unaddressed by the court because of its disposition.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2000, the Petzolds and Kessler entered into a contract for the construction of a residence. Toward the end of the construction project, disputes arose between the parties concerning the quality of the work and Kessler's billing practices. In light of the disagreements, the Petzolds refused to pay Kessler. The efforts of the parties to resolve their differences failed.
On October 14, 2002, Kessler filed suit against the Petzolds in Fayette Circuit Court seeking amounts it believed were owed by the Petzolds under the contract. The Petzolds filed a counterclaim asserting various causes of action relating to fraud, violations of the applicable building codes, and violations of Kentucky's Consumer Protection Act. Protracted litigation followed. The parties waived their respective rights to a jury trial, and a four-day bench trial was held from August 29, 2005, to September 1, 2005, presided over by Judge Goodwine.
On February 3, 2006, Judge Goodwine entered an opinion, order, and judgment. The judgment dismissed Kessler's claims against the Petzolds; awarded the Petzolds $21,668.00 upon their claim for building code violations; awarded the Petzolds $8,466.00 upon a finding that Kessler breached its duty of good faith and fair dealing, but dismissed the underlying fraud claim; dismissed the Petzolds claims for damages for other construction defects, for violation of the Consumer Protection Act, and for the loss of the use and enjoyment of their residence; and found that the Petzolds were entitled to recover their attorney fees and expenses, expert fees and expenses, and costs.
Both parties thereafter filed motions to alter, amend, or vacate. On May 2, 2006, the trial court entered an order denying Kessler's motion to amend, sustaining the Petzolds' motion to amend, and finalizing the award of $106,024.59 for attorney fees and expenses and $5,367.60 for expert fees.[1] Both parties appealed the trial court's rulings to the Court of Appeals.
While the appeals were pending, Kessler learned that Judge Goodwine's campaign treasurer during her 2003 run for the Fayette Circuit Court bench, Lisa Petzold Castle, was the Petzolds' daughter. Concerned that this association undermined the fairness of the proceedings, on August 18, 2006, Kessler filed a CR 60.02 motion asking that Judge Goodwine's orders of February 3 and May 2, 2006, be set aside. Kessler did not allege that Judge Goodwine had actual knowledge of the association, but requested that "[a]t minimum, [Kessler] requests the right to take discovery on the relationship between Your Honor and the Petzolds."[2]
Following a hearing, on September 7, 2006, Judge Goodwine denied the motion. In the order, Judge Goodwine stated that she did not know of the relationship during the pendency of the proceedings and thus could not have been influenced thereby; that under the circumstances at bar, even if she had known of the association she would not have been under an obligation to *470 recuse herself; but had the association come to light sooner, upon proper motion she would have recused herself. Judge Goodwine further concluded that the applicable Judicial Canons and ethical rules did not require her to retroactively recuse herself from the proceedings or to set aside her previous rulings in the case.
In her order Judge Goodwine provided the following narrative explaining her recollection and understanding of the facts underlying the situation:
1. Ms. Castle became this Court's[3] personal certified public accountant in the fall of 2000 or early spring of 2001 by default. Prior to that time, Richard Bass, C.P.A., of Hisle & Company, was this Court's personal certified public accountant and financial planner.
2. In the summer or fall of 2000, Mr. Bass left Hisle & Company and joined the firm where Ms. Castle worked. This Court is not certain what type of business or employment relationship existed between Mr. Bass and Ms. Castle. returns. The accountant turned out to be Lisa P. Castle. The Court did not know Ms. Castle prior to that meeting.
3. In late 2000 or early 2001, Mr. Bass left the practice of accountancy. As a courtesy to this Court as a client, he notified this Court of his intent to leave the practice to care for his ailing mother on a full-time basis.
4. Mr. Bass gave this Court the option of requesting my personal tax files or leaving them with the company. This Court chose to leave my files with the company to be handled by one of the other certified public accountants in the office.
5. In early 2001, when it came time to prepare my 2000 tax returns, this Court made an appointment with one of the accountants in the office to discuss the preparation of said returns. The accountant turned out to be Lisa P. Castle. The Court did not know Ms. Castle prior to that meeting.
6. The meeting was professional and cordial. At no time did this Court and Ms. Castle discuss anything other than business relating to the preparation of my tax returns.
7. The Court was satisfied with Ms. Castle's services as well as the services of her associates and chose to have Ms. Castle continue to serve as her certified public accountant and financial planner.
8. In August of 2003 when this Court decided to seek the Office of Circuit Judge, I discussed a committee with my husband and closest advisors. We decided that my campaign treasurer should be a certified public accountant rather than a personal friend. I called Ms. Castle to see if she was interested in serving in that capacity. She agreed to serve. She signed the campaign checks and completed and signed the campaign finance reports. Her services were reported as an in-kind contribution.
Kessler does not dispute Judge Goodwine's version of events, and makes no contention that she had actual knowledge that her campaign treasurer was the Petzolds' daughter at the time she presided over the proceedings.
Kessler appealed the denial of its CR 60.02 motion to the Court of Appeals, where it was consolidated with the pending appeal and cross-appeal. On January 18, 2008, the Court of Appeals rendered an opinion vacating the trial court's judgment in the case on the grounds that "there can be no question that the rule against appearance of impartiality has been violated." Because of its disposition of that *471 issue, the Court of Appeals did not address the remaining issues raised by Kessler's appeal and by the Petzolds' cross-appeal. The Petzolds petitioned for discretionary review of the decision. Kessler, however, did not file a protective cross-petition for review.
For the reasons set forth herein, we reverse the Court of Appeals, and remand for its consideration of the unaddressed issues raised by the parties in their respective appeal and cross-appeal.
I. KENTUCKY LAW DOES NOT REQUIRE THE RETROACTIVE DISQUALIFICATION OF JUDGE GOODWINE
The Petzolds contend that the Court of Appeals erred when it determined that Judge Goodwine should have retroactively recused once she became aware of the relationship between the Petzolds and her campaign treasurer and, correspondingly, granted Kessler's motion for CR 60.02 relief. We address the argument under the premise that Judge Goodwine did not know of the relationship throughout the course of the original proceedings, that is, until Kessler's motion for post-judgment relief, because that fact is undisputed.
We begin with the relevant provisions of the general Judicial Canon addressing the disqualification of a judge, Canon 3E of the Judicial Code of Conduct, which is codified in SCR 4.300 E(1):
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
Similarly, KRS 26A.015(2)(a) mandates that a judge recuse if "he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding." The statute also requires recusal if the judge "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(e). Thus, "[u]nder both the statute and the Canon, recusal is proper if a judge determines that `his impartiality might reasonably be questioned;' in fact, it is mandatory." Jacobs v. Commonwealth, 947 S.W.2d 416, 417 (Ky.App.1997). Furthermore, "there is always the higher consideration that every litigant is entitled to `nothing less than the cold neutrality of an impartial judge' and should be able to feel that his cause has been tried by a judge who is `wholly free, disinterested, impartial and independent.'" Dotson v. Burchett, 301 Ky. 28, 34, 190 S.W.2d 697, 700 (1945).
Both the statute and the judicial canons, however, look prospectively at recusal to guide judges and litigants with regard to ongoing or future proceedings. The leading case addressing the issue of retroactive recusal is the United States Supreme Court decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The Court of Appeals relied heavily on the case in its decision, and both parties argue that the recusal principles described therein support their respective positions. While there are substantial differences between the operative facts in Liljeberg and the case at bar, we find the decision to be instructive, and adopt the basic retroactive recusal principles described in the opinion.
In Liljeberg, the United States Supreme Court considered the federal judicial disqualification *472 statute,[4] similar to KRS 26A.015. In that case, a United States District Judge was assigned to preside over a case in which Loyola University had a pecuniary interest. At the time of the litigation, and for sometime prior to that, the judge served on Loyola's Board of Trustees. Id. at 850, 108 S.Ct. 2194. Two days before the filing of the lawsuit, the judge attended a Board meeting during which the subject of the litigation was discussed.
Following a bench trial, the judge entered a judgment favorable to Loyola's interest. In so doing, he credited Mr. Liljeberg's testimony, which was favorable to Loyola, over considerable evidence to the contrary. The judge issued his ruling, and eight days later received in the mail a copy of minutes of a Loyola Board meeting (which he had not attended) discussing the litigation. Thus, during the period preceding finality of the judgment, the judge again received actual notice of Loyola's involvement with the litigation. He nevertheless did not disclose the conflict, and his judgment became final.
Ten months later, the unsuccessful party learned of the judge's involvement with Loyola and filed the federal equivalent of a CR 60.02 motion[5] seeking that the judge retroactively recuse from the case and that his rulings be vacated. Liljeberg, 486 U.S. at 850, 108 S.Ct. 2194. The judge denied the motion.
In Liljeberg, the United States Supreme Court held that the judge was retroactively disqualified, setting forth the following interpretations and standards relevant to our review:
Scienter is not an element of a violation of § 455(a). The judge's lack of knowledge of a disqualifying circumstance may bear on the question of remedy, but it does not eliminate the risk that "his impartiality might reasonably be questioned" by other persons. To read § 455(a) to provide that the judge must know of the disqualifying facts, requires not simply ignoring the language of the provision-which makes no mention of knowledge-but further requires concluding that the language in subsection (b)(4)-which expressly provides that the judge must know of his or her interest-is extraneous. A careful reading of the respective subsections makes clear that Congress intended to require knowledge under subsection (b)(4) and not to require knowledge under subsection (a). Moreover, advancement of the purpose of the provisionto promote public confidence in the integrity of the judicial process, see S.Rep. No. 93-419, p. 5 (1973); H.R.Rep. No. 93-1453, p. 5 (1974) [U.S.Code Cong. & Admin.News 1974, p. 6351]does not depend upon whether or not the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew. As Chief Judge Clark of the Court of Appeals explained:
"The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible. The judge's forgetfulness, however, is not *473 the sort of objectively ascertainable fact that can avoid the appearance of partiality. Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir.1983). Under section 455(a), therefore, recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge." [Health Services Acquisition Corp. v. Liljeberg] 796 F.2d, [796] at 802 [(5th Cir. 1986)].
Id. at 860-861, 108 S.Ct. 2194 (Emphasis added) (Footnote omitted).
Thus, the relevant inquiry is whether a reasonable person with knowledge of all of the relevant circumstances relating to the unknown conflict would expect the judge to have actual knowledge of the claimed conflicting interest or bias.
At first blush, one might reasonably think it is inherently unfair for a judge to preside over a case involving the parents of her campaign treasurer and personal accountant. However, the test cited above stipulates "knowing all the circumstances." The circumstances here include the highly impersonal relationship between Judge Goodwine and Castle, and the manner in which Castle came to be the judge's campaign treasurer. From the undisputed facts, it is evident that Castle was not within the inner-circle of Judge Goodwine's political advisors, as the term "campaign treasurer" may suggest. She did not participate in campaign planning and strategy. Rather, Castle became Judge Goodwine's accountant by happenstance when Goodwine's previous accountant ceased practicing. Castle became the campaign treasurer for the practical reason that Judge Goodwine wanted a competent, professional accountant to serve as treasurer instead of a member of her political team. Castle was not a social acquaintance of Judge Goodwine. The only prior relationship between Judge Goodwine and Ms. Castle was as accountant-client.
Unlike Liljeberg, where the judge's denial of knowledge of Loyola's interest in the litigation was almost incredulous, Judge Goodwine's lack of knowledge is most plausible.[6] When knowledge of the stipulation that Judge Goodwine was unaware of the parent-daughter relationship is imputed to the objective observer, any appearance of bias or partiality is removed. Moreover, an objective observer would not reasonably assume that the judge knew that a parent-daughter relationship existed between her campaign treasurer/accountant, Lisa Castle, and the Petzolds.
Even where an actual disqualifying condition is discovered after entry of judgment, it does not follow automatically that the judgment must be vacated. Liljeberg, applying the federal counterpart of CR 60.02, established a three part test to address the issue of when the vacating of a judgment is compelled for violation of the appearance of impartiality stricture. The Court stated:
We conclude that in determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process. We must continuously bear in mind that "to perform its high function in the best way justice must satisfy the appearance of justice.'"
*474 Liljeberg, 486 U.S. at 864, 108 S.Ct. 2194 (citation omitted)
We consider the United States Supreme Court's analysis of the issue to be sound, and because Kentucky's Court of Justice and the federal court system share virtually identical standards of judicial conduct regarding disqualification and recusal, with nearly identical civil rules for vacating judgments, we hold that the same standard should guide Kentucky courts in determining whether a judgment should be vacated as a result of a violation of SCR 4.300 E(1) or KRS 26A.015. Applying those standards to the facts of this case would not lead to a decision to vacate the judgment. Because all agree that Judge Goodwine did not know of the relationship while she presided over the case, there is no risk of injustice to Kessler. She could not have been actually biased by facts that were not known to her. Second, there is no risk that denial of relief to Kessler will produce an injustice in other cases because the situation is unique to this case.[7] Lastly, there is no risk of undermining the public's confidence in the judicial process because, as explained above, a reasonable observer fully informed of the circumstances would not reasonably expect that Judge Goodwine knew of the parent-daughter relationship.
In summary, for the reasons stated above, the Court of Appeals erred in its conclusion that Kessler was entitled to relief under CR 60.02. Accordingly, we reverse.
II. WE NEED NOT ADDRESS THE MERITS OF THE PETZOLDS' CLAIM THAT EVEN IF JUDGE GOODWINE KNEW OF THE RELATIONSHIP SHE WAS UNDER NO OBLIGATION TO RECUSE
The Petzolds contend that Judge Goodwine would not have been bound to recuse herself from presiding in this case even if she had known that her accountant and campaign treasurer was the daughter of litigants in her court. Since the underlying premise of this argument (the assumption that Judge Goodwine knew of the relationship) is at odds with the acknowledged facts of this case, we decline to express an opinion on whether Judge Goodwine should have recused herself if, prior to the entry of judgment, she had become aware of the potential conflict. The resolution of that issue is best left to an occasion when the facts mirror the question. We note, however, that in her Order of September 7, 2006, Judge Goodwine stated that if she had known of the relationship, on proper motion she would have recused.
III. KESSLER'S FAILURE TO FILE A CROSS-PETITION FOR DISCRETIONARY REVIEW DOES NOT BAR REMAND FOR CONSIDERATION OF ISSUES PRESENTED TO, BUT NOT ADDRESSED BY, THE COURT OF APPEALS
On appeal to the Court of Appeals, in addition to the argument that Judge Goodwine should be retroactively recused, Kessler argued that Judge Goodwine had abused her discretion in several instances, including the award of attorney's fees to the Petzolds, the dismissal of Kessler's accounting claims, the finding that Kessler breached a duty of a good faith and fair dealing, and the admission of expert testimony. Kessler, completely satisfied with the Court of Appeals' decision to vacate the judgment in its entirety and remand for a new trial with a new judge, did not present those issues to this Court in the form of a protective cross-petition for discretionary review as allowed by CR 76.21.[8]
*475 The Petzolds argue that under CR 76.21(1) Kessler's failure to file a protective cross-petition forecloses any further litigation on the issues raised in the original appeal to the Court of Appeals, but which that court declined to address. Those issues, the Petzolds contend, must be treated as resolved in their favor. In the Petzolds' view, their success in that Court on the recusal issue ends the litigation, and the trial court's judgment must be reinstated without further delay. Resolution of the unraised issues by this Court, or by the Court of Appeals on remand, they assert, is impermissible under our prior decisions.
The Petzolds cite Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920 (Ky. 2007), which follows a line of authority that begins with Commonwealth, Transportation Cabinet Department of Highways v. Taub, 766 S.W.2d 49 (Ky.1988). Taub afforded this Court its first opportunity to interpret and apply CR 76.21, which became effective January 1, 1986, and sets forth the following rule:
We will not address issues raised but not decided by the Court below. It is the rule in this jurisdiction that issues raised on appeal [in the Court of Appeals] but not decided will be treated as settled against the [prevailing party] in that court upon subsequent appeals unless the issue is preserved by cross-motion for discretionary review. CR 76.21(1); Nashville, C. & [St. L.] R.R. Ry.Co. v. Banks, 168 Ky. 579, 182 S.W. 660 (1916); and Eagle Fluorspar Co. v. Larue, 237 Ky. 263, 35 S.W.2d 303 (1931).
Id. at 51-52.
Perry v. Williamson, 824 S.W.2d 869 (Ky.1992), expanded upon the idea and set forth this version of the rule:
Our rules are specific that if the motion for discretionary review made by the losing party in the Court of Appeals is granted, it is then incumbent upon the prevailing party in the Court of Appeals to file a cross-motion for discretionary review if respondent wishes to preserve the right to argue issues which respondent lost in the Court of Appeals, or issues the Court of Appeals decided not to address. If the party prevailing in the Court of Appeals wishes further consideration of such issues along with the issues for which discretionary review has been granted, the prevailing party must file a cross motion for discretionary review. CR 76.21; Green River Dist. Health Dept. v. Wigginton, Ky., 764 S.W.2d 475 (1989); Comm. Transportation Cabinet Dept. of Highways v. Taub, Ky., 766 S.W.2d 49 (1988).
Id. at 871.
Kessler, on the other hand, relies upon the line of authority following Commonwealth, Corrections Cabinet v. Vester, 956 S.W.2d 204 (Ky.1997)[9], for the proposition that a prevailing party need not file a cross-appeal (and, by implication, a cross-petition for discretionary review)[10] in order *476 to assert that the lower court reached the correct result for the reasons it stated, or for any other reasons appropriately brought to its attention. Id. at 206. Kessler argues that the issues it failed to assert by cross-petition are merely alternative grounds by which we may conclude that the Court of Appeals reached the correct result, that is, the vacating of Judge Goodwine's rulings.
Vester involved a wrongful death negligence complaint against the Corrections Cabinet in the Board of Claims for two homicides committed by escaped prisoners. Although the Board found that the Corrections Cabinet had breached its duty to maintain a prison facility to house dangerous criminals, id. at 205, the claim was dismissed on the grounds that the Cabinet's negligence was not the proximate cause of the deaths. Vester appealed the ruling to the Circuit Court, which affirmed. The Cabinet filed no cross-appeal from the Board of Claims' implicit finding that it had a duty to the victims, albeit a duty that had been superseded by the intentional acts of the escapees. Vester appealed to the Court of Appeals, which reversed on the issue of causation and remanded for the entry of an award of damages. The Court of Appeals held the Cabinet's failure to cross-appeal foreclosed further appellate review of the issue of its duty to the victims. On discretionary review, this Court held:
We find no support for a conclusion that the Cabinet's failure to cross-appeal from the Board of Claims' decision precludes it from now claiming that it owed no duty to the [victims]. The fact that the Board of Claims found for the Cabinet on the issue of superseding cause as opposed to the issue of absence of duty did not require the Cabinet to file a cross-appeal. Where the prevailing party seeks only to have the judgment affirmed, it is entitled to argue without filing a cross-appeal that the trial court reached the correct result for the reasons it expressed and for any other reasons appropriately brought to its attention. Carrico v. City of Owensboro, Ky., 511 S.W.2d 677 (1974); cf. Uninsured Employers' Fund v. Brewster, Ky., 818 S.W.2d 602 (1991). The Cabinet did assert to the Board of Claims that it owed no duty to protect the Vesters from harm perpetrated by the escaped prisoners.
Id. at 205-206 (Footnote omitted).
Thus, we held in Vester that a cross-appeal was not required in order to permit a party prevailing in a lower tribunal to argue on appeal that the tribunal reached the correct result, albeit for reasons other than those stated. It should be noted that Vester was not a CR 76.21 case.[11]Vester would otherwise be distinguishable on that basis but for our incorporation of the principle into CR 76.21 in Steel Technologies, 234 S.W.3d 920. There, the Court of Appeals had affirmed a damage award against Steel Technologies. Discretionary review was sought and granted on the issue of sufficiency of the evidence. Congleton, the prevailing party in the Court of Appeals, filed no cross-petition but did argue that the claims of error relating to the sufficiency of the evidence were not properly preserved for appellate review because no motion for a directed verdict had been made at trial. Congleton made similar arguments before the trial court and *477 the Court of Appeals. In this Court, Steel Technologies argued that Congleton was barred from raising the preservation issue because the Court of Appeals had implicitly decided the matter against him by not addressing it, and he had not kept the issue alive with a cross-motion for discretionary review.
In holding that Congleton's issue could be argued, we first noted the cross-petition rules as stated in Taub and Perry. While those decisions support the rule barring review of issues not raised in a cross-petition, we avoided applying the rule, stating as follows:
Steel Technologies' argument, however, incorrectly assumes that preservation of an error [in the trial court] is a separate issue from the claim of error itself. Rather, preservation is simply one aspect of Steel Technologies' insufficiency-of-the-evidence claims. Essentially, [Congleton's] allegation that some of Steel Technologies' claims of error were not properly preserved is simply an alternate ground for affirming the Court of Appeals. Such an allegation is not required to be cross-appealed. See Hale v. Combs, 30 S.W.3d 146, 150 (Ky.2000) ("[T]he prevailing party need not file a cross-appeal in order to assert that the lower court (or administrative agency) reached the right result for the wrong reason."); Commonwealth, Corr. Cabinet v. Vester, 956 S.W.2d 204, 205-06 (Ky.1997) ("Where the prevailing party seeks only to have the judgment affirmed, it is entitled to argue without filing a cross-appeal that the trial court reached the correct result for the reasons it expressed and for any other reasons appropriately brought to its attention."). The Appellees are not now barred from asserting that Steel Technologies' claims were not preserved.
Steel Technologies, 234 S.W.3d at 927. Thus, Steel Technologies, by way of Vester, established the limited exception to Taub that a cross-petition need not be filed when the issues raised by the appellee in this Court may properly be characterized as "simply an alternate ground for affirming the Court of Appeals." Kessler argues that this exception applies here, and allows us to rule on the various issues which were presented to the Court of Appeals, but were not cross-appealed.
Undoubtedly, there will be occasions when it may be difficult to determine whether an issue squarely presented to, but not addressed by, the Court of Appeals (and thus deemed decided against the prevailing party) may be "simply an alternate ground for affirming the Court of Appeals." However, this case presents no such difficulty. The issues which Kessler now wishes to argue (e.g., the award of attorney's fees, the admissibility of expert testimony) cannot be reasonably regarded as merely alternative grounds for upholding the Court of Appeals' decision to vacate the trial judgment on account of Judge Goodwine's perceived disqualification. To give Vester the expansive reading urged by Kessler would eviscerate CR 76.21. We accordingly reject its application in this case.
Thus, under the Taub interpretation of CR 76.21, Kessler's failure to cross-petition for discretionary review on those issues raised before the Court of Appeals, but not addressed, would seemingly result in those being treated as decided against Kessler. In effect, Taub's interpretation of CR 76.21 employs the fiction that issues which the Court of Appeals did not address were decided against the party prevailing in that court. It is, however, difficult to conceive how that fiction can be employed when the rationale upon which the Court of Appeals vacated the whole judgment would apply with equal force to the lesser issues which it declined to address. *478 For example, if Judge Goodwine's disqualification invalidated the entire judgment, it would have also invalidated each of the lesser rulings she made as she presided over the case. It is inconceivable that a court which set aside the judgment because of the judge's perceived disqualification can be deemed to have upheld the judge's separate trial rulings, as those rulings would likewise be subject to the disqualification. It is, we conclude, simply unreasonable to apply Taub here, and we find support for that conclusion in Cowan v. Telcom Directories, 806 S.W.2d 638 (Ky. 1991).
In Cowan, the Attorney General (AG) brought suit against Telcom for a violation of the Consumer Protection Act. The Franklin Circuit Court entered summary judgment in favor of the AG. The Court of Appeals reversed, holding that the Franklin Circuit Court lacked subject matter jurisdiction over Telcom's activity because the area had been preempted by federal law. Given its perceived lack of jurisdiction, the Court of Appeals had no reason to rule on the other issues presented. We granted discretionary review. Telcom did not cross-petition on the other issues. We reversed, holding there was no federal preemption. Telcom then argued that the matter should be remanded to the Court of Appeals to rule on the issues which it failed to decide due to its erroneous disposition of the case. The AG conversely argued that since Telcom had not cross-petitioned, remand to the Court of Appeals to decide the other issues was inappropriate and that summary judgment should be reinstated.
In determining that remand was proper despite CR 76.21(1), we stated as follows:
It is the position of the Attorney General that by reason of the failure of Telcom to file a cross-motion for discretionary review, as required by CR 76.21(1), the merits of the summary judgment in favor of the Attorney General have been affirmed. Specifically, that based upon this Court's conclusion that state court jurisdiction has not been federally preempted by implication, and absent Telcom raising the merits of the summary judgment for review by this Court, it is affirmed. The requirement of CR 76.21(1) is clear, and it has been properly interpreted and applied in Comm. of Ky., Transportation Cabinet, Dept. of Highways v. Taub, Ky., 766 S.W.2d 49 (1988) and Green River District Health Dept. v. Wigginton, Ky., 764 S.W.2d 475 (1989).
In this instance, the only issue considered by the Court of Appeals was whether state court jurisdiction had been federally preempted. Upon its determination that such was the case, it was without power to decide any other issue raised including the propriety of the summary judgment. The determination by any court that it lacks authority to decide the controversy constitutes an express declaration that it is without power to decide any other issue. Accordingly, we conclude that a cross-motion for discretionary review was not required and that the Court of Appeals is not precluded from consideration of this matter on the merits.
Id. at 642. (Emphasis added.)
The facts of Cowan are sufficiently analogous to the present case that the exception to Taub and CR 76.21 therein created should be applied. It follows implicitly from the Court of Appeals' retroactive disqualification of Judge Goodwine that it deemed the rulings she entered (from which Kessler now seeks relief) void ab initio. This is conceptually similar to the Court's determination in Cowan that the circuit court lacked jurisdiction to hear the case and, therefore, its summary judgment order was void. Further, because the *479 Court of Appeals determined that Judge Goodwine was disqualified from entering any orders in the case, it would have made no sense for it to address any other issues raised on the merits, the same as in Cowan.
Thus, based upon Cowan and the unusual facts of this case, we decide that when the Court of Appeals has disposed of a case upon grounds, such as lack of subject matter jurisdiction or disqualification of a trial judge, that eliminated the need for it to decide the other issues, and that basis for the disposition would apply with equal effect to the undecided issues, the lack of a protective cross-petition for discretionary review of the undecided issues will not compel us to treat such issues as having been decided against the appellee. In such circumstances, the proper disposition of the case referenced in CR 76.21 may include, as we believe it does here, remanding the case to the Court of Appeals for consideration of the undecided issues.
CONCLUSION
For the reasons stated herein, the opinion of the Court of Appeals is reversed, and this matter is remanded to the Court of Appeals for further consideration of the other issues presented in the original appeal.
All sitting. All concur.
NOTES
[1] Among the issues on the merits is the trial court's basis for awarding these fees and expenses. Kessler argues that there is no statutory basis for the fees, and that the parties' contract contained no provision for the payment of same by the non-prevailing party. The trial court's orders do not identify the basis for the award.
[2] Formal discovery upon the issue was not conducted.
[3] The references to "this Court" are, of course, references to Judge Goodwine herself.
[4] 28 U.S.C. § 455(a) states: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
[5] See Federal Rules of Civil Procedure 60(b).
[6] We acknowledge here that a factor in the analysis must take into account the community in which the judge serves. Judge Goodwine serves in Lexington, one of Kentucky's larger urban areas.
[7] Judge Goodwine has already committed, upon proper motion, to recuse in the event the Petzolds appear before her in further litigation.
[8] CR 76.21(1) provides as follows: "If a motion for discretionary review is granted, the respondent shall then be permitted ten days thereafter in which to file a cross motion for discretionary review designating issues raised in the original appeal which are not included in the motion for discretionary review but which should be considered in reviewing the appeal in order to properly dispose of the case."
[9] Kessler cited directly Hale v. Combs, 30 S.W.3d 146, 150 (Ky.2000), which addresses the Vester rule in a footnote.
[10] The civil rule addressing cross-appeals is contained in CR 74.01. The rule does not contain language analogous to the CR 76.21(1) language "designating issues raised in the original appeal which are not included in the motion for discretionary review but which should be considered in reviewing the appeal in order to properly dispose of the case."
[11] We note that the principal case relied upon in Vester, Carrico v. City of Owensboro, was a pre-CR 76.21 case decided by our predecessor court. The trial court determined that Carrico had standing but decided for Owensboro on other grounds. In its appellate brief, Owensboro argued standing and Carrico argued that the issue could not be raised because Owensboro did not file a cross-appeal. Our predecessor Court determined that Owensboro could raise the issue though no cross-appeal was filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645484/ | 994 So.2d 310 (2008)
FIGUEROA
v.
STATE.
No. 2D08-657.
District Court of Appeal of Florida, Second District.
September 26, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613756/ | 23 So. 3d 124 (2009)
SOUTH BEACH OCEAN PARCEL, LTD.
v.
PRO TECH CAULKING & WATERPROOFING, INC.
No. 3D09-2847.
District Court of Appeal of Florida, Third District.
December 28, 2009.
Decision Without Published Opinion Vol. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613788/ | 170 Wis. 2d 313 (1992)
488 N.W.2d 133
IN the INTEREST OF D.P., a person under the age of 18:
M.P., Appellant-Cross Respondent,[]
v.
DANE COUNTY DEPARTMENT OF HUMAN SERVICES, Respondent-Cross Appellant.
No. 91-1918.
Court of Appeals of Wisconsin.
Submitted on briefs May 18, 1992.
Decided July 30, 1992.
*316 For the appellant-cross respondent the cause was submitted on the briefs of Shelley J. Gaylord of Madison.
For the respondent-cross appellant the cause was submitted on the brief of Maureen A. Plunkett, assistant corporation counsel, of Office of the Dane County Corporation Counsel of Madison.
Before Eich, C.J., Gartzke, P.J., and Sundby, J.
*317 EICH, C.J.
M.P., a minor, appeals from a judgment,[1] entered after trial to a jury, terminating her parental rights to her child, D.P. We affirm.
Dane County instituted the proceedings on grounds that M.P. had failed to meet the conditions imposed by an order in earlier proceedings adjudging D.P. to be in need of protection or services (CHIPS) and placing him outside M.P.'s home. Prior to trial, M.P. moved to dismiss the county's petition on grounds that the judge in the earlier CHIPS proceedings failed to give the oral and written notices or "warnings" she says are required by secs. 48.415 and 48.356, Stats., as a precondition to termination of parental rights on CHIPS grounds.[2]
The trial court determined that proof of both the oral and written notifications are required by sec. 48.415(2)(a), Stats., in order for the termination hearings to proceed on CHIPS grounds and decided that neither notification met the requirements of sec. 48.356, *318 Stats. The court denied M.P.'s motion to dismiss, however, after concluding that, in the absence of a court ruling to the contrary, the prior CHIPS orders must be presumed valid and thus could serve as the basis for termination. As indicated, the proceedings eventually resulted in an order terminating M.P.'s parental rights.
M.P. argues that the trial court erred when it: (1) denied her motion to dismiss the petition; (2) granted a motion to limit evidence filed by the child's guardian ad litem; (3) misinstructed the jury on the county's obligation to make "diligent efforts" to provide the services outlined in the CHIPS order before commencing proceedings to terminate parental rights; (4) denied her motion to excuse a juror for cause; and (5) allowed the jury access to the earlier CHIPS orders during its deliberations.
The county cross-appeals, challenging the trial court's ruling that the CHIPS warnings were inadequate.
We affirm the trial court's order, but for slightly different reasons. We conclude first, contrary to the trial court's ruling, that the CHIPS judge's written order contained the notification required by sec. 48.356(2), Stats. We also conclude, again contrary to the trial court, that sec. 48.415(2), Stats., does not require proof in subsequent termination proceedings that oral notice under sec. 48.356(1) was given to the parents in addition to the notice contained in the written CHIPS dispositional order. As a result, M.P.'s motion to dismiss was properly denied. We also conclude that the trial court did not err or exceed its discretion with respect to any of the other points raised by M.P.
*319 FACTS
The basic facts are not in dispute. M.P.'s child, D.P., was adjudged to be in need of protection or services on October 6, 1988, and was temporarily placed with his maternal grandmother. Orders extending that placement were entered in October, 1989, and October, 1990.
On June 14, 1990, Dane County petitioned the court to terminate M.P.'s parental rights on grounds that she had failed to meet the conditions set forth in the CHIPS orders as necessary for D.P.'s return to her home. M.P. moved to dismiss the petition, claiming that the notices required by secs. 48.356(2) and 48.415(2)(a), Stats., as a condition for termination of parental rights on CHIPS grounds were not properly given and that as a result, the trial court lacked jurisdiction to act on the county's termination petition.
Termination of parental rights on CHIPS grounds under sec. 48.415(2), Stats., is based on the child's having been placed outside the family home after being adjudged in need of protection or services, the parent's failure to meet the conditions established in the CHIPS order for the child's returndespite "diligent efforts" by the involved social services agencyand, the likelihood that that inability will continue into the future.[3] Section *320 48.415(2)(a), Stats., requires as an additional element of proof in the termination proceedings that "one or more" of the CHIPs orders "contain [ ] the notice required by s. 48.356(2)."
As we have noted above, when the CHIPS judge determines that the child is in need of protection or services and out-of-home placement, sec. 48.356(1), Stats., requires the judge to "orally inform" the parent or parents who appear in court of any grounds for termination of their parental rights which "may be applicable," and of the conditions set by the court as necessary for the child's return to the parental home. Section 48.356(2) then states: "In addition to the notice required under [sec. 48.356](1), any written order which places a child outside the home . . . shall notify the parent or parents of the information specified under sub. (1)."
The trial court ruled that the October, 1988, CHIPS order did not contain the required notice, and that the CHIPS judge's oral "warning" to M.P. was similarly inadequate. The court denied the motion to dismiss the petition, however. It concluded that because the order had never been appealed, it was presumptively valid and thus could stand as a basis for the termination proceedings.
The case went to trial and the jury found that the Dane County Department of Social Services had made a diligent effort to provide the services ordered in the CHIPS dispositional order and, further, that M.P. had neglected, refused or been unable to meet the conditions for D.P.'s return and that there was a substantial likelihood *321 that M.P. will not be able to meet those conditions in the future. The court entered judgment on the verdict terminating M.P.'s parental rights and the appeal and cross-appeal followed.
Because the adequacy of the notice given to M.P. in the CHIPS proceeding is central to the parties' dispute, we consider that issue first.
I. ADEQUACY OF THE NOTICE
A. The Written Order
The October 6, 1988, CHIPS order stated in detail the conditions necessitating D.P.'s removal from M.P.'s home and the conditions she was required to meet in order to secure the child's return. In general, the "removal conditions" emphasized M.P.'s emotional and behavioral problems, her aggressive personality and her serious parenting failuresin particular, her lack of responsiveness to D.P.'s medical needs and, in general, an overall lack of parental knowledge and skills and a failure to provide adequate care for D.P. The "return conditions" were that M.P. undergo treatment and counseling relating to aggression and receive comprehensive training in parenting. She was also directed to become involved in D.P.'s medical care.
Paragraph 11 of the order states:
That [M.P.] was warned by the court orally pursuant to sec. 48.356 [(2)], Wis. Stats., that grounds exist for termination of her parental rights under sec. 48.415, Wis. Stats. Specific grounds that may apply include abandonment under sec. 48.415(1) and continuing need of protection or services under sec. 48.415(2) of the statutes. A copy of the statute is annexed to th[is] order. [M.P.] was further warned by provision in court of a copy of the termination statutes to her and *322 incorporation of the statutes by attachment to this order.
At the foot of the order, the following appears:
NOTICE TO PARENTS: You are hereby notified pursuant to Wis. Stat. s. 48.356 that if as a result of your refusal, neglect, or inability, the conditions and directions as outlined in this court order are not complied with, such action on your part may result in grounds for termination of your parental rights to the above named child/ren. Further, the grounds for termination that may apply are as follows:
1. ABANDONMENT pursuant to Wis. Stat. s. 48.415(1) if you fail to visit or communicate with the above named child/ren for a period of six (6) months; or
2. CONTINUING PROTECTION AND SERVICES pursuant to Wis. Stat. s. 48.415(2) if you refuse, neglect, or are unable to change the conditions and comply with the conditions of this order for a period of one (1) year.
Attached to the order is a copy of sec. 48.415, Stats., in its entirety, with M.P.'s signature at the bottom, indicating that she had received a copy.
[1]
The county argues that any deficiency in the written notice provided in the October 6, 1988, order was cured because subsequent extension orders contained adequate notices. We need not reach that argument, however, because we conclude that the notice in the October, 1988, order met the requirements of sec. 48.356, Stats.
In In re D.F., 147 Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988), we held that a CHIPS order which simply attached copies of secs. 48.415 and 48.356, Stats., *323 together with an acknowledgement that the parent had received a copy of sec. 48.356 and had "gone over it with the Intake Worker," failed to comply with the statutory requirement that notice of applicable grounds for termination be stated in the order. We said that:
[T]he intent of the statute[s] was to warn the parent of any "applicable" grounds for involuntary termination and not merely to inform him or her of all possible grounds for termination, whether applicable or not. A specific warning was necessary to give the parent an opportunity to conform his or her conduct appropriately to avoid termination. Id. at 496, 433 N.W.2d at 613.
Here the CHIPS order was specific. The judge did not simply supply a copy of a lengthy statute, as in In re D.F., but specifically advised M.P. in the order of the grounds for termination of parental rights that were applicable to her situation: failure to comply with the conditions stated in the CHIPS order and/or abandonment. And it brieflybut adequately, we believeexplained the import of those grounds.
B. The Oral Notification
[2]
The trial court concluded that sec. 48.415(2)(a), Stats., also required proof in the termination proceedings that an adequate oral notification under sec. 48.356(1), Stats., had been given by the CHIPS judge, and that the notification given in this case failed to meet the statutory requirements.[4] M.P. asks that we uphold *324 that ruling on appeal. The county, in its cross-appeal, argues that the plain language of secs. 48.415(2)(a) and 48.356(2), Stats., requires only proof of the written notification in termination proceedings based on the earlier CHIPS adjudication. We agree with the county's position.
We consider it advisable to begin by referring once again to the statutory scheme, and to remind ourselves at the outset that this is not a CHIPS case but a termination-of-parental-rights case. The underlying statute at issue in this appeal is sec. 48.415(2), Stats., which sets forth the elements that must be proved when a parent's rights are sought to be terminated on grounds that the child, once adjudged to be in need of protection or services, has continued in that need. The regulations and requirements applicable to CHIPS proceedingsincluding the notification provisions of sec. 48.356are applicable in these termination proceedings only insofar as they are expressly made so by sec. 48.415(2) (emphasis added). With that in mind, we begin our discussion with the CHIPS requirements.
Whenever, in a CHIPS proceeding, the judge determines that the child is in need of protection or services and out-of-home placement, sec. 48.356(1), Stats., requires that the judge "orally inform" the parent or parents appearing in court of any applicable termination grounds and of the conditions which must be met for the child to be returned to the home. (Emphasis added.) Section 48.356(2), Stats., then provides that, "[i]n addition to the [oral] notice required under sub. (1)," any "written order" which places a child outside the home "shall notify the parent . . . of the information specified in sub. (1)." (Emphasis added.)
The statute providing for termination of parental rights on continuing CHIPS grounds, sec. 48.415(2)(a), *325 Stats., refers only to the "written notice" language of sec. 48.356(2), Stats. It states that to establish the child's continuing need for protection or services as a basis for termination, it must be shown, among other things, that the CHIPS adjudication and placement was accomplished "pursuant to one or more court orders . . . containing the notice required by s. 48.356(2)." (Emphasis added.) As may be seen, the statute not only refers expressly to the written "court order," but its sole statutory reference is to subsection (2), the "written notice" portion of sec. 48.356. It makes no reference to sec. 48.356(1), which states the oral notice requirement for CHIPS proceedings.
M.P. and the concurring member of this court argue, however, that because the CHIPS statute, sec. 48.356(2), Stats., begins with the language "[i]n addition to the notice required under sub. (1)," it must be read to incorporate the oral notice requirements of sub. (1) into sub. (2) in cases where compliance with the latter subsection must be established in subsequent termination cases. Thus, say M.P. and the concurring opinion, sec. 48.415(2)(a), Stats., by requiring proof in the termination proceedings that the written order contained the requisite notice under sec. 48.356(2), Stats., must also require proof that the CHIPS court gave appropriate oral notification under sec. 48.356(1). They assert that this is the only way the statute may reasonably be read. Given the plain language of the statutes, we consider that an unreasonable construction.
While rather awkwardly written in that it appears to distinguish between "notice" and "information" when no reason for such a distinction is apparent,[5] sec. *326 48.356(2), Stats., is plain and unambiguous in its import. By its reference to sec. 48.356(1), it gives the CHIPS judge two responsibilities when he or she finds the child in need of protection or services and out-of-home placement: first, to give any parent present at the hearing oral notice of applicable termination grounds and the conditions for return of the child; and, "[i]n addition," to include the same "notification" and "information" in the written order implementing that decision.
Section 48.415(2)(a), Stats., is equally plain. It incorporates only the notice required by sec. 48.356(2), Stats.the written notice. And it specifically refers to CHIPS "orders . . . containing the [required notice] . . .." (Emphasis added.) We see that express incorporation, and that plain language, as manifesting a legislative intent that, while the CHIPS judge must notify the parents of possible termination grounds in the written dispositional order and repeat the same information orally to any parent who is present in court at the time, proof that such oral notice was given is not required in later termination proceedings under sec. 48.415(2)(a); it is enough under that statute that the written CHIPS order contains the required information. And that makes sense.
First, the legislature has expressly recognized that there may be occasions when one or perhaps both parents will not be present in court, for sec. 48.356(1), Stats., only requires that the oral notification be given to "the parent or parents who appear in court." It would serve little purpose to adopt a statutory scheme that could effectively bar subsequent termination proceedings *327 because warnings were not orally made to absent parties. That would be absurd. It makes much better sense to say that while the parent who comes to the hearing and then receives the written order will be twice warned, the written order is adequate proof in subsequent termination proceedings that the required warning was given.
Second, we agree with the county when it states that because the written CHIPS order is the "blueprint" for all the partiesthe parents, applicable social service agencies, guardians ad litem, and even the courtsproviding both reference and direction to all concerned, "[t]he focus and emphasis of notice for purposes of . . . [c]ontinuing CHIPS [as a] ground [for possible future termination proceedings] is logically on the notice given in the written order . . .."
Finally, we see no reason why the legislature, had it intended oral, in addition to written, notice of the return conditions and applicable termination grounds as a precondition for the termination proceedings, did not say soeither expressly, or by simply referring in sec. 48.415(2)(a), Stats., to both subsections of sec. 48.356. M.P.'s argument and the concurring opinion have the effect of rewriting the statute to so provide; but that is a legislative, not a judicial function.
We conclude, therefore, that the "court order [ ] . . . containing the notice required by s. 48.356(2)," Stats., as referred to in sec. 48.415(2)(a), Stats., is the written CHIPS order containing the required information. Proof that equivalent oral notification was given to the parent or parents at the hearing is not required by sec. 48.415(2)(a).
Thus, while we disagree with the trial court's ruling that such proof was required, because the court found other reasons to deny M.P.'s motion to dismiss, we reach the same result and affirm.
*328 II. MOTIONS IN LIMINE
M.P. moved to exclude from evidence any references to the 1988 CHIPS order on grounds that the inadequacy of the warnings rendered that order invalid as a basis for the subsequent termination proceedings; and she challenges the trial court's denial of her motion. In light of our holding on the adequacy of the notices in the CHIPS case, denial was proper.
M.P. also argues that the trial court erred when it granted the pretrial motion of D.P.'s guardian ad litem to bar any reference to provisions of the CHIPS order requiring that the county provide various services to D.P.'s grandmotherM.P.'s motherwith whom D.P. had been temporarily placed.
As we noted above, one of the things that must be established before parental rights may be terminated on CHIPS grounds is that the county social services agency made a diligent effort to see that the services ordered by the court were actually provided. M.P. argues that the court's ruling foreclosed her from arguing that the county had failed to meet that requirement. She refers us to the language of sec. 48.355, Stats., which states that CHIPS dispositional orders must specify the services to be provided to the child "and the family," and she argues that the jury should have been allowed to hear evidence as to the social worker's efforts and diligence in seeing that the services ordered for the grandmother were provided.
[3]
In granting the guardian ad litem's motion to bar such evidence, the trial court reasoned that the conditions set forth in the order for the child's return to M.P.'s home were directed to M.P., not to her mother; thus the provision of services to the grandmother was *329 irrelevant. We agree. The issue before the jury was termination of M.P.'s rights, and underlying that determination was her ability to meet the conditions stated in the order and the county's diligence in seeing that services were provided to assist her in meeting them. The trial court could properly conclude that evidence of county services provided to M.P.'s mother was irrelevant.[6]
III. INSTRUCTIONAL ERROR
M.P. contends that the court's instruction to the jury on whether the county made a diligent effort to provide the services ordered by the CHIPS judge misstated the law and thus misled the jury, warranting a new trial.
The trial court instructed the jury as follows on the subject: "The words `diligent efforts' mean the department has made reasonable efforts. It requires an earnest and energetic effort that is reasonable under the circumstances." The court's instruction differs only slightly from the pattern jury instruction on the subject:
*330 The words "diligent effort" mean that the department has acted reasonably, using ordinary and reasonable diligence, such as is customarily exercised by other departments under the same or similar circumstances. It requires an earnest and energetic effort. Wis J ICivil 7040.
M.P. had requested an instruction reading as follows:
The words "diligent effort" mean that the department must have taken good faith steps in a persevering manner to implement the specific services ordered by the court with due respect to the unique characteristics of M.P. and D.P., and to the attitudes and level of cooperation of M.P. It means more than just a duty to jump through court-ordered hoops. It also means a responsibility to take reasonable steps to monitor and access compliance and progress and to return to court if necessary when a worker reasonably believes or should believe that some specific change in the court order needs to be made.
The statutes do not define the term "diligent effort," and M.P. has referred us to dictionary definitions of the term "diligent" that range from "not lackadaisical" and "not negligent" to "unremitting" and "laborious." We do not doubt that all three instructionsM.P.'s requested instruction, the pattern instruction and the instruction given by the trial courtcan find support in one or more dictionaries. Thus, it is arguable that any of the three could be given without committing error. But the question is not whether a proposed and rejected instruction might be considered a correct statement of law, but whether the instruction as actually given by the court was legally erroneous.
*331 [4]
The trial court has "wide discretion" in instructing the jury, and if its instructions adequately cover the law, we will not find error in its refusal to give a requested instruction even where the proposed instruction is equally error-free. Northwestern Nat'l Ins. Co. v. Nemetz, 135 Wis. 2d 245, 263-64, 400 N.W.2d 33, 41 (Ct. App. 1986).
M.P. asserts that termination of parental rights cases are important, and that the higher burden of proof required in such proceedings and the "recognized weight of the interest at state," require a higher level of performance on the part of the social services agency than the "reasonable," "earnest" and "energetic" diligence described in the trial court'sand the patterninstructions. We are not persuaded.
[5, 6]
When we construe statutes, our task is to ascertain legislative intent; and in doing so, our first resort is to the language of the statute itself. State v. Eichman, 155 Wis. 2d 552, 560, 456 N.W.2d 143, 146 (1990). The word "diligence" appears by itself in sec. 48.415(2)(c), Stats; there is no modifier or explanatory reference, as the legislature could have inserted in the statute had it intended the word to import something higher than the standard of reasonableness embodied in the pattern jury instruction and in the instruction given by the trial court in this case.
[7]
We do not believe the fact that termination of parental rights cases can have a significant effect on the parties and the publicor that the law assigns a middle burden of proof in such casesis evidence that the legislature's use of the unamplified word "diligent" in sec. 48.415(2)(c), Stats., was intended to convey something *332 higher and greater than reasonable, earnest and energetic effort.[7]
[8]
Because the court's instruction fairly stated the applicable law, it was not error to decline to give the one requested by M.P.
IV. JURY SELECTION
M.P. next argues that the court erred when it denied her request to excuse a juror for cause. No record was made of the voir dire, but counsel for M.P. placed her objections on the record the following day. She argued that one of the jurors had had experience with children placed in his home and had expressed his opinion on the desirability of the department of social services being involved in the lives of such children. Counsel also asserted that the juror had referred to a black person as a "Negro" and expressed negative feelings about the parents of children placed in his home and about the migration of welfare families from Illinois to Wisconsin.
The trial court responded:
Well, one of the things that was pointed out . . . was that [the juror] was rehabilitated on just about every point that [counsel has] raised, and it is true that his answers were as stated except I do think that he stated that he had negative feelings about some of the parents of the kids that shared his home with him when he was growing up, not all of the parents, and, *333 for example, on the issue of . . . large black families coming to this state for welfare, he said his concern was not with the families but with the system that allowed that kind of distinction in payment schedules and I was impressed by the fact that he did not criticize folks for taking advantage of this, and, as a matter of fact, I think he said that outright. He also did say about social workers that there are some . . . who don't work hard and that in every profession you can find better and worse people.
So while I understand the concern that defense counsel has, I think that's more [a] concern that goes to a preemptory challenge . . . and so I . . . deny the request that he be excused for cause, finding that he could be impartial, at least based upon the answers he gave to the questions.
[9]
Whether to dismiss a juror for cause rests with the discretion of the trial court. State v. Zurfluh, 134 Wis. 2d 436, 438, 397 N.W.2d 154 (Ct. App. 1986). In Burkes v. Hales, 165 Wis. 2d 585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991), we discussed at some length the scope of our review of a trial court's discretionary ruling:
A court exercises discretion when it considers the facts of record and reasons its way to a rational, legally sound conclusion. It is "a process of reasoning" in which the facts and applicable law are considered in arriving at "a conclusion based on logic and founded on proper legal standards." Thus, to determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court's on-the-record explanation of the reasons underlying its decision. And where the record shows that the court looked to and considered the facts of the case and reasoned its way to a conclusion that is (a) one a reasonable judge could reach and (b) consistent *334 with applicable law, we will affirm the decision even if it is not one with which we ourselves would agree.
It need not be a lengthy process. While reasons must be stated, they need not be exhaustive. It is enough that they indicate to the reviewing court that the trial court "undert[ook] a reasonable inquiry and examination of the facts" and "the record shows that there is a reasonable basis for the . . . court's determination." Indeed, "[b]ecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary decisions." [Citations and footnote omitted.]
[10]
The trial court's explanation of its reasons for denying M.P.'s motion meets these criteria, and because the result reached is both reasonable and consistent with the facts of record and the applicable law, we may not overturn its discretionary decision.
V. JURORS' ACCESS TO THE CHIPS ORDERS
[11]
Determining what exhibits may go to the jury is also committed to the trial court's discretion, and the rules just discussed apply equally here.
[12]
M.P. argues at length that the trial court exceeded its discretion in allowing the 1989 and 1990 CHIPS extension orders to go to the jury. As indicated above, to determine that question, our first resort is to the trial court's explanation of the reasons underlying its decision. Burkes, 165 Wis. 2d at 590, 478 N.W.2d at 39. Nowhere in M.P.'s brief, however, does she refer us to the point in the record where the trial court's decision to *335 allow the exhibits to go to the jury room may be found.[8] The record in this case approaches 4,000 pages, and "it is not the duty of this court to sift and glean the record in extenso to find facts which will support an assignment of error." Keplin v. Hardware Mut. Casualty Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321, 323 (1964), reh'g denied, 24 Wis. 2d 319, 130 N.W.2d 3 (1964). The rules of appellate procedure require briefed arguments to contain citations to portions of the record relied on; and we noted in State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370, 378 (Ct. App. 1980), that an argument violating that rule "is inadequate and . . . [i]n the future this court will refuse to consider such an argument, or summarily affirm on the issue."
We thus decline to consider the argument further.[9]
By the Court.Judgment and order affirmed.
*336 SUNDBY, J. (concurring).
I differ with the court only with respect to the termination of parental rights warnings. First, I conclude that both the oral and written warnings given by the trial court satisfied sec. 48.356, Stats.[1] I would not, therefore, reach the issue as to whether a written warning is sufficient to provide a jurisdictional basis for a CHIPS termination under sec. 48.415(2), Stats. Second, if we decide that issue, I conclude that both the oral and written warnings required by sec. 48.356 must be given in order to satisfy sec. 48.415(2).
The record of the dispositional hearing shows that the mother's counsel advised the court as follows:
I think that [the mother] understands the implications of the [dispositional] Order herself at this time. So, I'm satisfied that she's received a full explanation of the content of this document and that she also understands the nature of the warnings that you are going to give her and be providing her today . . ..
In response to questions from the trial court, the mother indicated that she understood the terms of the order, that she had gone over it with her attorney and with the guardian ad litem, and that they had explained the order to her. The court then learned that the mother *337 had not read the order and took a brief recess while she read it. After recess, the court told the mother that she had been provided a form advising her that her parental rights could be terminated if the conditions necessary to return her child to her home were not met or if she abandoned the child. The court instructed the mother to go over the form with her counsel and with the guardian ad litem. The court then instructed the mother to listen carefully while the court explained the applicable grounds for possible termination of the mother's parental rights. The court advised the mother as follows:
If the conditions and directions as outlined in the Court Order are not complied with, the action on your part may result in grounds for termination of your parental rights.
Also, if you fail to visit [the child] for a period of six months, your parental rights could be terminated; or if you refuse, neglect or are unable to change the conditions and comply with the conditions of this Order.
You have the entire law in front of you. You should study it carefully. Basically, if the conditions which led to the removal which are necessary to return the child home to you are not met; or if you abandon a child by failing to visit or communicate with the child for six months, your rights could be terminated. Do you have any questions about that?
The mother responded, "No."
Short of reading the order itself, I do not see how the court could have been more complete in its explanation. There is no requirement in the law that the trial court read the order to a parent in order to satisfy the notice requirement of sec. 48.356(1), Stats.
The written order contained the following:
*338 That [the mother] was warned by the court orally pursuant to sec. [48.356(2)], Wis. Stats., that grounds exist for termination of her parental rights under sec. 48.415 Wis. Stats. Specific grounds that may apply include abandonment under sec. 48.415(1) and continuing need of protection or services under sec. 48.415(2) of the statutes. A copy of the statute is annexed to the order. [The mother] was further warned by provision in court of a copy of the termination statutes to her and incorporation of the statutes by attachment to this order. [Emphasis added.]
A copy of sec. 48.415, Stats., was attached to the written order. In In re D.F., 147 Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988), we held that the notice requirements of sec. 48.356, Stats., were not satisfied by simply attaching the statute to the dispositional order. However, in this case the trial court did not attempt to substitute the attachment for the requirements of sec. 48.356. The trial court properly gave the mother the oral warnings required by subsection (1) and the written warning required by subsection (2).
I would let the matter rest simply by finding that the warnings given by the trial court satisfy sec. 48.356, Stats. The court concludes that sec. 48.415(2), Stats., does not require proof that oral notice was given to the mother of the applicable grounds for termination of her parental rights, as required by sec. 48.415(1), Stats. The court thus unnecessarily invites reversal of our decision. The supreme court may be loath to allow our decision to stand based as it is upon what I conclude is an erroneous view of the law.
Section 48.415, Stats., provides that grounds for termination of parental rights may include the child's continuing need of protection or services. Subsection (2) provides:
*339 Continuing need of protection or services may be established by a showing of all of the following: (a) That the child has been adjudged to be in need of protection or services and placed, or continued in placement, outside his or her home pursuant to one or more court orders under s. 48.345 [disposition], 48.357 [change in placement], 48.363 [revision] or 48.365 [extension] containing the notice required by s. 48.356(2). [Emphasis added.]
Section 48.356(1), Stats., requires oral notice by the trial judge to the parent or parents of any applicable grounds for termination of parental rights under sec. 48.415, Stats. Section 48.356(2), Stats., provides: "In addition to the notice required under sub. (1), any written order which places a child outside the home under sub. (1) shall notify the parent or parents of the information specified under sub. (1)." (Emphasis added.)
The court concludes that because sec. 48.356(2), Stats., imposes the written-order notice requirement, the italicized language is surplusage. I disagree. I conclude that the duty to warn under sec. 48.356(2) includes by incorporation the oral warning required under subsection (1).[2] The legislative history of secs. 48.356 and 48.415, Stats., supports my conclusion. The statutes were created by ch. 330, Laws of 1979 and are, therefore, in pari materia.
The statutes were effective September 1, 1980. Section 14, ch. 330, Laws of 1979. In general, the act applied to proceedings for the termination of parental rights commenced on or after the effective date of the act. Section 12(1), ch. 330, Laws of 1979. Thus, the parents *340 of a child subject to a dispositional order placing the child outside the parents' home before September 1, 1980, received no notice of the applicable grounds for termination of their parental rights. To respond to this deficiency, the legislature created ch. 7, Laws of 1981. Section 2(1) of the session law required the circuit court to send notice of grounds for termination of parental rights to the parents of any CHIPS child removed from the home before September 1, 1980. Section 2(2) required that the notice set forth the grounds for termination of parental rights and inform the parents that the court had set aside a time for the parents to appear before the court for the purpose of having the contents of the notice explained. Chapter 7, Laws of 1981 demonstrates the legislature's concern that the court orally explain to the parents the grounds for termination of their parental rights. The legislature was not satisfied with only a written notice. I consider that ch. 7, Laws of 1981 is contemporaneous legislative construction of the requirements of notice of termination of parental rights.
Our decision today effectively repeals sec. 48.365(1), Stats. Failure of the trial court to give the oral warning required by the statute has no effect upon the dispositional order and, now, no effect upon an order terminating parental rights.
In Santosky v. Kramer, 455 U.S. 745, 753-54 (1982), the United States Supreme Court stated:
[P]ersons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family matters. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
*341 The nature of the process due in parental rights termination proceedings turns on the balancing of three distinct factors: the private interests affected by the proceedings; the risk of error created by the state's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Id. at 754. In parental rights termination proceedings, the private interest affected is commanding. Id. at 758. The risk of error from abandoning oral notice of the grounds for termination of parental rights is substantial. The countervailing government interest favoring a written-notice only procedure is nonexistent.
Perhaps giving only written notice to a parent of the grounds for terminating his or her parental rights will survive a due process challenge. However, I submit that the Wisconsin legislature has concluded that oral warning by a judge is required before the state exercises its last-resort power over the family. I am certain that a parent pays attention when the judge says, "listen carefully." However, legal documents daunt all but those who prepare them. Such documents are not a fair or adequate substitute for the judge's spoken word.
NOTES
[] Petition to review denied.
[1] The actual document is entitled "Findings of Fact, Conclusions of Law, Judgment and Order for Termination of Parental Rights." We construe it as a judgment.
[2] M.P.'s rights were terminated on grounds that she had failed to meet the conditions established by the judge in the CHIPS proceedings in order for the child to be returned to her home. Section 48.356(1), Stats., requires the judge entering the CHIPS order to orally notify the parent, if present in court, of the conditions for the child's return and also of any grounds for termination of parental rights which may be applicable. Section 48.356(2) requires that the final written order entered in such proceedings contain the same information.
Generally, sec. 48.415(2), Stats., authorizes termination of a parent's rights where the parent has failed to meet the conditions set in the CHIPS order for the child's return upon proof, among other things, that the order contained the notice required by sec. 48.356(2), Stats. The various statutes will be discussed in more detail in the body of the opinion.
[3] Section 48.415(2), Stats., provides as follows:
Continuing need of protection or services may be established by a showing of all of the following:
(a) That the child has been adjudged to be in need of protection or services and placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363 or 48.365 containing the notice required by a. 48.356(2).
(b) That the agency responsible for the care of the child and the family has made a diligent effort to provide the services ordered by the court.
(c) That the child has been outside the home for a cumulative total period of one year or longer pursuant to such orders, the parent has substantially neglected, wilfully refused or been unable to meet the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions in the future.
[4] As it ruled with respect to the written noticewhich, as indicated, it also found inadequatethe court concluded that the termination hearing could proceed because, never having been appealed, the 1988 CHIPS order was "presumptively valid."
[5] While the title to sec. 48.356, Stats., refers to a duty to "warn," and, as indicated, the text of the statute speaks in terms of "notice" and "information," we have treated the terms interchangeably. See In re D.F., 147 Wis. 2d 486, 433 N.W.2d 609. It is a notice requirement: one designed to give notice to the parents of the possible consequences of their failure to meet the conditions of the CHIPS order.
[6] We think the trial court's analogy illustrates the propriety of its ruling:
What if . . . everybody was in agreement that [M.P.] had complied with the conditions established in [the CHIPS order] . . . would anybody . . . seriously maintain that because . . . the department didn't provide the services to meet th[e] conditions regarding her [mother], that [M.P.] couldn't have had her child back? . . .
. . . .
[Or, conversely, M.P.'s mother] could have turned out to be the most spectacular grandmother in the world and Human Services could have done a job like no one has ever seen them do before and ... still I don't think that that would stop the requirement that [M.P.] meet [the] conditions [set for her in the order].
[7] As we have noted, the court's instruction tracks the pattern instruction. Although they are not infallible, we generally consider the pattern instructions "persuasive" on the points of law they state. State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511, 515-16 (1983). We consider them so in this case, and M.P. has not persuaded us otherwise.
[8] The only citation to the record offered in support of the argument is to a paragraph in the court's instructions to the jury indicating that the two orders would be included in the materials to which the jury would be given access.
[9] We note in this regard that M.P.'s argument focuses on findings in the 1989 and 1990 orders that, with respect to the conditions stated for D.P.'s return, the department of social services had made "reasonable efforts" to return D.P. to his mother's care. The trial court, in its instructions referring to those orders, specifically admonished the jurors that any findings made in that regard are "separate from and unrelated to the [`reasonable diligence'] questions you will answer in the verdict." The court went on to caution the jurors that the findings in the CHIPS orders "should not affect your decision as to whether the department was diligent in its efforts to provide the services to meet the conditions for [D.P.'s] return."
Thus, even if M.P. had been able to establish error on this point, it would be harmless in light of the court's cautionary instructions to the jury.
[1] Section 48.356, Stats., provides:
(1) Whenever the judge orders a child to be placed outside his or her home because the child has been adjudged to be in need of protection or services under s. 48.345, 48.357, 48.363 or 48.365, the judge shall orally inform the parent or parents who appear in court of any grounds for termination of parental rights under s. 48.415 which may be applicable and of the conditions necessary for the child to be returned to the home.
(2) In addition to the notice required under sub. (1), any written order which places a child outside the home under sub. (1) shall notify the parent or parents of the information specified under sub. (1).
[2] The majority unfairly suggests that I would rewrite the statute. When a statute is ambiguous, it is our duty to construe the statute according to the legislature's intent. State v. Vonesh, 135 Wis. 2d 477, 482-83, 401 N.W.2d 170, 173 (Ct. App. 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613751/ | 513 F. Supp. 375 (1980)
Jimmy ANDREWS et al., Plaintiffs,
United States of America, Plaintiff-Intervenor, Ada Blakes et al., Plaintiff-Intervenors,
v.
CITY OF MONROE et al., Defendants,
Lloyd Gill et al., Defendant-Intervenors.
and
Jeremiah TAYLOR et al., Plaintiffs,
v.
OUACHITA PARISH SCHOOL BOARD et al., Defendants.
Civ. A. Nos. 11297, 12171.
United States District Court, W. D. Louisiana, Monroe Division.
May 19, 1980.
*376 Daniel Jennings, David Birnbaum, U. S. Dept. of Justice, Washington, D. C., for U. S. A. plaintiff-intervenor.
Charles D. Jones, Ben Jones, Jones & Jones, Monroe, La., for Ada Blakes, et al., plaintiffs-intervenors:
Paul Kidd, Monroe, La., for Monroe City School Bd.
James Sparks Jr., Monroe, La., for Lloyd Gill, et al., defendants-intervenors:
Stephen J. Katz, Rankin, Yeldell, Herring & Katz, Bastrop, La., for plaintiffs in 12171.
*377 Robert P. McLeod, David E. Verlander, III, Monroe, La., for Ouachita Parish School Bd.
OPINION
STAGG, District Judge.
These consolidated school desegregation suits are currently before the court on the Government's motion for further relief, seeking intradistrict and interdistrict remedies and on defendant intervenors' motion to be relieved from the current desegregation plan operating in the Monroe City School System. In 1979, the student population of the City system was 72.7 per cent black, and student population of the Parish system was 77.5 per cent white.[1] At trial, Monroe City conceded, and this court finds that further intradistrict relief is required in the Monroe City system. Accordingly, the motion of defendant-intervenors Lloyd Gill, et al., is GRANTED. After a three-day trial on the merits and several months to consider the post-trial briefs and voluminous exhibits filed in this matter, this court must conclude that the Government has proven the existence of a limited constitutional violation producing a significant segregative effect in another district. Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974).
The scope of the remedy is determined by the nature and extent of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). The limited violation found by this court is the geographic overlap of two traditionally dual school systems. This overlap perpetuates vestiges of the segregated system and must be dissolved. Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S. Ct. 2196, 33 L. Ed. 2d 51 (1972) and United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S. Ct. 2214, 33 L. Ed. 2d 75 (1972). Accordingly, the overlapping student attendance zones of the two systems must be abolished. However, the Government's allegation that the two systems were not separate and independent was totally refuted at trial. Consequently, the interdistrict remedy of consolidation would exceed the scope of the proven constitutional violation, and is DENIED.
In Louisiana, two school systems serving one parish is anomolous and anachronistic; however, they are a political reality that a recent Supreme Court authority allows to stand. See Milliken v. Bradley, supra. A decision to alter the function of these two political entities must be effectuated by a legislative decision, not a judicial one.
II.
Ouachita Parish is located in Northeast Louisiana. The majority of the parish's population is centered in the Monroe-West Monroe urban area. The parish is divided into four quadrants by natural boundaries: the Ouachita River runs north-south, dividing the parish into east-west sections; Interstate Highway 20 runs east-west, dividing the parish into north-south sections.[2]
The City of Monroe is located in the approximate geographic center of the parish with the Ouachita River serving as the western boundary of the city. The river separates the City of Monroe from the City of West Monroe.[3] The Monroe City School System (hereinafter referred to as "MCSS") operates its own schools within Ouachita Parish, Louisiana. The Ouachita Parish School System (hereinafter referred to as "OPSS") serves the entire parish, including the City of Monroe. Consequently, a student residing within the Monroe city limits is physically located in two school systems and their respective attendance zones.[4] Before discussing the merits of the case, a *378 brief review of the separate histories of these consolidated desegregation suits will be helpful.
A.
On August 5, 1965, Jimmy Andrews and Tommy Ray Robertson, minor children enrolled in the MCSS, sued through their mothers, Ms. Etta Mae Andrews and Ms. Odell Willis, alleging racial segregation and discrimination in the operation of the Monroe City public schools. Jimmy Andrews v. City of Monroe, Civil Action No. 11,297. The named plaintiffs sought to represent a class composed of all black parents and students domiciled in the City of Monroe. This litigation has had a protracted history which mirrors the major decisions of the Supreme Court and the United States Court of Appeals for the Fifth Circuit in school desegregation law.
On September 17, 1965, this court (Dawkins, J.) signed a permanent injunction prohibiting the defendants from "continuing to operate a compulsory bi-racial school system." After further district and appellate court action, the court entered a decree containing the "freeze order" which became a focal part of this litigation.[5] Later, shortly after signing another decree on February 11, 1970, the court allowed the United States to appear as amicus curiae "with the right to submit pleadings, evidence, arguments and briefs, the right to move for injunctive and other necessary and proper relief, and the right to initiate such further proceedings that may be necessary and appropriate."
On February 24, 1970, the case came on for hearing on defendant School Board's motion for supplemental relief. This court entered a written decree vacating its previous order of February 11, 1970, and adopting the plan previously submitted by the School Board.[6] This neighborhood plan was overturned by the United States Court of Appeals for the Fifth Circuit, as it failed to establish a unitary system. On August 5, 1970, this court entered a decree in accordance with the Fifth Circuit mandate. This decree was later affirmed by the Fifth Circuit.
After further litigation and an appeal, a consent decree was approved on July 30, 1971.[7] This decree allowed a neighborhood school plan and established a Bi-racial Committee. Subsequent activity in this case included an adjudication on June 13, 1973, that defendant School Board was in contempt for failure to adhere to the 1971 consent decree. However, finding mitigating circumstances and that "the Board is not wilfully and deliberately attempting to evade the orders of this court ... nor wilfully attempting to perpetuate a dual school system in the City of Monroe," this court (Putnam, J.) refused to order sanctions.
On July 27, 1973, the defendant School Board moved for further relief under the July 30, 1971 consent decree. After a hearing, a consent judgment was entered on August 16, 1973.[8] This decree established attendance zones for all schools and grades within the City system. To desegregate the junior high and high schools, the decree implemented a curious change rule that turned students in certain zones into "Mexican jumping beans". In some cases, a student would be required to change schools five times between the seventh and twelfth grades.[9] This decree specifically incorporated *379 all prior court decrees not inconsistent with its present terms and is in effect today.[10]
There was no further activity of any moment in this case until August 3, 1977, when Lloyd Gill and nine other white parents moved to intervene on behalf of their minor children. The intervenors attacked the validity of the 1973 plan, alleging that it was educationally unsound and causing an exodus of white students from the MCSS. On November 9, 1977, this intervention was allowed, and the matter was scheduled for trial. On May 11, 1978, the United States was allowed to intervene in the case as plaintiff. On June 20, 1978, the court allowed Ada Maria Blakes, through her father Alfred Blakes, as well as other named black parents with children in the MCSS, to intervene as party plaintiffs.
In its response of July 21, 1978, the United States agreed with the Gill intervenors that the current desegregation plan in operation in Monroe City should be reexamined. The Government complained that the plan had resulted in several predominantly black schools. At this time, the Government also played the first card leading to the present litigation: "In addition, apparently contributing toward the racial impaction in the Monroe City Schools, is the large number of Monroe City residents attending schools in Ouachita Parish." Although this interdistrict attendance was authorized by previous orders of this court, the Government complained that this interdistrict attendance had retarded desegregation in both school systems.
Following the Government's lead, on August 21, 1978, counsel for the defendant Monroe City School Board played what he doubtless considered the City's remaining trump card a motion to consolidate this action (11,297) with Taylor v. Ouachita Parish School Board, Civil Action No. 12,171. This action is not surprising. As the figures in Appendix VI clearly show, the MCSS went from 50.5 per cent white in 1965 to 27.3 per cent white in 1978-79. If the City could join with a system that was *380 77.5 per cent white, it could tap the student pool needed to stem this alarming white exodus.[11]
Later, the Government also moved to consolidate the Ouachita Parish desegregation suit with the Monroe City action. The Government sought consolidation or joinder to resolve alleged intradistrict and interdistrict constitutional violations of the Monroe City School Board and the Ouachita Parish School Board. The Government also petitioned the court for a "comprehensive desegregation plan providing both intradistrict and interdistrict relief so as to remove all vestiges of the dual school system in both school systems." Before discussing the court's ruling on this motion, the facts of the less litigious Ouachita Parish desegregation suit should be set forth.
B.
On July 22, 1966, black parents with children in the Ouachita Parish public school system filed an action on behalf of themselves and all others similarly situated, seeking injunctive relief against the School Board from operating a compulsory bi-racial school system. Jeremiah Taylor v. Ouachita Parish School Board, Civil Action No. 12,171.[12] The course of this desegregation suit has been less tortuous than Andrews v. City of Monroe.
As in the Andrews case, this court (Dawkins, J.) held a hearing and entered a decree permanently enjoining defendant from "continuing to operate a compulsory bi-racial school system in Ouachita Parish, Louisiana." A desegregation plan was signed on August 3, 1966. As in Andrews, the history of the Ouachita Parish litigation tracks the major changes in the school desegregation law. On August 1, 1969, a new plan was ordered and the "freeze order" granted. After various hearings and appeals, the case was again heard on January 28, 1970, and a decree entered. This decree was slightly modified by the Fifth Circuit on April 13, 1970.[13] Upon remand, the decree underwent several rapid modifications: On June 16, 1970, Booker T. Washington school was closed and converted to a vocational technical school[14]; on June 30, 1970, the zone lines effecting attendance at Richwood High School were changed; on July 9, 1970, the grade classifications at Richwood High School and Swartz Elementary School were altered.
On August 6, 1971, plaintiff filed a motion seeking further relief. The matter was heard before Judge Edwin F. Hunter Jr. on August 18, 1971. Judge Hunter issued a written opinion appointing a bi-racial committee and deferring any decision on the modification of the June 30 and July 19 consent decrees until a recommendation of the bi-racial committee was submitted. Apparently, the committee later recommended that the status quo be maintained with the exception of the first grade children *381 who originally attended Booker T. Washington.[15]
There was no further action in this matter until additional party plaintiffs were joined in July of 1978. On August 15, 1978, the School Board moved for approval of new school construction. A hearing was held on August 22, 1978. The matter was taken under advisement, pending resolution of the government's motion for interdistrict relief in the present litigation.[16]
C.
Pursuant to the Government's motion of November 16 to consolidate, as amended on January 2, 1979, this court ruled that Taylor v. Ouachita Parish School Board and Andrews v. City of Monroe be consolidated for "the limited purpose of the trial of the United States' motion for intra and interdistrict relief." The court declined to join the Ouachita Parish School Board as a party to the Andrews suit or to formally consolidate the two actions. On June 5, 1979, this court issued a ruling, pursuant to Rule 611(a) of the Federal Rules of Evidence, setting forth the order of procedure at trial. The court ruled that the trial would concern the allegations in the Government's Motion for Further Relief that the City and Parish authorities were guilty of constitutional violations, having an interdistrict effect. Further, the court would hear evidence that the present Monroe City desegregation plan was unacceptable and had failed to remove all vestiges of the dual systems. Finally, the Lloyd Gill intervenors would be allowed to present evidence supporting their Motion for Further Relief. In footnote 2, the court ruled, "The propriety of intradistrict relief within the Ouachita Parish School System is not before the court." In addition to ruling on the presentation of evidence by the six separate parties to this lawsuit, the court also bifurcated the trial and stated: "If the United States establishes the existence of constitutional violations, the appropriate remedy will be determined through subsequent proceedings." On July 9, 10 and 11, 1979, evidence on all issues was presented.
III.
From the trial of this matter, the court finds the following facts established by a preponderance of the evidence:
(1) Until 1957, the state law required that Louisiana public schools be operated on a segregated basis. La.Const. art. 12 § 1 (1932); La.R.S. 17:331-334, derived from Acts 1954 no. 555 §§ 1-4 (repealed 1957). Consequently, even after the Supreme Court decision in Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955), Louisiana law required the segregation by race of its public school systems.
(2) At the time the original complaints were filed in the respective school desegregation suits August 1965 in Andrews v. City of Monroe and July 1966 in Taylor v. Ouachita Parish School Board the local school authorities operated a dual school *382 system with separate schools for black children and separate schools for white children.
(3) In 1977-78, 9,184 students attended Monroe City schools; 6,212 students were black 67.6 per cent.[17] Monroe had four schools that were 90 per cent or more one race: Berg Jones, Carver, Clark and Lincoln. In 1978-79, 9,168 students attended Monroe schools; 6,667, or 72.7 per cent, were black.[18] The Monroe City system has 18 schools, six of which were originally built for black students and 12 for white students.[19]
(4) In 1977-78, there were 18,754 students enrolled in the Parish system; of these students, 14,610, or 77.9 per cent, were white and 4,144, or 21 per cent, were black.[20] Ouachita Parish has 16 schools which are over 90 per cent or greater one race. In 1978-79, there were 18,730 students enrolled in the Parish system; 14,517 (77.5 per cent) were white and 4,313 (22.5 per cent) were black.[21] Currently, Ouachita Parish's school system has 32 schools, 26 of which were originally built for white students and 6 of which were originally built for black students.[22] Accordingly, it is clear from the facts and statistics introduced into evidence at trial that both the Monroe City School System and the Ouachita Parish School System are composed of predominantly one-race schools. Neither system has completely fulfilled its duty to remove all vestiges of the dual school system.
(5) Pursuant to La.Const. art. 8 § 10 (1974), two separate and politically autonomous public school systems are allowed to exist in Ouachita Parish.[23] Monroe City School Board serves the City of Monroe and its boundaries are co-terminus with the corporate limits of the City.[24] The Ouachita Parish School Board serves the entire parish of Ouachita, including the urban areas of Monroe and West Monroe.[25]
(6) The two systems have existed since at least 1920, and no party contends that the separate school systems were established for the purpose of racial segregation.[26] Nor does any party claim that the boundaries between the two systems have been drawn with a racial animus or that the two separate *383 systems have been maintained to perpetuate racial segregation.[27]
(7) MCSS and the OPSB are completely separate and autonomous. They have separate school boards and separate officials. They have no joint activities and no liaison office between the two systems. Except for a parish-wide sales tax shared by both systems, there exists no interlocking fiscal policy.[28]
(8) Before 1960, students were allowed to switch between the City and Parish systems at any time. After 1960, the change in systems could occur only at the beginning of a semester. This was later modified to allow a switch only at the beginning of each school year.[29] The court does not consider the effects of this option prior to the freeze order to be consequential, as both systems operate under a freedom of choice plan. No white student had to change schools to attend the school of his race. Whether this early switching would have had an effect on the residential patterns is doubtful, as both systems had a large population of white students. Regardless, the court did not hear evidence on this point.[30] Finally, Dr. Seegers testified at trial that few students changed systems during this period.
(9) On August 1, 1969, this court (Dawkins, J.) entered a decree in each of these consolidated desegregation suits. The decrees contained the following common language:
The City of Monroe School Board and the Ouachita Parish School Board both operate schools within the city limits of Monroe, Louisiana. The pupils who have attended the Ouachita Parish School System [Monroe City School System] are "frozen" or must continue in the Parish [City] system during the year 1969-70 in a suitable grade. Once a new student has chosen to attend a school in a system, he may not change to another school in the City [Parish] system, unless he comes into for the first time, or moves into another area within [outside] the city limits. Any unforseen conflicts of a pupil's attendance may be resolved by the superintendents of the two systems and failing this can be submitted to the Court for decision.
* * * * * *
Sixth, this Court retains jurisdiction in this entire matter, including the "freeze" question mentioned hereinabove, and will issue orders and decrees as necessary; all prior orders concerning the filing of periodic reports by the School Board to the Court are continued in effect.
The text of this order entered in the Parish suit is almost identical to the language of the order entered in the City suit, with the bracketed language indicating the change in the underlined words.
The terms of this "freeze" order have been carried forward to the present day without change.[31] On its face, the "freeze" order and its concomitant option operate in a racially neutral manner. It is the implementation of this order by the respective School Boards that the Government alleges has caused interdistrict attendance patterns triggering interdistrict relief.[32]
*384 (10) In both systems, primary enforcers of this freeze order are the individual school principals. If the principal suspects a violation, he would contact the Child Welfare and Attendance Office.[33] Although there were minor variations in the interpretation of this freeze order as recounted by the principals and Child Welfare and Attendance officers, the option aspect of this order seemed to work as follows: A student could choose either system upon his initial entry into the Parish school systems. At that point, he would be "frozen" and attend the school in the chosen system serving his zone of residence. A person thus was free to choose the school system, but not the school. The student could then change school systems only after a bona fide change of residence which placed him physically across the geographic boundaries of the other system. For example, a City resident who opted to attend City schools could switch to the Parish system only if he moved out of the city limits into the Parish. Likewise, a Parish resident who opted to attend the Parish school in his neighborhood could switch to a City school only by a move to a residence inside the city limits of the City of Monroe.[34]
(11) There were no written guidelines regarding enforcement of the 1969 freeze order; however, at the beginning of each school year and at monthly administrative meetings, the superintendent of each system instructed his principals on the order's interpretation and enforcement.[35]
In OPSS, at the beginning of each school year, any student enrolling in the school for the first time, who was not a first grade student or a student from a feeder school, needed an affidavit showing change of residence. In the early 1970's, this affidavit had to be notarized, but this requirement was dropped in 1975 as superfluous.[36] This address would be placed on a student's enrollment card, and the principal would check the address to be sure the residence was within the proper zone and the proper system. Any suspicious addresses, as well as any problems in this area, would be referred to the Child Welfare and Attendance officer. The City used registration cards.[37] The principal was responsible for the validity of addresses and problems were referred to the supervisor of Child Welfare and Attendance.[38]
(12) The Child Welfare and Attendance officer was a resource person, called upon to verify whether a student was legally enrolled in a system. In Ouachita Parish, the office also monitored the system as a whole to see that the principals were properly instructed in the mechanics of the freeze order.[39] Mr. Terry Hager had been the Child Welfare and Attendance Supervisor in the Monroe City system for 18 years. He unequivocally testified that the Monroe system did enforce the freeze order. He also stated that he was never told by his superintendent to give the order a liberal interpretation.
Bobby Wilson and James Harris were the Child Welfare and Attendance officers for Ouachita Parish School Board Mr. Wilson for 11 years, Mr. Harris for 8 years. Both testified that the freeze order was rigidly *385 enforced by OPSB, and that the students were, in fact, caught attempting to enter the system illegally.
(13) To verify addresses, both principals and Child Welfare and Attendance supervisors would check maps, utility bill addresses, and the phone book to determine a student's bona fide residence. Testimony received from the various principals of the OPSS conclusively establishes that the freeze order was uniformly and rigidly enforced without regard to a student's race. For example, Mr. N. F. Zametto, principal of Ouachita Parish High School, would send all new students coming from the City to the Office of Child Welfare and Attendance for approval before admitting the students to his Parish school.
(14) At trial, an attempt was made to prove that Mr. Wilson was removed from his position with the Child Welfare and Attendance Office because his strict enforcement of the freeze order had angered white parents. While it is true that Mr. Wilson spent two and one-half years in the Parish's physical education and drug abuse programs, there was absolutely no evidence proving that the basis of this change was the complaints of white parents. The testimony of Mr. Lancaster, former superintendent of Ouachita Parish School System and the testimony of Mr. Wilson himself, demolished the Government's innuendo. Because Mr. Wilson had a degree in physical education and training in drug enforcement, he was transferred into that area. Further, Mr. Wilson was later moved back into the Child Welfare and Attendance Office.
The Government's attempt to prove that the freeze order was selectively enforced by officials of the two school districts is refuted by the evidence. Next, the Government attempted to show that many students were actually jumping the district lines and escaping the established safeguards designed to keep students in the proper school system.
(15) Government Exhibit No. 42 is a listing of the total number of City students allegedly attending Parish school systems improperly. The listing denotes with a "C" those students who attended Parish schools in 1977-78 but had formerly attended a City school. The Government further alleges that these students still (at the time of trial) had City addresses and should therefore be enrolled in a City school. The first attempt to introduce this exhibit at trial was unsuccessful, as the Parish's cross-examination showed the exhibit fraught with errors. Many "C's" actually lived outside the City limits. Further, some listings did not show the date of entry into the system which could possibly have predated the freeze order. Finally, the list included Special Education students who were not covered by the freeze order. With 11 errors, the exhibit was not received into evidence.
The next day, Mr. Terry Hager, MCSS Child Welfare and Attendance Office supervisor, who had originally placed the "C's" on Exhibit 42, was recalled and attempted to correct the exhibit. Although the Parish still objects to the accuracy of Exhibit 42, this court accepts that 93 City students, black and white, are improperly attending Parish schools. However, these students represent less than one-third of 1 per cent of the combined enrollment of the two systems.[40] Further, the Government did not prove that any district jumping was tied to an intentional discriminatory act by any school official.
(16) Finally, in its most persuasive argument, the Government attempted to show that the overlapping attendance zones between the two systems, with the accompanying inter-district attendance, had a substantial segregative effect on both systems, particularly MCSS.
The total number of City residents attending Parish schools since 1969 cannot be computed. However, Parish Exhibit No. 2 shows the following:
*386
CITY RESIDENTS ATTENDING PARISH
SCHOOLS[*]
Year Black White Total
1968-69 1,814 1,344 3,158
1969-70 1,219 1,540 2,759
1975-76 1,055 1,330 2,385
1977-78 1,093 1,250 2,343
1978-79 1,080 1,084 2,164
In 1977-78, the year the Government's motion was filed, there were 2,343 students residing within the City limits, attending Parish schools. Of this number, 1,250 were white and 1,093 were black. The 1,250 white students attended the following Parish schools:
School Whites
Jack Hayes 51
Ouachita Parish High 303
Ouachita Parish Elementary-Junior
High 862
Robinson[*] 28
Government Exhibit GX-18.
Virtually all these white students attended Parish schools in which their race was in the majority.[41] Likewise, 686 of the 1,093 black children (62 per cent) attended schools in which their race was in the majority: Richwood, Robinson and Swayze. The remainder attended white Parish schools.[42]
In 1977-78, 317 Parish students attended Monroe City schools: 241 black students and 76 white students.[43] Again, the majority of these students (84 per cent) attended schools where their race was in the majority.[44] Government Exhibit 52, Column C shows the school attendance of these students to be as follows:
School Black White Total
Burkdull Faulk 0 2 2
Berg Jones 77 0 77
Carver 12 0 12
Clara Hall 2 1 3
Georgia Tucker 0 8 8
Levington 0 5 5
Lida Benton 3 7 10
Lincoln 6 0 6
Minnie Ruffin 26 10 36
Sallie Humble 2 8 10
Sherrouse 3 4 7
Carroll Junior High 11 3 14
Jefferson 2 0 2
Carroll High 10 0 10
Neville High 6 10 16
Wossman High 38 12 50
___ ___ ___
Total: 241 76 317
To determine the segregative effect of these overlapping attendance zones, both parties prepared reconstruction exhibits, reflecting what the racial composition of each school would be absent the overlap.[45] These reconstructions vary slightly among the different projections. However, adding 1,250 white students to the northeastern section of the MCSS while removing only 76 white students would definitely have a significant beneficial effect to the racial balance of the MCSS. If the two systems were completely separate, all students living within the Monroe city limits would attend a City school. Under the present attendance zones, the new complexion of each Monroe City school as it would exist if the two systems were separated, appears in Column 4 of Government Exhibit 52. (Compare Government Exhibit 52 with the deviations shown in Parish Exhibit 7.)
Similarly, the new composition of the Parish schools would exist as appear in Column *387 4 of Government Exhibit 53. For the most part, the changes would make black schools blacker and white schools whiter. According to Government Exhibit 52, the City schools would undergo the change in student population shown in Appendix VIII, Columns I and II. The 1978-79 reconstruction from Parish Exhibit 4 is included as Column III in this appendix. As the Appendix indicates, Minnie Ruffin, Berg Jones and Clara Hall would have substantial changes in student population, but only the first two schools would undergo changes in their racial balance. The City junior high and high schools would also experience a notable gain of white students.
The segregative effect of this interdistrict overlap is highlighted by the fact that the City's attendance zones will soon experience substantial revision via a new desegregation plan. The purpose of the plan will be twofold: to remove all vestiges of a dual system, and to bring white students back into the MCSS because of the improved educational components incorporated into the decree. If the overlap is maintained, any attempted plan to further desegregate the MCSS will be futile. A white or a black student assigned to a City school where his race is in the minority would simply opt to attend the Parish school where his race is in the majority. Although this would not be possible in every attendance zone, the present residential patterns of the City coupled with the overlapping Parish attendance zones, shown by City Exhibits No. 17, 18 and 19, clearly indicate that in the majority of cases, a City student would be able to attend a Parish school where his race is in the majority.[46] Clearly, there is a substantial segregative effect caused by the overlapping student attendance zones between the Parish and the City system.
(17) In a final attempt to demonstrate an unlawful intent on the part of Parish school officials, the Government argued that all white Logtown Elementary-Junior High School feeds into all black Richwood High School, yet no white student has ever attended Richwood. The Government contended that the students were allowed to attend all white Ouachita Parish High School. At trial, Mr. James McKay, principal at Logtown, testified that he had 601 students, 556 white and 45 black. Approximately 32 students graduate each year. 32 per cent of these students will move, 26 per cent will simply drop out of the school system altogether and 2 per cent will go to private schools. The remaining 40 per cent are children of teachers, blacks who go to Richwood or to Ouachita Parish High School under the majority to minority transfer rule, and a small zone containing 8 students who feed into Ouachita Parish High School by court order. This testimony was corroborated by Mr. Wilson, the Child Welfare and Attendance supervisor. The Government and City failed to prove that white students are improperly allowed to attend Ouachita Parish High School.[47]
The record is simply devoid of any direct evidence impugning a segregative intent to Ouachita Parish school authorities. Only a segregative effect has been shown. However, in one-race school systems, this intent may sometimes be inferred.
III.
The shibboleth of any school case is that "[a]s with any equity case, the nature *388 of the violation determines the scope of the remedy." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554 (1971). A constitutional violation is a necessary predicate before any remedy, intradistrict or interdistrict, can be ordered by the district court. Further, the scope of this remedy must be commensurate with the constitutional violations sought to be repaired. Columbus Board of Education v. Penick, 443 U.S. 449, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979); Hills v. Gautreaux, 425 U.S. 284, 96 S. Ct. 1538, 47 L. Ed. 2d 792 (1976); Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974); Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973).
To trigger the equitable powers of this court allowing interdistrict relief, the Government must prove the existence of a constitutional violation in one district having a substantial segregative effect in another. Milliken v. Bradley, supra. As the Chief Justice stated in Milliken:
Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purpose or by imposing a cross-district remedy it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.
418 U.S. 744-45, 94 S. Ct. 3127.
A.
Since Milliken, there have been several cases in which a court ordered interdistrict relief. See, e. g., Morrilton School District No. 32 v. United States, 606 F.2d 222 (8th Cir. 1979), cert. denied, 444 U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 753 (1980); United States v. Missouri, 515 F.2d 1365 (8th Cir.) (en banc), cert. denied, 423 U.S. 951, 96 S. Ct. 374, 46 L. Ed. 2d 288 (1975); Newburg Area Council, Inc. v. Board of Education, Louisville, Kentucky, 510 F.2d 1358 (6th Cir. 1974), cert. denied, 421 U.S. 931, 95 S. Ct. 1658, 44 L. Ed. 2d 88 (1975); Berry v. School District of City of Benton Harbor, 467 F. Supp. 721 (W.D.Mich.1978); United States v. Board of School Commissioners, 456 F. Supp. 183 (S.D.Ind.1978); Evans v. Buchanan, 393 F. Supp. 428 (D.Del.), aff'd mem. 423 U.S. 963, 96 S. Ct. 381, 46 L. Ed. 2d 293 (1975). See also Comment, Interdistrict Remedies for Segregated Schools, 79 Colum.L.Rev. 1168 (1979), and Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), cert. granted, 440 U.S. 906, 99 S. Ct. 1212, 59 L. Ed. 2d 454 (1979). Even before the Milliken decision, courts had ordered the consolidation of school districts to provide an adequate remedy to correct proven intentional segregative acts by local school officials which had an identifiable interdistrict effect. See, e. g., Haney v. County Board of Education of Sevier County, 429 F.2d 364 (8th Cir. 1970) and United States v. State of Texas, 321 F. Supp. 1043 (E.D. Tex.1970), aff'd 447 F.2d 441 (5th Cir. 1971), cert. denied sub nom. Edgar v. United States, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972).[48]
*389 However, in each of these cases, the court found that the separate school districts were either historic tools of the dual school system and established for the purpose of creating and maintaining a segregated system, or that the school districts were not separate and autonomous but interchanging students with an eye to their race. Such cases have little application to the case under consideration. The Government failed to prove that the two systems were intertwined administratively or in student assignment. As the Government admits, neither district was created, nor its lines drawn with a discriminatory motive. The boundaries of the Monroe system are co-terminus with the city's corporate limits and have expanded with the city's growth to encompass what was at one time two outlying parish schools. As in Milliken, this court is faced with "independent school districts historically administered as separate units...." 418 U.S. at 743, 94 S.Ct. at 3126.
Further, the proof conclusively established that the only interdistrict student attendance was that allowed by a 1969 court order, the terms of which were neutrally applied by both school systems. A total of 93 students were proven to be attending Parish schools illegally. Such a small number of students is de minimis and certainly not the result of an intentional act by the Ouachita Parish School officials. As stated in Evans v. Buchanan, 416 F. Supp. 328, 339 (D.Del.1976):
The mere fact that an inter-district violation occurred does not necessarily require an inter-district remedy. It is too long-standing a rule of equity to require a citation that although equity will give complete relief, it will limit the exercise of its power to a remedy which is reasonably necessary and likely to succeed. Moreover, an inter-district violation having only de minimis effects will not require school desegregation across district lines.
The present situation is also distinct from a case involving interdistrict transfers between two or more school districts which have separate geographical areas and district lines which do not physically overlap. Consequently, this is not a strict interdistrict transfer case triggering a Singleton violation.[49]See, e. g., Lee v. Eufaula City Board of Education, 573 F.2d 229 (5th Cir. 1978). In Lee, the court held that the cumulative effect on desegregation or reinforcing the existence of a dual school system must be measured on a school-by-school basis when interdistrict transfers were involved. Although factually very close to the present case, the Lee court spoke in terms of Singleton and "nonresident" transfers. The school districts involved in the Lee case were separate geographic divisions with no apparent overlap.
Each student in the Monroe city limits is a resident of two school districts OPSS and MCSS. Although the analysis in Lee is not directly relevant to a resolution of this case, this court has attempted to examine the cumulative effect of this overlap on each school in the Monroe city system. This examination has been on both the quantitative and qualitative level. By examining the reconstruction exhibits, it is apparent that a cumulative segregative effect occurs in the MCSS as a result of the overlap in attendance zones between the City system and the Parish system.[50]
*390 If Parish Students are allowed to attend City schools, the identical effect sought to be avoided in the City system will occur a student will be able to escape any Parish desegregation plan by opting out of the Parish system and attending the City system where his race may be in the majority. Accordingly, it is the opinion of this court that the reciprocal transfer provisions between the City and the Parish and the Parish and the City have a substantial segregative effect on the two systems.
B.
To establish an equal protection violation in a school desegregation case, plaintiff must show an improper motive that is, that the school officials intended to segregate the two races. The Government must prove not only that the segregated schools exist, but it must also establish that the dual system was brought about or maintained by intentional state action. Columbus Board of Education v. Penick, 443 U.S. 449, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979); Keyes v. School District No. 1, 413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973).[51] The Government was unsuccessful in establishing direct proof that the actions by school authorities were tied to a segregative motive. Indeed, in Interrogatory No. 9 of Parish Exhibit 6, the government stated that:
The United States case, to date, does not rely on intent to discriminate by the Parish with respect to administration of the existing desegregation plan.
Further, in Interrogatory No. 17, the Government stated that no racial animus in the interdistrict transfers is alleged just substantial segregative effect. Of course, Milliken forbids an interdistrict remedy absent the finding of a constitutional violation which would be lacking in the present case if intent is not proven. However, this intent may also be inferred and proven by circumstantial evidence.
Where a racially discriminatory school system has been found to exist, Brown II imposes a duty on local school boards to "effectuate a transition to a racially nondiscriminatory school system". Brown v. Board of Education of Topeka, 349 U.S. 294, 301, 75 S. Ct. 753, 756, 99 L. Ed. 1083 (1955). School boards were charged with an affirmative duty to take whatever steps may be necessary to convert a dual system into a unitary system in which racial discrimination could be eliminated "root and branch". Green v. County School Board of New Kent County, 391 U.S. 430, 437-38, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968). Since 1955, the Ouachita Parish School Board and the Monroe City School Board have been under a continuous constitutional obligation to disestablish their respective dual school systems. Both have failed to discharge this duty, as indicated by the presence of so many one-race schools in each system. The failure or the refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment. Dayton Board of Education v. Brinkman (Dayton I), 433 U.S. 406, 413, 97 S. Ct. 2766, 2772, 53 L. Ed. 2d 851 (1977); Swann v. Charlotte-Mecklenburg Board of Education, supra.
The court has found that in 1955, the defendants were still intentionally operating a dual school system in violation of the equal protection clause of the Fourteenth Amendment and the mandate of Brown v. Board of Education of Topeka (Brown I), 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Until 1965, the school systems had violated their continuing duty to eradicate the effects of that dual system. Considering the current pervasive racial segregation in the two systems, the court feels that it is *391 warranted in finding that the school boards' failure to fulfill their affirmative duties has tended to perpetuate or increase segregation in the two systems. As the Supreme Court has stated, part of the affirmative duty is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects. Wright v. Council of City of Emporia, 407 U.S. 451, 92 S. Ct. 2196, 33 L. Ed. 2d 51 (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S. Ct. 2214, 33 L. Ed. 2d 75 (1972).[52]
This court feels that the prior existence of de jure segregation, coupled with the one-race schools in both systems, justifies the presumption of an intent to discriminate on the part of local school authorities. United States v. DeSoto Parish School Board, 574 F.2d 804, 813 n. 20 (5th Cir.), cert. denied 439 U.S. 982, 99 S. Ct. 571, 58 L. Ed. 2d 653 (1978); Lee v. Demopolis City School System, 557 F.2d 1053 (5th Cir. 1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 729, 54 L. Ed. 2d 758 (1978); Lee v. Macon County Board of Education, 616 F.2d 805 (5th Cir. 1980). In both Monroe City and Ouachita Parish, segregation by law has ended, but neither this event nor subsequently required affirmative steps to desegregate the schools has removed all vestiges of the dual school system.
Of course, the power of the federal courts to compel desegregation in state school systems is circumscribed. The authority to order remedial action depends upon a determination that the state law has discriminated on a basis of a student's race. See Swann v. Charlotte-Mecklenburg, supra; Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S. Ct. 2697, 49 L. Ed. 2d 599 (1976); Dayton I, supra. It is also clear that de facto segregation alone cannot support a court order mandating affirmative action. Keyes v. School District No. 1, supra; Milliken v. Bradley, supra; Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2nd Cir. 1979). This court is bound by this limitation. However, in the anomalous situation facing the court with two political entities servicing the same geographic area, it is fair to presume an intent to segregate and therefore find a constitutional violation when the two systems operate with predominantly one-race schools twenty-five years after Brown.[53]
Accordingly, this court concludes that a limited interdistrict violation has *392 been established. The remedy tailored to redress this specific wrong is that the two school systems will no longer geographically overlap.[54] All students residing within the corporate limits of the City of Monroe will attend Monroe City Schools only. All students residing outside the City limits of Monroe, but within the Parish of Ouachita, will attend Parish Schools only. The overlapping Parish school attendance zones reflected in City Exhibits 14-19 will be abolished. The seven schools with overlapping attendance zones must redraw their zones so that only Parish residents residing outside the City of Monroe can be in attendance.[55] The court realizes the problem this will cause with the two schools Ouachita Parish Elementary-Junior High and Ouachita Parish High School which are physically within the boundaries of the City of Monroe. At this time, the court makes no indication of what alternative the Parish may take. It may, of course, bus students from the Parish into these two schools, or it may sell the schools to the City of Monroe. The specifics of this separation shall be worked out in the remedy stage of these proceedings. Finally, the boundaries of the Monroe City School System shall remain co-terminus with the boundaries of the City. This includes any annexations.
IV.
Before turning to the intradistrict aspects of this case, the court must address one final issue: the refusal to qualify Ms. Diana May Pearce as the Government's witness concerning the effects of segregated schools on the housing patterns of the Monroe area.
The admission or exclusion of expert testimony is within the sound discretion of the trial court, and the decision will not be disturbed on appeal unless that discretion has been abused. Bauman v. Centex Corp., 611 F.2d 1115 (5th Cir. 1980); Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir. 1969); Keystone Plastics v. C. & P. Plastics, 506 F.2d 960 (5th Cir. 1975). Expert testimony in such a complicated field as urban studies can be extremely helpful to the lay judge wrestling with the many varied disciplines involved in resolving an interdistrict school desegregation lawsuit.[56]
Cases have held that if the intentional segregative acts of local school officials helped establish the residential patterns of a metropolitan area, then the segregated status of the schools will be found to violate the constitution, despite the otherwise neutral appearance of the official actions. United States v. Texas Education Agency, 600 F.2d 518, 527 (5th Cir. 1979); United States v. Board of School Commissioners of the City of Indianapolis, 541 F.2d 1211 (7th Cir. 1976), cert. denied 439 U.S. 824, 99 S. Ct. 93, 58 L. Ed. 2d 116 (1978). Such a showing was crucial to the Government's case seeking *393 total consolidation of the two school systems. The court solicited expert testimony on this issue before trial. Dr. Seegers, who had great personal knowledge of the general racial makeup of the different parts of the city, testified at trial. However, the MCSS superintendent did not profess to be a demographer, and he did not attempt to tie his general observations about the housing patterns to specific discriminatory acts by local school officials.
This court is slow to apply the stamp of "expert" on a witness, academic qualifications notwithstanding,[57] unless the purported expert has had an opportunity to view the individual situation with all its vagaries. Practical application of a witness' expertise is essential if a reliable opinion is to be formed. See Poland v. Beaird-Poulan, 483 F. Supp. 1256 (W.D.La.1980). On the Friday before the Wednesday trial, the Parish attempted to depose Ms. Pearce. She knew absolutely nothing about the metropolitan area and had no opinion concerning the effect of residential housing patterns on the racial composition of the area schools. The attempted deposition was futile. She then traveled to Monroe for trial and spent approximately one day in the area before attempting to give her opinion on the residential housing patterns. She spent a few hours viewing the system. Neither school systems nor urban areas operate in a vacuum. General textbook theories may not be applied across-the-board in such a complicated matter.
The imbroglio surrounding the tendered testimony of this expert is unfortunate. Counsel for the government tendered an expert who had absolutely no familiarity with the Monroe-Ouachita Parish area, yet she was to give testimony affecting 27,900 school children in 50 schools, not to mention countless parents, property values, lifetime investments and two long-standing political entities. The court is not attempting to impugn the professional integrity of either the expert or counsel for the Government. However, this court encountered the same problem with the Government in United States v. Red River Parish Schools, Civil Action No. 14,796 (opinion filed July 23, 1979, W.D. of La.)[58] Further, at the time this action was tried, this judge was responsible for two divisions covering most of North Louisiana. This court's jurisdiction encompassed 21 parishes with at least one school system in each parish.[59]
When this court hears a desegregation suit, it is imperative that the parties, in an adversarial context, supply this court with accurate and pertinent information upon which a resolution of difficult constitutional questions can be based. Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). An informed decision is especially necessary when dealing with such a valuable commodity as this country's schoolage children and the nation's public educational system.
Expert testimony can be most helpful, indeed crucial. This judge is not a professional educator or demographer. The court encouraged and did solicit an expert from the Government; however, this court was asked to place the imprimatur of expert on a witness who knew nothing about the locality. We must not lose sight of our purpose here: to see that all children, black and white, receive quality education in a color blind system. The teachings of Brown and its progeny are a lodestar to this court. No one has helped, no one is advanced in society when such a regrettable lapse has occurred in so important a matter.
VI.
The defendant, Monroe City School Board, has admitted at trial that the School *394 Board has not fulfilled its affirmative obligation to remove all vestiges of a dual system. Swann v. Charlotte-Mecklenburg, supra; Green v. County Board of Education, supra; Brown II, supra.[60] Fourteen years after the original desegregation case was filed, the system is still highly segregated by race. In 1978, four schools were over 90 per cent one race.[61] The system's faculty is also not desegregated pursuant to Singleton requirements.[62]
This court has found that the Monroe public schools were officially segregated by race in 1954 when the Supreme Court decided Brown v. Board of Education. The dual system persisted in 1965 when the original desegregation suit was filed, and today the Board has admittedly failed to dismantle this dual system. Dayton Board of Education v. Brinkman (Dayton I), supra. This failure is system-wide, requiring a system-wide remedy. Keyes v. School District No. 1, supra.
A school system found to be in violation of the constitution has a duty to take the necessary steps to eliminate from the public school system all vestiges of state-imposed segregation. Milliken v. Bradley, supra; Swann v. Charlotte-Mecklenburg, supra. If the School Board defaults in this duty, the responsibility of the District Court is equally clear and compelling: to use its broad and flexible remedial powers to implement a remedy, while sensitive to the burdens that can result from a decree and the practical limitations involved, promises "realistically to work now". Green v. County School Board, supra; Columbus Board of Education v. Penick, supra.
The validity of intervenor Lloyd Gill's motion is conceded. The present plan, especially the multiple annual school change of the Lee-Carroll-Neville debacle is educationally unsound. The plan has not been successful in stemming white flight.[63] Having found the constitutional violation, this court is now required to tailor "the scope of the remedy" to fit the nature and extent of the constitutional violation. Milliken v. Bradley, 418 U.S. at 744, 94 S.Ct. at 3127; Swann v. Charlotte-Mecklenburg, 402 U.S. at 16, 91 S.Ct. at 1276; Hills v. Gautreaux, 425 U.S. at 293-4, 96 S.Ct. at 1544-1545. The condition that offends the constitution is de jure segregation in the schools. The remedial measures ordered are not to punish the School Board for its acts, rather the goal is to restore the victims of discriminatory conduct to the position they would have enjoyed in a system free from pervasive de jure segregation. Columbus Board of Education v. Penick, 99 S.Ct. at 2970; Milliken v. Bradley (Milliken II), 433 U.S. 267, 280, 97 S. Ct. 2749, 2757, 53 L. Ed. 2d 745 (1977); Dayton Board of Education v. Brinkman (Dayton I), 433 U.S. 406, 419, 97 S. Ct. 2766, 2775, 53 L. Ed. 2d 851 (1977); United States v. Texas Education Agency, 600 F.2d 518, 530 (5th Cir. 1979). In this case, it is the limited interdistrict violation and the admitted intradistrict violation that has been found pernicious. These violations are to be corrected at the remedy stage of these proceedings.
To achieve an educationally-sound, publicly acceptable and racially-balanced plan, this court intends to make use of all available techniques involving many recently developed educational components. To aid in sculpturing a remedy, the court requires the *395 submission of desegregation plans from both the School Board and the Government. If the plaintiff-intervenor, Ada Blakes, and the defendant-intervenor, Lloyd Gill, desire to submit a plan, it will also be considered. To insure success, the court will make the following comments upon the procedure to be used in the remedy stage of these proceedings, as well as certain educational components that should be considered in arriving at a workable desegregation plan. To insure a smooth transition in the separation of the two systems, the Ouachita Parish School Board will also be involved in the aspects of the plan affecting the separation of the attendance zones of the two systems.
VII.
In fashioning and effectuating a desegregation decree, the court will be guided by traditional equitable principles. Practicality and flexibility are essential for adjusting and reconciling public and private interests, as well as achieving the ends of a desegregated school system.[64] To assist this court in evaluating and deciding the difficult questions proposed by the remedy phase of this school desegregation case, this court has decided to appoint a Special Master pursuant to Rule 53(b) of the Federal Rules of Civil Procedure. The court will give the parties until the close of business on Monday, June 30, 1980, to submit the name of an individual acceptable to all parties as Special Master. If the parties cannot agree, this court will appoint a Special Master.
This Special Master will be authorized to collect evidence, to conduct formal and informal hearings, to consult with federal, state and local public officials, to consult with community groups, civic organizations, and others, and to subpoena witnesses and records. With prior leave of this court, he may retain experts, commission studies and reports. It shall be the duty of the Special Master to review initially the remedial plans submitted to the court. He shall consider whether the plans promise to desegregate the Monroe City School System in an effective and timely manner, whether the plans are fair and reasonable, and whether they are educationally sound. He will also supervise the separation of the attendance zones of OPSS and MCSS. The Special Master will also consider the costs of the plans and possible avenues of the funding.
In the event the submitted plans fail to express the full range of options available to the court, the Special Master is authorized to formulate alternative proposals. The Special Master is to submit to the court a report including an evaluative summary of the various plans he has considered, and a recommendation that a particular plan or an amalgamation of different plans be adopted.
The Special Master will remain under close supervision of this court, reporting frequently to this judge on his activities. He need not file findings of fact and conclusions of law under Rule 53(e)(1). His reports and recommendations shall not be final or given presumptive effect; all matters referred to the Special Master shall remain open for determination by this court.
The Special Master's compensation and expenses shall be shared equally by all parties. Any party who wishes to file objections to the appointment of the Special Master or to his designation of duties, shall do so within five (5) days of this opinion.
The court will also require that an educational expert be employed in drafting the desegregation plan. If the parties find an expert who could also serve as Special Master, these two functions can be combined. When faced with the polycentric problems involved in the school desegregation remedy, the court needs the expertise and assistance of a professional educator. The skilled expert who can coordinate the efforts of the parties is crucial if a workable and just *396 remedy is to be devised. Again, the compensation for this expert or expert-Special Master shall be borne equally by all parties. Of course, Ouachita Parish School Board shall only be responsible for compensating for services necessary in implementing a smooth transition in separating the attendance zones of the two systems. It shall in no way be responsible for devising a desegregation plan to be used solely by the Monroe City School System.
The Monroe City School Board may consider a desegregation planning committee with the interest of both the Blakes and Gill intervenors represented, as well as the Ouachita Parish School Board. The bi-racial committees may serve in this capacity. This court would also consider it advisable that a two-stage implementation framework is devised. A third stage, consisting of monitoring, may be necessary at some point in the future.
Phase One shall begin as soon as this opinion is filed. Phase One shall consist of the implementation of certain preparatory programs designed to insure the success of the ultimate desegregation plan arrived at by the parties. To insure that the remedy plan is implemented smoothly and effectively, it is necessary for the defendants to provide the students, parents, school personnel, and the community at large with accurate information concerning the precise ramifications of the remedy phase of this litigation. The defendant should also recognize the need to involve these various groups in the implementation of the remedy phase of this litigation. Actual information dissemination and encouraging community involvement will be left up to the school boards. However, the school boards should strive for rumor control and provide the community with current and accurate information as to the progress of this lawsuit. A community orientation and information service should be a component of the desegregation plan, including allowances for public information and parents/student participation.
Also during Phase One, it shall be necessary for the defendants to orient students and professional staff to the desegregation process. Defendant should prepare and implement in every elementary, junior high, and high school, curricular modifications designed to explain the desegregation process to the students and answer their questions and concerns. Likewise, faculty staff and parental orientation should be of paramount importance. In any plan, the effects on the extracurricular activities of the schools should not be overlooked.
Phase Two shall consist of the implementation of the student reassignment plan plus other necessary desegregation plan components devised by the Monroe City School Board. Reassignment of pupils shall not commence until the beginning of the 1981-82 school year. However, the MCSS should take immediate steps to modify the multiple school changes currently required in its junior high and high schools.
IT IS ORDERED that the following principles be observed in promulgating the pupil reassignment component of the remedy plan:
(1) The plan must be capable of desegregating the entire Monroe City School System. The planners may use any techniques including pairing, clustering, feeder patterns, boundary changes, attendance zones, or others that they believe will accomplish optimum desegregation while at the same time guaranteeing an educationally sound system and a halt to white flight.
(2) The plan shall refer to a survey of transportation alternatives and estimated costs.
(3) Alternative schools and career centers may be considered as long as they reflect the proper racial balance.
The plan should also promise the nondiscriminatory assignment of administrators within the system. Further, implementation of the remedy in this case will necessarily impact upon the assignment of faculty and staff within the school system, and may require some faculty and staff adjustments.
The remedy plan shall not become effective until the start of the 1981 school year. *397 However, to insure that the parties are moving rapidly toward a valid desegregation plan, a joint preliminary report shall be submitted to this court by the close of business on Friday, June 20, 1980. This preliminary report shall set forth in detail the parties' efforts in arriving at appropriate student reassignment plans, transportations plans and faculty and staff desegregation.
This court pledges to work rapidly and effectively with all parties to insure the drafting of a workable desegregation plan for the Monroe City School System. Likewise, it is imperative that an effective transition shall be made in separating the overlapping attendance zones between the Monroe City School System and the Ouachita Parish School System. The problems of the two Parish schools within the City, as well as the proximity of various Parish schools to the present City boundaries, are complex topics that will require further information before a solution is found. This court approaches with trepidation the sensitive task before it. However, in the proper perspective, and with the help of all parties, a workable solution can be achieved. In closing, the parties and this court will do well to keep in mind the following statement by Justice White:
A variety of procedures and techniques are available to a District Court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools.
Milliken v. Bradley, 418 U.S. at 764, 94 S.Ct. at 3136-3137 (Justice White dissenting).
APPENDIX I
Student Enrollment By Race For Each School
In The Monroe City School System, 1977-78
School Black White Total %B %W
Elementary:
Barkdull Faulk 145 122 267 54.3 45.7
Berg Jones 783 5 788 99.4 .6
Carver 428 10 438 97.7 2.3
Clara Hall 130 170 300 43.3 56.7
Clark 688 0 688 100 0
Georgia Tucker 46 236 282 16.3 83.7
Lexington 176 284 460 38.3 61.7
Lida Benton 102 167 269 37.9 62.1
Lincoln 659 0 659 100 0
Minnie Ruffin 177 104 281 63.0 37.0
*398
Sallie Humble 155 329 484 32.0 68.0
Sherrouse 338 70 408 82.8 17.2
Junior High:
Carroll 332 88 420 79.0 21.0
Jefferson 130 499 629 20.7 79.3
Lee 304 96 400 76.0 24.0
High School:
Carroll 733 122 855 85.7 14.3
Neville 290 411 701 41.4 58.6
Wossman 596 259 855 69.7 30.3
____ ____ ____ _____ _____
Total: 6212 2972 9184 67.6 32.4
GX 48
APPENDIX II
Student Enrollment By Race For Each School
In The Monroe City School System, 1978-79
School Black White Total %B %W
Elementary:
Barkdull Faulk 160 122 282 56.7 43.3
Berg Jones 733 6 739 99.2 .8
Carver 445 10 455 97.8 2.2
Clara Hall 162 172 334 48.5 51.5
Clark 687 0 687 100 0
Georgia Tucker 29 270 299 9.7 90.3
Lexington 158 289 447 35.3 64.7
Lida Benton 116 166 282 41.1 58.9
Lincoln 618 0 618 100 0
*399
Minnie Ruffin 199 75 274 72.6 27.4
Sallie Humble 146 329 475 30.7 69.3
Sherrouse 340 52 392 86.7 13.3
Junior High:
Carroll 381 74 455 83.7 16.3
Jefferson 516 127 643 80.2 19.8
Lee 271 96 367 73.8 26.2
High School;
Carroll 721 130 851 84.7 15.3
Neville 281 361 642 43.8 56.2
Wossman High 704 222 926 76.0 24.0
___ ___ ___ ____ ____
Total: 6667 2501 9168 72.7 27.3
GX 48
APPENDIX III
Student Enrollment By Race For Each School
In The Ouachita Parish School System, 1977-78
School White Black Total %B %W
Boley 463 26 489 5.3 94.7
Calhoun 364 132 496 26.6 73.4
Central 369 111 480 23.1 76.9
Claiborne 565 16 581 2.8 97.2
Crosley 166 93 259 36.0 64.0
Drew 481 3 484 .7 99.3
Special Education 74 43 117 36.8 63.2
Eastside
Jack Hayes 1082 12 1094 1.0 99.0
*400
Highland 336 57 393 14.5 85.5
Kiroli 611 1 612 .2 99.8
Lakeshore 383 39 422 9.2 90.8
Lenwil 427 0 427 0 100
Logtown 538 39 577 6.8 93.2
Millsaps 300 78 378 20.6 79.4
Mitchell 135 55 190 29.0 71.0
Ouachita Parish 1061 97 1158 8.4 91.6
High School
Ouachita Parish 1321 347 1668 20.8 79.2
Elementary-Junior
High
Pinecrest 232 2 234 .9 99.1
Ransom 208 140 348 40.2 59.8
Richardson 116 94 210 44.8 55.2
Richwood 0 905 905 100 0
Riser 887 104 991 10.5 89.5
Robinson 35 451 486 92.8 7.2
Special Education - - - - -
Selman
Shady Grove 191 249 440 56.6 43.4
A. L. Smith 245 79 324 24.4 75.6
Sterlington 217 63 280 22.5 77.5
Swartz 1102 23 1125 2.0 98.0
Swayze 0 546 546 100 0
West Monroe High 1453 194 1647 11.8 88.2
West Monroe Jr. 631 70 701 10.0 90.0
*401
Special Education 54 45 99 45.5 54.5
Westside
Woodlawn 563 20 583 3.4 96.6
___ __ ___ ___ ____
Total: 14610 4144 18754 22.1 77.9
GX 39
PX 1
APPENDIX IV
Student Enrollment By Race For Each School In The Ouachita Parish School System, 1978-79
School White Black Total %B %W
Boley 481 17 498 3.4 96.6
Calhoun 357 138 495 27.9 72.1
Central 398 108 506 21.3 78.7
Claiborne 537 19 556 3.4 96.6
Crosley 158 80 238 33.6 66.4
Drew 508 2 510 .4 99.6
Special Education 80 51 131 38.9 61.1
Eastside
Jack Hayes 1093 15 1108 1.4 98.6
Highland 343 45 388 11.6 88.4
Kiroli 624 2 626 .3 99.7
Lakeshore 490 34 524 6.4 93.6
Lenwil 394 0 394 0 100
Logtown 556 45 601 7.5 92.5
Millsaps 277 84 361 23.3 76.7
Mitchell 184 54 238 22.7 77.3
Ouachita Parish 1069 107 1176 9.1 90.9
High School
*402
Ouachita Parish 1226 329 1595 23.1 76.9
Elementary-Junior
High
Pinecrest 230 2 232 .8 99.2
Ransom 186 129 315 41.0 59.0
Richardson 114 105 219 47.9 52.1
Richwood 2 950 952 99.8 .2
Riser 747 95 842 11.3 88.7
Robinson 26 452 478 94.6 5.4
Special Education - - - - -
Selman
Shady Grove 155 282 437 64.5 35.5
A. L. Smith 231 70 301 23.3 76.7
Sterlington 171 59 230 25.7 74.3
Swartz 1162 25 1187 2.1 97.9
Swayze 1 573 574 99.8 .2
West Monroe High 1425 173 1598 10.8 89.2
West Monroe Jr. 621 63 684 9.2 90.8
Special Education 39 48 87 55.2 44.8
Westside
Woodlawn 632 17 649 2.6 97.4
___ __ ___ ___ ____
Total: 14517 4313 18730 22.5 77.5
GX 39
PX 1
*403
APPENDIX V Robinson
Monroe City Schools Originally Built Swayze
For One Race
Black Schools: White Schools:
Berg Jones Calhoun
Carver Claiborne
Clark Crosley
Lincoln Drew
Carroll Junior High Highland
Carroll High Jack Hayes
White Schools: Kiroli
Barkdull Faulk Lakeshore
Clara Hall Lenwil
Georgia Tucker Logtown
Lexington Millsaps
Lida Benton Mitchell
Minnie Ruffin Ouachita Parish High School
Sallie Humble Ouachita Parish Junior High
Sherrouse Pinecrest
Jefferson Junior High Ransom
Lee Junior High Riser
Neville High Shady Grove
Wossman A. L. Smith
Sterlington
Ouachita Parish Schools Originally Swartz
Built For One Race West Monroe High School
Black Schools: West Monroe Junior High
Boley Woodlawn
Central Mavtec
Richardson Westside
Richwood GX 17 and 47
APPENDIX VI
White Exodus From City System
School White % Black %
Years Students White Students Black Total
1965-66 5343 50.5 5239 49.5 10582
1966-67 5622 51.3 5342 48.7 10964
1967-68 5791 49.5 5897 50.5 11688
1968-69 5792 52.0 5353 48.0 11145
1969-70 5644 51.4 5347 48.6 10991
*404
1970-71 4342 44.8 5311 55.2 9653
1971-72 4184 43.4 5464 56.6 9648
1972-73 4007 41.5 5653 58.5 9660
1973-74 3395 36.9 5814 63.1 9209
1974-75 3116 33.2 6264 66.8 9380
1975-76 2887 31.3 6228 68.7 9115
1976-77 2868 30.8 6447 69.2 9315
1977-78 2972 32.4 6212 67.6 9184
1978-79 2501 27.3 6667 72.7 9168
GX 48
APPENDIX VII
April 2, 1973
Mrs. Marie Louise Snellings, President
Mr. Clem Toston, Member
Mr. Bill DeMoss, Member
Ouachita Parish School Board
Post Office Box 1642
Monroe, Louisiana 71201
Dear Board Members:
The State Legislature requested that the school boards of the Monroe City School System and the Ouachita Parish School System meet to discuss any mutual problems they might have and report to the Legislature before its next meeting. The central question in the minds of some legislators, as we understand it, was, "Should the two school systems of Monroe and Ouachita Parish be consolidated?" The President of the Monroe City School Board wrote to the President of the Ouachita Parish School Board proposing that a joint meeting be held by committees from both boards as requested by members of our Legislature. Subsequently, a joint meeting was held and in answer to the major question, "Do you want the two school systems consolidated?" the answer was a unanimous "No".
Our report could end here as far as the Legislature is concerned, but we might add that our Superintendents have met since the joint board committee meeting and discussed other matters which might be of concern to both systems.
The Parish Board has suggested that the Monroe Board pay the Ouachita Board fifty dollars per pupil per year for every Monroe child attending a Parish school and vice versa in the case of a Parish child attending a City School. We cannot agree to this since a student attends a school of his own volition, and Ouachita Parish operates a busing system over every section of the City of Monroe, whereas the City School Board does not operate a busing system outside the city limits and has no desire to do so in order to try to bring parish children into the City Schools. We would agree to this proposal only on condition that both school boards mutually agreed in advance for a pupil to enroll in a school of the other *405 system. To do otherwise would create many problems. For example, if a pupil from Lincoln Parish decided he wanted to attend a school in Jackson Parish, just of his own choosing, no one could expect Lincoln Parish to reimburse Jackson Parish for this child's education. Practiced all over the state, such transferring could be chaotic. The Monroe City School Board, therefore, recommends that students living in Monroe be required to attend Monroe City Schools, if they attend a public school, and that pupils living outside the Monroe City limits in Ouachita Parish be required to attend a public school. Exceptions to this agreement could only be made by mutual approval of both school boards in advance.
Another suggested proposal was that the present city limits be frozen as far as school taxes are concerned. We, the citizens of Monroe, cannot agree to this proposal. It would be very short-sighted and eventually, as the city limits are extended the revenue from property assessment would increase and the number of pupils inside the present city limits would decrease. This same action was taken in Lake Charles several years ago and eventually the Lake Charles City Schools were abolished.
On this subject, let me state that Louisiana is the only one of forty-eight states to use the strong Central Parish or County style administrative plan for its public schools. (Maybe it's just a coincidence that Louisiana ranks at the bottom of the ladder in literacy.) In all the other states cities large enough to support their own school systems do so, and in all other states city school systems and County or Parish School Systems have solved their problems of expanding city limits. In Mississippi, for instance, when the new area taken into the City limits includes a County school, the County school is taken over by the city, and the city in turn assumes all bonded indebtedness for that school. This is one possible solution Monroe and Ouachita Parish might consider. However, it is not a problem that confronts us at the present time.
Our two-school systems have had a very good relationship in the past, and we assure you we shall be happy to discuss any matters of mutual interest at any time satisfactory to you.
Very truly yours,
----------------------------
Paul J. Neal, President
Monroe City School Board
-------------------------------
Henry Carroll, Vice President
Monroe City School Board
--------------------------------
Mickey Yerger, Member
Monroe City School Board
cc: Honorable K. D. Kilpatrick
Honorable E. L. "Bubba" Henry
Honorable John Ensminger
Honorable William D. Brown
Honorable T. W. Humphries
Honorable Shady Wall
Honorable Lawrence Gibbs
J. O. Lancaster, Jr.
APPENDIX VIII
COLUMN I COLUMN II COLUMN III
1977-78 Enrollment for the Monroe Total Number of Students Who Would Total Number of Students Who Would
City School System: Have been Assigned by for the Have Been Assigned but for the
Interdistrict Overlap in 1977-78 Interdistrict Overlap in 1978-79
School Black White Total School Black White Total School Black White Total
Barkdull Faulk 149 118 267 Barkdull Faulk 169 133 302 Barkdull Faulk 180 129 309
Berg Jones 786 5 791 Berg Jones 1045 27 1072 Berg Jones 1081 23 1104
Carver 422 12 434 Carver 422 46 468 Carver 446 15 461
Clara Hall 138 173 311 Clara Hall 151 271 422 Clara Hall 186 278 464
Clark 685 0 685 Clark 742 4 746 Clark 723 7 730
Georgia Tucker 55 248 303 Georgia Tucker 56 265 321 Georgia Tucker 28 281 309
Levington 181 277 458 Levington 183 289 472 Levington 157 305 462
Lida Benton 99 157 256 Lida Benton 107 163 270 Lida Benton 141 185 326
Lincoln 658 0 658 Lincoln 739 4 743 Lincoln 696 1 697
Minnie Ruffin 165 117 282 Minnie Ruffin 178 299 477 Minnie Ruffin 199 220 419
Sallie Humble 164 323 487 Sallie Humble 168 339 507 Sallie Humble 145 338 483
Sherrouse 330 73 403 Sherrouse 329 187 516 Sherrouse 355 210 565
Carroll Junior 333 93 426 Carroll Junior 354 132 486 Carroll Junior 411 127 538
Jefferson 503 141 644 Jefferson 575 294 869 Jefferson 644 238 882
Lee 308 96 404 Lee 332 129 461 Lee 284 149 433
Carroll High 780 135 915 Carroll High 799 186 985 Carroll High 756 157 913
Neville High 315 448 763 Neville High 332 521 853 Neville High 303 445 748
Wossman High 658 305 963 Wossman High 821 440 1261 Wossman High 854 358 1212
___ ___ ___ ___ ___ ____ ___ ___ ____
Total: 6729 2721 9450 Total: 7502 3729 11231 Total: 7589 3466 5774
GX 52, PX 4
*407 ORDER
For the reasons assigned in the foregoing Ruling,
IT IS ORDERED that the overlapping student attendance zones between the Monroe City School System and the Ouachita Parish School System be abolished. A student residing within the corporate limits of the City of Monroe can attend only the City school serving his zone of residence. A student residing outside the corporate limits of the City of Monroe, but inside Ouachita Parish, can attend only the Parish school serving his zone of residence. The freeze order and concomitant option incorporated in previous decrees of this court are abolished.
IT IS FURTHER ORDERED that the Ouachita Parish School Board and the Monroe City School Board form a committee to insure a smooth transition during the separation of the two school systems' overlapping student attendance zones.
IT IS FURTHER ORDERED that the MCSS devise a new desegregation plan incorporating the two phases outlined in this court's Ruling. The City shall submit a preliminary report to the court by the close of business on Wednesday, July 30, 1980. In this report, the City shall inform the court of the progress made in devising a new desegregation plan for MCSS. As indicated in this court's ruling, no student assignment plan shall become effective until the 1981-82 school year; however, the City may take immediate steps to abolish the multiple school changes currently experienced by its junior high-high school students.
IT IS FURTHER ORDERED that a Special Master be appointed to assist this court in devising a desegregation plan for the MCSS and in insuring a smooth transition in a separation of the two systems' overlapping student attendance zones.
NOTES
[41] See Appendices II and IV attached to this opinion.
[41] See Appendices II and IV attached to this opinion.
[41] See Appendices II and IV attached to this opinion.
[42] Taylor v. Ouachita Parish School Board, 424 F.2d 324 (5th Cir. 1970).
[43] See Government Exhibit 43. Hereinafter, the numbered exhibits shall be referred to in the following manner: Government exhibits as GX; Ouachita Parish School Board exhibits as PX; Monroe City School Board exhibits as CX.
[44] CX 17, 18 and 19.
[45] The terms of the "freeze order" are discussed infra. It was entered on August 1, 1969.
[46] GX 3. Paragraph 3 of this decree stated that:
The previous order of this Court with regard to "freezing" students as between the Monroe City School system and the Ouachita Parish School system shall remain in full force and effect.
This statement was in reference to the court's order of August 1, 1969.
[47] GX 4.
[48] GX 2. This decree was amended on August 30, 1973. Paragraph 10 was added covering extra-curricular activities at the area high schools.
[49] The August 19, 1973 order provided, in part:
A motion for further relief and rule to show cause having been filed herein by defendant, Monroe City School Board, seeking to amend the previous judgments rendered herein, and particularly that certain Consent Decree rendered by Honorable Ben C. Dawkins, Jr., on July 30, 1971, and the parties hereto having jointly submitted to the Court a proposed Consent Decree, and after hearing testimony of the school administrators relative thereto, together with argument of counsel;
IT IS THEREFORE ORDERED:
(1) The students attending the Monroe City School System shall be assigned to schools as follows ...
* * * * * *
(c) All seventh grade students domiciled North of the Interstate 20 shall attend Carroll Junior High School, and all seventh grade students domiciled South of the Interstate 20 shall attend Jefferson Junior High School;
(d) All eighth grade students domiciled North of the Interstate 20 shall attend Lee Junior High School, and all eighth grade students domiciled South of the Interstate 20 shall attend Jefferson Junior High School;
(e) All ninth grade students domiciled North of the Interstate 20 shall attend Neville High School, and all ninth grade students domiciled South of the Interstate 20 shall attend Wossman High School;
(f) All tenth grade students domiciled North of the Interstate 20 shall attend Carroll High School, and all tenth grade students domiciled South of the Interstate 20 shall attend Wossman High School;
(g) All eleventh and twelfth grade students domiciled North of Louisville Avenue, as extended by the Missouri Pacific Railroad to the Eastern city limits, shall attend Neville High School; all eleventh and twelfth grade students domiciled South of Louisville Avenue as extended by the Missouri Pacific Railroad to the Eastern city limits and North of the Interstate 20 shall attend Carroll High School, and all eleventh and twelfth grade students domiciled South of the Interstate 20 shall attend Wossman High School.
The above provisions, in particular, were objected to by the Lloyd Gill intervenors.
[50] Paragraph 3 of the August 1, 1969 order established the "freeze" order. The 1973 decree, in § 8, provided:
The previous decrees rendered herein are hereby maintained in all respects not inconsistent with this decree.
GX 2. The consent decree of February 24, 1970 stated, in Paragraph 3:
The previous order of this court with regard to "freezing" students as between the Monroe City system and the Ouachita Parish system shall remain in full force and effect.
GX 3. Paragraph 8 of the August 16, 1973 decree maintained the terms of all previous decrees not inconsistent with the current order. Consequently, the freeze order and its implementation has been carried forward to the present day.
[51] Such strategy is not novel. As Professor Bell stated in Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Har.L. Rev. 518, 531-32 (1980):
The educational benefits that have resulted from the mandatory assignment of black and white children to the same schools are also debatable. If benefits did exist, they have begun to dissipate as whites flee in alarming numbers from school districts ordered to implement mandatory reassignment plans. In response, civil rights lawyers sought to include entire metropolitan areas within mandatory reassignment plans in order to encompass mainly white suburban school districts where so many white parents sought sanctuary for their children.
(Footnotes omitted). At trial, City Superintendent, Dr. Sidney Seegers, testified that interdistrict relief would be in the best interest of the Monroe City School System because of the general decline in white students.
[52] The original caption of this suit was Donald Newton, et al., v. Ouachita Parish School Board, et al. On August 3, 1966, the named plaintiff, Jeremiah Taylor, intervened. The suit came to bear his name.
[53] Taylor v. Ouachita Parish School Board, 424 F.2d 324 (5th Cir. 1970).
[54] Students formally attending Booker T. Washington were assigned to Ouachita Parish Junior High, Lakeshore Elementary and Jack Hayes.
[55] In this opinion, Judge Hunter stated:
There are four school zones. Zones 2, 3 and 4 comprising approximately three-fourths of the Parish are clearly unitary in every detail.
Later, he stated:
The Ouachita system, as approved by the Fifth Circuit, became a unitary system.
It is this court's opinion, considering Judge Hunter's abbreviated supervision of this case, that it was not his intention to declare the system unitary in the sense that the court no longer retained jurisdiction over the matter and in the sense that the system had attained a color blind status in pupil assignment. The Fifth Circuit has outlined the orderly procedures district courts are to follow in entering an order that a school system is, indeed, unitary. See, e. g., United States v. State of Texas (San Felipe Del Rio Consolidated Independent School District), 509 F.2d 192 (5th Cir. 1975); Youngblood v. Board of Public Instruction of Bay County, Florida, 448 F.2d 770 (5th Cir. 1971); Steele v. Board of Public Instruction of Leon County, Florida, 448 F.2d 767 (5th Cir. 1971). If it was Judge Hunter's intention to declare the Ouachita Parish system unitary, alleviating any further need for judicial intervention, this court sets this finding aside considering the number of one-race schools in the system and the posture of the present litigation.
[56] The court will issue a ruling on the Parish's request for approval of school construction sites in a ruling separate from this opinion.
[57] See Appendix I. The total number of students in the Monroe system varies with the Government exhibit used. However, this court will use the figures in GX 48.
[58] See Appendix II.
[59] See Appendix V.
[60] See Appendix III.
[61] See Appendix IV.
[62] See Appendix V.
[63] La.Const. art. 8, § 10, provides:
(A) Recognition. Parish and city school board systems in existence on the effective date of this constitution are recognized, subject to control and supervision by the State Board of Elementary and Secondary Education and the power of the legislature to enact laws affecting them.
(B) Ouachita Parish and Monroe City School Systems; Board Membership. Only persons residing within the jurisdiction of the Monroe City School Board shall be eligible to vote for or be members of the Monroe City School Board. Only persons residing in that portion of Ouachita Parish outside the jurisdiction of the Monroe City School Board shall be eligible to vote for or be members of the Ouachita Parish School Board. The position of a member of either board shall be vacated when he no longer satisfies the requirements of this Paragraph. Notwithstanding any contrary provision of this constitution, this Paragraph shall become operative upon the election of members to the Ouachita Parish School Board taking office in 1977 or upon the first reapportionment affecting the Ouachita Parish School Board, whichever occurs earlier.
(C) Consolidation. Subject to approval by a majority of the electors voting, in each system affected, in an election held for that purpose, any two or more school systems may be consolidated as provided by law.
See Armour v. Nix, Civil Action No. 16,708 (N.D.Ga., filed March 1978) at n. 2, aff'd, 446 U.S. 931, 100 S. Ct. 2146, 64 L. Ed. 2d 784 (1980). In Armour, Georgia had a state constitutional provision similar to the Louisiana provision.
[64] GX 20 and 43.
[25] GX 44-46; CX 14-16.
[26] PX 6, Interrogatory No. 22.
[27] PX 6, Interrogatories No. 23-24.
[28] GX 69, Interrogatories No. 10, 17 and 18; see also Interrogatories No. 11, 18, 19 propounded by the United States to the City of Monroe. This fact was also substantiated by the trial testimony of the City Superintendent, Dr. Sidney Seegers.
GX 7, the Minutes of the City School Board meeting of September 18, 1973, does contain a reference to a motion by the City School Board to contact the Parish superintendent about the possibility of forming a joint committee to handle student transfers. No evidence in the record indicates that this motion was ever acted upon.
[29] Trial testimony of Dr. Sidney Seegers.
[30] The testimony of Ms. Pearce, the government's expert on this issue, was not allowed into evidence. See discussion infra.
[31] See footnote 10, supra.
[32] See the Government's motion of November 16, 1978, seeking consolidation of the cases or, in the alternative, joinder of parties and motions for intradistrict and interdistrict relief. See also PX 6, Interrogatory No. 4.
[33] Trial testimony of City Superintendent, Dr. Sidney Seegers; past Parish Superintendent, James O. Lancaster; and present Parish Superintendent, S. T. Howell.
[34] As an exception to this freeze order and its accompanying attendance zones, both systems allowed majority to minority transfers. Special education students did not have attendance zones. Singleton v. Jackson Municipal Separate School Districts, 419 F.2d 1211 (5th Cir. 1979), cert. denied 396 U.S. 1032, 90 S. Ct. 612, 24 L. Ed. 2d 530 (1971). Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S. Ct. 1267, 1281, 28 L. Ed. 2d 554 (1971).
[35] Trial testimony of Dr. Sidney Seegers and S. T. Howell.
[36] Compare GX 40 with GX 41.
[37] GX 33.
[38] Trial testimony of Terry Hager, City Child Welfare and Attendance Supervisor.
[39] Trial testimony of Bobby Wilson. See also trial testimony of Odean Jones, Principal of Lakeshore Elementary; James McKay, Principal of Logtown; and K. L. Lindsay, Principal of Shady Grove Elementary.
[40] The combined enrollment of the Monroe City School System and the Ouachita Parish School System in 1977 through 1978 was 22,938 students. See Appendices I and III.
[*] See Appendix III for the racial breakdown of Parish schools in 1977-78.
[] 1977-78 Racial Breakdown of City
Students Attending Parish Schools
School Whites Blacks Total
Jack Hayes 57 9 66
Lakeshore - 20 20
Ouachita Parish
High School 303 86 389
Ouachita Elementary-Jr.
Hg. 862 292 1154
Richwood - 266 266
Robinson 28 147 175
Swayze - 273 273
____ ____ ____
Total 1250 1093 2343
GX 18
[] GX 52, Column C.
[] Compare GX 48 with GX 52.
[] GX 50-53; PX 4, 7 and 8.
[] The following Parish elementary schools have zones which overlap Monroe city: Logtown (white) (small overlap); Robinson (black); Swayze (black); Ouachita Parish Elementary (white); Jack Hayes (white) (small overlap); Lakeshore (white) (small overlap). See trial testimony of Superintendent Howell, GX 44 and CX 16.
The following Parish junior high schools have zones which overlap Monroe city: Richwood (black); Logtown (white) (small overlap); Ouachita Parish Junior High (white). See GX 45, CX 14.
The following Parish high schools have zones which overlap Monroe city: Richwood (black) and Ouachita Parish High School (white). See GX 45, CX 15.
Only Ouachita Parish Junior Elementary-Junior High and Ouachita Parish High School are physically located within the city limits of Monroe. See trial testimony of Superintendent Howell, GX 43 and 45.
[] As pointed out by the Parish, this argument would be relevant to intradistrict violations in the OPSS, but is not germane to the present litigation.
[] Recently, the Supreme Court summarily affirmed an unreported decision of a three-judge court in Atlanta, Georgia. The three-judge court had denied interdistrict relief in a massive desegregation suit involving six county boards of education and four city boards. Armour v. Nix, Civil Action No. 16,708 (N.D.Ga. filed March 1978), aff'd, (May 12, 1980). Considering that most of the school systems involved were unitary, or were not shown to be guilty of equal protection violations, the court found no "significant violation of recent vintage." Armour at 26. No interdistrict relief was ordered.
Although the decision is not controlling in a case such as the present one involving two non-unitary systems with overlapping student attendance zones, it does lend support to the granting of limited relief in this case. In Armour, as in this case, there was no showing of an intentional constitutional violation requiring the consolidation of independent school systems.
[] Singleton v. Jackson Municipal Separate School District, supra.
[] On the other hand, the 317 City students attending Parish schools are such a miniscule portion of the entire Parish student population that the effect is quantitatively nonexistent. However, considering that these transfers take place in a rather small geographic area the eastern fringes of the City it is apparent that they have a segregative effect on the Parish system immediately surrounding the MCSS.
[] The cases establishing intent as a prerequisite for proving a constitutional violation are legion: Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979); United States v. Texas Education Agency (Austin Independent School District), 564 F.2d 162 (5th Cir. 1977), cert. denied, 433 U.S. 915, 99 S. Ct. 3106, 61 L. Ed. 2d 879 (1979).
[] Both Wright v. Council of City of Emporia and United States v. Scotland Neck City Board of Education have been cited by the government as support for proving an interdistrict violation in this case. Both cases, decided the same day by the Supreme Court, involved an attempt to form an independent and separate school system after Brown v. Board of Education was decided. These cases have no applicability in the current matter where it is agreed that the two systems were established long before Brown v. Board of Education or the filing of a school desegregation suit. However, the cases are instructive in defining the parameters of a school board's affirmative duty to see that the dual school system is disestablished.
[] Candidly, this court is slow to intrude on local political autonomy. Such a remedy is usually left to the legislature or a vote of the people. However, in this case, it is clear that the majoritarian process cannot correct the anomaly of two school systems serving the same geographic area. When this anomaly perpetuates the past effects of a dual school system, judicial intervention is mandated.
As stated in Milliken:
[N]o state law is above the constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if in conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies.
Milliken, 418 U.S. at 744, 94 S.Ct. at 3127. Indeed, the friction between these two political entities has resulted in previous litigation. See, e. g., Rutledge v. State of Louisiana, 330 F. Supp. 336 (W.D. of La. 1971) (class action by Parish residents seeking to prevent City residents from voting in parish school board elections); Ouachita Parish School Board v. Monroe City School Board, Civil Action 11,521, filed in the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, on September 22, 1978. (In this pending state court suit, Ouachita Parish School Board seeks to enjoin Monroe City School Board from collecting school taxes in Parish areas recently annexed by the City.) The possibility of consolidating the two systems has been considered long before the present litigation was filed. (See Appendix VII letter of the Monroe City School Board to the Ouachita Parish School Board posing consolidation of the two entities.) However, no action has been taken to separate or consolidate the two systems. When the political process fails to correct such an egregious constitutional violation, judicial intervention is required. See Fiss, Forward: The Forms of Justice, 93 Harv.L.Rev. p. 1 (1979).
[] The usual remedy that comes to mind when a court speaks in terms of an interdistrict violation is consolidation of student attendance zones. In this case, the opposite remedy is ordered separation of zones. An indication of the unique nature of the litigation currently before this court.
[] Any transfers under this modified order meeting the standards required by Singleton shall be allowed. The Fifth Circuit decision in Singleton v. Jackson Municipal Separate School District, supra, sets forth the guidelines for allowing interdistrict transfers:
If the school district grants transfers to students living in the district for their attendance at public school outside the district, or if it permits transfers into the district of students who live outside the district, it shall do so on a nondiscriminatory basis, except that it shall not consent to transfers where the cumulative effect will reduce desegregation in either district or reinforce the dual system.
419 F.2d at 1218-19. See also La.R.S. 17:155.
[] Rule 702 of the Federal Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
[] Ms. Pearce's curriculum vitae is GX 61.
[] In footnote 3 of its Opinion in Red River Parish, this court stated:
The expert witness for the United States estimated higher capacities for some of the schools but his testimony in this area can be accorded little weight as he was never afforded an opportunity to visit any of the schools.
[] The Caddo Parish desegregation suit was handled by Chief Judge Nauman S. Scott, Alexandria Division, Western District of Louisiana, at the time of the trial.
[] See trial testimony of Monroe City School System Superintendent, Dr. Sidney Seegers and closing remarks of School Board attorney Paul Kidd.
[] GX 48.
[] GX 1 and 21. As stated by the Supreme Court in Swann:
Existing policy and practice with regard to faculty, staff, transportation, extra curricular activities and facilities were among the most important indicia of a segregated system. Swann, 402 U.S. at p. 18, 91 S.Ct. at p. 1277. See also United States v. Montgomery Board of Education, 395 U.S. 225, 89 S. Ct. 1670, 23 L. Ed. 2d 263 (1969).
[] It is interesting to note that the Monroe City School Board had proposed a new plan on July 5, 1977. See GX 8. The Board attempted to enter into a consent decree with the original plaintiffs, adopting this new plan. When this failed, the plan was dropped and no further action taken. The Government announced that it would oppose this plan.
[] In fashioning this remedy, "the district judge or the school authorities should make every effort to achieve the greatest possible degree of actual desegregation taking into account the practicalities of the situation." Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S. Ct. 1289, 1292, 28 L. Ed. 2d 577 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613810/ | 23 So. 3d 195 (2009)
Fred CARSWELL III, Petitioner,
v.
STATE of Florida, Respondent.
No. 4D09-1814.
District Court of Appeal of Florida, Fourth District.
November 18, 2009.
*196 Fred Carswell III, Coleman, Pro Se.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals an order denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. To prevent manifest injustice, we treat this appeal as a petition for writ of habeas corpus and grant a belated direct appeal on a limited issue. See Lago v. State, 975 So. 2d 613 (Fla. 3d DCA 2008) (treating appeal as petition for habeas corpus and granting relief in order to correct a manifest injustice).[1]
The State charged the defendant with attempted second degree murder with a firearm for a fight that resulted in a shooting. The defendant claimed that he did not possess a gun and that the victim accidentally shot himself during the fight. At trial, the defendant objected to the State's request for instructions on the permissive lesser included offenses, particularly, the aggravated battery instruction. The defense argued that the Information failed to allege all the essential elements, notably that the defendant "intentionally and knowingly" inflicted great bodily harm. The trial court overruled the objection and read the instruction on aggravated battery because the Information alleged that the defendant discharged a firearm and inflicted great bodily harm.
The jury found the defendant not guilty of attempted second degree murder with a firearm, but found him guilty of aggravated battery. The jury specifically found that the defendant did NOT possess, use, or discharge a firearm in its answer to a special interrogatory. After hearing argument, the trial court found that the only theory of aggravated battery of which the defendant could have been guilty was through the use of a deadly weapon, to wit: the firearm. Because the jury specifically found the defendant did not have a firearm, the trial court granted the defense *197 motion for judgment of acquittal on the aggravated battery charge and entered a conviction for simple battery. The court sentenced the defendant to 364 days in jail. The State appealed.
In the State's direct appeal, we concluded that the trial court had erred in granting the judgment of acquittal due to an inconsistency in the verdict "because the jury was lawfully exercising its pardon power." State v. Carswell, 914 So. 2d 9, 11 (Fla. 4th DCA 2005). We specifically declined to address the defendant's argument that the jury could not have relied on the theory of aggravated battery for intentionally and knowingly causing great bodily harm because the Information did not allege that essential element. We did so under the mistaken belief that the defendant had to timely file a notice of cross-appeal, which he had not done.[2]Id. at 12 (citing Fla. R.App. P. 9.110(g)); A-1 Racing Specialties, Inc. v. K & S Imports of Broward County, Inc., 576 So. 2d 421, 422 (Fla. 4th DCA 1991)). We then reversed and remanded the case for reinstatement of the conviction for aggravated battery, and imposition of sentence. Our opinion advised that the reversal was without prejudice to the defendant filing an ineffective assistance of appellate counsel claim.
On remand, the trial court reinstated the conviction and sentenced the defendant to fifteen years incarceration. The defendant appealed the new sentence, which we affirmed. See Carswell v. State, 947 So. 2d 692 (Fla. 4th DCA 2007).
The defendant then filed a petition arguing that appellate counsel was deficient in failing to file a notice of cross-appeal. We denied the petition finding no deficiency in counsel's performance because the notice of cross-appeal was not jurisdictional and unnecessary to allow the defendant to make his argument in response to the State's appeal. Carswell v. State, 4D06-212 (Fla. 4th DCA Oct. 16, 2006). See Lopez v. State, 638 So. 2d 931, 932 (Fla. 1994). Next, the defendant filed a Rule 3.800 motion alleging trial counsel was ineffective in failing to file the notice of cross-appeal. The trial court denied the motion. We re-designated the motion as an appeal from a Rule 3.850 summary denial. Again we affirmed because the error was not of defense counsel's making, but rather our own. Carswell v. State, 962 So. 2d 915 (Fla. 4th DCA 2007). The defendant then petitioned for a belated appeal, which we denied. Carswell v. State, 4D07-5043 (Fla. 4th DCA Feb. 15, 2008).
This brings us to the present appeal. Here, the defendant is appealing the summary denial of his second Rule 3.850 motion. In fairness to the petitioner, and after having received a response from the State, we treat this appeal as a petition for writ of habeas corpus and grant a new limited direct appeal.[3] We limit our review to the single argument we previously declined to consider the trial court properly vacated the conviction for aggravated battery because the court had erred in *198 giving the instruction on the lesser included offense, which allowed the jury to convict the defendant of a crime for which the essential element of intentionally and knowingly causing great bodily harm was not alleged in the Information. See Lane v. State, 861 So. 2d 451 (Fla. 4th DCA 2003).[4]
"[D]ue process prohibits a defendant from being convicted of a crime not charged in the information or indictment." Crain v. State, 894 So. 2d 59, 69 (Fla.2004); see also N.H.M. v. State, 974 So. 2d 484, 485-86 (Fla. 2d DCA 2008) (citing Jaramillo v. State, 659 So. 2d 1238, 1239 (Fla. 2d DCA 1995)). Defense counsel properly objected to the jury instruction on the aggravated battery charge because the Information failed to allege the "intentional and knowing" infliction of great bodily harm. It was error for the trial court to have given the charge as the trial court properly recognized. See Lane v. State, 861 So. 2d 451 (Fla. 4th DCA 2003). Yet, the defendant's request for a new trial on the simple battery charge in his answer brief led this court astray from the true issue. Instead of relying on this argument solely to defend the State's appeal, the defendant requested affirmative relief relief that required the filing of a notice of cross-appeal. See, e.g., Padilla v. State, 905 So. 2d 217, 219 (Fla. 3d DCA 2005); see also Pope v. State, 884 So. 2d 328, 330 (Fla. 2d DCA 2004); Guerra v. State, 546 So. 2d 133 (Fla. 4th DCA 1989).
We now hold that the trial court was correct to have entered the judgment of acquittal on the aggravated battery charge. This does not end the inquiry, however. A new trial may be required if the trial court erred in instructing the jury on an uncharged, alternate theory of aggravated battery. See, e.g., Sanders v. State, 959 So. 2d 1232, 1234 (Fla. 2d DCA 2007); see also Negron v. State, 938 So. 2d 650, 652 (Fla. 4th DCA 2006); K.H. v. State, 763 So. 2d 1187, 1188 n. 1 (Fla. 4th DCA 2000). Yet, Sanders, Negron, and K.H. all resulted from the defendant appealing a conviction and arguing the error in the jury instructions leading to a conviction. In that instance, the proper remedy is a new trial for the defendant. When the State appeals a judgment of acquittal, however, the protection against double jeopardy prevents the retrial of the defendant on the aggravated battery charge. See Ramos v. State, 457 So. 2d 492, 494 (Fla. 3d DCA 1984); Watson v. State, 410 So. 2d 207, 208-09 (Fla. 1st DCA 1982).
Under the unique facts of this case, because the defendant preserved and raised the jury instruction issue on appeal, and we specifically refused to consider the argument, we grant extraordinary relief. In the extremely unusual circumstances presented in this case, the only appropriate remedy is to vacate the aggravated battery conviction and sentence and reinstate the battery conviction, which should be conducted expeditiously.
We therefore reverse and remand the case for proceedings consistent with this opinion.
POLEN and DAMOORGIAN, JJ., concur.
NOTES
[1] See also Johnson v. State, 9 So. 3d 640, 642 (Fla. 4th DCA 2009) (granting habeas corpus to correct a fundamental sentencing error although relief had previously been denied on numerous occasions); Ross v. State, 901 So. 2d 252, 254 (Fla. 4th DCA 2005) (granting habeas corpus, even though an issue had been repeatedly raised and rejected, to correct manifest injustice where defendant did not receive the benefit of the same law as similarly-situated defendants).
[2] The notice of cross-appeal was needed for the defendant to obtain the requested affirmative relief of a new trial on the battery charge. However, a notice of cross-appeal was unnecessary to allow us to consider the argument in defense of the State's appeal.
[3] The Florida Supreme Court has repeatedly held that procedural bars, such as the law of the case doctrine, must give way "where reliance on the prior decision would result in manifest injustice." State v. Sigler, 967 So. 2d 835, 840 (Fla.2007) (emphasis added) (citing Henry v. State, 649 So. 2d 1361, 1364 (Fla. 1994) (citing Preston v. State, 444 So. 2d 939, 942 (Fla. 1984)); Greene v. Massey, 384 So. 2d 24, 28 (Fla. 1980); Steele v. Pendarvis Chevrolet, Inc., 220 So. 2d 372, 376 (Fla. 1969)); see Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965).
[4] Because this issue has been briefed by both sides numerous times, we see no need to ask for additional briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618086/ | 615 So. 2d 712 (1993)
James Arthur SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 92-03887.
District Court of Appeal of Florida, Second District.
January 6, 1993.
James Arthur Smith, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.
ALTENBERND, Judge.
James Arthur Smith appeals an order denying his motion for correction of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In early 1991, Mr. Smith pleaded nolo contendere to handling and fondling a child under the age of sixteen. He was sentenced to community *713 control. Thereafter, he violated the conditions of his community control and was sentenced on December 9, 1991, to three years' incarceration. The trial court did not give the defendant jail credit for the time he spent on community control. Smith argues that his sentence is illegal as a result of the supreme court's decision in Fraser v. State, 602 So. 2d 1299 (Fla. 1992). We disagree.
In Fraser, the trial court had initially given the defendant a downward departure sentence of community control. Because the trial court failed to provide contemporaneous written reasons for the departure, the state appealed and this court reversed the sentence. State v. Fraser, 564 So. 2d 1262 (Fla. 2d DCA 1990). In a subsequent appeal, we held that the trial court could not provide written reasons for a downward departure at Fraser's sentencing on remand, but was required to sentence Fraser to a guidelines sentence. State v. Fraser, 582 So. 2d 171 (Fla. 2d DCA 1991). Because it seemed unfair to imprison Fraser merely as a result of a paperwork error by the trial judge, we certified two questions to the supreme court. One of those questions asked whether a trial court "can" give credit for time served on community control. Thus, the issue before the supreme court in Fraser was whether the trial court had the discretion under section 921.161, Florida Statutes (1989), to give jail credit for successfully completed periods of community control.
The supreme court answered the certified question in the affirmative. Its opinion, however, emphasized that its answer was based on "the circumstances presented here." 602 So.2d at 1300. It pointed out that Fraser was successfully completing his sentence of community control when, through no fault of his own, he was required to return to prison.
Although a trial court has discretion to grant jail credit for time served on community control under circumstances justifying that credit, it has no legal obligation to give such credit to a defendant who violates the conditions of his community control. In Fraser, the supreme court accurately notes that community control is a more coercive deprivation of liberty than probation. It is not, however, a functional equivalent of jail. Mathews v. State, 529 So. 2d 361 (Fla. 2d DCA 1988). Fraser did not overrule Mathews. We continue to hold that a trial court may legally deny jail credit for an unsuccessful term of community control.
RYDER, A.C.J., and PATTERSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96082/ | 194 U.S. 220 (1904)
CLIPPER MINING COMPANY
v.
ELI MINING AND LAND COMPANY.
No. 76.
Supreme Court of United States.
Argued November 13, 1903.
Decided May 2, 1904.
ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.
*221 Mr. W.H. Bryant, with whom Mr. C.S. Thomas and Mr. W.H. Lee were on the brief, for plaintiff in error.
Mr. John A. Ewing and Mr. Aldis B. Browne, with whom Mr. Charles Cavender and Mr. Alexander Britton were on the brief, for defendants in error.
*222 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The location of the placer mining claim and both the original and amended applications for patent thereof were long prior to the locations of the lode claims, and the contention of the plaintiffs is, that they, by virtue of their location, became entitled to the exclusive possession of the surface ground; that the entry of the lode discoverers was tortious and could not create an adverse right, even though by means of their entry and explorations they discovered the lode claims. The defendant, on the other hand, contends that the original location of the placer claim was wrongful, for the reason that the ground included within it was not placer mining ground; that the intent of the locators was not placer mining but the acquisition of title to a large tract of ground contiguous to the new mining camp of Leadville, and likely to become a part of the townsite. In fact, it was thereafter included within the limits of the town, and on it streets and alleys have been laid out and many houses built and occupied by individuals claiming adversely to the placer location.
It is the settled rule that this court, in an action at law at least, has no jurisdiction to review the conclusions of the highest court of a State upon questions of fact. River Bridge Co. v. Kansas Pac. Ry. Co., 92 U.S. 315; Dower v. Richards, 151 U.S. 658; Israel v. Arthur, 152 U.S. 355; Noble v. Mitchell, 164 U.S. 367; Hedrick v. Atchison &c. Railroad, 167 U.S. 673, 677; Turner v. New York, 168 U.S. 90, 95; Egan v. Hart, 165 U.S. 188. It must, therefore, be accepted that the Searl placer claim was duly located, that the annual labor required by law had been performed up to the time of the litigation, that there was a subsisting valid placer location, and that the lodes were discovered by their locators within the boundaries of the placer claim subsequently to its location. So the trial court specifically found, and its finding was approved by the Supreme Court.
As against this, it is contended that the Land Department *223 held that the ground within the Searl location was not placer mining ground, nor subject to entry as a placer claim, that such holding by the department must be accepted as conclusive in the courts, and therefore that the tract should be adjudged public land and open to exploration for lode claims and to location by any discoverer of such claims. It is true that the Commissioner of the General Land Office, in rejecting the amended application for the placer patent, said that he was not satisfied that the land was placer ground or that the requisite expenditure had been made, and further that the locators had not acted in good faith, but were attempting to acquire title to the land on account of its value for townsite purposes and for the lodes supposed to be contained therein. This decision was affirmed by the Secretary of the Interior; but notwithstanding this expression of opinion by these officials, all that was done was to reject the application for a patent. As said thereafter by the Secretary of the Interior upon an application of the Clipper Mining Company for a patent for the lode claims here in dispute:
"The judgment of the department in the Searl placer case went only to the extent of rejecting the application for patent. The department did not assume to declare the location of the placer void, as contended by counsel, nor did the judgment affect the possessory rights of the contestant to it." 22 L.D. 527.
So far as the record shows and the record does not purport to contain all the evidence the placer location is still recognized in the department as a valid location. Such also was the finding of the court, and being so there is nothing to prevent a subsequent application for a patent and further testimony to show the claimant's right to one. Undoubtedly when the department rejected the application for a patent it could have gone further and set aside the placer location, and it can now, by direct proceedings upon notice, set it aside and restore the land to the public domain. But it has not done so, and therefore it is useless to consider what rights other parties might then have.
*224 The fact that many years have elapsed since the original location of the placer claim and that no patent has yet been issued therefor does not affect its validity, for it is a well-known fact, as stated by the Court of Appeals in Cosmos Exploration Company v. Gray Eagle Oil Company, 112 Fed. Rep. 4, 16, that "some of the richest mineral lands in the United States, which have been owned, occupied and developed by individuals and corporations for many years, have never been patented."
The views entertained by the Supreme Court of the law applicable to the facts of this case are disclosed by the following quotation from its opinion. After referring to one of its previous decisions, known as the Mt. Rosa case, it said:
"If, in the case at bar, the lode claims were known to exist at the time of the entry of defendant's grantors upon the Searl placer, under the decision in the Mt. Rosa case the entry was not unlawful; but if, on the contrary, the veins were then unknown, by the same decision the right of possession of this ground belonged to the owners of the placer location. Their right of possession included these unknown veins and the entry for prospecting was a trespass, and no title could thereby be initiated. * * * * * * *
"Our conclusion, therefore, is that one may not go upon a prior valid placer location to prospect for unknown lodes and get title to lode claims thereafter discovered and located in this manner and within the placer boundaries, unless the placer owner has abandoned his claim, waives the trespass, or by his conduct is estopped to complain of it. If the trial court intended to rule that in no circumstances may one, before application for a patent of a placer claim, go upon the ground within its exterior boundaries for the purpose of locating a lode, it went too far; yet as general language in an opinion must be taken in connection with the facts of the particular case, the ruling here should be limited to the facts disclosed by the record, and no prejudicial error was committed. For, under the authorities, a prospector may not enter upon a prior placer location for the purpose of prospecting for, or locating, unknown *225 lodes or veins; and to uphold the judgment we must presume that the evidence before the trial court showed that the veins or lodes upon which the defendant's grantors based their locations were unknown when they entered upon the Searl placer for the purpose of prospecting."
The law under which these locations were all made is to be found in chap. 6 of Title 32, Rev. Stat. Section 2319 of that chapter reads:
"All valuable mineral deposits of lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase."
Section 2320 provides for the location of mining claims upon veins or lodes.
By section 2322 it is provided that
"The locators of all mining locations . . . on any mineral vein, lode or ledge, situated on the public domain, . . . shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically."
And by section 2329:
"Claims usually called `placers,' including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims."
Section 2333 is as follows:
"Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for *226 such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof."
It will be seen that section 2322 gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one without his consent, or at least his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts or otherwise. It was the judgment of Congress that, in order to secure the fullest working of the mines and the complete development of the mineral property, the owner thereof should have the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locator as the vein or lode by him discovered and located. In Belk v. Meagher, 104 U.S. 279, 283, it was said by Chief Justice Waite that " A mining claim perfected under the law is property in the highest sense of that term;" and in a later case, Gwillim v. Donnellan, 115 U.S. 45, 49, he adds:
"A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. If, when one enters on land to make a location there is *227 another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as a bar to the second."
In St. Louis Mining Co. v. Montana Mining Co., 171 U.S. 650, 655, the present Chief Justice declared that "where there is a valid location of a mining claim, the area becomes segregated from the public domain and the property of the locator." Nor is this "exclusive right of possession and enjoyment" limited to the surface, nor even to the single vein whose discovery antedates and is the basis of the location. It extends (so reads the section) to "all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." In other words, the entire body of ground, together with all veins and lodes whose apexes are within that body of ground, becomes subject to an exclusive right of possession and enjoyment by the locator. And this exclusive right of possession and enjoyment continues during the entire life of the location, or, in the words of Chief Justice Waite, just quoted, while there is "a valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States." There is no provision for, no suggestion of a prior termination thereof.
By section 2329, placer claims are subject to entry and patent "under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims." The purpose of this section is apparently to place the location of placer claims on an equality both in procedure and rights with lode claims. If there were no other legislation in respect to placer claims the case before us would present little doubt, but following this are certain provisions, those having special bearing on the case before us being found in section 2333. Parties obtaining a patent for a lode claim must pay $5 an acre for the surface ground while for a placer claim the government only charges $2.50 an acre. By section 2333 it is provided that one who is in possession of a placer claim and also of a lode claim *228 included within the boundaries of the placer claim shall, on making application for a patent, disclose the fact of the lode claim within the boundaries of the placer, and upon the issue of the patent payment shall be made accordingly; that if the application for the placer claim does not include an application for a vein or lode claim known to exist within the boundaries of the placer it shall be construed as a conclusive declaration that the placer claimant has no right of possession of that vein or lode; and further, that where the existence of a vein or lode within the boundaries of a placer claim is not known the patent for the placer claim shall convey all valuable mineral and other deposits within its boundaries.
A mineral lode or vein may have its apex within the area of a tract whose surface is valuable for placer mining, and this last section is the provision which Congress has made for such a case. That a lode or vein, descending as it often does to great depths, may contain more mineral than can be obtained from the loose deposits which are secured by placer mining within the same limits of surface area, naturally gives to the surface area a higher value in the one case than the other, and that Congress appreciated this difference is shown by the different prices charged for the surface under the two conditions. Often the existence of a lode or vein is not disclosed by the placer deposits. Hence ground may be known to be valuable and be located for placer mining, and yet no one be aware that underneath the surface there is a lode or vein of greater value. A placer location is not a location of lodes or veins underneath the surface, but is simply a claim of a tract or parcel of ground for the sake of loose deposits of mineral upon or near the surface. A lode or vein may be known to exist at the time of the placer location or not known until long after a patent therefor has been issued. There being no necessary connection between the placer and the vein Congress by the section has provided that in an application for a placer patent the applicant shall include any vein or lode of which he has possession, and that if he does not make such inclusion the omission is to be taken *229 as a conclusive declaration that he has no right of possession of such vein or lode. If, however, no vein or lode within the placer claim is known to exist at the time the patent is issued, then the patentee takes title to any which may be subsequently discovered.
While by the statute the right of exclusive possession and enjoyment is given to a locator, whether his location be of a lode claim or a placer claim, yet the effect of a patent is different. The patent of a lode claim confirms the original location, with the right of exclusive possession, and conveys title to the tract covered by the location together with all veins, lodes and ledges which have their apexes therein, whereas the patent to the placer claim, while confirming the original location and conveying title to the placer ground, does not necessarily convey the title to all veins, lodes and ledges within its area. It makes no difference whether a vein or lode within the boundaries of a lode claim is known or unknown, for the locator is entitled to the exclusive possession and enjoyment of all the veins and lodes and the patent confirms his title to them. But a patent of a placer claim will not convey the title to a known vein or lode within its area unless that vein or lode is specifically applied and paid for.
It is contended that because a vein or lode may have its apex within the limits of a placer claim a stranger has a right to go upon the claim, and by sinking shafts or otherwise explore for any such lode or vein, and on finding one obtain a title thereto. That, with the consent of the owner of the placer claim, he may enter and make such exploration, and if successful, obtain title to the vein or lode, cannot be questioned. But can he do so against the will of the placer locator? If one may do it, others may, and so the whole surface of the placer be occupied by strangers seeking to discover veins beneath the surface. Of what value then would the placer be to the locator? Placer workings are surface workings, and if the placer locator cannot maintain possession of the surface he cannot continue his workings. And if the surface is open to the entry of whoever *230 seeks to explore for veins, his possession can be entirely destroyed. In this connection it may be well to notice the last sentence in section 2322. That section, from which we have just quoted, is the one which gives a locator the right to pursue a vein on its dip outside of the vertical side lines of his location. The sentence, which is a limitation on such right, reads: "And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another."
It would seem strange that one owning a vein and having a right in pursuing it to enter beneath the surface of another's location should be expressly forbidden to enter upon that surface if at the same time one owning no vein and having no rights beneath the surface is at liberty to enter upon that surface and prospect for veins as yet undiscovered.
We agree with the Supreme Court of Colorado as to the law when it says that "one may not go upon a prior valid placer location to prospect for unknown lodes and get title to lode claims thereafter discovered and located in this manner and within the placer boundaries, unless the placer owner has abandoned his claim, waives the trespass, or by his conduct is estopped to complain of it." Perhaps if the placer owner, with knowledge of what the prospectors are doing, takes no steps to restrain their work and certainly if he acquiesces in their action, he cannot after they have discovered a vein or lode assert right to it, for, generally, a vein belongs to him who has discovered it, and a locator permitting others to search within the limits of his placer ought not thereafter to appropriate that which they have discovered by such search.
The difficulty with the case presented by the plaintiff in error is, that under the findings of fact, we must take it that the entries of the locators of these several lode claims upon the placer grounds were trespasses, and as a general rule no one can initiate a right by means of a trespass. Atherton v. Fowler, 96 U.S. 513; Trenouth v. San Francisco, 100 U.S. 251; Haws v. *231 Victoria Copper Mining Company, 160 U.S. 303. See also Cosmos Exploration Company v. Gray Eagle Company, supra, in which the court said (p. 17):
"No right can be initiated on government land which is in the actual possession of another by a forcible, fraudulent or clandestine entry thereon. Cowell v. Lammers, (C.C.) 21 Fed. Rep. 200, 202; Nevada Sierra Oil Co. v. Home Oil Co., (C.C.) 98 Fed. Rep. 674, 680; Hosmer v. Wallace, 97 U.S. 575, 579; Trenouth v. San Francisco, 100 U.S. 251; Mower v. Fletcher, 116 U.S. 380, 385, 386; Haws v. Mining Company, 160 U.S. 303, 317; Nickals v. Winn, 17 Nevada, 188, 193; McBrown v. Morris, 59 California, 64, 72; Goodwin v. McCabe, 75 California, 584, 588; Rourke v. McNally, 98 California, 291."
If a placer locator is, as we have shown, entitled to the exclusive possession of the surface, an entry thereon against his will, for the purpose of prospecting by sinking shafts or otherwise, is undoubtedly a trespass, and such a trespass cannot be relied upon to sustain a claim of a right to veins and lodes. It will not do to say that the right thus claimed is only a right to something which belongs to the United States and which will never belong to the placer locator, unless specifically applied and paid for by him, and therefore that he has no cause of complaint; for if the claim of the lode locator be sustained it carries under sections 2320 and 2333 at least twenty-five feet of the surface on each side of the middle of the vein. Further, if there be no prospecting, no vein or lode discovered until after patent, then the title to all veins and lodes within the area of the placer passes to the placer patentee and any subsequent discovery would enure to his benefit.
Again, it is contended that the claims which the defendant sought to patent were lode claims; that the only title set up in the complaint in the adverse suit was a placer title, and that a placer claimant has no standing to maintain an adverse suit against lode applications. In support of this is cited 2 Lindley on Mines, section 721, in which the author says:
"Where an application for a patent to a lode within the *232 limits of a placer is made by a lode claimant, if the placer claimant asserts any right to the lode, he is necessarily called upon to adverse. Where his claim, however, is placer, pure and simple, under which claim he cannot lawfully assert a right to the lode, he has nothing upon which to base an adverse claim, unless the lode is entirely without the placer, and the controversy is confined to a conflicting surface, or the lode claimant seeks to acquire more surface than the law permits."
We do not think the author's language is to be taken as broadly as counsel contend. Under the statutes a lode claim carries with it the right to a certain number of acres, and where one is in peaceable possession of a valid placer claim, if a stranger forcibly enters upon that claim, discovers and locates a lode claim within its boundaries, and then applies for a patent, surely the placer claimant has a right to be heard in defence of his title to the ground of which he has been thus forcibly dispossessed. If the application for a patent of the lode claim is not adversed it will pass to patent, and it may well be doubted whether the placer claimant could, after the issue of a patent under such circumstances, maintain an equitable suit to have the patentee declared the holder of the legal title to the ground for his benefit. If the placer claimant can be thus deprived of his possession and title to a part of his ground he may be in like manner dispossessed of all by virtue of many forcible trespasses and lode discoveries.
The amount of land embraced in this placer location was about one hundred acres, while the land claimed under the several lode locations was a little over thirty-five acres. Can it be that the placer claimant had no right to be heard in court respecting the claim of the lode claimants to so large a portion of the placer ground?
We must not be understood to hold that, because of the judgment in this adverse suit in favor of the placer claimants, their right to a patent for the land is settled beyond the reach of inquiry by the government, or that the judgment necessarily *233 gives to them the lodes in controversy. In 2 Lindley on Mines, sec. 765, the author thus states the law:
"Notwithstanding the judgment of the court on the question of the right of possession, it still remains for the Land Department to pass upon the sufficiency of the proofs, to ascertain the character of the land, and determine whether or no the conditions of the law have been complied with in good faith."
In 4 L.D. 316, Mr. Justice Lamar, then Secretary of the Interior, said in respect to this question:
"Does the judgment of a court as to which of two litigants has the better title to a piece of land bind the Commissioner to say, without judgment, or contrary to his judgment, that the successful litigant has complete title and is entitled to patent under the law? The usual result following a favorable judgment in a court under section 2326 of the Revised Statutes is, I doubt not, the issue of patent in due time, but in such case the final passing of title is not on the judgment of the court independent of that of the Commissioner, but is on the judgment of the latter pursuant to that of the former, and on certain evidence supplemental to that furnished by the judgment roll.
"The judgment of the court is, in the language of the law, `to determine the question of the right of possession.' It does not go beyond that. When it has determined which of the parties litigant is entitled to possession, its office is ended, but title to patent is not yet established.
"The party thus placed in possession may `file a certified copy of the judgment roll with the register and receiver.' But this is not all. He may file `the certificate of the surveyor general that the requisite amount of labor has been performed or improvements made thereon.' Why file this, or anything further, if the judgment roll settles all questions as to title and right to patent? Clearly, because the law vests in the Commissioner the authority and makes it his duty to see that the requirements of law relative to entries and granting of patents thereunder shall have been complied with before the issue of *234 patent. His judgment should therefore be satisfied before he is called upon to take final action in any case. In this case, the judgment of the court ended the contest between the parties and determined the right of possession. The judgment roll proves the right of possession only. The applicant must still make the proof required by law to entitle him to patent. Branagan v. Dulaney, 2 L.D. 744. The sufficiency of that proof is a matter for the determination of the Land Department."
This opinion was cited as an authority by this court in Perego v. Dodge, 163 U.S. 160, 168. See also Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L.D. 95, 103. The land office may yet decide against the validity of the lode locations and deny all claims of the locators thereto. So also it may decide against the placer location and set it aside, and in that event all rights resting upon such location will fall with it.
Finally, we observe that the existence of placer rights and lode rights within the same area seems to have been contemplated by Congress, and yet full provision for the harmonious enforcement of both rights is not to be found in the statutes. We do not wonder at the comment made by Lindley, (1 Lindley, 2d ed. sec. 167,) that "the townsite laws, as they now exist, consist simply of a chronological arrangement of past legislation, an aggregation of fragments, a sort of `crazy quilt,' in the sense that they lack harmonious blending. This may be said truthfully of the general body of the mining laws." Many regulations of the Land Department and decisions of courts find their warrant in an effort to so adjust various statutory provisions as to carry out what was believed to be the intent of Congress and at the same time secure justice to miners and those engaged in exploring for mines. If we assume that Congress, recognizing the co-existence of lode and placer rights within the same area, meant that a lode or vein might be secured by a party other than the owner of the placer location within which it is discovered providing his discovery was made without forcible trespass and dispossession it may be *235 that a court of equity is competent to provide by its decree that the discoverer of the lode, within the placer limits, shall be secured in the temporary possession of so much of the ground as will enable him to successfully work his lode, protecting at the same time the rights of the placer locator. But such equitable adjustment of co-existing rights cannot be secured in a simple adverse action and it would be, therefore, beyond the limits of proper inquiry in this case to determine the rights which may exist, if in the end the placer location be sustained and a discovery of the lodes without forcible trespass and dispossession established.
But for the present, for the reasons above given, we think the judgment of the Supreme Court of Colorado was right, and it is
Affirmed.
The CHIEF JUSTICE and MR. JUSTICE WHITE dissent. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1614126/ | 939 So.2d 1 (2006)
Ex parte EAST ALABAMA MENTAL HEALTH-MENTAL RETARDATION BOARD, INC., and Dr. Anne Penney.
(In re James Crayton Walker, deceased, by and through his personal representative, Arnold Umbach, Jr., and James Christopher Walker, son and heir of the estate of James Crayton Walker, deceased
v.
East Alabama Mental Health-Mental Retardation Board, Inc., and Dr. Anne Penney).
1041601.
Supreme Court of Alabama.
March 17, 2006.
Carroll H. Sullivan, Christopher L. George, and Carter R. Hale of Scott, Sullivan, Streetman & Fox, P.C., Mobile, for petitioners.
Larry G. Cooper, Auburn, for respondents.
SEE, Justice.
East Alabama Mental Health-Mental Retardation Board, Inc. ("the Board"), and its director, Dr. Anne Penney, defendants in an action pending in the Lee Circuit Court, petition this Court for a writ of mandamus directing the Lee Circuit Court to enter a summary judgment in favor of the Board and Penney because, they argue, the underlying action was commenced *2 after the statutory limitations period had expired. We deny the petition.
Background
On August 9, 2002, Donald W. Walker killed his father, James C. Walker. On August 5, 2004, the personal representative of the estate of James C. Walker, Arnold Umbach, Jr. ("Umbach"), sued the Board, Penney, the Alabama Board of Adjustment, and Donald Walker (collectively "the defendants") in the Lee Circuit Court. Umbach claimed that the defendants' wanton, willful, and malicious conduct and their negligence caused James Walker's death.
When Umbach's counsel filed his complaint, he apparently also filed with the circuit clerk of the Lee Circuit Court summonses for service upon the defendants, requesting service by certified mail; the circuit clerk presumably issued the summonses.[1]See Rule 4(a)(1), Ala. R. Civ. P. ("Upon the filing of the complaint, . . . the clerk shall forthwith issue the required summons or other process for service upon each defendant."). The clerk for the Lee Circuit Court issued certified-mail cards and gave them to Umbach's counsel to use to mail the complaints and summonses to the defendants. The defendants received service by certified mail on October 24, 2004, over two and one-half months after Umbach had filed his complaint.
On June 7, 2005, the Board and Penney moved for a summary judgment arguing that, although Umbach filed his complaint within two years of the date of James Walker's death, because Umbach "made no attempt to serve the summonses and complaint on Defendants until more than 2½ months after the expiration of the two-year statute of limitations [set forth in § 6-5-410(d), Ala.Code 1975,] the action was not commenced until the statute of limitations had expired."[2] The Board and Penney's mandamus petition, Appendix 4, p. 4. The trial court, apparently treating the summary-judgment motion as a motion to dismiss, denied the motion.[3] The Board and Penney now petition this Court for a writ of mandamus directing the Lee Circuit Court to enter a summary judgment in their favor on the basis that the action was commenced outside of the statutory limitations period.
Standard of Review
"`A writ of mandamus is an extraordinary form of relief.' Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala.2002). `[A] writ [of mandamus] will issue only upon a showing of "(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court."' Ex parte Puccio, 923 So.2d 1069, 1072 (Ala. *3 2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001))."
Ex parte City of Tuskegee, 932 So.2d 895, 900 (Ala.2005).
Analysis
Section 6-5-410(d), Ala.Code 1975, requires that an action based on the wrongful act, omission, or negligence of any person that results in the death of another be "commenced within two years from and after the death of the testator or intestate." See also Dukes v. Jowers, 584 So.2d 524, 525 n. 2 (Ala. 1991) ("a wrongful death action `must be commenced within two years from and after the death of the testator or intestate'" (quoting § 6-5-410(d))). Here, Donald Walker murdered James Walker on August 9, 2002, and Umbach filed his complaint on August 5, 2004. Therefore, Umbach timely filed his complaint within the statutory limitations period.
Although Rule 3, Ala. R. Civ. P., states that "[a] civil action is commenced by filing a complaint with the court," this Court has held that the filing of a complaint is not the sole factor in determining when an action is "commenced." A major function of Rule 3, Ala. R. Civ. P., is to identify, with certainty, the specific time when a civil action is initiated. The filing of a complaint is, therefore, a significant factor in commencing an action and suspending the operation of the applicable statute of limitations; however, it is not the sole factor. Ward v. Saben Appliance Co., 391 So.2d 1030, 1032 (Ala.1980). This Court has held that the filing of a complaint, standing alone, does not commence an action for statute-of-limitations purposes. "`Rather, the filing must be made with the intention of serving process upon the opposing party or parties.'" Maxwell v. Spring Hill College, 628 So.2d 335, 336 (Ala.1993) (quoting Latham v. Phillips, 590 So.2d 217, 218 (Ala.1991)).
The Board and Penney argue that Umbach did not possess the requisite intent to serve process on the defendants when he filed his complaint. The Board and Penney rely on Maxwell, supra, Latham, supra, Freer v. Potter, 413 So.2d 1079 (Ala. 1982), and Ward, supra, in support of their argument that Umbach's action was not "commenced" when it was filed. However, unlike the plaintiffs' conduct in those cases, Umbach's conduct does not show that Umbach did not possess the present intent to serve the defendants when he filed his complaint.
In Maxwell v. Spring Hill College, Maxwell filed a complaint on the day the statutory limitations period would have run on his claim. However, Maxwell did not provide the circuit clerk with summonses, service instructions, or addresses to facilitate service on the defendants until approximately one month after he had filed the complaint. Spring Hill moved for a summary judgment, arguing that Maxwell lacked the intent to have the complaint served immediately and, therefore, that the filing of the complaint did not commence the action. The trial court granted Spring Hill's summary-judgment motion. This Court agreed with the trial court that Maxwell did not have the intent to serve Spring Hill when he filed his complaint and therefore affirmed the summary judgment in favor of Spring Hill. 628 So.2d at 335.
In Latham v. Phillips, the incident giving rise to Latham's complaint, which was subject to a two-year statute of limitations, occurred on March 5, 1988, and Latham filed her complaint on March 2, 1990. She paid the filing fee on March 5, 1990. When she filed her complaint, Latham did not give the clerk any instructions as to how to proceed with service of *4 process. On April 4, 1990, Latham finally provided the clerk with the summonses for the defendants, Phillips and Easterwood. Phillips moved for a summary judgment, arguing that Latham was barred from prosecuting her claim because the statutory limitations period had expired when the action was finally "commenced." The trial court granted Phillips's motion, and this Court affirmed the trial court's judgment. 590 So.2d at 217-18.
In Freer v. Potter, Freer filed his complaint one day before the statutory limitations period was to run. When he filed his complaint, Freer ordered the clerk to withhold service of process. The defendants each moved for a summary judgment, arguing that Freer was barred from prosecuting his claim because, they argued, the statutory period of limitations had expired when the action was commenced. Freer appealed, and this Court held, among other things, that the action was barred by the statute of limitations because, although the complaint had been filed, Freer had intentionally interfered with service by ordering that service be withheld; therefore, the action was not "commenced" at the time of filing. 413 So.2d at 1081.
Likewise, in Ward v. Saben Appliance Co., the accident that was the basis of Ward's complaint occurred on September 16, 1978, and Ward filed her complaint on September 17, 1979, the last day before the statutory limitations period was to run.[4] However, after filing her complaint, Ward directed the clerk to withhold personal service on the defendants until she could obtain additional information on the case. Ward obtained the additional information and instructed the clerk's office to proceed with service. Saben Appliance Company and Brenda Allen, Inc., were eventually served on January 18, 1980, four months after the complaint was filed. This Court held that, although the filing of a complaint is a significant factor in commencing an action and suspending the operation of the applicable statute of limitations, it is not the sole factor to be considered. 391 So.2d at 1034. The Court concluded:
"We hold that in the present case the action was not `commenced' when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether[,] in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations."
391 So.2d at 1035.
This case, however, is readily distinguishable from Maxwell, Latham, Freer, and Ward, because the record is devoid of any indication that at the time that Umbach filed his complaint he did not intend to serve process upon the Board, Penney, and the other defendants. Umbach filed his complaint on August 5, 2004. Umbach apparently provided the clerk with the necessary documents or information and the clerk apparently issued summonses; the Board and Penney do not contend otherwise.[5] The clerk completed the certified return-receipt cards and gave them to Umbach for mailing the summonses and *5 complaints to the Board, Penney, and the other defendants. The Board and Penney's mandamus petition, p. 2 n. 1. Thus, the evidence suggests that Umbach intended to serve process upon the defendants when he filed the complaint; he did all that was required by the Rules of Alabama Civil Procedure to facilitate service, short of placing the summonses and complaints in the mail.
The Alabama Rules of Civil Procedure provide:
"In the event of service by certified mail, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. . . . The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received."
Rule 4(i)(2)(B), Ala. R. Civ. P. Therefore, Rule 4(i)(2), Ala. R. Civ. P., contemplates that the clerk will mail the summonses and complaints.
The Board and Penney state that it is undisputed that the clerk's office does not provide postage for pleadings served by certified mail, and that, therefore, when a complaint is filed in the clerk's office of the Lee Circuit Court, it is the practice of that office to provide certified-mail cards to counsel and for counsel then to mail the summonses and complaints. The Board and Penney's mandamus petition, p. 2 n. 1. The circuit clerk apparently shifted the responsibility for mailing the summonses and complaints to Umbach. Umbach's delay of two and one-half months may be some evidence indicating that, at the time he filed the complaint, he lacked the intention to immediately serve the summons and complaint; however, the issuance of the writ of mandamus requires the Board and Penney to demonstrate that they have "`a clear legal right . . . to the order sought'" and that there was "`an imperative duty upon the respondent to perform.'" Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). We conclude that Umbach's failure to perform this task for two and one-half months,[6] without more, does not sufficiently demonstrate that they met that heavy burden. Under the facts of this case, the authorities relied upon by the Board and Penney *6 are distinguishable. The Board and Penney fail clearly to demonstrate that they are entitled to a summary judgment; therefore, they fail to demonstrate that they are entitled to the writ of mandamus.
Conclusion
The Board and Penney have not clearly demonstrated that Umbach's action was "commenced" outside the limitations period for a wrongful-death action provided in § 6-5-410(d), Ala.Code 1975. Therefore, we cannot conclude that the Board and Penney are clearly entitled to a summary judgment. Accordingly, we conclude that the Board and Penney are not entitled to a writ of mandamus.
PETITION DENIED.
NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.
NOTES
[1] The Board and Penney do not allege otherwise.
[2] Section 6-5-410, Ala.Code 1975, provides, in part:
"A personal representative may commence an action . . . for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused,. . . .
". . . .
"(d) Such action must be commenced within two years from and after the death of the testator or intestate."
[3] Although the Board and Penney's motion is entitled "Defendants' Motion for Summary Judgment," the trial court's order refers to the Board and Penney's summary-judgment motion as a "motion to dismiss." The trial court also granted a motion to dismiss filed by Donald Walker and denied a motion to dismiss filed by the Alabama Board of Adjustment.
[4] September 16, 1979, was a Sunday; therefore, the filing of the complaint on September 17, 1979, was timely. Ward, 391 So.2d at 1031.
[5] See Rule 4(a)(1), Ala. R. Civ. P. ("Upon the filing of the complaint, . . . the clerk shall forthwith issue the required summons or other process for service upon each defendant.").
[6] We note also that Rule 4(b), Ala. R. Civ. P., allows for service of process up to, and in some instances beyond, 120 days after the plaintiff filed its complaint. Rule 4, Ala. R. Civ. P., was amended, effective August 1, 2004, four days before Umbach filed his complaint, to add subdivision (b). Rule 4(b), Ala. R. Civ. P., provides:
"If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative, after at least fourteen (14) days' notice to the plaintiff, may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time; provided, however, that if the plaintiff shows good cause for the failure to serve the defendant, the court shall extend the time for service for an appropriate period. This subdivision does not apply to fictitious-party practice pursuant to Rule 9(h) or to service in a foreign country."
The Board and Penney provide no argument as to what effect, and we do not address the effect, if any, the adoption of Rule 4(b), Ala. R. Civ. P., may have on the precedential value of Maxwell, Latham, Freer, and Ward. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614143/ | 939 So.2d 48 (2006)
Edward F. TRACY
v.
Amy C. TRACY.
2040823.
Court of Civil Appeals of Alabama.
March 31, 2006.
Edward F. Tracy, pro se.
Walter B. Calton, Eufaula, for appellee.
PITTMAN, Judge.
Edward F. Tracy ("the father") appeals from an order of the Barbour Circuit Court denying a petition for modification of visitation rights as to children born of his marriage to Amy C. Tracy ("the mother") and making other determinations. We dismiss the appeal.
*49 The record indicates that the father filed a petition requesting a modification of visitation as to the parties' two minor children in the Barbour Circuit Court on December 20, 2004. That court, after an ore tenus hearing, entered an order on April 4, 2005, denying the father's petition; however, the trial court also, sua sponte, raised the issue of whether the father's child-support obligation should be altered.[1] In connection with that issue, the trial court found that the father was underemployed and directed the father to find part-time paid employment at a minimum of 20 hours per week. The trial court directed the father to file and serve an income affidavit after obtaining employment; however, the trial court did not determine the amount of prospective child support to be paid.
We conclude that the father's appeal is from a nonfinal order and, thus, is due to be dismissed. An appeal ordinarily lies only from a final judgment. Ala.Code 1975, § 12-22-2. An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties. See Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (noting that an order that does not dispose of all claims is not a final judgment and that, in such an instance, an appeal may be had only upon an express determination that there is no just reason for delay and upon an express direction for the entry of a judgment under Rule 54(b), Ala. R. Civ. P.).[2]
We note that the father filed a postjudgment motion requesting that the trial court vacate its order denying his petition for modification of visitation; that motion also requested that the trial court vacate its finding that he was underemployed. Rule 32(B)(5), Ala. R. Jud. Admin., provides:
"(5) Unemployment; Underemployment. If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent's imputed income."
(Emphasis added.)
In this case, although the trial court, sua sponte, raised the issue of child support and found that the father was underemployed, the trial court failed to impute income to the father and calculate child support pursuant to Rule 32(B)(5). Because the issue of child support has not been fully adjudicated by the trial court, the father has attempted to appeal from a nonfinal order. Thus, we dismiss the father's appeal. See § 12-22-2, Ala.Code 1975.
APPEAL DISMISSED.
CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur.
NOTES
[1] The record reflects no pleading or motion in which the mother sought an increase in the father's child-support obligation.
[2] In this case, the trial court did not direct the entry of a judgment pursuant to Rule 54(b), Ala. R. Civ. P., as to the visitation claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3033632/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1074
___________
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Alexander ‘Alex’ White Plume; Percy *
White Plume, their agents, servants, *
assigns, attorneys, and all others acting *
in concert with the named defendants; * Appeal from the United States
* District Court for the
Defendants, * District of South Dakota.
*
Tierra Madre, LLC, a Delaware limited *
liability company; Madison Hemp and * [UNPUBLISHED]
Flax Company 1806, Inc., a Kentucky *
corporation; *
*
Intervenor Defendant, *
*
Thomas J. Ballanco, *
*
Movant Below - Appellant. *
___________
Submitted: February 13, 2004
Filed: February 27, 2004
___________
Before BYE, HEANEY, and SMITH, Circuit Judges.
___________
PER CURIAM
In this interlocutory appeal, Thomas J. Ballanco appeals the district court’s1
denial of his motion to intervene in this declaratory judgment action filed by the
United States. We affirm.
Since 1998, Ballanco, an attorney, has been providing legal advice to various
corporations and members of the Oglala Sioux Tribe regarding hemp production.
Ballanco alleges he has spent considerable time and effort developing and
implementing a legal and regulatory structure on the reservation for hemp production,
and claims a right to participate in harvesting, producing, brokering and promoting
hemp.
In 1998, the Oglala Sioux Tribal Council passed an ordinance purporting to
legalize hemp production on the reservation. In 2000, 2001 and 2002, Alexander
White Plume cultivated and manufactured hemp on federal trust land. In August
2002, the government brought this action seeking declaratory judgment and an
injunction to prevent the defendants from producing hemp on the Pine Ridge Indian
Reservation. Ballanco moved to intervene as a matter of right in the litigation. The
district court denied Ballanco’s motion finding he did not have Article III standing
and Ballanco’s alleged interests were adequately protected by the parties to the
litigation.
1
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
-2-
We review the denial of mandatory intervention de novo. United States v.
Union Elec. Co., 64 F.3d 1152, 1158 (8th Cir. 1995). We conclude the district court
properly denied Ballanco’s motion to intervene and affirm under 8th Cir. R. 47B.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/22510/ | 234 F.3d 263 (5th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.BART HENRIQUES, Defendant-Appellant.
No. 99-60819
UNITED STATES COURT OF APPEALS, Fifth Circuit
November 27, 2000
Appeal from the United States District Court for the Southern District of Mississippi
Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE*, Judge.
DONALD C. POGUE, JUDGE:
1
Defendant-appellant Bart Henriques ("Henriques") appeals his conviction on one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced Henriques to 42 months imprisonment, followed by three years of supervised release. Henriques appeals on several grounds.1 The outcome of the case turns on one issue: whether the evidence is sufficient to support a finding that the images were transported in interstate commerce. We agree with Henriques that the evidence does not support such a finding. We, therefore, reverse the conviction.
FACTS AND PRIOR PROCEEDINGS
2
Henriques was indicted and convicted by a jury of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).2 It is from this verdict that Henriques filed a timely appeal.
3
The facts relevant for this appeal are as follows: In February 1998, Warren County's Sheriff's Department was contacted about a runaway teenage girl named Gabrielle Phillips. The Sheriff's Department discovered Phillips at Henriques' apartment. In the process of searching for Phillips, the Sheriff's Department learned of several other children who visited Henriques' apartment and that Henriques often used his computer to view both child and adult pornography in the youths' presence. After Phillips' removal from Henriques' apartment, Henriques was called into the Office of Internal Affairs at the Vicksburg Police Department. There, at the Department's request, he voluntarily consented to a search of his apartment, putting his consent in writing. The police then searched Henriques' apartment during which time Henriques' computer was seized and taken into custody.
4
In March 1998, FBI Special Agent Jeffrey Artis took the computer into FBI custody and transported it for examination by a bureau computer expert. At this time, without turning on the computer, a "mirror" copy of the computer's hard drive was made. Upon review of this copy, several files containing pornography, all organized into subdirectories, were found on the computer.
5
At trial approximately seventeen images found on Henriques' computer were put into evidence. The jury concluded that three images, Exhibits G-11, G-20, and G-21, fell within the behavior prohibited by 18 U.S.C. § 2252A.3 As a result of the jury's finding, Henriques was convicted.
Sufficiency of Evidence
6
The issue of sufficiency of evidence is a question of law which we review de novo. See Aguillard v. McGowan, 207 F.3d 226, 228 (5th Cir. 2000). Evidence need not "exclude every reasonable hypothesis of innocence or be wholly inconsistent with the very conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Richards, 204 F.3d 177, 206 (5th Cir. 2000)(citing United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)). We must also view the evidence in the light most favorable to the verdict, in this case in favor of the government. See United States v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998).
7
The statute mandates that at least three of the images in the defendant's possession traveled in interstate commerce. This includes any image "that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer." 18 U.S.C. § 2252A(a)(5)(B)(1997). Transport of the goods through interstate commerce is an element of the crime which the government must prove to obtain a conviction. Cf. The National Stolen Property Act, 18 U.S.C. § 2314 (2000); See United States v. Vontsteen, 872 F.2d 626 (5th Cir. 1989)("[T]he government directly proved that [the] pipe . . . was shipped from Texas to Louisiana, thereby satisfying . . . an element of section 2314."). Henriques contends that the government failed to prove this element.
8
The requirement in 18 U.S.C. § 2252A that child pornography be transported ininterstate commerce raises two issues. First, to what extent must the government prove that the image came from the Internet.4 Second, does proof that a picture was downloaded from the Internet satisfy the jurisdictional nexus of "interstate commerce."
9
Although this court has not previously addressed the extent of the government's burden in connecting the specific images to the Internet, the Tenth Circuit has already developed a test to ensure that the government satisfies its burden. The Tenth Circuit requires the government to independently link all the images upon which a conviction is based to the Internet. See United States v. Wilson, 182 F.3d 737, 744 (10th Cir. 1999)(holding evidence linking one diskette to interstate commerce was not sufficient to allow an inference that the other two diskettes were similarly linked). This standard limits the government's ability to build a case on inferences, e.g., by analogizing that since one image was downloaded from the Internet, the rest of the images must also be connected to the Internet.
10
The transport of images through interstate commerce, as an element of the crime, must be proved beyond a reasonable doubt. Requiring the government to independently link each image to interstate commerce is therefore necessary and appropriate in order that the government satisfies its burden. If we did not require the government to independently link each image to interstate commerce, we would allow the government to obtain a conviction without proving beyond a reasonable doubt each element of the crime. Therefore, we adopt the Tenth Circuit's position.
11
In this case, the government presented little evidence connecting all the images to the Internet independently. Indeed, as to one of the images, the government presented no evidence connecting it to the Internet. It is not disputed that the evidence supports a finding that Henriques accessed the Internet. Nor is it disputed that Henriques' computer contained pornographic material. The required jurisdictional nexus between the images and interstate commerce, however, was not established.
12
The government established that Henriques owned a computer and subscribed to an Internet Service Provider ("ISP"). Through this service, Henriques was able to access and view images on the Internet. His computer also contained pornographic images, which were located on his hard drive. These images were stored in separate folders on his computer. The evidence clearly supports a finding that these folders were consciously created. Also, since Henriques owned the computer, the computer was found in his apartment, and he was the only adult living in the apartment, the jury could reasonably conclude that the evidence establishes that Henriques was the individual responsible for the images found on the hard drive.
13
Despite this evidence, at trial, no evidence was introduced by the government to establish whether the images came from a website, were downloaded from a floppy disk, or came from some other source, such as another hard drive.5 Rather,Agent Artis, in his trial testimony, argued that if images of nude children were on the hard drive, and that computer was connected to the Internet, somebody had to use the Internet to put them there. R. Vol. 4, page 320.6
14
In order to prove the connection between the images found on Henriques' hard drive and the Internet, the government relied on the testimony of one witness and internal evidence on some of the images. Witness testimony was introduced to prove that Henriques viewed pornographic images on the Internet.7 This testimony, however, was only applicable for a few of the images, while the government introduced approximately seventeen images for deliberation by the jury. The attorney for the government also argued that the interstate commerce element of the statute was satisfied because website addresses were embedded on some of the images.8
15
The government attorney, however, never discussed how the connection to the Internet can be made for the photographs with no internal evidence or without testimony connecting the images to the Internet. Rather, the government attempted to prove the Internet connection mainly through inferences. This, however, leaves a gap in the evidence.
16
Phillips, the girl found at Henriques' apartment, testified that Henriques used the Internet to view pornographic images in her presence. She identified a model in G-11 as one she saw Henriques view on the Internet.9 The government relied on Phillips' testimony to prove a connection between the images and the Internet. Although Phillips' testimony connects one image, G-11, to the Internet, her testimony cannot be used to infer that the other two images upon which Henriques' conviction is based, were also obtained from the Internet.
17
Of the other two images, one, G-21, contains a world-wide web address embedded on the image. Although, it is possible for this "internal evidence" to support a connection to the Internet for G-21, the government is still required to independently connect G-20 to the Internet. The third image, G-20, does not contain internal evidence. There was also no testimony introduced to connect this specific image to the Internet. Since there is no evidence to connect this last image, G-20, to the Internet, we find that there is not independent evidence connecting all three images to the Internet.10
18
Although the evidence clearly established Henriques use of the Internet, since the government did not attempt to prove the nexus to the Internet for the three images independently, Henriques' conviction must be reversed.11
Conclusion
19
For the foregoing reasons, Henriques' conviction must be overturned.
NOTES:
*
Judge for the United States Court of International Trade, sitting by designation.
1
Henriques claims that the district court improperly denied his motion to suppress evidence, that the court abused its discretion in finding that remarks by the prosecutor in the grand jury proceeding at most constituted harmless error, that the prosecutor withheld evidence favorable to Henriques in violation of Brady v. Maryland, 373 U.S. 83 (1963), that the statutory schemes are void for vagueness, and that the evidence was insufficient to support a verdict of guilty beyond a reasonable doubt.
2
18 U.S.C. § 2252A is entitled "Certain activities relating to material constituting or containing child pornography," and section 2252A(a)(5)(B) reads as follows:
(a) Any person who--
(5) either--
(B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains 3 or more images of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, shall be punished as provided in subsection (b)
Subsection (b) discusses fines and imprisonment. 18 U.S.C. § 2252A (a)(5)(B) (1997).
The statute requires a minimum of three images to convict. See Id. Henriques was convicted under this minimum. His conviction was based on three images, G-11, G-20, and G-21.
The statute was amended on October 30, 1998. The amended version substitutes "an image" for "3 or more images." 18 U.S.C. §§ 2252A(a)(5)(B). This version of the statute gives the defendant an affirmative defense upon a showing that the defendant possessed fewer than three images. See Id. at (c). Although the district court refers to the amended version of the statute, we find that it is not applicable in this case, because the indictment charges Henriques with violating 18 U.S.C. § 2252A(a)(5)(b) on or about February 23, 1998, before the statute was amended.
3
See supra note 2.
4
Use of the Internet has drastically increased over the past decade. As of November 1999, the U.S. online population was estimated at 101 million and continuing to grow. See David Lake, Spotlight: How Big is the U.S. Net Population, available at <http://www.TheStandard.com>. Not only has the individual online population grown, but the Internet is now estimated to connect more than 159 countries. See ACLU v. Johnson, 194 F.3d 1149, 1153 (10th Cir. 1999) The Internet is "wholly insensitive to geographic distinctions[,]" making it difficult to use the present legal framework to analyze this modern situation. American Library Assn., et.al. v. Pataki, 969 F. Supp. 160, 164 (S.D.N.Y. 1997).
5
Agent Artis testified that
What we were looking for was child pornography on the computer there, and that's what we found. Now where it came from, what site or what name is written underneath the picture was irrelevant. The fact what we were looking for was, was that child pornography was on the computer. That's what we found.
R. Vol. 4, page 338-9.
6
This argument became clear during Henriques' attorney's questioning of Agent Artis.
Q. And the focus of this investigation is somebody - - you believe, in your investigation, that somebody downloaded off of the Internet images of nude children and they exist on that hard drive. Correct?
A. Yes. There was images of children
Q. All right. And in order to get them on the hard drive, somebody has to utilize what we've previously talked about, an Internet service provider, and hook onto the Internet - - dial a phone number through their computer, hook on, and then search and find one of these photos and then download it onto the computer. Correct?
A. That's correct.
R. Vol. 4, page 320.
7
Phillips identified some of the images as ones she witnessed Henriques view on the Internet. See infra note 9 and accompanying text.
8
The government attorney argued that "in certain of those photographs there is internal evidence which suggests that they [the images] are indeed generated from the Internet." R. Vol. 4, page 488.
9
Phillips identified models in three exhibits, G-11, G-13, and G-22. Of these three images, the jury only held G-11 as meeting the statutory requirements, making Phillip's identification of the other models irrelevant for this court's purposes.
10
The failure of the government to meet its burden for all three images, renders it unnecessary to decide the issue of whether downloading an image from the Internet satisfies "interstate commerce." It should be noted that the issue of interstate commerce and the Internet raises competing considerations, such as, the scope of federal jurisdiction and the global nature of the Internet. See generally American Library Assn., et. al. v. Pataki, 969 F. Supp. 170 (S.D.N.Y. 1997); United States v. Carroll; 105 F.3d 740 (1st Cir. 1997); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); ACLU v. Reno, 217 F.3d 162 (3rd Cir. 2000).
11
Because we find that the evidence was insufficient to support a finding of guilty beyond a reasonable doubt, it is unnecessary to consider Henriques other claims. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2749983/ | Order filed, October 15, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00407-CV
____________
SANTOS SAN JUAN D/B/A SANTOS WRECKER REPAIR, Appellant
V.
JOSE SEGOVIA, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2012-06117
ORDER
The reporter’s record in this case was due August 11, 2014. See Tex. R.
App. P. 35.1. On August 27, 2014, this court ordered the court reporter to file the
record within 30 days. The record has not been filed with the court. Because the
reporter’s record has not been filed timely, we issue the following order.
We order Michelle Tucker, the official court reporter, to file the record in
this appeal within 30 days of the date of this order. No further extension will be
entertained absent exceptional circumstances. The trial and appellate courts are
jointly responsible for ensuring that the appellate record is timely filed. See Tex.
R. App. P. 35.3(c). If Michelle Tucker does not timely file the record as ordered,
we will issue an order directing the trial court to conduct a hearing to determine the
reason for the failure to file the record.
PER CURIAM | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1613931/ | 111 Wis. 2d 418 (1983)
331 N.W.2d 350
Patti H. STRID, Plaintiff-Appellant,
v.
Attorney Edward E. CONVERSE, Defendant-Respondent.
No. 82-018.
Supreme Court of Wisconsin.
Argued March 1, 1983.
Decided March 29, 1983.
*419 For the plaintiff-appellant there were briefs and oral argument by James R. Long, Appleton.
For the defendant-respondent there was a brief and oral argument by Stephen J. Everson, Green Bay.
On certification from court of appeals.
BEILFUSS, C. J.
This is an appeal from an order of the trial court dismissing the plaintiff's complaint for failure to state a claim. We accepted the case upon certification from the court of appeals.
*420 The plaintiff, Patti Strid, and her husband, Dean Strid, were divorced in 1977. Pursuant to the divorce judgment custody of the minor children was awarded to Patti Strid, and Dean Strid was afforded visitation on weekends and alternate holidays.
In March of 1979, Mrs. Strid signed a petition alleging that her husband abused his visitation rights by consuming alcoholic beverages and requested that his visitation rights be suspended.[1] This petition was scheduled for an Order to Show Cause hearing on April 20, 1979, by Judge Thomas W. Grover. The Order to Show Cause was served on Mr. Strid and forwarded to his attorney, Edward Converse, the defendant in this action. Because Converse was going to be out of town on that date he requested an adjourned hearing date. Judge James W. Byers replaced Judge Grover and set August 13, 1979, as the new hearing date, but again Converse requested an alternate date. Judge Byers then set the hearing for October 30, 1979.
Mrs. Strid would not allow Mr. Strid to exercise his visitation rights beginning in September of 1979. On October 9, 1979, Judge Byers entered an ex parte order ordering Mrs. Strid to allow Mr. Strid to visit the parties' minor children pursuant to the terms of the divorce judgment and subsequent court orders. This order further provided that a bench warrant would issue in the event Mrs. Strid refused to allow visitation. The order was based on the affidavit of Mr. Strid which stated that Mrs. Strid was wilfully refusing visitation in violation of the divorce judgment. On October 22, 1979, Judge Byers issued an Order to Show Cause ordering Mrs. Strid to demonstrate why she should not be found in contempt for failure to allow the ordered visitation. *421 The hearing on this Order to Show Cause was set for the same time as the hearing on the Order to Show Cause on Mrs. Strid's petition to suspend Mr. Strid's visitation.
Attorney Converse then wrote Mrs. Strid's attorney and informed him that Judge Byers had cancelled the October 30th hearing and that the judge would set up a conference call in the near future to reschedule the matter. On November 2, 1979, Converse prepared a bench warrant directing the sheriff to arrest Mrs. Strid for failure to obey the court's ex parte order ordering visitation. The warrant was signed by Converse and issued by Judge Byers. On November 5, 1979, the plaintiff was arrested, booked and held until she appeared without counsel before Judge Byers on the same day.
At the hearing on the bench warrant Judge Byers rescheduled the hearing date on the issue of visitation for November 21, 1979.[2] Mr. Strid had obtained custody of the children following Mrs. Strid's arrest, and the court ordered that the children were to remain in their father's custody until the next day. He further ordered Mrs. Strid to allow Mr. Strid weekend visitation pursuant to the divorce judgment and subsequent court orders until the full hearing on visitation rights was held. Judge Byers stayed the bench warrant and released Mrs. Strid, but stated that it would be reinstated if she failed to permit visitation.
In July of 1980, Mrs. Strid commenced this action against Attorney Converse for malicious prosecution and false imprisonment.[3] The trial court dismissed the complaint, concluding that it failed to state a claim upon *422 which relief could be granted. It held that in order to state a claim for malicious prosecution the former proceedings must have been initiated by the defendant in the malicious prosecution action. The court found that Converse's client, not Converse, initiated the former proceedings. Mrs. Strid appealed contending that the complaint stated a claim for malicious prosecution and abuse of process. We accepted the appeal on certification from the court of appeals.
[1]
The issue on appeal is whether the complaint states a claim upon which relief can be granted. In determining whether the complaint was properly dismissed for failure to state a claim, we apply the familiar test that the pleadings are to be liberally construed to do substantial justice between the parties, and the complaint should be dismissed as legally insufficient only if it appears to a certainty that no relief can be granted under any set of facts that the plaintiff can prove in support of her allegations. La Fleur v. Mosher, 109 Wis. 2d 113, 121, 325 N.W.2d 314 (1982).
On appeal the plaintiff contends that the complaint states a claim for malicious prosecution and abuse of process. The defendant contends that because the words "abuse of process" do not appear in the complaint and the plaintiff indicated in the trial court that she was proceeding under the theory of malicious prosecution, she can not on appeal assert that the complaint also states a claim for abuse of process. This contention is incorrect.
[2]
A plaintiff is not required to put labels on the allegations in the complaint in order to state a valid claim. It is the sufficiency of the facts alleged that control the determination of whether a claim for relief is properly *423 plead. As stated in Jost v. Dairyland Power Cooperative, 45 Wis. 2d 164, 169-70, 172 N.W.2d 647 (1969):
"We do not agree a cause of action is not constituted by labeling the operative facts with the name of a legal theory. The operative facts themselves, if they show the invasion of a protected right, constitute the cause of action. What they are called is immaterial. If the facts reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action and there is no violation of the rules of pleading if the facts lead to the defendant's liability on more than one legal theory."
Thus if the facts alleged state a claim for abuse of process alternatively or in addition to malicious prosecution, the complaint should not be dismissed even though the theory was not explicitly argued in the trial court.
We first examine the complaint to determine if it states a claim for malicious prosecution. The six essential elements of a claim for malicious prosecution are:
"`1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.
"`2. Such former proceedings must have been by, or at the instance of, the defendant in this action for malicious prosecution.
"`3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.
"`4. There must have been malice in instituting the former proceedings.
"`5. There must have been want of probable cause for the institution of the former proceedings.
"`6. There must have been injury or damage resulting to the plaintiff from the former proceedings.'" Maniaci v. Marquette University, 50 Wis. 2d 287, 297-98, 184 N.W.2d 168 (1971); Elmer v. Chicago & N.W. Ry. Co., 257 Wis. 228, 231, 43 N.W.2d 244 (1950).
*424 These elements apply to the unjustifiable institution of civil judicial proceedings as well as to the institution of criminal proceedings. Maniaci, 50 Wis. 2d at 298. All six elements must be present in order to state a valid claim for malicious prosecution, and the absence of any one element is fatal to the claim. Yelk v. Seefeldt, 35 Wis. 2d 271, 277, 151 N.W.2d 4 (1967). Thus, if we find one element lacking we do not need to examine the other elements.
An examination of the complaint leads to the conclusion that it fails to allege the third element of a claim for malicious prosecution that the complained of proceedings terminated in favor of the defendant, who then became the plaintiff in the subsequent malicious prosecution action. The proceedings complained of by the plaintiff in this action are the issuance of the bench warrant and her subsequent arrest and appearance before Judge Byers pursuant to this warrant. The complaint merely alleges that Mrs. Strid was arrested and brought without counsel before Judge Byers as a result of this bench warrant. The complaint does not allege either that Judge Byers determined that the bench warrant was improperly issued or that he ruled in her favor on the subject of the bench warrant Mrs. Strid's continued violation of his ex parte order requiring her to comply with the visitation requirements of the divorce judgment and subsequent court orders. Either of these two alternatives would have been a termination in Mrs. Strid's favor in the complained of proceeding.
In addition to her failure to allege facts meeting this third element, the record before us demonstrates that Mrs. Strid can not so allege.[4] The transcript of the hearing *425 held on the issuance of the bench warrant shows that the trial court deemed the issuance of the bench warrant to be proper. Although the legality of the bench warrant was not specifically litigated at the hearing, the court stayed the enforcement of the warrant, stating that it would be reinstated if Mrs. Strid continued to refuse visitation in violation of the court's order. We believe that this indicates at least an implicit, if not express, recognition of the validity of the bench warrant.[5]
Further, at the hearing the trial court ordered Mrs. Strid to allow Mr. Strid weekend visitation, as required under the terms of the divorce judgment and subsequent court orders, pending the full hearing on the visitation issues raised by both parties. Mr. Strid's present visitation rights, pending a full hearing on a change in these rights, was the sole purpose of the bench warrant. Thus, the court clearly terminated the bench warrant proceedings in Mr. Strid's favor and against Mrs. Strid, the malicious prosecution plaintiff.
[3]
Mrs. Strid contends that the third element is met because the visitation ordered at the bench warrant hearing was temporary in nature and Mrs. Strid ultimately prevailed in her demand to suspend Mr. Strid's visitation. This contention misconstrues the nature of the *426 proof required to meet the element that the complained of proceedings terminated in favor of the malicious prosecution plaintiff. This element focuses on the relief sought by the malicious prosecution defendant in the complained of proceeding. The bench warrant was issued in order to require Mrs. Strid to comply with existing visitation orders pending a full hearing. The full hearing on visitation was a separate proceeding and thus its ultimate resolution is irrelevant to the bench warrant proceedings which are the only subject of this action. Therefore, because the plaintiff did not, and can not, allege facts supporting the third element of malicious prosecution, we conclude that she has failed to state a claim for malicious prosecution.
[4]
We next examine the complaint to determine if Mrs. Strid has stated a claim for abuse of process. In Maniaci v. Marquette University, 50 Wis. 2d at 299, we adopted the following definition of "abuse of process":
"`One who uses a legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed is liable to the other for the pecuniary loss caused thereby.'"
The court in Maniaci went on to note that abuse of process is broader than malicious prosecution and may provide a remedy where malicious prosecution will not. Malice, want of probable cause, and termination in the plaintiff's favor are not required. Rather, as stated by the court in Maniaci:
"Abuse of process lies even in those instances where:
"`. . . legal procedure has been set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed.'
"The gist of the tort is:
*427 "`. . . misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used . . . is the only thing of importance.' Prosser, supra, p. 876, sec. 115." Id. at 299-300.
In Thompson v. Beecham, 72 Wis. 2d 356, 362, 241 N.W.2d 163 (1976), this court stated that the two elements of the tort are: (1) a purpose other than that which the process was designed to accomplish, and (2) a subsequent misuse of the process. As stated by the court in Thompson:
"In order to maintain an action for abuse of process, the process must be used for something more than a proper use with a bad motive. The plaintiff must allege and prove that something was done under the process which was not warranted by its terms. The existence of an improper purpose alone is not enough, for this improper purpose must also culminate in an actual misuse of the process to obtain some ulterior advantage." Id. at 363.
[5]
Our examination of the complaint leads us to the conclusion that the plaintiff has stated a claim although skeletal for abuse of process. The complaint alleges that both Mr. and Mrs. Strid were awaiting a joint hearing on the issue of visitation when Mr. Converse prepared the bench warrant which caused Mrs. Strid's arrest. Although not specifically alleged, we agree with the plaintiff that from the facts pleaded in the complaint, a reasonable inference can be drawn that the process was misused to "coerce the plaintiff into granting visitation, to provide his client with quick access to the children, and to have a tactical advantage over Patti Strid in that she was unable to appear with counsel." Such an inference is further supported by the evidence in the record that at the time of the hearing on the bench warrant *428 Mr. Strid already had the children in his custody, although it was not a regular visitation day.
Such purposes, if proved at trial, are clearly ulterior and the use of the bench warrant to obtain these goals is "misuse of the process to obtain some ulterior advantage." Thompson, 72 Wis. 2d at 363. Thus both elements of the tort of abuse of process are alleged and the plaintiff has stated a claim for abuse of process.
The final issue we must address is whether the plaintiff's claim for abuse of process fails because the defendant was acting in his professional capacity as an attorney and is therefore entitled to immunity. In Langen v. Borkowski, 188 Wis. 277, 206 N.W. 181 (1925), this court examined the question of an attorney's immunity from liability to third parties for actions taken on behalf of his or her client. The court began with an analysis of the attorney's private and public duties, stating:
"An attorney at law is an officer of the court. The nature of his obligations is both public and private. His public duty consists in his obligation to aid the administration of justice; his private duty, to faithfully, honestly, and conscientiously represent the interests of his client. In every case that comes to him in his professional capacity he must determine wherein lies his obligations to the public and his obligations to his client, and to discharge this duty properly requires the exercise of a keen discrimination; and wherever the duties to his client conflict with those he owes to the public as an officer of the court in the administration of justice, the former must yield to the latter. He therefore occupies what may be termed a quasi-judicial office." Id. at 301.
Based on the quasi-judicial character of an attorney's duties, the court concluded that an attorney is "to a large degree" immune from liability for acts performed in the discharge of his or her professional duties. Id. at 302. *429 The extent of this immunity was described by the court as follows:
"If the issue of liability is one which is fairly debatable, then under the oath of office of an attorney he is not only authorized to present and urge his position upon the court, but in the discharge of his duties towards his client he must do so; and if it subsequently is determined that the position taken by him was erroneous, he should be relieved from responsibility. He is in duty bound, however, under his oath, to exercise good faith. He must not be guilty of any fraudulent acts, and he must be free from any unlawful conspiracy with either his client, the judge, or any other person, which might have a tendency to either frustrate the administration of justice or to obtain for his client something to which he is not justly and fairly entitled." Id. at 302-03.
More recently this court stated its adherence to the following rule:
"`While an attorney is not liable to a third person for acts performed in good faith, and mere negligence on the part of an attorney is insufficient to give a right of action to a third party injured thereby, an attorney is personally liable to a third party who sustains an injury in consequence of his wrongful act or improper exercise of authority where the attorney has been guilty of fraud or collusion, or of a malicious or tortious act. . . .'" Goerke v. Vojvodich, 67 Wis. 2d 102, 105, 226 N.W.2d 211 (1975), quoting 7. C.J.S., Attorney and Client, p. 834, sec. 52b.
These cases demonstrate that the immunity of an attorney who is acting in a professional capacity is qualified rather than absolute. The immunity from liability to third parties extends to an attorney who pursues in good faith his or her client's interests on a matter fairly debatable in the law. However, the immunity does not apply when the attorney acts in a malicious, fraudulent or tortious manner which frustrates the administration *430 of justice or to obtain something for the client to which the client is not justly entitled.[6]
The complaint alleges that the defendant acted maliciously and vindictively in preparing the warrant and causing the arrest of the plaintiff. The facts alleged demonstrate that the attorney caused the plaintiff to be arrested despite the fact that the plaintiff's actions which formed the basis for the warrant and the arrest, denial of Mr. Strid's visitation rights, had been set for a full hearing. The defendant denies that he acted with malice or vindictiveness and states that he was acting in the good faith pursuit of his client's interests.
We believe that the facts alleged by the plaintiff raise the issue of whether the defendant acted in bad faith in causing the plaintiff's arrest and a jury question is created as to whether Mr. Converse was immune from liability.
[6]
We conclude that the plaintiff has stated a claim for abuse of process and alleged facts which bring the defendant outside the doctrine of immunity. She is therefore entitled to an opportunity to prove her allegations and the defendant is entitled to present his defense. We therefore reverse the trial court's order dismissing the complaint.
By the Court. The order is reversed and cause remanded to the circuit court for further proceedings not inconsistent with this opinion.
NOTES
[1] The petition also alleged that he failed to pay child support and failed to perform other elements of the divorce judgment dealing mainly with the property settlement provisions.
[2] The record is unclear as to the date this hearing was actually held and the final disposition made by the trial court on the issue of visitation. However, this hearing and its disposition are irrelevant to the issues before this court on review.
[3] The plaintiff on appeal no longer relies on the false imprisonment claim.
[4] Although this appeal is before the court from an order dismissing the complaint for failure to state a claim, the record reveals that the defendant filed an answer in addition to his motion to dismiss. Further, defendant's motion to dismiss was supported by documents in addition to the pleadings. Thus, the motion to dismiss could have been treated as a motion for summary judgment pursuant to sec. 802.06(2), Stats.
[5] While we have some doubt as to the actual validity of the issuance of the bench warrant under the circumstances in this case, we do not specifically address the issue because it is the termination in the trial court that controls for purposes of determining whether the third element has been met. We also recognize that the validity of the bench warrant bears on the issue of the existence of probable cause. However, because we find that the third element is absent, we do not reach the issue of the presence of the fifth element.
[6] This general rule of immunity is also subject to other exceptions, see, Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613936/ | 416 Mich. 488 (1982)
331 N.W.2d 438
HART
v.
CITY OF DETROIT
Docket No. 65370, (Calendar No. 4).
Supreme Court of Michigan.
Argued October 13, 1981.
Decided December 23, 1982.
Mason, Steinhardt & Jacobs (by Frederick D. Steinhardt and Walter B. Mason, Jr.) for plaintiffs.
Monaghan, Campbell, Loprete, McDonald & Morris (by Boris K. Yakima, Special Assistant Corporation Counsel) for defendant.
FITZGERALD, C.J., and WILLIAMS, COLEMAN, and RYAN, JJ.
This opinion was written by Justice BLAIR MOODY, JR., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.
The original complaint in this inverse condemnation class action was filed May 9, 1974. Proper notice was given to all eligible class members. Owners of 42 parcels of land joined the class. On August 18, 1978, the trial court granted defendant's motion for accelerated judgment on the ground that all but seven of the plaintiffs' claims were barred by the three-year statute of limitations pertaining to damages for injuries to persons and property.
The Court of Appeals affirmed the trial court's decision, holding that the three-year statute of limitations was the proper statute to employ. 97 Mich. App. 697; 296 NW2d 151 (1980). This Court granted leave to appeal to determine whether the three-year statute of limitations for "injuries to persons and property" applies to inverse condemnation actions and, if not, what limitations period, if any, is applicable. Furthermore, if we find that a statute of limitations is applicable, we are asked to determine when the limitation period would begin to run as to the properties in this case.
*493 FACTS
The Court of Appeals decision succinctly set forth the pertinent facts as follows:
"This appeal is submitted on a stipulated statement of facts. The statement indicates that the parcels of realty in question are located within the boundaries of defendant's Elmwood Park Urban Rehabilitation Project No. 3 (Elmwood 3). A part of Elmwood Park,[2] the affected area contains approximately 1,400 separate parcels of land. Elmwood 3 was originally conceived by city planners in the mid-to-late 1950's. As part of its urban renewal efforts, defendant City of Detroit has acquired and demolished the structures upon virtually every parcel within Elmwood Park in order to facilitate redevelopment.
"All parties have stipulated that the actions of defendant in the Elmwood 3 project resulted in a de facto taking of plaintiffs' property without just compensation therefor. However, in each instance the subject properties were either directly or indirectly acquired by defendant as a result of nonpayment of taxes.[3] This occurred after the de facto takings but well prior to the commencement of any formal condemnation proceedings by defendant. The plaintiffs now appealing were not joined as parties to any of 12 formal condemnation proceedings filed by defendant from August 3, 1971, to November 27, 1972.
"On May 9, 1974, the within action was instituted, well after all the parcels involved in this controversy were conveyed for nonpayment of taxes, and more than three years after the right of equity of redemption had expired with respect to every parcel.
"Because this right had expired with respect to the parcels formerly owned by the plaintiffs on appeal, the lower court concluded that each plaintiff's cause of action accrued, at the latest, on the date of expiration of their right to redeem. Applying (as noted hereinbefore) the three-year statute of limitations found in MCL 600.5805(7); MSA 27A.5805(7), the trial court held that the claims of the plaintiffs now appealing were barred *494 thereby because their claims accrued, at the latest, more than three years prior to the institution of the class action suit, and were thus without the statute of limitations."
"[2] Elmwood Park, an area on the lower east side of Detroit, not far removed from downtown, also includes Elmwood 1 and 2, Urban Renewal Areas as well, which abut Elmwood 3.
"[3] The parcels were conveyed via tax deeds. Those acquired indirectly were purchased by defendant from the State of Michigan for a nominal consideration of $1 per parcel."
Hart, supra, 97 Mich App 700-701.
I
Inverse condemnation is a taking of private property for a public use without the commencement of condemnation proceedings. Under the Michigan[1] and United States[2] Constitutions, a victim of such a taking is entitled to just compensation for the value of the property taken.[3]
The parties agree that the real property involved here was de facto taken but not paid for by the City of Detroit pursuant to In re Urban Renewal, Elmwood Park Project, 376 Mich. 311; 136 NW2d 896 (1965), and Foster v Detroit, 405 F2d 138 (CA 6, 1968). The disputed issue is whether this action is barred by a statute of limitations.
Plaintiffs first contend that due process rights guaranteed by the state and federal constitutions cannot be cut off by any statute. Since the issue is one of first impression in this state, plaintiffs primarily rely on Ackerman v Port of Seattle, 55 *495 Wash 2d 400; 348 P2d 664 (1960), to support this proposition.
The Ackerman court did state that an action for compensation predicated on a constitutional taking would not be barred by any statute of limitations. However, this would only apply when the individual still held an interest in the property. If the individual lost this interest by adverse possession, such an action would be barred. The court stated:
"We have held that an action for constitutional taking is not barred by any statute of limitations and may be brought at any time before title to the property taken is acquired by prescription." (Emphasis added.) 55 Wash 2d 405.
This point was further clarified in City of Snohomish v Joslin, 9 Wash App 495; 513 P2d 293 (1973), where the court denied plaintiff's claim for compensation regarding property which the city had acquired by prescription. The court upheld the Ackerman rule as quoted above but stated:
"We recognize anomaly inherent in the statement of the rule. Acquisition of title by way of prescription is the result of the barring of an action by a statute of limitation." 9 Wash App 497.
Therefore, it is not totally accurate to state that in Washington an inverse condemnation action is not barred by any statute of limitations. Under these cases, a plaintiff's constitutional right to compensation would expire whenever title to the property was lost by prescription; such a loss of title is predicated on the expiration of a statute of limitations.
*496 Additionally, plaintiffs' contention that no statute of limitations can bar a constitutional right is not supported by pertinent holdings of the United States Supreme Court. In United States v Dickinson, 331 U.S. 745; 67 S. Ct. 1382; 91 L. Ed. 1789 (1947), a leading case on the applicability of statutes of limitations in inverse condemnation cases, a six-year federal statute of limitation period established for claims founded upon the United States Constitution was applied.[4] Because the plaintiff's claim was founded on the Fifth Amendment provision that private property shall not be taken for public use without just compensation, the Court held that the applicable statute of limitations was six years. See, also, Soriano v United States, 352 U.S. 270; 77 S. Ct. 269; 1 L. Ed. 2d 306 (1957); Loesch v United States, 227 Ct Cl 34; 645 F2d 905 (1981).
In view of the context of these determinations, we are not persuaded by plaintiff's claim that no statute of limitations should apply in this case. In determining which limitation period is applicable, three Michigan statutes are relevant:
MCL 600.5801; MSA 27A.5801:
"No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
* * *
"(4) In all other cases under this section, the period of limitations is 15 years."
MCL 600.5805(7); MSA 27A.5805(7):[5]
*497 "The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property."
MCL 600.5813; MSA 27A.5813:
"All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes."
Plaintiffs contend that if a statute of limitations must apply, the one most closely analogous to an inverse condemnation action is the 15-year limitation which applies to adverse possession actions. On the facts of this case, however, the analogy falls short.
It is well-established in Michigan that adverse possession must be actual, visible, open, notorious, exclusive, continuous, under cover of claim of right and uninterrupted for the statutory period. Burns v Foster, 348 Mich. 8; 81 NW2d 386 (1957); Rose v Fuller, 21 Mich. App. 172; 175 NW2d 344 (1970); Whitehall Leather Co v Capek, 4 Mich. App. 52; 143 NW2d 779 (1966). If the party alleging title by adverse possession does not prove it by clear and positive proof, then the original owner regains possession of the property. Burns and Rose, supra.
In contrast, a party who institutes an inverse condemnation action usually concedes that the condemnor has taken the property indirectly by its actions preceding formal institution of condemnation proceedings. It would be unusual for the condemnor's acts to be of such a degree as to satisfy the strict test for adverse possession. Plaintiffs *498 do not allege that the city's actions here would satisfy this test. Neither would the stipulated facts support such a claim.
Furthermore, the plaintiff in an inverse condemnation suit does not ordinarily seek repossession of his property, but rather, just compensation for the value of the property taken. Tamulion v State Waterways Comm, 50 Mich. App. 60, 66; 212 NW2d 828 (1973). This is again unlike the adverse possession case where, if title to the property is secured by the adverse possessor, the original owner is not entitled to payment.
We do recognize that in actions such as the present one compensation to the original owner, as a substitute for the property itself, is the only viable alternative. The eminent domain power of the condemnor leaves the property owner with no option other than to seek compensation. Accordingly, these differences do not necessarily cause us to reject the 15-year adverse possession limitation period. Nevertheless, a final fatal flaw exists in plaintiffs' analogy with respect to this case.
The concept of adverse possession rests upon an interest in title to property. Plaintiffs point out that Texas, California, and Nebraska have adopted the adverse possession statutes of limitations (ten, five, and ten years, respectively) for inverse condemnation actions.[6] However, the rationale for applying the adverse possession limitation period rests on the owner's present interest in the property. This was explained in Frustuck v City of Fairfax, 212 Cal App 2d 345, 374; 28 Cal Rptr 357 (1963), where the court stated:
*499 "The rationale of these latter cases is that the owner's right of recovery is founded upon and grows out of his title to land and that until such title is lost by adverse possession the owner should have the right to maintain an action to recover that which represents the property itself." (Emphasis added.)
However, plaintiffs here lost all title and interest to the properties upon the expiration of the period of redemption following the sale of the properties for nonpayment of taxes. Rosin v State Land Office Board, 314 Mich. 482, 486; 22 NW2d 833 (1946). When the present action was commenced, plaintiffs had no ownership rights in the properties, legal or equitable. Under such circumstances, there is no foundation to apply a 15-year limitation period that is predicated upon the plaintiff having continual ownership rights.
We do not foreclose the possibility that on the proper facts, where a plaintiff retains ownership rights in the property when suit is brought, the analogy to adverse possession may be applied. However, on the facts of this inverse condemnation action, we decline to adopt the adverse possession statute of limitations.
Defendant contends that the Court of Appeals was correct in upholding the trial court's finding that the three-year limitation period for "injury to persons and property" should be employed. Defendant claims there is ample authority for the proposition that the three-year limitation period applies to this case, citing Foster v Detroit, 405 F2d 138, 145 (CA 6, 1968), and Silverstein v Detroit, 335 F Supp 1306, 1308 (ED Mich, 1971).
In both Foster and Silverstein, the City of Detroit asserted the three-year statute as an affirmative defense. Yet, the question of whether the three-year period was the proper limitation period *500 was not directly contested or addressed. Although both federal courts assumed that the three-year limitation period would apply, in neither case was the plaintiff's cause held to be barred by the statute. Defendant points to no prior Michigan case in which recovery in an inverse condemnation suit was barred by application of the three-year statute of limitations.
In response to the claim that the three-year statute is applicable, plaintiffs contend that the three-year statute applies only to injury to property and not to the taking of property. Defendant agrees with plaintiffs that, because of the language of the Michigan Constitution, Michigan is a "taking" state rather than a "taking or damaging" state.[7] However, defendant maintains that "damage" and "injury" to property are synonymous with a "taking" of property in an inverse condemnation action and that, therefore, the three-year limitation period for "injury to property" should apply.
We agree that a "taking" of property may be the end result of serious injury to and diminution in the value of real property. Thom v State Highway Comm'r, 376 Mich. 608; 138 NW2d 322 (1965). "Taking" is a term of art with respect to the constitutional right to just compensation and does not necessarily mean the actual and total conversion of the property. Whether a "taking" occurs for which compensation is due depends on the facts and circumstances of each case. Thom, supra; Heinrich v Detroit, 90 Mich. App. 692; 282 NW2d 448 (1979).
Both an injury to property and an absolute *501 conversion of property may result in a taking in the constitutional sense. While each situation could result in a finding that a constitutional "taking" of property has occurred for which just compensation is due, there is a recognizable distinction between the two situations.[8]
The owner who suffers injury to his property, less than a total conversion, may remain in possession and continue using his property. His claim is for diminution in value and interference with the use and enjoyment of his property. On the other hand, the owner who suffers a conversion of his property is left with nothing. His claim is for the value of the entire piece of realty.
It might appear that the injury to property situation, less than a total conversion, is analogous to the "injury to property" cases in which the three-year statute of limitations is applicable. However, the test to prove injury is not the same. In an inverse condemnation action, it is not enough for the owner to prove injury to his property by the defendant with resultant damages. Rather, plaintiff must prove that the condemnor's actions were of such a degree that a taking occurred. This issue is decided by the trier of fact. If the plaintiff cannot prove that the condemnor has taken his property, other causes of action are still available to him, e.g., trespass, nuisance, and negligence, with their attendant statutes of limitations.
In situations where the plaintiff alleges that a total conversion of his property has occurred, the analogy to the injury to property statute is even less satisfactory. A plaintiff in such a situation *502 claims a complete loss of his realty by the condemnor's actions. He seeks recovery for the total value of his property which has been taken by the condemnor. He does not retain the value of possession and use of his property.
Although we recognize a distinction between the two types of "taking" to establish an inverse condemnation cause of action, the plaintiff in each situation must prove that a taking in the sense of conversion has occurred, not merely that he has suffered injury to his property. Accordingly, we find that the three-year statute of limitations for "injuries to persons and property" is not applicable to inverse condemnation actions.
The final statute of limitations to be considered is the general six-year period for "personal actions". The Court of Appeals majority rejected this limitation period by stating that personal claims do not include claims based upon real property rights. 97 Mich. App. 702. However, this rationale ignores cases in which the six-year period has been applied to personal actions which arose in connection with interests in real property. Weeks v Slavik Builders, Inc, 384 Mich. 257; 181 NW2d 271 (1970) (action for breach of implied warranty of roof on new home); Sweet v Shreve, 262 Mich. 432; 247 N.W. 711 (1933) (action for fraud in exchange of real estate); Borman's, Inc v Lake State Development Co, 60 Mich. App. 175; 230 NW2d 363 (1975) (action by tenant against landlord and general contractor for negligent construction of drainage system); George v City of Petoskey, 55 Mich. App. 433; 223 NW2d 6 (1974) (action for damages to financial expectations and economic benefit arising from property ownership).
Thus, even though the present plaintiffs' personal action arises out of their property interests, *503 it does not make the six-year statute of limitations for personal actions automatically inapplicable. There is no dispute that the present plaintiffs no longer have any right to regain possession of the subject property, since the redemption periods following the tax sales have expired. Rosin, supra. Accordingly, it may be recognized that plaintiffs assert personal claims arising out of their former property ownership and based on their constitutional right to just compensation.
We are cognizant that the instant action has not been clearly provided for in any specific statute of limitations.[9] Neither do the facts of this case come within the confines of either the 15- or 3-year statute by analogy. As the plaintiffs are not seeking recovery of their lands but compensation for a taking by the sovereign, this cause of action may be logically conceptualized as a personal action which arises in relation to a former interest in real property. We thus conclude that the general six-year statute of limitations applies to this action. See Schreiber v Lowe's, Inc, 147 F Supp 319, 322 (WD Mich, 1957).
II
Plaintiffs also contend that the trial court and the Court of Appeals erred in determining that their cause of action accrued on the last day of the redemption period, thereby triggering the running of the statute of limitations. We concur with the trial court and the Court of Appeals on this point.
The time of "taking" in an inverse condemnation *504 action is not necessarily coincidental with the time plaintiff's cause of action accrues. Foster and Silverstein. It is common for such actions to involve a continuous wrong by the condemnor rather than a single act. In an inverse condemnation action such as the present one, in which plaintiffs claim a continuous wrong by the condemnor, it is well-settled that the statute of limitations does not begin to run until the consequences of the condemnor's actions have stabilized. Dickinson and Silverstein. The precise point in time when the running of the limitation period is triggered is determined by the facts and circumstances of each case. Foster and Silverstein.
The parties to the instant action have stipulated that there was a de facto taking of the property prior to the date of the tax sales. It is for the trier of fact to determine whether a continuous wrong was involved here and, if so, when the consequences of this wrong had stabilized, thus triggering the statute of limitations. If the trier of fact finds that the condition had stabilized prior to the expiration of the redemption period, then that is the date when the limitation period would begin to run. However, if the trier of fact finds that the condition had not yet stabilized, then the latest point in time that plaintiffs' cause of action could have accrued was the last date on which plaintiffs held any interest in the subject property the day the right of redemption expired. Silverstein, supra, 335 F Supp 1309-1310. It is on this date that the limitation period would begin to run. Clearly, if instead of the tax sales plaintiffs had voluntarily sold their property to third parties, they could not claim damages which had accrued after the sale.
Accordingly, those claims in which the redemption *505 period had expired more than six years prior to the filing of this action are barred by operation of the statute of limitations.
CONCLUSION
The proper limitation period to employ in this inverse condemnation action is the general six-year period for personal actions. MCL 600.5813; MSA 27A.5813. On the facts of this case, the latest date on which the limitation period could begin to run was on the day the right of redemption expired. Affirmed in part. Reversed in part. No costs, a public question being involved.
FITZGERALD, C.J., and WILLIAMS, COLEMAN, and RYAN, JJ., concurred.
LEVIN, J. (concurring in part and dissenting in part).
We agree with the majority that the "time of `taking' in an inverse condemnation action is not necessarily coincidental with the time plaintiff's cause of action accrues",[1] that "the statute of limitations does not begin to run until the consequences of the condemnor's actions have stabilized",[2] and that it is "for the trier of fact to determine whether a continuous wrong was involved here and, if so, when the consequences of this wrong had stabilized, thus triggering the statute of limitations".[3] We further agree with the majority that such a cause of action is a personal and not a real action and that the applicable statute of limitations is the six-year statute.[4]
We do not, however, agree that "the latest point *506 in time that plaintiffs' cause of action could have accrued was the last date on which plaintiffs had any interest in the subject property the day the right of redemption expired".[5]
The majority reasons that "if instead of the tax sales, plaintiffs had voluntarily sold their property to third parties, they could not claim damages which had accrued after the sale".[6] It may be that the plaintiffs would not be entitled to damages which would occur or accrue after such a sale, but it does not follow that the last day on which damages accrued before a sale is the date of accrual of their cause of action.
The statute governing accrual of actions in Michigan,[7] states that in a case not specifically provided for by the statute and this is such a case[8] "the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results".[9] Thus, a cause of action for inverse condemnation may accrue coincidentally with, before, or after the time the damage is suffered.
For purposes of the statute of limitations, the time of accrual of the cause of action for inverse condemnation depends upon when the wrong what the city did or failed to do "was done" with respect to the plaintiffs and the owners of all 1400 parcels in Elmwood III being condemned and not on whether the plaintiffs chose or had the where-withal *507 to pay taxes or suffered loss of their parcels for nonpayment of taxes.
Inverse condemnation is a continuing wrong. The time of accrual is when the situation stabilizes or comes to rest.[10] That would be the same for all the parcels in Elmwood III since it appears that the rain of the malaise caused by the city's actions and inactions which constitute an inverse condemnation fell more or less evenly throughout Elmwood III. Thus, plaintiffs' cause of action in inverse condemnation[11] accrued at the same time that the cause of action accrued for the owners of the other 1400 lots.[12]
*508 Under the analysis of the majority opinion, if there are two lots side-by-side and one owner pays taxes and the other does not, the cause of action for inverse condemnation for the owner who pays taxes would accrue at a different time than for the owner who does not. That is inconsistent with the nature of the cause of action which is for the wrongful taking.
It is the conduct of the city, not the nonpayment or foreclosure for nonpayment of taxes, which gives rise to the right to bring an action for inverse condemnation. The expiration of the plaintiffs' right of redemption was not an aspect of the wrong (the inverse condemnation or taking), but a consequence of it. Foreclosure is not a compensable taking, and to reason as does the majority is to suggest that the plaintiffs may be compensated for tax foreclosure as if it were an aspect of the inverse condemnation.
In sum, the time when the cause of action accrued depends solely upon what the city did or failed to do and not at all upon the plaintiffs' reaction thereto, such as failing to pay taxes. While the plaintiffs may not be able to recover damages for diminution of the value of the property occurring after the expiration of the right of redemption,[13] the time of accrual of their personal *509 action for condemnation is the same as the time of accrual for property owners who paid taxes.
KAVANAGH, J., concurred with LEVIN, J.
RILEY, J., took no part in the decision of this case.
NOTES
[1] Const 1963, art 10, § 2.
[2] US Const, Am V.
[3] See, generally, 30 CJS, Eminent Domain, § 399, p 475; 27 Am Jur 2d, Eminent Domain, § 478, p 408.
[4] See 28 USC 2401.
[5] After the accelerated judgment was granted in this case, 1978 PA 495 renumbered this section MCL 600.5805(8); MSA 27A.5805(8), and made stylistic changes and minor substantive changes not here relevant.
[6] Brazos River Authority v City of Graham, 163 Tex 167; 354 S.W.2d 99 (1961); Frustuck v City of Fairfax, 212 Cal App 2d 345; 28 Cal Rptr 357 (1963); Krambeck v City of Gretna, 198 Neb 608; 254 NW2d 691 (1977).
[7] Const 1963, art 10, § 2 provides:
"Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law."
[8] This distinction was also recognized by the Washington and California courts in Ackerman, 55 Wash 2d 406, and Frustuck, 212 Cal App 2d 374.
[9] Although recognizing the inverse condemnation cause of action, the Legislature did not specify a limitation period in its recently enacted Uniform Condemnation Procedures Act, 1980 PA 87, MCL 213.51 et seq.; MSA 8.265(1) et seq.
[1] Ante, pp 503, 504.
[2] Id.
[3] Ante, p 504.
[4] Ante, pp 502-503; see Citizens for Pretrial Justice v Goldfarb, 415 Mich. 255, 268-270; 327 NW2d 910 (1982).
[5] Ante, p 504.
[6] Id.
[7] See MCL 600.5827-600.5838; MSA 27A.5827-27A.5838.
[8] The only specific accrual provision that arguably applies is MCL 600.5829; MSA 27A.5829, which sets the time of accrual for claims to recover land. We agree with the majority's rejection of analogizing inverse condemnation claims to adverse possession claims. See ante, pp 497-499. Therefore, MCL 600.5829; MSA 27A.5829 does not apply in this case.
[9] MCL 600.5827; MSA 27A.5827.
[10] United States v Dickinson, 331 U.S. 745, 749; 67 S. Ct. 1382; 91 L. Ed. 1789 (1947).
[11] Cf. Klopping v City of Whittier, 8 Cal 3d 39, 58; 104 Cal Rptr 1; 500 P2d 1345 (1972) (loss of land due to tax foreclosure does not abate inverse condemnation suit); Sayre v United States, 282 F Supp 175, 179 (ND Ohio, 1967) (bankruptcy trustee sought inverse condemnation damages for alleged taking of, inter alia, foreclosed properties).
[12] In the instant case, the city's condemnation action named the owners of all 1400 parcels other than the 42 foreclosed for nonpayment of taxes which it had already obtained.
Although not argued, we are inclined to the view that where the city intends to condemn property and ultimately commences an action, it should be precluded from claiming that a cause of action for inverse condemnation accrues before the city commences an action. It would be intolerable for the city to claim that it can oust persons in possession without commencing condemnation proceedings and without compensation because an inverse condemnation occurred more than six years theretofore with the result that the city already owns the property so inversely condemned.
If the city would be precluded as clearly it must from making such a claim as to persons in possession (not foreclosed for nonpayment of taxes), we see no reason why a like preclusion should not bar the city from asserting the statute of limitations as a defense against persons who own adjoining and nearby parcels foreclosed for taxes. It is again pertinent that the cause of action for inverse condemnation accrues or should be deemed to accrue for all parcels similarly affected at the same time.
Just as a government entity may not zone property to avoid the payment of just compensation for a taking, see, e.g., Sneed v Riverside County, 218 Cal App 2d 205; 32 Cal Rptr 318 (1963), and a mortgagor cannot, at a mortgage foreclosure sale, acquire title to land free of the lien of the mortgage, see Osborne, Mortgages (2d ed, 1970), § 177, p 304, equity should bar a city from acquiring as the result of foreclosure for nonpayment of taxes land it plans to condemn, free of the lien of the obligation to pay just compensation.
[13] It could be argued that the parties' stipulation that a taking occurred before the foreclosure establishes the accruah date for their cause of action. However, while the stipulation that there had been a de facto taking may be determinative that the plaintiffs suffered damages resulting from inverse condemnation prior to the loss of the property for nonpayment of taxes, it does not necessarily determine when the cause of action for inverse condemnation accrued.
Although the parties stipulated that the plaintiffs' parcels had been inversely condemned before the expiration of the right of redemption, it does not follow that the continuing wrong had ceased. By the stipulation, the parties were apparently seeking to establish that the plaintiffs had suffered a compensable wrong and, thus, had acquired a personal right of action for inverse condemnation before they lost their property by foreclosure for nonpayment of taxes. While they may have intended the stipulation to cover the extent of the damages, i.e., whether the entire property had been taken or only part of it, their intent in that regard does not clearly appear. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613932/ | 497 F. Supp. 173 (1980)
Stephen SIMMONS, Sergeant, United States Army
v.
Harold BROWN, Secretary of Defense; Clifford Alexander, Secretary of the Army; and Colonel Herd, Post Commander.
Civ. No. HM 80-1726.
United States District Court, D. Maryland.
July 15, 1980.
*174 Thomas W. Keech, Stephanie Klein, Dennis W. Carroll, Jr., Administrative Law Center, Legal Aid Bureau, Inc., Baltimore, Md., for plaintiff.
Russell T. Baker, Jr., U. S. Atty. for the District of Maryland, Edward M. Norton, Jr., Asst. U. S. Atty., Baltimore, Md., Calvin M. Lederer, Captain, Judge Advocate Gen. Litigation Division, Dept. of the Army, Washington, D. C., for Harold Brown et al.
HERBERT F. MURRAY, District Judge.
Plaintiff is a staff sergeant presently serving on active duty in the United States Army with assignment at Fort Meade, Maryland. On June 27, 1980, the Commander of Headquarters Command at Fort Meade approved plaintiff's involuntary separation from active duty in accordance with Army Regulations (AR) 600-85 and 635-200, which authorize discharge for personnel who fail to participate satisfactorily in the Army alcohol rehabilitation program. On July 3, 1980 Sgt. Simmons filed a complaint for declaratory and injunctive relief in this court and sought a temporary restraining order that would prohibit the Army from discharging him, as scheduled, on July 7, 1980. At the conclusion of a brief hearing held on July 3, 1980, the court scheduled a further hearing for July 11, 1980 and enjoined the defendants and their agents from discharging plaintiff until after the July 11 hearing. On July 10, the government filed a memorandum and several lengthy documentary exhibits in opposition to the request for a temporary restraining order, and on July 11, plaintiff filed an amended complaint and a supplemental memorandum in support of his request. In order to give full consideration to all of these papers, the court, at the time of the July 11 hearing, did not rule on whether a temporary restraining order would be granted. Instead, after receiving the government's assurances that plaintiff would not be discharged until the court had made a decision, the court indicated that it would make its decision on July 15, 1980. In view of the fact that necessary delays have already, in effect, given plaintiff the temporary restraining order he sought, and because both sides have asked the court to treat the ruling announced in open court on July 15, 1980 as though made on an application for a preliminary injunction, the court will treat its July 15 opinion as directed to an application for a preliminary injunction. For the reasons which follow, the court will deny preliminary injunctive relief.
The decision of a district court to grant or deny interlocutory injunctive relief must be based upon a consideration of the factors contained in the balance-of-hardship test as set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 196 (4th Cir. 1977). See also Maryland Undercoating Co., Inc. v. Payne, 603 F.2d 477, 481-82 (4th Cir. 1979); North Carolina State Ports Authority v. Dart Containerline *175 Co., Ltd., 592 F.2d 749, 750 (4th Cir. 1979); Johnson v. Bergland, 586 F.2d 993 (4th Cir. 1978); United States v. Commonwealth of Virginia, 569 F.2d 1300 (4th Cir. 1978); Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119 (4th Cir. 1977).
As the Fourth Circuit noted in the Maryland Undercoating case:
The balance-of-hardship test can be summarized as follows. The decision of the district court to grant or deny interlocutory injunctive relief should be based on a "flexible interplay" among all the factors to be considered, i. e., likelihood of irreparable harm to the plaintiff without an injunction; likelihood of harm to the defendant with an injunction; plaintiff's likelihood of success on the merits; and the public interest. The first step in determining whether interlocutory injunctive relief should issue is for the court to balance the likelihood of irreparable harm to the plaintiff without an injunction against the likelihood of harm to the defendant with an injunction. If a decided imbalance of hardship should appear in plaintiff's favor, it is enough that grave or serious questions are presented; plaintiff need not show a likelihood of success on the merits. The need for plaintiff to show likelihood of success on the merits increases as the probability of irreparable injury to plaintiff without an injunction decreases. Finally, the court should consider wherein lies the public interest, sometimes described as preserving the status quo ante litem until the merits of a serious controversy can be fully considered by a trial court. See Blackwelder, 550 F.2d at 195-97.
In the Blackwelder Furniture case, relied on in Maryland Undercoating, the Court of Appeals for the Fourth Circuit stated that of the four factors the district court should consider, the two more important ones are those dealing with the likelihood of harm to the defendant if an injunction is issued and the likelihood of harm to plaintiff if an injunction is not issued.
With respect to these two factors, the court must also consider the Supreme Court's opinion in Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974) in determining whether plaintiff has made a sufficient showing that the balance of harms is weighted in his favor. In Murray, a probationary employee was dismissed from federal employment, allegedly without due process. In reversing the lower court's decision to grant a restraining order, the Court indicated that a plaintiff seeking to prevent his discharge from government service has a heavy burden:
The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U.S. 366, 18 S. Ct. 917, 43 L. Ed. 199 (1898), the well-established rule that the Government has traditionally been granted the widest latitude in the "dispatch of its own internal affairs," Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S. Ct. 1743, 1749, 6 L. Ed. 2d 1230 (1961), and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, ... we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional standards governing more orthodox "stays." See Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). Although we do not hold that Congress has wholly foreclosed the granting of preliminary injunctive relief in such cases, we do believe that respondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases.
415 U.S. at 83-84, 94 S.Ct. at 949-50.
The plaintiff in Murray alleged three types of irreparable injury: (1) deprivation of income for an indefinite period; (2) retention *176 of spurious and unrebutted charges in her record; and (3) embarrassment inherent in being wrongfully discharged in the presence of coworkers. 415 U.S. at 89, 94 S.Ct. at 952. In concluding that none of these constituted allegations of irreparable injury, the Supreme Court quoted from Virginia Petroleum Jobbers, 259 F.2d at 925:
"The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough."
415 U.S. at 90, 94 S.Ct. at 953. The Court held that even if the plaintiff could prove that she would lose income and that her reputation would be damaged by the challenged agency action, "the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case." 415 U.S. at 91-92, 94 S.Ct. at 953. Finally, the Court held that, except in some undefined extraordinary cases, the mere fact that a discharged employee cannot quickly find other work does not amount to irreparable injury:
We have held that an insufficiency of savings or difficulties in immediately obtaining other employment-external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself will not support a finding of irreparable injury, however severely they may affect a particular individual.
415 U.S. at 92 n.68, 94 S.Ct. at 953 n.68.
In the view of this court, the Sampson v. Murray case is clearly relevant to several of the contentions raised by Sgt. Simmons. The allegations that his loss of employment and his only source of income and the damage to his reputation are irreparable injuries cannot be sustained in light of Sampson v. Murray.
Moreover, because this case involves review of internal military affairs, the policy underlying the Sampson v. Murray rule is, if anything, more compelling here. In McCormick v. Claytor, 441 F. Supp. 622, 624 (D.Or.1977), the Sampson rule was expressly applied in the context of a request to enjoin an imminent honorable discharge from the Navy. Noting the traditional reluctance of courts to intervene in military affairs, McCormick found no irreparable injury, notwithstanding the fact that, in addition to the injuries found insufficient in Sampson v. Murray, McCormick was likely to suffer a stigma in his community and an obstacle to future employment as a result of his discharge and would suffer an irretrievable loss of medical benefits. Plaintiff's claims of similar potential injuries are equally insufficient to justify preliminary injunctive relief. Although Sgt. Simmons asserts that information concerning the reason for his discharge could be released to other branches of the military, he does appear to admit that applicable privacy regulations make any further disclosure of such reason unlikely.
Finally, plaintiff claims that he will be irreparably harmed because, if he is discharged, he will lose his ability to seek review of his complaints before an Administrative Discharge Board, see 32 C.F.R. §§ 41.1 to 41.13. As will be discussed later, plaintiff has not made an adequate showing that he comes within the protection of the cited Department of Defense regulations. Thus, even if plaintiff remained in the Army, the court is unaware of any Army or Defense regulation that would permit him to obtain a hearing before a board of officers.
The second factor the court must consider in determining whether to grant interlocutory injunctive relief is the likelihood of harm to the defendants if a preliminary injunction were granted. The court agrees with the government that it would be an unwarranted judicial intrusion into the Army's management of its soldiers if the court granted the relief sought by plaintiff in this case.
In Crawford v. Davis, 249 F. Supp. 943 (E.D.Pa.), cert. denied, 383 U.S. 921, 86 S. Ct. 923, 15 L. Ed. 2d 676 (1965), the court refused to grant a preliminary injunction to an Army sergeant who had almost 18 years *177 service and who sought to enjoin his general discharge for homosexuality. The court denied relief principally because of the harm which would accrue if Crawford remained in the Army.
Crawford, as plaintiff here, sought to overcome the government's argument that the Army would suffer harm by showing that his performance of duty in his present assignment was satisfactory. However, the court rejected that argument, holding:
I must, however, take judicial notice of the inherently mobile nature of military life and the general requirement that a soldier on active duty must be eligible to accept any assignment required of him. I cannot say with certainty that the plaintiff will remain at his present duty station or that the personnel there will remain constant.... I think that it would be clearly inappropriate to hobble the Army by forcing it to retain even one soldier, for an indefinite period of time, when there are serious questions concerning his emotional health.
249 F.Supp. at 947. The court's comments are equally applicable to plaintiff here whose emotional health is substantially called into question by his alleged use of alcohol. The court also held that this substantial harm to the Army was harm to the public interest.
Furthermore, in evaluating plaintiff's allegation that he functions well in his new assignment, it should be considered that he now works as a household goods inspector. In the 414th Signal Company, to which he was assigned until March 1980, he was a troop leader, responsible for the supervision and, in emergency or combat situations, the lives of other men, as well as for technical equipment. It was in that context that he could not function and it is in that function that he is normally required to serve, by virtue of his training in that area and by virtue of his status as a senior non-commissioned officer.
Additionally, plaintiff's discharge cannot be viewed in a vacuum. The Army is a huge organization of almost a million individuals. The ongoing alcohol rehabilitation program directly affects unit morale and readiness. When the Army determines that individuals are not making adequate progress in the rehabilitation program, it is even more crucial to mission effectiveness that such personnel be expeditiously separated. A declaration submitted on behalf of defendants indicates that in 1979, 3,321 soldiers were discharged for drug and alcohol abuse of which 1,762 were separated for alcohol abuse. To grant interlocutory injunctive relief in this kind of case would impede the proper functioning of the military administrative structure and would thereby frustrate the public interest in having a military as free from unwarranted judicial interference as possible.
Thus, the court concludes that the likelihood of irreparable harm to Sgt. Simmons if a preliminary injunction were granted is substantially outweighed by the irreparable harm that would result to the Army and to the public interest if such relief were granted. Because of the court's view that the balance-of-hardships tests favors defendants in this case, plaintiff must demonstrate a stronger likelihood of success on the merits than he would if the balance of hardships tipped in his favor. In the court's view, such a showing has not been made.
One of plaintiff's principal arguments in his amended complaint and in his supplemental memorandum in support of his application for a preliminary injunction is that the Army regulation under which the government seeks to discharge him is in conflict with Department of Defense regulations. AR 635-200, ¶ 9-1, permits defendants to discharge plaintiff for his failure in the Army's alcohol rehabilitation program without the opportunity for an Administrative Discharge Board hearing. Plaintiff contends that this regulation plainly conflicts with the Defense regulations concerning administrative separation of enlisted personnel, 32 C.F.R. §§ 41.1 to 41.13, and he argues that the Defense regulations give him the right to a Board hearing. In particular, Sgt. Simmons refers to 32 C.F.R. § 41.7(g)(2), which lists as a reason for separation:
*178 (g) Unsuitability. Separation with an Honorable or a General discharge, as warranted by the member's military record, when it has been determined that an individual is unsuitable for further military service because of:
. . . . .
(3) Alcohol Abuse. Failure, through inability or refusal, to participate in, cooperate in, or complete an alcohol abuse treatment and rehabilitation program.
32 C.F.R. § 41.11(d)(2) provides that a member with eight or more years of active military service may receive a § 41.7(g) unsuitability discharge only if certain procedures are followed. The procedures include the right to a hearing before an Administrative Discharge Board and the right to counsel.
Plaintiff correctly points out that the regulations of the various branches of the service must be in accord with those of the Department of Defense, but the Army regulation that he challenges does not conflict with any Defense regulation to which he has referred the court. It seems very likely to this court that one of the major elements in the reasoning of the Department of Defense in its decision to provide for a hearing in situations covered by 32 C.F.R. §§ 41.7(g)(2) and 41.11(d)(2) was that the affected member is subject to a possible general discharge, as well as to a more desirable honorable discharge. In chapter 9 of AR 635-200, however, only an honorable discharge is possible. ¶ 9-3 specifically provides that: "Members discharged under this chapter must receive honorable discharge certificates."
Because the Army is proceeding against Sgt. Simmons under chapter 9 of AR 635-200, rather than under the chapter that directly implements the Defense regulations at issue in 32 C.F.R., Sgt. Simmons can receive only an honorable discharge. Apparently, the Army has concluded that if it eliminates the possibility of a general discharge in cases like that of Sgt. Simmons, it can, consistently with the Defense regulations, also eliminate the requirement of a hearing in such cases. The court sees no error in this logic, and in light of the implication in 32 C.F.R. § 41.13(b) that Army regulations must be approved by the Secretary of Defense, the Department of Defense apparently has found no inconsistency between its regulations and the Army's either. Thus, plaintiff has failed to demonstrate that AR 635-200 is in conflict, on its face or otherwise, with the Department of Defense regulations.
Plaintiff's other contention on the merits of his case is that he was discharged without being afforded an adequate opportunity to contest the basis for his discharge. Thus, he claims, his due process rights under the fifth amendment were violated. When advised by his unit commander that action was being initiated to discharge plaintiff, he was also advised that, pursuant to AR 635-200, he had a right to rebut the recommendation for discharge. Sgt. Simmons did file a lengthy written rebuttal that was forwarded, along with the unit commander's recommendation for discharge, to the Commander of Headquarters Command. The latter Commander directed his executive officer to inquire into plaintiff's contentions. The executive officer reported that no substantial defects existed in the discharge action and that, inter alia, contrary to plaintiff's assertion, the decision of the alcohol and drug abuse prevention and control program staff to declare plaintiff a rehabilitation failure was not due to pressure by the unit commander.
Plaintiff contends that he is entitled to greater procedural safeguards than were given him. Specifically, he argues that because of his property and liberty interests at stake, he has a due process right to a hearing before he can be discharged. However, defendants have referred the court to several opinions that indicate that a serviceman has no property interest or entitlement in continued military service. E. g., Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir. 1978); Knehans v. Alexander, 566 F.2d 312, 314 (D.C. Cir. 1977), cert. denied, 435 U.S. 995, 98 S. Ct. 1646, 56 L. Ed. 2d 83 (1978); Sims v. Fox, 505 F.2d 857, 860-62 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975); benShalom v. *179 Secretary of the Army, 489 F. Supp. 964 at 971-72 (E.D.Wis., 1980); Rew v. Ward, 402 F. Supp. 331, 338-39 (D.N.M.1975). But see Berg v. Claytor, 436 F. Supp. 76, 81 (D.D.C. 1977), vacated on other grounds, 591 F.2d 849 (D.C. Cir. 1978); Suro v. Padilla, 441 F. Supp. 14, 17 (D.P.R.1976).
The government also contends that the alternate predicate for the right to procedural due process, a liberty interest, is not presented in this case. A liberty interest vests if there is imposed "a stigma or other disability that foreclose[s] freedom to take advantage of other employment opportunities." Board of Regents v. Roth, 408 U.S. 564, 574, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972). Courts have held that a liberty interest is not impinged by the mere fact of discharge from military service unless stigmatizing information is likely to be disseminated to the public at large or to prospective employers. E. g., Knehans v. Alexander, 566 F.2d at 314; Sims v. Fox, 505 F.2d at 862-63; benShalom v. Secretary of the Army, 489 F.Supp. at 971-72. See generally Diliberti v. Brown, 583 F.2d at 952. "The mere presence of derogatory information in confidential files is not an infringement of `liberty.'" Sims v. Fox, 505 F.2d at 863.
Even if plaintiff were able to establish that he has a property or liberty interest in this matter, and thus that he has due process rights at stake, "the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). In the court's view, Sgt. Simmons has not demonstrated that the procedures outlined in chapter 9 of AR 635-200, which have been followed in his case, are inadequate or fail to comport with due process in his case. In Rew v. Ward, 402 F. Supp. 331 (D.N.M.1975), the court did find that a discharged airman had a protected liberty interest. However, the court also found that procedures for discharge very similar to those applied by the Army in the case of Sgt. Simmons were sufficient to protect that interest. 402 F.Supp. at 340-44.
The defendants contend that plaintiff's motion for a preliminary injunction should also be denied for failure to exhaust his available administrative remedies. The government points out that plaintiff has not presented his claims to the Army Board for Correction of Military Records (ABCMR), which is empowered under 10 U.S.C. § 1552(a) to correct errors in military records and remove injustices. A declaration filed by the Executive Secretary of the ABCMR indicates that the Board, in his view, has the power to grant complete relief in this case. He states that past ABCMR cases have resulted in reinstatement of personnel, awarding of back pay, and other forms of relief.
Plaintiff, on the other hand, argues that he should not be required to present his claim to the ABCMR because (1) it lacks expertise in adjudicating the constitutional and regulatory claims made by plaintiff, and (2) it is unrealistic to anticipate that the Board would find that AR 635-200 contravenes Defense regulations or the requirements of due process.
In Sanders v. McCrady, 537 F.2d 1199 (4th Cir. 1976), the court was presented with a case in which a former member of the National Guard alleged that he had been discharged in violation of his due process rights. The Fourth Circuit Court of Appeals held that the district court had correctly dismissed the complaint because plaintiff had not first applied to the ABCMR. Although it is also true that the plaintiff in Sanders had failed to take advantage of an in-service remedy, that failure appears to have played no part in the Fourth Circuit's decision to require exhaustion before the ABCMR. Thus, Sanders is clearly relevant to the present case and indicates that Sgt. Simmons is required to present his due process claim to the ABCMR before he presents it to a court. This court can find no reason why he should not also be required to present his regulatory claim to the ABCMR first. With respect to plaintiff's claim that one cannot reasonably expect that the Board will disapprove of regulations promulgated by the Secretary of the Army on either ground raised by plaintiff, the court can only note *180 that if he is able to convince the Board that his position is correct, the Secretary may not overrule the Board's decision arbitrarily:
[I]f he rejects the Board's recommendations, he must provide either explicitly stated policy reasons, or his action must be supported by the record and evidence presented to the Board.
Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974).
In conclusion, the court, in applying the standards of Blackwelder and its progeny, finds that the balance of hardships in this case weighs in favor of the defendants. While the court does not intend to imply that plaintiff will suffer no hardship if he is discharged, the court does hold that the hardship is not of such a severe or irreparable nature as to outweigh the interest of the government in operating the Army without undue judicial interference. See Gilligan v. Morgan, 413 U.S. 1, 8, 10-11, 93 S. Ct. 2440, 2444, 2445-46, 37 L. Ed. 2d 407 (1973); Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S. Ct. 534, 539-40, 97 L. Ed. 842 (1953). As is apparent from the court's discussion, there is considerable doubt that plaintiff will ultimately prevail on the merits in this case. His contention that a conflict exists between Army and Department of Defense regulations has not been demonstrated and his claim of a denial of due process appears of almost equally dubious merit. Finally, plaintiff has not shown that he should be exempt from the exhaustion of administrative remedies requirement as set forth in the Sanders case.
For all of the foregoing reasons, the motion for a preliminary injunction will be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613939/ | 497 F. Supp. 2d 862 (2006)
Amanda CABANISS, Administrator of the ESTATE OF Kevin CABANISS, Plaintiff,
v.
CITY OF RIVERSIDE, et al., Defendants.
No. 3:04cv218.
United States District Court, S.D. Ohio, Western Division.
March 20, 2006.
*863 *864 *865 *866 Dwight Dean Brannon, Dayton, OH, for Plaintiff.
Boyd W. Gentry, Jeffrey Charles Turner, Surdyk, Dowd & Turner Co., L.P.A., Dayton, OH, for Defendants.
*867 DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY (DOC. # 35); DECISION AND ENTRY OVERRULING IN PART AND OVERRULING, AS MOOT, IN PART PLAINTIFF'S MOTION IN LIMINE AND/OR FOR SANCTIONS (DOC. # 39); DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION TO STRIKE (DOC. # 41); DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT GEORGE BROWN (DOC. # 47); DECISION AND ENTRY SUSTAINING MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN FOR SUMMARY JUDGMENT (DOC. # 60); DECISION AND ENTRY OVERRULING, AS MOOT, MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN TO STRIKE TRANSCRIPT OF ALBERT FUGATE INTERVIEW (DOC. # 64); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN TO STRIKE DECLARATION OF JAMES MARSH (DOC. # 66); DECISION AND ENTRY SUSTAINING PLAINTIFF'S MOTION FOR LEAVE TO FILE AFFIDAVIT OF ALBERT FUGATE (DOC. # 68); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN TO STRIKE AFFIDAVIT AND DECLARATION OF ALBERT FUGATE (DOC. # 77); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY
RICE, District Judge.
Kevin Cabaniss ("Cabaniss") spent much of May 21, 2003, drinking at the residence of his friend, Albert Fugate ("Fugate"), located at 6015 Hendon Avenue in the City of Riverside, Ohio ("Riverside"). Cabaniss became so intoxicated that he was vomiting and speaking incoherently.[1] After having became frustrated with Cabaniss' behavior inside his home, Fugate took his friend outside and left him there until he was able to sober up. Left outside by Fugate, Cabaniss walked to a neighboring house, where he broke the glass in an outdoor lamp. Cabaniss calmed down and returned to a grassy area between Fugate's and his neighbor's houses, where he laid down. Thereafter, someone then called 911, and Defendants David Craine ("Craine"), Jason Carlton ("Carlton") and Robert Naff ("Naff"), police officers employed by Riverside, were dispatched to that residence. Craine was the first to arrive, followed shortly thereafter by Carlton and then Naff. Craine observed Cabaniss lying on the ground, acting agitated and clenching his fists.[2] Nevertheless, Cabaniss appeared to be coherent to the officers, although under the influence of alcohol.
When the officers arrived, a number of Cabaniss' friends, including Fugate, came outside the residence. Craine asked one of them whether Cabaniss was diabetic. That individual indicated that he did not believe that Cabaniss suffered from that medical condition, although he had "freaked out" after consuming a large *868 amount of alcohol. In response to an officer's inquiry, Fugate indicated that Cabaniss was suicidal and that he had attempted suicide in the past.[3] Craine requested that paramedics be sent to the location in order to check upon Cabaniss' medical condition.
When the officers attempted to communicate with Cabaniss, he spit at them, as a result of which Carlton told Cabaniss that he (Carlton) would kick him (Cabaniss) in the teeth if he spit at the officers again. When Cabaniss insisted upon spitting at Carlton again, the officer flipped Cabaniss onto his stomach, handcuffed him and placed him under arrest, rather than kicking out his teeth. In order to accomplish that end, Carlton attempted to place Cabaniss' hands behind his back, while he (Cabaniss) was lying on his stomach. Cabaniss, however, resisted, and Craine assisted Carlton in handcuffing Cabaniss. While Carlton walked Cabaniss to his cruiser, the latter cursed and threatened to kill the officers.
After Cabaniss had been seated in the back of Carlton's cruiser, Defendants Edward Kronenberger ("Kronenberger") and Shon Smith ("Smith"), paramedics employed by Riverside, arrived at the scene. Kronenberger opened the door to the cruiser and Cabaniss got out. The paramedic introduced himself and assured Cabaniss that he was there to help him, asking him if he was injured or needed medical attention. Cabaniss responded to Kronenberger's questions with additional cursing and threats against the paramedic and his family. Cabaniss would not permit Kronenberger to touch him during the paramedic's assessment of his medical condition. The paramedic noticed that Cabaniss smelled of alcohol and was agitated. However, since he was not able to determine that Cabaniss was injured or in need of medical attention, Kronenberger told him to sit in the back of the police cruiser.
After assisting Cabaniss back into the cruiser, Kronenberger spoke wit the bystanders at the scene. One of them told Kronenberger that Cabaniss had been drinking and that he had destroyed a light. That individual also told the paramedic that Cabaniss had been acting mental, which Kronenberger interpreted as describing Cabaniss' recent behavior. Kronenberger found that Cabaniss' speech was slurred, that he smelled of alcohol and that his behavior was consistent with the use of same. Kronenberger also concluded that Cabaniss had not exhibited any signs of mental illness. Believing that a complete assessment of Cabaniss had been completed, Kronenberger and Smith, the paramedics, left Fugate's residence on Hendon.[4]
As Carlton started to drive away from that location, with Cabaniss in the back seat of his cruiser,[5] Craine pulled his cruiser next to that of his fellow officer. While the two officers conversed, Craine noticed that Cabaniss was pushing his feet on the plexiglass divider in Carlton's cruiser, as well as hitting his head on it. Although Carlton warned Cabaniss a number of times to stop kicking and hitting his head on the plexiglass, the latter ignored those warnings. Carlton then rolled down the back window in his cruiser and told Cabaniss that he would be sprayed with pepper spray if that behavior continued. Cabaniss ignored that warning as he had the others. As a consequence, Carlton sprayed Cabaniss with pepper spray, and the latter lowered his feet and stopped kicking the plexiglass divider.
*869 In order to clean the pepper spray from Cabaniss, Carlton transported him to the Riverside Police/Fire Station.[6] Craine also proceeded to that location. Upon arriving at the Riverside Police/Fire Station, Carlton parked his cruiser, and Naff, who had also returned to that location, took a picture of Cabaniss with pepper spray on him. The officers then rinsed that substance off Cabaniss' face, using a garden hose. Thereafter, as Carlton was using that hose to clean the door of his cruiser, Cabaniss indicated that he was feeling better and asked if he could stand up outside the cruiser. Both Craine and Carlton told him that he could not. Although Cabaniss initially complied with the officers' directive, causing Craine to step away from the cruiser, he apparently changed his mind, stood straight up, took a few steps and started to fall or to stumble forward. Carlton reached for Cabaniss and was able to put a hand on him; however, Cabaniss was able to break loose, thus foreclosing Carlton's efforts to prevent him from falling. Cabaniss fell, striking his head on the concrete floor.
Carlton helped Cabaniss into a sitting position, and both he and Craine noticed a bump on Cabaniss' head. Craine went inside the Station to obtain medical assistance. Kronenberger and a firefighter accompanied Craine outside. When he got outside, Kronenberger saw Cabaniss sitting next to Carlton. Although the officer was attempting to control him, Kronenberger observed Cabaniss purposefully lunge away from Carlton and strike his head on the ground. Kronenberger and other Riverside Fire Department personnel treated Cabaniss at the Riverside Police/Fire Department and transported him to the Miami Valley Hospital. Cabaniss subsequently died as a result of swelling on his brain.
After he learned that Cabaniss had died, Defendant George Brown ("Brown"), who was then Chief of the Riverside Police Department, ordered an internal investigation, which was conducted by officers employed by the Huber Heights Police Department.
Plaintiff brings this litigation, seeking compensation for damages suffered as a result of the death of her father, Kevin Cabaniss ("Cabaniss"). She brings this action against Riverside, James Onello ("Onello"), Ken Curp ("Curp"), Sara Lommatzsch ("Lommatzsch"), Shirley Reynolds ("Reynolds"), Johnie Doan ("Doan"), Vern Best ("Best"), Mike Smith, Jim Weaver ("Weaver"), Brown, D.K. Johnson ("Johnson"), Carlton, Craine, Naff, Dan Alig ("Alig"), Kronenberger, and Smith.[7] All individual Defendants, except Johnson, have been sued in their individual and official capacities.[8] In her Amended Complaint (Doc. # 23), Plaintiff sets forth 23 claims for, relief, to wit: 1) a claim under 42 U.S.C. § 1983 ("§ 1983"), alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Fourth and Eighth Amendments by using excessive force and cruel and unusual punishment (First Claim for Relief); 2) a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the federal constitution by failing to protect him (Second Claim for Relief); 3) a claim under § 1983, alleging that Kronenberger and Smith violated *870 Cabaniss' rights under the federal constitution by failing to protect him (Third Claim for Relief); 4) a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Due Process Clause of the Fourteenth Amendment by failing to protect him (Fourth Claim for Relief); 5) a claim under § 1983, alleging that Kronenberger and Smith violated Cabaniss' rights under the Due Process Clause of the Fourteenth Amendment by failing to protect him (Fifth Claim for Relief); 6) a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the federal constitution by failing to provide him appropriate medical care (Sixth Claim for Relief); 7) a claim under § 1983, alleging that Kronenberger and Smith violated Cabaniss' rights under the federal constitution by failing to provide him appropriate medical care (Seventh Claim for Relief); 8) a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Due Process Clause of the Fourteenth Amendment by failing to provide him appropriate medical care (Eighth Claim for Relief); 9) a claim under § 1983, alleging that Kronenberger and Smith violated Cabaniss' rights under the Due Process Clause of the Fourteenth Amendment by failing to provide him appropriate medical care (Ninth Claim for Relief); 10) a survivorship claim brought under § 2305.21 of the Ohio Revised Code against Craine, Carlton, Naff, Kronenberger and Smith, predicated upon the incidents giving rise to First through Ninth Claims for Relief (Tenth Claim for Relief); 11) a wrongful death claim brought in accordance with § 2105.01 of the Ohio Revised Code against Craine, Carlton, Naff, Kronenberger and Smith, predicated upon the incidents giving rise to First through Ninth Claims for Relief (Eleventh Claim for Relief); 12) a survivorship claim brought under § 2305.21, which does not appear to differ from the Tenth Claim for Relief (Twelfth Claim for Relief); 13) a civil conspiracy claim against Riverside, Craine, Carlton, Naff, Kronenberger, Smith and "others," alleging that they conspired to deprive Cabaniss of his rights under the United States and Ohio Constitutions, as well as under federal and state law, by failing to provide him adequate medical care, and fabricating a false and exculpatory version of events in order to prevent Cabaniss and his heirs from obtaining a remedy (Thirteenth Claim for Relief);[9] 14) a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Craine, Carlton and Naff, because those violations were caused by policies, practices and customs of Riverside (Fourteenth Claim for Relief); 15) a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Kronenberger and Smith, because those violations were caused by policies, practices and customs of Riverside (Fifteenth Claim for Relief); 16) a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Craine, Carlton and Naff, because those violations were caused by its failure to train those officers (Sixteenth Claim for Relief); 17) a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Kronenberger and Smith, because it failed *871 to train those paramedics (Seventeenth Claim for Relief); 18) a claim under § 1983 against Craine, Carlton and Naff, alleging that they violated Cabaniss' constitutional rights by handcuffing him, spraying him with pepper spray and with a hose and refusing to allow him to stand, thus placing him in a dangerous and potentially dangerous position while creating a special relationship which imposed upon them the obligation of protecting Cabaniss and providing medical care to him (Eighteenth Claim for Relief); 19) a claim under § 1983 and state law against Craine, Carlton and Naff, alleging that they deprived Cabaniss of his constitutional rights and assaulted and battered him, by restraining him, throwing him into a police cruiser, spraying him with pepper spray and water and allowing him to hurt himself (Nineteenth Claim for Relief); 20) a claim under state law that Craine, Carlton, Naff, Kronenberger and Smith acted willfully and wantonly and, thus, are not immune from Plaintiffs state law claims against them (Twentieth Claim for Relief); 21) a state law claim of intentional infliction of emotional distress against Craine, Carlton, Naff, Kronenberger and Smith (Twenty-First Claim for Relief); 22) a claim under § 1983 against Riverside, alleging it is liable for the constitutional violations of its employees under a respondeat superior theory (Twenty-Second Claim for Relief); and 23) a claim under state law against Riverside, alleging that it is liable for the wrongful acts of Craine, Carlton, Naff, Kronenberger and Smith, as a result of the failure to investigate the actions of those Defendants and to correct, punish and or prosecute them (Twenty-Third Claim for Relief).
This case is now before the Court on the following motions, to wit: Plaintiffs Motion for Summary Judgment as to Liability (Doc. # 35); Plaintiffs Motion in Limine and/or for Sanctions (Doc. # 39); Plaintiffs Motion to Strike (Doc. # 41); Brown's Motion for Summary Judgment (Doc. # 47); Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60); Motion of Defendants Other Than George Brown to Strike the Transcript of the Interview of Albert Fugate (Doc. # 64); Motion of Defendants Other Than George Brown to Strike the Declaration of James Marsh (Doc. # 66); Plaintiffs Motion for Leave to File Affidavit of Albert Fugate (Doc. # 68); Motion of Defendants Other Than George Brown to Strike Affidavit and Declaration of Albert Fugate (Doc. # 77). Herein, the Court rules upon those motions, beginning its analysis by setting forth the standards it must apply whenever it rules upon a motion for summary judgment, then discussing related motions together.
I. Standards Applicable to Motions for Summary Judgment
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Id. at 323, 106 S. Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably *872 to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party nay move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S. Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the factfinder. 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S. Ct. 1839, 108 L. Ed. 2d 967 (1990). See also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L. Ed. 2d 59 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary *873 judgment. . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
II. Plaintiffs Motion in Limine and/or for Sanctions (Doc. # 39) and Motion to Strike (Doc. # 41)
With her Motion in Limine and/or for Sanctions (Doc. # 39), Plaintiff requests that the Court prevent the Defendants other than George Brown from calling any lay or expert witness, because those Defendants have failed to disclose the identity of such witnesses in accordance with the requirements of Rule 26(a)(1) of the Federal Rules of Civil Procedure and this Court's Preliminary Pretrial Order (Doc. # 17). Alternatively, the Plaintiff requests that the Court impose sanctions on those Defendants. With her Motion to Strike (Doc. # 41), Plaintiff argues that the Court should strike the lay witness list of those Defendants, because they failed to make the initial disclosures required by Rule 26(a)(1). As a means of analysis, the Court will initially discuss these motions as they relate to lay witness, following which it will turn to Plaintiffs request to exclude expert witnesses.
In its Preliminary Pretrial Order (Doc. # 17), the Court directed that the parties make the disclosures required by Rule 26(a)(1) by October 14, 2004. Rule 26(a)(1) requires, inter alia, that a parties disclose the identity of individuals with discoverable information.[10] According to Plaintiff, the Defendants other than George Brown have utterly failed to disclose the identity of any individual with discoverable information. The Plaintiff is mistaken in that regard. These Defendants have attached, to the memoranda in opposition to the Plaintiffs motions, copies of the correspondence from their counsel to Plaintiffs counsel on October 14, 2004, disclosing the identity of individuals with discoverable information. See Does. ## 45 and 46. Accordingly, the Court concludes that the Defendants other than George Brown have not violated Rule 26(a)(1) or this Court's Preliminary Pretrial Order (Doc. # 17), by failing to disclose the identity of individuals with discoverable information. Therefore, the Court rejects the Plaintiffs request that it prevent those Defendants from introducing testimony from any lay witness.
This Court's Preliminary Pretrial Order (Doc. # 17) required that parties disclose primary expert witnesses, together with those witnesses' reports, by December 16, 2004, and that they disclose rebuttal expert witnesses, together with their reports, by January 17, 2005. In her Motion in Limine and/or for Sanctions (Doc. # 39), Plaintiff states that the Defendants other than George Brown have failed to identify any expert witnesses. In their memorandum opposing this motion, those Defendants have not addressed Plaintiffs motion as it relates to expert witnesses. See Doc. # 45. Given that these Defendants have not ever indicated in this litigation that they intend to call an expert witness at trial, the Court is compelled to conclude that they do not intend to call such a witness. Therefore, this branch of Plaintiffs Motion in Limine and/or for Sanctions (Doc. # 39) is moot.
Accordingly, the Court overrules in part and overrules, as moot, in part Plaintiffs Motion in Limine and/or for Sanctions *874 (Doc. # 39), and it overrules her Motion to Strike (Doc. # 41).
III. Motion of Defendants Other Than George Brown to Strike the Transcript of the Interview of Albert Fugate (Doc. # 64), Motion of Defendants Other Than George Brown to Strike the Declaration of James Marsh (Doc. # 66), Plaintiff's Motion for Leave to File Affidavit of Albert Fugate (Doc. # 68) and Motion of Defendants Other Than George Brown to Strike Affidavit and Declaration of Albert Fugate (Doc. # 77)
These motions raise the question of what evidence the Court will consider when it rules upon the pending motions for summary judgment. As a means of analysis, the Court will initially rule upon the three motions which relate to evidence from Fugate, following which it will turn to the request to strike the declaration of James Marsh.
A. Motion of Defendants Other Than George Brown to Strike the Transcript of the Interview of Albert Fugate (Doc. # 64), Plaintiff's Motion for Leave to File Affidavit of Albert Fugate (Doc. # 68) and Motion of Defendants Other Than George Brown to Strike Affidavit and Declaration of Albert Fugate (Doc. # 77)
To support her Motion for Summary Judgment as to Liability (Doc. # 35), Plaintiff has submitted, inter alia, a copy of the transcript of an interview of Fugate by Sergeant Rick May and Detective Eric Spicer of the Huber Heights Police Department. The Defendants other than George Brown have requested that the Court strike that transcript, arguing that the transcript is inadmissible hearsay and that it has not been authenticated.[11]See Doc. # 64. Although Plaintiff has opposed that request (see Doc. # 71), she has also filed a motion requesting leave of Court to file an affidavit from Fugate, to which a copy of the transcript is attached. See Doc. # 68. This Court sustains tie Plaintiffs Motion for Leave to File Affidavit of Albert Fugate (Doc. # 68). It bears emphasis, however, that the Court has merely concluded that a copy of the transcript of Fugate's interview should be part of the record in this litigation. Whether any portions of that document may be considered when ruling on the pending motions for summary judgment must await the Court's ruling on the request of the Defendants other than Brown to strike Fugate's affidavit/declaration (Doc. # 77), with which they renew their challenges to the transcript. As a consequence of sustaining Plaintiffs motion seeking leave to file that affidavit/declaration, the Court overrules, as moot, the Motion of Defendants Other Than George Brown to Strike the Transcript of the Interview of Albert Fugate (Doc. # 64).
The Defendants other than Brown have responded to Fugate's affidavit/declaration by filing their Motion to Strike Affidavit and Declaration of Albert Fugate (Doc. # 77). The Plaintiff has not responded to that motion.[12] The rein, the Defendants initially argue that the Plaintiff has failed to authenticate the copy of *875 the transcript of the interview of Fugate and that, therefore, the Court must disregard the copy of the transcript attached to this affidavit/declaration. Rule 901(a) of the Federal Rules of Evidence provides that the "requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The Court concludes that sufficient evidence has been presented to allow it to find that the document claimed to be the transcript of the interview of Fugate is what it purports to be. As an initial matter, Plaintiffs counsel has submitted an affidavit, in which he states that the counsel for these Defendants provided a copy of the transcript to him in response to a discovery response.[13] Indeed, these Defendants state in their memoranda opposing Plaintiffs Motion in Limine and/or for Sanctions (Doc. # 39) and her Motion to Strike (Doc. # 41) that they produced a copy of the transcript to Plaintiffs counsel, before this litigation was initiated. See Doc. ## 45 and 46. The Defendants other than Brown have not provided evidence or even suggested that the copy of the transcript appended to Fugate's affidavit/declaration is different from the one which their counsel had furnished to their counterpart for the Plaintiff. Moreover, the Defendants other than Brown have not supplied evidence, tending to demonstrate that their counsel forged a document and foisted it off on Plaintiffs counsel as a copy of the interview of Fugate. Accordingly, the Court concludes that the Plaintiff has met her burden under Rule 901(a) to demonstrate that the document which she asserts is a transcript of the interview of Fugate is, indeed, such a transcript and that, therefore, she has met her burden of establishing its authenticity.[14]
The Defendants other than Brown argue in the alternative that the transcript of Fugate's interview must be stricken, because that transcript is inadmissible hearsay. This Court agrees. The transcript is unquestionably hearsay, i.e., an out of court statement offered to prove the truth of the matters set forth therein. See Fed.R.Evid. 801(c). Nevertheless, Plaintiff argues that the transcript is admissible pursuant to the public records exception to the hearsay rule. See Fed.R.Evid. 803(8). This Court cannot agree. Rule 803(8) provides:
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. *876 The Defendants other than Brown argue that the transcript of the interview of Fugate does not come within Rule 803(8), because it merely recorded statements by Fugate who was a third party, rather than a public official with a duty to report.[15] The Sixth Circuit has held that statements by third-parties are not admissible in accordance with Rule 803(8), even though they are contained in a police report. Miller v. Field, 35 F.3d 1088, 1091-92 (6th Cir.1994). In accordance with Miller; this Court concludes that the transcript of the interview of Fugate is inadmissible hearsay. Moreover, the transcript of the interview of Fugate cannot be considered the functional equivalent of an affidavit or a deposition, since there is no indication that he had been sworn before being interviewed. Therefore, the Court will not consider that document when ruling on the pending motions for summary judgment.
In his affidavit/declaration, Fugate sets forth information concerning the events which gave rise to this litigation, in addition to attempting to authenticate the transcript of his interview. The Defendants other than Brown argue that the Court should strike a number of paragraphs set forth in that affidavit/declaration. The Court will discuss those arguments in the order presented.
First, in the first sentence of ¶ 14 of his affidavit/declaration, Fugate states that he had been informed that emergency personnel refused to transport Cabaniss to a hospital and took him to jail instead, because he had threatened them. The Defendants other than Brown argue that the Court must strike those statements, because they constitute inadmissible hearsay. Unquestionably, the first sentence of paragraph 14 of Fugate's affidavit/declaration is an out of court statement offered to prove the truth of the matters set forth therein and that, therefore, it is hearsay. See Fed.R.Evid. 801(c). Moreover, given that the Plaintiff has not responded to this motion, she has not argued that the statements set forth in the first sentence of ¶ 14 may be considered in accordance with an exception to the hearsay rule. Therefore, this Court will strike the first sentence of ¶ 14 of Fugate's affidavit/declaration as inadmissible hearsay, and will not consider the statements set forth therein when ruling on the pending requests for summary judgment.
Second, the Defendants other than Brown argue that the Court must strike portions of ¶¶ 15 and 16 of the affidavit/declaration, because Fugate has failed to establish that he has personal knowledge of the information set forth in those portions of those paragraphs.[16] It *877 can not be questioned that an affidavit or declaration submitted in support of or in opposition to a motion for summary judgment must be based upon personal knowledge. See Rule 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). See also, Weberg v. Franks, 229 F.3d 514, 526 (6th Cir.2000) (noting that statements in affidavits that have not been made on personal knowledge must be disregarded when ruling on a motion for summary judgment). In the second sentence of ¶ 15 of his affidavit/declaration, Fugate states that Cabaniss had a number of incidents with police officers during his life and had a history of reckless behavior and, in the second sentence of ¶ 16, states that he understood that Cabaniss gave a substantial portion of his earnings to his children. This Court agrees with the Defendants other than Brown that Fugate has failed to affirmatively show in his affidavit/declaration that he has personal knowledge of and is, therefore, competent to testify about the matters set forth in the second sentences of ¶¶ 15 and 16 of that document. Therefore, the Court will not consider those sentences when ruling upon the pending motions for summary judgment.
Third, the Defendants other than Brown request that the Court strike the first sentence of ¶ 15 of the affidavit/declaration of Fugate, wherein he states that it is his opinion that the actions of the arresting officers antagonized Cabaniss and resulted in his uncooperative and aggressive behavior. According to these Defendants, those statements are not admissible as lay opinion testimony under Rule 701 of the Federal Rules of Evidence, which permits a lay witness to give opinions that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." JGR, Inc. v. Thomasville Furniture Industries, Inc., 370 F.3d 519, 525 (6th Cir.2004). According to these Defendants, the statements in the first sentence of ¶ 15 are not rationally based upon Fugate's perception. The Court disagrees. He could observe the interaction of the officers and Cabaniss and draw an opinion as to how the latter reacted to the actions of the former. The Court agrees with these Defendants, however, that the second part of that sentence (i.e., that the actions of the arresting officers resulted in Cabaniss' uncooperative and aggressive behavior) is not based upon Fugate's personal perception, in the absence of an explanation as to what actions of Cabaniss caused him to reach the opinion about the cause and effect relationship.
In sum, the Court sustains in part and overrules in part the Motion of the Defendants other than George Brown to Strike Affidavit and Declaration of Albert Fugate (Doc. # 77). The Court sustains that motion as it relates to the transcript of the interview of Fugate, as well as the following parts of his affidavit/declaration, to wit: the first sentence of ¶ 14, all of ¶ 15, except the statement that the arresting officers antagonized Cabaniss, and the second sentence of ¶ 16. Otherwise, the Court has overruled that motion.
B. Motion of Defendants Other Than George Brown to Strike the Declaration of James Marsh (Doc. # 66)
To support her request for summary judgment and to oppose those filed by the *878 Defendants, the Plaintiff has submitted, among other evidence, the declaration of James Marsh ("Marsh"). The Plaintiff has retained Marsh to provide expert testimony in the areas of police policy and procedure. In ¶¶ 5 and 13-15 of his declaration, he sets forth the following opinions:
¶ 5. It is more probable than not that the injury to Cabaniss on May 21, 2003, was caused by a pattern or practice of deliberate indifference by the Riverside Police Department.
¶ 13. The lack of supervision, inadequate training and failure to follow departmental guidelines represent deliberate indifference to Cabaniss' safety on the part of Riverside and Craine, Carlton and Naff.
¶ 14. The policy and practice of the Riverside Police Department of allowing supervisors to violate the rules and allowing officers to be unsupervised and to violate the law was more probably than not a contributory factor to Cabaniss' injury and represents deliberate indifference to the safety, well-being and handling of individuals with suicidal behavior or mental illness.
¶ 15. Riverside had a pattern and practice of deliberate indifference regarding staffing needs, supervision, discipline, directives [sic], training and the attitude of officers toward public. In addition, this pattern and practice of deliberate indifference had a negative impact within the Police Department upon its guidelines regarding the use of force and the handling of intoxicated, mentally ill or suicidal persons, and this pattern and practice more probably than not was a contributory factor of the injury to and death of Cabaniss.
In their motion (Doc. # 66), the Defendants other than Brown argue that the Court should strike Marsh's declaration, because the opinions he has expressed therein do not comply with Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The Plaintiff disagrees. See Doc. # 70. Although the caption of this motion indicates that it is directed at the entirety of Marsh's affidavit, these Defendants only expressly address ¶¶ 5 and 13-15. Accordingly, the Court considers striking only those paragraphs and begins its analysis by reviewing the standards it must apply whenever a party argues that expert opinion evidence is not admissible under Rule 702 and Daubert.
Rule 702 provides:[17]
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In Daubert, the Supreme Court "established a general gatekeeping [or screening] obligation for trial courts" to exclude from trial expert testimony that is unreliable and irrelevant. Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (citations omitted). This gatekeeping function applies "when considering all expert testimony, including testimony based on technical and other specialized knowledge." Clay v. Ford Motor, Co., 215 F.3d 663, 667 (6th Cir.2000), citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) *879 (emphasis in original). In determining whether evidence is admissible under Daubert, the District Court must determine whether the evidence "both rests on a reliable foundation and is relevant to the task at hand." Id. In assessing relevance and reliability, the district court must examine whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000). This involves a preliminary inquiry as to whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. Id. Some of the factors that may be used in such an inquiry include: 1) whether the theory or technique can be tested, 2) whether it has been subjected to peer review and publication, 3) whether the potential rate of error is known, and 4) its general acceptance. Daubert, 509 U.S.at 593-94, 113 S. Ct. 2786; Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir.2001). "This inquiry is a flexible one, with an overarching goal of assessing the `scientific validity and thus the evidentiary relevance and reliability' of the principles and methodology underlying the proposed expert testimony." United States v. Langan, 263 F.3d 613, 621 (6th Cir.2001) (citation omitted). "[A] trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co., 526 U.S. at 152, 119 S. Ct. 1167. Of course, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). The proponent of expert opinion evidence has the burden of demonstrating by the preponderance of the proof that the evidence complies with Rule 702 and Daubert. Daubert, 509 U.S. at 592 n. 10, 113 S. Ct. 2786; Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 250 (6th Cir.), cert. denied, 534 U.S. 822, 122 S. Ct. 56, 151 L. Ed. 2d 25 (2001).[18]
As an initial matter, the Defendants other than Brown suggest that the Court must strike certain paragraphs in Marsh's declaration, because he merely sets forth legal conclusions therein. This Court agrees. In Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir.1994), the Sixth Circuit in an excessive force case brought under § 1983 held that, although a properly qualified expert witness may testify that a municipality is lax in the discipline of its officers and about the effects of such laxity, he may not testify that such a policy constitutes deliberate indifference. In the ¶¶ 5 and 13-15 of his declaration, Marsh states that certain actions constituted deliberate indifference. In accordance with Berry, this Court concludes that it must strike those paragraphs from Marsh's declaration.
Moreover, in Brainard v. American Skandia Life Assur. Corp., 432 F.3d 655 (6th Cir.2005), the Sixth Circuit recently noted that "[a]n expert opinion submitted in the context of a summary judgment motion must' be more than a conclusory *880 assertion about ultimate legal issues." Id. at 663-64 (internal quotation marks and citations omitted). Rather, such an affidavit must "set forth facts. . . .," which "outline a line of reasoning arising from a logical foundation." Id. (internal quotation marks and citations omitted). Herein, ¶¶ 5 and 13-15 of Marsh's declaration merely set forth his conclusory assertion about an ultimate legal issue, rather than setting forth facts which "outline a line of reasoning arising from a logical foundation."
Accordingly, the Court sustains the Motion of Defendants Other Than George Brown to Strike the Declaration of James Marsh (Doc. # 66). The Court will not consider ¶¶ 5 and 13-15 of that document when ruling on the pending motions for summary judgment. However, the remainder of the declaration will be considered.
IV. Plaintiff's Motion for Summary Judgment as to Liability (Doe. # 35), Motion for Summary Judgment of Defendant George Brown (Doe. # 47) and Motion' of Defendants Other Than George Brown for Summary Judgment (Doc. # 60)
Having decided what evidence it can consider, the Court turns to the three pending motions seeking summary judgment. With her motion, Plaintiff seeks summary judgment as to liability on her claims against Craine, Carlton, Naff, Kronenberger, Smith and Riverside. See Doc. # 35. With his motion, Brown requests that the Court enter summary judgment in his favor on all of Plaintiffs claims against him. See Doc. # 47. With their motion, the Defendants other than Brown request summary judgment on all of Plaintiffs claims against them. See Doc. # 6. As a means of analysis, the Court will initially rule upon Brown's motor, following which it will discuss the other two motions together. When ruling upon the Defendants' two motions seeking summary judgment, the Court must construe the evidence in the manner most favorable to the Plaintiff. However, when ruling upon that filed by the Plaintiff, the Court must construe the evidence in the manner most favorable to the Defendants.
A. Motion for Summary Judgment of Defendant George Brown (Doc. # 47)
Brown was the Chief of the Riverside Police Department when the events giving rise to this litigation occurred.[19] Plaintiff has sued Brown in his individual and official capacities. The Court need not tarry long on Plaintiffs official capacity claims against Brown. It is well-settled that a claim against an officer or employee of a governmental entity, in his or her official capacity, is a claim against the governmental entity itself. See e.g., Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Thus, in E.J. v. Hamilton County, Ohio, 707 F. Supp. 314, 318-19 (S.D.Ohio 1989), Judge Rubin dismissed the official capacity claims against Hamilton County Commissioners, since Hamilton County itself was a party, making the official capacity claims redundant. Similarly, herein, Brown's municipal employer, Riverside, is a Defendant in this litigation. Therefore, official capacity claims against Brown are redundant, and the Court sustains Brown's Motion for Summary Judgment (Doc. # 47), as it relates to such claims.
Turning to individual capacity claims against Brown, a close review of Plaintiffs Amended Complaint (Doc. # 23) fails to reveal any individual capacity claims which have been pled specifically against him. *881 Indeed, Brown is only mentioned three times in that pleading, to wit: in the caption;[20] in ¶ 10 where he is identified as the Chief of the Riverside Police Department and an employee, agent, servant and representative of Riverside; and in ¶ 104 where it is alleged that he had previously warned Riverside about a lack of policies and personnel in its Police Department and a failure to train and to supervise officers, and that he requested an assessment of the department by officials of the Kettering or Huber Heights Police Department.[21] In addition, Plaintiff alleges in ¶ 34 of her Amended Complaint that the failure of the Chief of Police of Riverside and other officials of that municipality to implement and to communicate appropriate policies and procedures to officers and paramedics, and to train and to supervise such individuals in the use of pepper spray and the medical needs of prisoners constitutes gross negligence and deliberate indifference, entitling Plaintiff to recover punitive damages from Riverside. In bears emphasis that ¶ 34 appears in the section of Plaintiffs Amended Complaint, wherein she sets forth the factual background upon which her claims are based, rather than in one of the 23 claims for relief included in that pleading.
In his motion, Brown argues that he is entitled to summary judgment on any claims Plaintiff may have intended to assert against him, because the evidence fails to raise a genuine issue of material fact as to whether he can be held liable. Plaintiff, in contrast, contends that Brown can be held liable under both federal and state law, because he is responsible for the actions of Craine, Carlton and Naff, which Plaintiff contends led to Cabaniss' death. As a means of analysis, the Court will initially set forth the standards it must apply whenever a party seeks to impose liability under § 1983 on a supervisor such as Brown, for the alleged constitutional deprivations by those he supervises.
In Turner v. City of Taylor, 412 F.3d 629 (6th Cir.2005), the Sixth Circuit reviewed the standards which must be applied to determine whether a supervisory employee such as Brown can be held liable under § 1983 for the constitutional actions of the employees he or she supervises:
This Court has explained the standards for supervisory liability under § 1983 as follows:
[T]he § 1983 liability of supervisory personnel must be based on more than the right to control employees. Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984) (citing Hays v. Jefferson County, 668 F.2d 869, 872-74 (6th Cir. 1982)); see also Mills v. City of Barbourville, 389 F.3d 568, 580 (6th Cir.2004) ("In order to establish liability pursuant to § 1983, the plaintiff must prove that the defendant, as a supervisory official, is personally responsible for the alleged unconstitutional actions that caused his injury. . . . At a minimum, the plaintiff must demonstrate that a supervisory official condoned, encouraged, or knowingly *882 acquiesced in the alleged unconstitutional misconduct.") (emphasis added in Mills; citing Bellamy, 729 F.2d at 421); Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.1999) (holding that § 1983 plaintiff must prove that officer "did more than play a passive role in the alleged violation or showed mere tacit approval of the goings on. . . . Supervisory liability under § 1983 cannot attach where the allegation of liability is based upon a mere failure to act . . . and cannot be based upon simple negligence.") (citing Leach v. Shelby County Sheriff 891 F.2d 1241, 1246 (6th Cir.1989)).
Id. at 643.
Herein, there is no evidence that Brown was personally involved in the events which gave rise to this litigation. Moreover, the Plaintiff has failed to supply evidence which raises a genuine issue of material fact concerning the question of whether Brown condoned, encouraged or knowingly acquiesced in the alleged unconstitutional misconduct by Craine, Carlton and Naff.[22] Nevertheless, Plaintiff arguably implies in her Amended Complaint that Brown can be held liable along with other Defendants for failing to investigate the events giving rise to this litigation or to take remedial action as a result of those events. See Doc. # 23 at ¶ 154. Based upon the following, this Court concludes that the Plaintiff has failed to demonstrate that the evidence raises a genuine issue of material fact on whether Brown can be held liable for failing to investigate those events or to take remedial action.
In Marchese v. Lucas, 758 F.2d 181, 182 (6th Cir.1985), cert. denied, 480 U.S. 916, 107 S. Ct. 1369, 94 L. Ed. 2d 685 (1987), the Sixth Circuit held that a failure to investigate may give rise to supervisory liability under § 1983. Therein, "there was, in fact, no serious investigation conducted" by any supervisory officials. Id. at 188. In Walker v. Norris, 917 F.2d 1949, 1457 (6th Cir.1990), the Sixth Circuit noted that, in Marchese, it had indicated that postevent actions of a supervisor could give rise to liability under a supervisory liability theory for failure to investigate the events. However, the Walker court indicated that such liability was limited to instances where no investigation had been conducted. Therein, the Sixth Circuit concluded that the District Court had properly granted a directed verdict in favor of two supervisory employees, because an investigation had been conducted. Thus, in Broyles v. City of Dayton, 1997 WL 1764763 (S.D.Ohio 1997), affirmed, 1998 WL 476154 (6th Cir.1998), this Court indicated that a supervisory employee can be held liable for failure to investigate, only "if there is a complete failure to conduct a meaningful investigation." Id. at *7. Herein, there is no evidence tending to support the proposition that there was a failure to conduct a meaningful investigation. On the contrary, at Brown's request, officers employed in the Huber Heights Police Department conducted an investigation into the events which led to this litigation. As part of their investigation, officers *883 in that department interviewed the participants in and witnesses to the events surrounding Cabaniss' death.
Plaintiff also argues that liability can be imposed upon Brown under § 1983, because he is responsible for failing to train Riverside's police officers and to enforce its policies and procedures, and for permitting inexperienced officers to operate without sufficient supervision. As an initial matter, it should be noted that a failure to train municipal employees, which constitutes deliberate indifference, can serve as the basis for imposing liability on a municipal employer for the constitutional torts committed by its employees. City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). It cannot be questioned that liability can be imposed on a supervisor when he has condoned, encouraged or knowingly acquiesced in the alleged unconstitutional violations of his subordinates. The Plaintiff, however, has failed to cite any decision by the Supreme Court or the Sixth Circuit, holding that liability can also be imposed upon a supervisor for the constitutional violations of his subordinates, when he has failed to train those subordinates and that failure amounted to deliberate indifference to the safety of others.[23] In the absence of such authority in support of this theory of liability, this Court is not free to amend the standards for supervisory liability, restated by the Sixth Circuit in Turner, supra, to include failure to train subordinates.
The other bases of liability (i.e., failure to enforce policies and procedures and permitting officers to work without adequate supervision) all involve some sort of alleged failure of Brown to supervise Riverside's Police Department. In Shehee v. Luttrell, 199 F.3d 295 (6th Cir.1999), cert. denied, 530 U.S. 1264, 120 S. Ct. 2724, 147 L. Ed. 2d 988 (2000), the Sixth Circuit indicated that a supervisor's failure to supervise or to control his subordinates was not actionable, "unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Id. at 300 (internal quotation marks and citation omitted). Since there is no evidence that Brown directly participated in or implicitly authorized, approved, or knowingly acquiesced in the alleged unconstitutional conduct, the evidence fails to raise a genuine issue of material fact on Plaintiffs theory that Brown can be held liable under § 1983 for his failure to supervise his subordinates.
Based upon the foregoing, the Court concludes that Brown is entitled to summary judgment on Plaintiff's individual capacity claims against him under § 1983.[24]
*884 Brown argues that he is also entitled to summary judgment on Plaintiffs state law claims, to the extent that any such claims have been asserted against him. In particular, Brown argues that he is immune from liability under state law in accordance with § 2744.03(A)(6) of the Ohio Revised Code. This Court agrees.[25] Section 2744.03(A)(6) provides:
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term "shall" in a provision pertaining to an employee.
The circumstances presented by this litigation are not covered by either § 3314.07, which deals with the immunities of sponsors of community schools, or § 3746.24, which addresses the immunity of certain individuals working with hazardous substances. In addition, there is no evidence that Brown was acting manifestly outside the scope of his employment or that he acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. Finally, Plaintiff has pointed to no provision in the Ohio Revised Code which would expressly impose liability upon Brown under the present circumstances. Indeed, Plaintiff cites only § 2744.02, which deals with the immunity of political subdivisions, like Riverside, and the exceptions to that immunity. Given that Brown is riot a political subdivision (see § 2744.01(F) (defining political subdivision)), § 2744.02 is irrelevant to the question of whether Brown can be held liable for Plaintiffs state law claims. Accordingly, the Court concludes that Brown is entitled to summary judgment on Plaintiffs state law claims.
Based upon the foregoing, the Court sustains Brown's Motion for Summary Judgment (Doc. # 47) in its entirety.
B. Plaintiffs Motion for Summary Judgment as to Liability (Doc. # 35) and Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60)
As an initial matter, the individual Defendants are entitled to summary judgment on Plaintiffs official capacity claims against them, since Riverside is a party to this litigation. See E.J., supra. Accordingly, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), as it relates *885 to the official capacity claims against Onello, Curp, Lommatzsch, Reynolds, Doan, Best, Mike Smith, Weaver, Alig, Craine, Carlton, Naff, Kronenberger and Smith.
The Court now turns the Plaintiffs individual capacity claims against the individual Defendants and her claims against Riverside. As a means of analysis, the Court will initially rule upon the parties' motions as they relate to the Plaintiffs individual capacity claims against Onello, Curp, Lommatzsch, Reynolds, Doan, Best, Mike Smith, Weaver and Alig. The Court will then turn to the motions as they relate to Plaintiffs individual capacity claims against Craine, Carlton, Naff, Kronenberger and Smith, before ruling on her claims against Riverside.
a. Plaintiffs individual Capacity Claims against Onello, Curp, Lommatzsch, Reynolds, Doan, Best, Mike Smith, Weaver and Alig
For reasons which follow, the Court concludes that Onello, Curp, Lommatzsch, Reynolds, Doan, Best, Mike Smith and Weaver are entitled to summary judgment on Plaintiffs individual capacity claims against them. As is indicated above, Onello is alleged to be the City Manager, while Curp is alleged to be Riverside's Mayor. Lommatzsch, Reynolds, Doan, Best, Mike Smith and Weaver are alleged to be members of the Riverside City Council. Alig was the Chief of Riverside's Fire Department when the events giving rise to this litigation occurred. In her Amended Complaint, the Plaintiff lists these individuals and identifies them. See Doc. # 23 at ¶¶ 7-9 and 13. In addition, she alleges in the "Facts" section of that pleading, rather than in one of the 23 claims for relief set forth therein, that the failure of, inter alia, these Defendants "to implement appropriate policies and procedures, communicate lawful policies and procedures, training, education, and appropriate supervision in the use of pepper spray and medical needs of prisoners amounts to gross negligence and a deliberate indifference to the safety of the citizens of Riverside, Ohio[,] which gross negligence was a proximate cause of the injuries and damages suffered by Plaintiff, providing or [sic] directly liability [sic] against the City, jointly and severally for compensatory and punitive damages." Id. at ¶ 34. Those Defendants are not otherwise mentioned in Plaintiffs' Amended Complaint.
If Plaintiff is attempting to impose liability on any one or more or all of those Defendants under § 1983, in accordance with a supervisory liability theory and one or more of them was the supervisor of Craine, Carlton, Naff, Kronenberger and/or Smith, the employees of Riverside who committed the acts which are alleged to have deprived Cabaniss of his constitutional rights, there is simply no basis for imposing liability on Onello, Curp, Lommatzsch, Reynolds, Doan, Best, Mike Smith, Weaver and/or Alig under such a theory. There is no evidence that any of them was personally involved in the incidents which gave rise to this litigation or that any condoned, encouraged, or knowingly acquiesced in the alleged unconstitutional misconduct underlying them. Turner, supra. Moreover, for reasons set forth above in the Court's discussion of Brown's request for summary judgment, there is no alternative basis for imposing liability upon these Defendants under § 1983.
In addition, these Defendants are also entitled to summary judgment on Plaintiffs claims under state law, since there is no evidence that any of them acted outside the scope of his or her employment with Riverside or with malicious purpose, in bad faith, or in a wanton or reckless manner. See § 2744.03(A)(6). In addition, no provision of the Ohio Revised Code expressly *886 imposes liability upon a mayor, council member or city manager for the tortious behavior of municipal employees. Id.
Accordingly, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), as it relates to the individual capacity claims against Onello, Curp, Lommatzsch, Reynolds, Doan, Best, Mike Smith, Weaver and Alig.
b. Plaintiffs Individual Capacity Claims against Craine, Carlton, Naff, Kronenberger and Smith
Plaintiffs have set forth a number of claims against these Defendants in their individual capacities, under both federal and state law. As a means of analysis, the Court will discuss the parties' requests for summary judgment on those claims in the order in which they appear in the Plaintiffs Amended Complaint, discussing related claims together.
However, before engaging in that analysis, the Court will briefly review the doctrine of qualified immunity, since these individual Defendants rely upon that doctrine in moving for summary judgment and in opposing that filed by Plaintiff. The Supreme Court has held that government officials are protected by qualified immunity, if their conduct does not "violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). For a right to be "clearly established," the contours of the right must be sufficiently clear that a reasonable official would understand that his or her conduct violates that right. Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). In Anderson, the Supreme Court explained that "[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id. at 640, 107 S. Ct. 3034. Of course, the doctrine of qualified immunity applies to more than just excessive-force claims or even claims under the Fourth Amendment generally. Rather, as the Supreme Court held in Harlow, it will protect an employee of a governmental entity from liability under § 1983, as long as he has not violated a clearly established federal statutory or constitutional right. 457 U.S. at 818, 102 S. Ct. 2727. In Gray v. City of Detroit, 399 F.3d 612 (6th Cir.2005), the Sixth Circuit restated the test which must be applied to determine whether an individual is protected by the doctrine of qualified immunity:
This Court has adopted a three step analysis in determining when qualified immunity applies. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900-901 (6th Cir.2004). First, while viewing the facts in the light most favorable to the plaintiff, the Court determines whether a violation of plaintiffs constitutional rights has occurred. Id. Second, the Court asks if the violation "involved a clearly established constitutional right of which a reasonable person would have known." Id. Third, the Court determines if the plaintiff has offered evidence sufficient to show that the official's conduct was objectively unreasonable in light of the clearly established constitutional right at issue. Id. A negative answer to any of the three questions means that the officer is entitled to qualified immunity.
Id. at 615.
In her First Claim for Relief, Plaintiff has set forth a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Fourth Amendment by using excessive force.[26] As an initial matter, this Court *887 agrees with Plaintiff that this claim of excessive force is governed by the Fourth Amendment. In Phelps v. Coy, 286 F.3d 295, 300 (6th Cir.2002), cert. denied, 537 U.S. 1104, 123 S. Ct. 866, 154 L. Ed. 2d 772 (2003), the Sixth Circuit held that the Fourth Amendment is applicable to the use of excessive force as long as the person who has been seized remains in the custody of the arresting officers. Herein, since Cabaniss remained in the custody of the arresting officers, Craine, Carlton and Naff, from the time of his arrest, through the time he suffered the injuries which led to his death, the Court must apply the Fourth Amendment to Plaintiff's First Claim for Relief. This claim is predicated upon the premise that Carlton used excessive force when he sprayed Cabaniss with pepper spray, while the latter was handcuffed, seated in the rear of the officer's cruiser. As is indicated above, after Cabaniss had been handcuffed and placed in the rear of Carlton's cruiser, he was observed kicking the plexiglass partition that divides the front from the rear of that vehicle, as well as hitting his head against the plastic divider. Carlton told Cabaniss a number of times to stop kicking and warned the latter that, if he did not, he (Carlton) would use pepper spray on him (Cabaniss). As a result, Cabaniss stopped kicking the divider.[27] Plaintiff and the officers move for summary judgment on this claim, and the Court begins its analysis by reviewing the standards that are applicable to all excessive-force claims under the Fourth Amendment.
In Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the Supreme Court held that excessive-force claims under the Fourth Amendment are properly analyzed under that constitutional provision's objective reasonableness standard. Id. at 388, 109 S. Ct. 1865. The Graham Court explained further:
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, 392 U.S. [1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F.2d [1028, 1033 (2d Cir. *888 1973)], violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); see also Terry v. Ohio, supra, 392 U.S., at 21, 88 S. Ct. 1868 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, 436 U.S., at 138, 98 S. Ct. 1717, citing United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).
Id. at 396-97, 109 S. Ct. 1865. Relevant factors to consider when assessing the reasonableness of the use of force include the severity of the crime at issue, the immediate threat the suspect poses to the safety of the officer or others, the suspect's resistance, if any, and the possibility of flight. Id. at 396, 109 S. Ct. 1865.
In arguing that she is entitled to summary judgment as to liability on this claim and that Craine, Carlton and Naff are not, Plaintiff places primary reliance upon Champion v. Outlook of Nashville, Inc., 380 F.3d 893 (6th Cir.2004), cert. denied, 544 U.S. 975, 125 S. Ct. 1837, 161 L. Ed. 2d 725 (2005). That decision arose cut of the death of a 32-year old male, Calvin Champion ("Champion"), who was non-responsive and unable to care for himself as a result of being autistic. One day, an employee of the institution where he resided had taken Champion on an excursion with her son. While attempting to drive Champion and her son away from a shopping area, the employee lost control of Champion.[28] As a consequence, police were called, and three officers ultimately arrived at the location. The three were able to bring Champion to the ground and got him under control through the use of pepper spray, and by placing him in handcuffs and leg hobbles; Thereafter, the officers continued to apply pressure to Champion's back, forcing his face into the ground and making it difficult for him to breathe, and continued to spray him in the face with pepper spray, which exacerbated his breathing problems. The officers engaged in that activity, even though Champion was in their control and had ceased all resistance. Champion began to vomit and died short time later.[29] His father and sister brought the action, setting forth, inter alia, a claim under § 1983, alleging that *889 each of the officers had violated Champion's rights under the Fourth Amendment by using excessive force to seize him. That excessive force claim was predicated solely upon the officers' actions, after they had been able to get control of Champion by handcuffing him and placing leg hobbles on him. After the jury had returned a sizeable verdict in favor of the plaintiff and the District Court had denied defendants' post trial motions, the defendants appealed. The Sixth Circuit affirmed. With respect to the question of whether the officers had violated Champion's rights under the Fourth Amendment, the Sixth Circuit wrote:
"[A]ll claims that law enforcement officers have used excessive force deadly or not in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The test's "proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S. Ct. 1865. To take the facts in a light most favorable to Plaintiffs is to assume that the Officers lay on top of Champion, a mentally retarded individual who had stopped resisting arrest and posed no flight risk, and sprayed him with pepper spray even after he was immobilized by handcuffs and a hobbling device. The use of such force is not objectively reasonable. . . .
Id. at 901.
Champion is distinguishable from the present situation and, therefore, does not control the question of whether any party is entitled to summary judgment on this claim. Therein, officers used pepper spray on Champion, after he had ceased all resistance and the officers had complete control of him. Herein, by contrast, Cabaniss was continuing to resist, as evidenced by his disorderly behavior in the rear of the cruiser, and the officers had not gained complete control over him, given that he ignored Carlton's directive to stop that behavior.
Of course, merely because the decision upon which Plaintiff relies is distinguishable, does not mean that the officers are entitled to summary judgment on this claim. However, given that courts have held that police officers have not used excessive force in violation of the Fourth Amendment under analogous circumstances, the Court concludes that Craine, Carlton and Naff are entitled to summary judgment on the Plaintiff's First Claim for Relief. In Garrett v. Athens-Clarke County, Ga., 378 F.3d 1274 (11th Cir.2004), for instance, the Eleventh Circuit held that police officers had not violated the plaintiffs right under the Fourth Amendment right to be free from excessive force by, inter alia, using pepper spray in an effort to prevent him from kicking after he had been arrested and handcuffed. In Moore v. City of Lincoln, 2005 WL 3455123 (D.Neb.2005), the court concluded that a police officer had not violated the plaintiffs Fourth Amendment rights, by spraying him with pepper spray when he was kicking, while handcuffed in the back of a police cruiser. Moreover, it bears emphasis that Cabaniss risked harming himself by hitting his head against the plexiglass divider, which further demonstrates that Carlton's use of pepper spray was objectively reasonable. In Monday v. Oullette, 118 F.3d 1099, 1104-05 (6th Cir.1997), the Sixth Circuit affirmed the decision of the District Court to grant defendants judgment as a matter of law on plaintiffs excessive force claim, arising out of the use of pepper spray to subdue him, because *890 the police feared would injure himself if not taken into custody.
Accordingly, the Court concludes that the use of pepper spray by Carlton on Cabaniss was, as a matter of law, not objectively unreasonable,[30] and that, therefore, the use of that substance did not constitute excessive force in violation of the Fourth Amendment.[31] Consequently, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiffs Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to Plaintiffs First Claim for Relief.
The Court will discuss Plaintiffs Second through Fifth Claims for Relief together, since they are somewhat related. With her Second Claim for Relief, Plaintiff sets forth a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the federal constitution by failing to protect him. With her Third Claim for Relief, Plaintiff sets forth an identical claim under § 1983 against Kronenberger and Smith. With her Fourth Claim for Relief, Plaintiff sets forth a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Due Process Clause of the Fourteenth Amendment by failing to protect him. With her Fifth Claim for Relief, Plaintiff sets forth an identical claim under § 1983 against Kronenberger and Smith.[32] Plaintiffs Second through Fifth Claims for Relief share the common denominator that they are predicated upon the theory that Craine, Carlton, Naff, Kronenberger and/or Smith owed a constitutional duty to Cabaniss to protect him from hum. In particular, Plaintiff alleges that these Defendants failed to protect Cabaniss from doing something which would cause his own death.[33]See Doc. # 23 at ¶¶ 44, 48, 52 *891 and 56. It bears emphasis that these four claims are not predicated upon the allegations that these individual Defendants failed to provide medical care to Cabaniss, since that alleged failure is the subject of Plaintiff's Sixth through Ninth Claims for Relief. The Court begins its analysis by exploring the legal underpinnings of the duty upon which Plaintiff relies.
In Jones v. Reynolds, 438 F.3d 685 (6th Cir.2006), the Sixth Circuit restated principles applicable to a claim that liability can be imposed upon governmental employees for failing to protect an individual:
"[N]othing in the language of the Due Process Clause itself," the Court has instructed, "requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). While "[a] State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes," the Court has reasoned that such duties will not be "thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment." Id. at 202-03, 109 S. Ct. 998. The Court has recognized one exception to the DeShaney rule: When the State has so restrained the liberty of the individual that it renders him unable to care for himself, the State has a special relationship with the individual and thus an affirmative duty to protect him. Id. at 200, 109 S. Ct. 998. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. Accordingly, "it is the State's affirmative act of restraining the individual's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty which is the deprivation of liberty triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." Id. (internal quotation marks omitted).
Since DeShaney, this circuit has recognized a second exception to the prohibition against holding public officials constitutionally responsible for private acts of violence. Relying on the following language from DeShaney "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them," id. at 201, 109 S. Ct. 998 we have held that when the State "cause[s] or greatly increase[s] the risk of harm to its citizens . . . through its own affirmative acts," it has established a "special danger" and a duty to protect its citizens from that risk. Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998). To bring a "state created danger" claim, the individual must show: "(1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence *892 by a third party; (2) a special danger to the plaintiff wherein the state's actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its actions specifically endangered the plaintiff." Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir.2003); see Kallstrom, 136 F.3d at 1066.
Id. at 690.
Applying those principles to this dispute, this Court concludes that the evidence fails to raise a genuine issue of material fact as to whether Craine, Carlton, Naff, Kronenberger and/or Smith can be held liable for failing to protect Cabaniss from causing his own death. Cabaniss died after he ignored the command of Craine and Carlton to remain seated in the police cruiser and then got out of that vehicle, contemporaneously falling and hitting his head, after which he lunged away from Carlton, who was sitting next to him, and struck his head on the ground. Although Cabaniss' liberty had been restrained at the time he so acted, there is no evidence that the restraint on his liberty prevented his protecting himself from causing his own death. Moreover, the second manner of establishing a failure to protect claim recognized by the Sixth Circuit is inapplicable, given that these Defendants are alleged to have failed to protect Cabaniss from himself, rather than from some third party.
Accordingly, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to Plaintiff's Second through Fifth Claims for Relief.
With her Sixth Claim for Relief, Plaintiff sets forth a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the federal constitution by failing to provide him appropriate medical care. With her Seventh Claim for Relief, Plaintiff sets forth an identical claim under § 1983 against Kronenberger and Smith. With he Eighth Claim for Relief, Plaintiff sets forth a claim under § 1983, alleging that: Craine, Carlton and Naff violated Cabaniss' rights under the Due Process Clause of the Fourteenth Amendment by failing to provide him appropriate medical care. In her Ninth Claim for Relief, Plaintiff sets forth an identical claim under § 1983 against Kronenberger and Smith. These claims are discussed together, because they are all predicated upon on the theory that Craine, Carlton, Naff, Kronenberger and/or Smith violated Cabaniss' constitutional rights, by failing to provide him adequate medical care.
In Watkins v. City of Battle Creek, 273 F.3d 682 (6th Cir.2001), the Sixth Circuit reiterated that "No sustain a cause of action under § 1983 for failure to provide medical treatment, plaintiff must establish that the defendants acted with `deliberate indifference to serious medical needs.' Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)." Id. at 686. Therein, the Sixth Circuit elaborated upon the deliberate indifference standard:
Deliberate indifference is not mere negligence. Deliberate indifference requires that the defendants knew of and disregarded a substantial risk of serious harm to Watkins's health and safety. Farmer v. Brennan, 511 U.S. 825, 835-37, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). This standard is subjective. It is not enough that there was a danger of which an officer should objectively have been aware. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 *893 S.Ct. 1970. If an officer fails to act in the face of an obvious risk of which he should have known but did not, the officer has not violated the Eighth or Fourteenth Amendments. Id. at 837-38, 114 S. Ct. 1970.
Id. See also Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 602-03 (6th Cir. 2005).[34] In Turner v. City of Taylor, 412 F.3d 629 (6th Cir.2005), the Sixth Circuit elaborated upon "serious medical needs":
Further, a constitutional claim for denial of medical care has an objective component that requires the existence of a "sufficiently serious" medical need. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). "[T]he inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id.
Id. at 646.
Herein, construing the evidence in the manner most favorable to the Plaintiff, the Court concludes that the evidence fails to raise a genuine issue of material fact as to whether Craine, Carlton, Naff, Kronenberger and/or Smith was deliberately indifferent to Cabaniss' serious medical needs. As an initial matter, assuming for sake of argument that Cabaniss had some sort an injury when the officers arrived outside Fugate's residence, there is no evidence that any Defendant was deliberately indifferent to Cabaniss' medical needs. On the contrary, paramedics were summoned, and Kronenberger attempted to examine Cabaniss, although the latter would neither permit the paramedic to touch him nor cooperate in any manner. Moreover, there is no evidence that whatever injury Cabaniss had sustained constituted a serious medical need.
Plaintiff however focuses upon Cabaniss' alleged suicidal tendencies. The evidence of those tendencies is set forth in Fugate's affidavit, wherein he states that he informed officers that Cabaniss was suicidal and had attempted suicide in the past.[35] However, there is no evidence that Cabaniss died as a result of committing suicide. In other words, there is no evidence that Cabaniss fell and struck his head on the concrete as a result of intentionally throwing himself on the ground.[36] Moreover, to the extent that these claims are based upon a failure to assess Cabaniss' medical condition in adequate fashion, which resulted in the failure to discover that he was suicidal, it bears emphasis that paramedics came to the location where Cabaniss had been arrested in order to determine whether he was in need of medical care. Kronenberger attempted to assess his needs in that regard, but Cabaniss refused to cooperate. When Kronenberger questioned Cabaniss about his medical condition, the latter swore at the paramedic, while threatening him and his family, rather than providing information concerning his medical condition. The Plaintiff has cited no case in which a court has held *894 that a police officer or paramedic acting similarly to the Defendants herein was deliberately indifferent to the serious medical needs of someone similarly situated to Cabaniss. Nor has Plaintiff cited authority in support of the proposition that police officers or paramedics arresting a drunken and disorderly individual are required by the Due Process Clause of the Fourteenth Amendment to perform a full psychological examination of that individual at the time of his arrest, in order to determine whether he presently has suicidal tendencies.[37]
Accordingly, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to Plaintiff's Sixth through Ninth Claims for Relief.
With her Tenth Claim for Relief, Plaintiff sets forth a survivorship claim, brought under § 2305.21 of the Ohio Revised Code against Craine, Carlton, Naff, Kronenberger and Smith, predicated upon the incidents giving rise to First through Ninth Claims for Relief. With her Eleventh Claim for Relief, Plaintiff sets forth a wrongful death claim, brought in accordance with § 2105.01 of the Ohio Revised Code against Craine, Carlton, Naff, Kronenberger and Smith, predicated upon these incidents. With her Twelfth Claim for Relief, Plaintiff has set forth a survivorship claim under § 2305.21, which is indistinguishable from her Tenth Claim for Relief. With her Twentieth Claim for Relief, Plaintiff sets forth a claim under state law that Craine, Carlton, Naff, Kronenberger and Smith acted willfully and wantonly and, thus, are not immune from Plaintiff's state law claims against them. With her Twenty-First Claim for Relief, Plaintiff sets forth a state law claim of intentional infliction of emotional distress against Craine, Carlton, Naff, Kronenberger and Smith. Those Defendants move for summary judgment on these claims, arguing that they are immune from liability on same in accordance with § 2744.03(A)(6), which provides that, unless one or more of three exceptions apply, employees of political subdivisions are immune. Two of those exceptions, that the employee's acts were manifestly outside the scope of his employment and that liability is expressly imposed by another provision in the Ohio Revised Code (see § 2744.03(A)(6)(a) and (c)), are clearly inapplicable in this case. Indeed, Plaintiff does not suggest that either is applicable. Under the third exception, liability can be imposed if the employee's acts were done with a malicious purpose, in bad faith or in a wanton or reckless manner. Herein, Plaintiff relies upon the assertion that these individual Defendants acted in a wanton or reckless manner. Indeed, in her Twentieth Claim for Relief, Plaintiff alleges that Craine, Carlton, Naff, Kronenberger and Smith acted willfully and wantonly and, thus, are not immune from Plaintiff's state law claims against them. The Court begins its analysis by reviewing the applicable legal principles.
In Fabrey v. McDonald Village Police Dept., 70 Ohio St. 3d 351, 639 N.E.2d 31 (1994), the Ohio Supreme elaborated upon the meaning of acting in a wanton or reckless manner, as that phrase in used in § 2744.03(A)(6)(b):
*895 Defendant Chief Tyree, however, could be liable if his acts or failures to act satisfy the standard of R.C. 2744.03(A)(6)(b). We agree with appellants that the issue of wanton misconduct is normally a jury question. Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St. 2d 210, 23 O.O.3d 224, 431 N.E.2d 652. The standard for showing wanton misconduct is, however, high. In Hawkins v. Ivy (1977), 50 Ohio St. 2d 114, 363 N.E.2d 367, syllabus, we held that wanton misconduct was the failure to exercise any care whatsoever. In Roszman v. Sammett (1971), 26 Ohio St. 2d 94, 96-97, 269 N.E.2d 420, 422, we stated, "mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor." Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury. Id. at 97, 269 N.E.2d at 423. In Thompson v. McNeill (1990), 53 Ohio St. 3d 102, 559 N.E.2d 705, we employed the recklessness standard as enunciated in 2 Restatement of the Law 2d, Torts (1965), at 587, Section 500: "The actor's conduct is in reckless disregard of the safety of others if * * * such risk is substantially greater than that which is necessary to make his conduct negligent."
Id. at 356, 639 N.E.2d at 35. Examining the actions of Craine, Carlton, Naff, Kronenberger and Smith, this Court, after having construed the evidence in the manner most favorable to Plaintiff,[38] concludes that the evidence fails to raise a genuine issue of material fact as to whether any of those Defendants acted in a wanton or reckless manner. Therefore, those Defendants are immune from Plaintiff's state law claims.
When Craine and Carlton arrived at Fugate's residence in Riverside, they observed Cabaniss, who was obviously drunk, had just broken the outdoor lamp at a neighboring residence and was spitting at the officers. As a consequence, the officers had probable cause to arrest Cabaniss for violating § 2917.11 of the Ohio Revised Code, which provides in pertinent part:
(B) No person, while voluntarily intoxicated, shall do either of the following:
(1) In a public place or in the presence of two or more persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities, which conduct the offender, if the offender were not intoxicated, should know is likely to have that effect on others;
(2) Engage in conduct or create a condition that presents a risk of physical harm to the offender or another, or to the property of another.
Therefore, it cannot be said that said that either officer acted wantonly or recklessly by arresting and handcuffing Cabaniss or by placing him in the rear of Carlton's cruiser.[39] Paramedics were called, and Kronenberger conducted a short examination of Cabaniss, although he was inhibited in doing so, because Cabaniss would not allow the paramedic to touch him and otherwise failed to cooperate.[40] Those facts *896 do not raise a genuine issue of material fact that any of the individual Defendants wantonly or recklessly deprived Cabaniss of medical care, while at Fugate's residence.
As Carlton started to drive away from that location, with Cabaniss seated in the rear of his cruiser, the latter began to kick the plexiglass divider in that vehicle and to hit his head against it. Cabaniss ignored Carlton's numerous directives to stop the disruptive behavior and the officer's warning that he would be sprayed with pepper spray, if he did not. Therefore, the officer sprayed Cabaniss with that substance. Even if one were to assume for sake of argument that the evidence raises a genuine issue of material fact as to whether Carlton's actions in that regard constituted negligence, the evidence does not raise a genuine issue of material fact that those actions demonstrated perversity on the part of Carlton or that he created a risk, substantially greater than negligence.
Carlton then drove Cabaniss to the Riverside Police/Fire Station, where the residue from the pepper spray was washed off of him with a garden hose. There is no evidence that the hose released a strong spray of water which caused Cabaniss to suffer harm. The rear door to Carlton's cruiser was, however, left open. When Cabaniss indicated that he felt better and asked permission to stand, the officers indicated that he could not. Although Cabaniss initially complied with the officers' directive, he nevertheless voluntarily got out of the cruiser and took some steps, before falling and hitting his head. The Court will assume that the evidence would support a finding that Carlton and Craine acted negligently by leaving the rear door to the cruiser open, which allowed Cabaniss to escape and suffer the head injury which led to his death. The evidence does not, however, raise a genuine issue of material fact that either acted perversely in that regard or that the risk created thereby was substantially greater than negligence. Fabrey, supra. Therefore, the evidence does no: raise a genuine issue of material fact as to whether either officer acted wantonly or recklessly in that regard. After Cabaniss had fallen and injured himself, medical aid was summoned, and he was transported to Miami Valley Hospital. The post-injury actions of the individual Defend ants did not remotely constitute wanton or reckless behavior.
Accordingly, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc, # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to Plaintiff's Tenth through Twelfth, Twentieth and Twenty-First Claims for Relief.
With her Eighteenth Claim for Relief, Plaintiff sets forth a claim under § 1983 against Craine, Carlton and Naff, alleging that they violated Cabaniss' constitutional rights by handcuffing him, spraying him with pepper spray and with a hose and refusing to allow him to stand, thus placing him in a dangerous and potentially dangerous position, while creating a special relationship which imposed upon them the obligation of protecting Cabaniss and providing medical care to him. With her Nineteenth Claim for Relief, Plaintiff sets forth a claim under § 1983 and state law against Craine, Carlton and Naff, alleging that they deprived Cabaniss of his constitutional rights and assaulted and battered him, by restraining him, throwing him into a police cruiser, spraying him with pepper spray and water and allowing him to hurt himself. Based upon the foregoing discussion, supra at 888-99, these Defendants are entitled to summary judgment on this claim. Accordingly, the Court sustains the *897 Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to the Plaintiff's Eighteenth and Nineteenth Claims for Relief.
In sum, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to all the Plaintiff's claims against Craine, Carlton, Naff, Kronenberger and Smith.[41]
c. Plaintiff's Claims against Riverside
Plaintiff has set, forth both federal and state law claims against Riverside. As a means of analysis, the Court will initially discuss the parties' motions as they relate to Plaintiff's federal law claims, following which it will turn to her state law claims against Riverside.
With her Fourteenth Claim for Relief, Plaintiff has set forth a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Craine, Carlton and Naff, because those violations were caused by policies, practices and customs of Riverside. With her Fifteenth Claim for Relief, Plaintiff has set forth an identical claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Kronenberger and Smith, because those violations were caused by policies, practices and customs of Riverside. With her Sixteenth Claim for Relief. Plaintiff has set forth a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Craine, Carlton and Naff, because those violations were caused by its failure to train those officers. With her Seventeenth Claim for Relief, Plaintiff has set forth a claim under § 1983 against Riverside, alleging that it is liable for the constitutional violations of Kronenberger and Smith, because it failed to train those paramedics. With her Twenty-Second Claim for Relief, Plaintiff has set forth a claim under § 1983 against Riverside, alleging it is liable for the constitutional violations of its employees under a respondeat superior theory.
A plaintiff can recover from a governmental employer under § 1983, only if she is able to prove that a policy or practice of that employer caused the alleged constitutional deprivation by its employees. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). It is axiomatic that a failure to train employees which amounts to deliberate indifference can constitute such a policy. City of Canton, supra. With her Fourteenth through Seventeenth and Twenty-Second Claims for Relief, Plaintiff seeks to impose liability on Riverside under Monell and its progeny, including City of Canton, supra. If, however, the employees of a governmental *898 employer such as Riverside have not violated the plaintiff's constitutional rights, Monell liability cannot be imposed upon that governmental employer. See e.g., Scott v. Clay County, 205 F.3d 867, 879 (6th Cir.) (citing City of Los Angeles v. Heller, 475 U.S. 796, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986)), cert. denied, 531 U.S. 874, 121 S. Ct. 179, 148 L. Ed. 2d 123 (2000). Therefore, since this Court has concluded above that the individual Defendants are entitled to summary judgment on Plaintiff's § 1983 claims, Riverside is entitled to summary judgment on Plaintiff's Fourteenth through Seventeenth Claims for Relief. In addition, since there is no respondeat superior liability under § 1983 (see Monell, supra), Riverside is entitled to summary judgment on Plaintiff's Twenty-Second Claim for Relief.
Accordingly, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to Plaintiff's Fourteenth through Seventeenth and Twenty-Second Claims for Relief.
With her Twenty-Third Claim for Relief, Plaintiff sets forth a claim under state law against Riverside, alleging that it is liable for the wrongful acts of Craine, Carlton, Naff, Kronenberger and Smith. Riverside argues that it is entitled to summary judgment on this and any other state law claims against it, because it is immune from such claims in accordance with Ohio Revised Code § 2744.02, which provides, in pertinent part:
(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
* * *
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability:
(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct. . . .
Looking only at § 2744.02(A)(1), Riverside is unquestionably immune from Plaintiff's state law claims against it, given that those claims were in connection with a governmental or proprietary function.[42] Nevertheless, Plaintiff presents two arguments *899 why Riverside is not protected by such immunity. First, Plaintiff argues that Cabaniss' death was caused by the negligent operation of a motor vehicle by employees of Riverside. Second, Plaintiff argues that § 2744.02 is unconstitutional. As a means of analysis, the Court will address those two arguments in the above order.
1. Negligent Operation of a Motor Vehicle
Plaintiff contends that immunity provided to a political subdivision such as Riverside by § 2744.02(A) is inapplicable, because Cabaniss' death occurred as a result of the operation of a motor vehicle by its employees and, therefore, the exception to immunity set forth in § 2744.02(B)(1) is applicable. For reasons which follow, this Court rejects Plaintiff's argument in that regard.
In support of this argument, Plaintiff relies upon Groves v. Dayton Pub. Schools, 132 Ohio App. 3d 566, 725 N.E.2d 734 (1999), in which the Montgomery County Court of Appeals held that the operation of a motor vehicle, as that phrase is used in § 2744.02(B)(1), includes a school bus driver's negligence in assisting a handicapped student off the bus, and that, therefore, liability for the injuries suffered by the student could be imposed on the school district. However, in Glover v. Dayton Pub. Schools, 1999 WL 958492 (Ohio App. 1999), the same court held that the operation of a school bus did not include the injuries that a child suffered, after she had alighted from the bus and darted into a street where she was struck by a car. Therefore, the school district was immune in Glover. See also, Doe v. Dayton City School Dist., 137 Ohio App. 3d 166, 738 N.E.2d 390 (1999) (holding that sexual assault of a student in the first grade by an older student on a school bus did not arise out of operation of the bus and that, therefore, the school district was immune). This dispute is closer to Glover than Groves, given that Cabaniss had gotten out Carlton's cruiser and taken a few steps, before he fell and struck his head.
2. Constitutionality of § 2744.02
According to Plaintiff, § 2744.02 violates the Ohio Constitution. In support of that argument, Plaintiff relies upon Kammeyer v. City of Sharonville, 311 F. Supp. 2d 653 (S.D.Ohio 2003), wherein Judge Spiegel concluded that § 2744.02(A) violates §§ 5 and 16 of Article I of the Ohio Constitution,[43] basing that conclusion upon Butler v. Jordan, 92 Ohio St. 3d 354, 750 N.E.2d 554 (2001), wherein three justices of the Ohio Supreme Court questioned, in dicta, whether § 2444.02(A) violates those constitutional provisions. However, given that the Ohio Supreme Court has concluded that § 2744.02(A) does not violate either § 5 or § 16 of Article I of the Ohio Constitution (Fabrey v. McDonald Village Police Department, 70 Ohio St. 3d 351, 639 N.E.2d 31 (1994)), and, further, since that decision has not been overruled, the dicta in Butler is without even persuasive effect. Moreover, all courts, state and federal, to have addressed the question in the post-Butler world, have rejected such constitutional challenges to Ohio's political subdivision statute. See e.g., Nagel v. Horner, 162 Ohio App. 3d 221, 833 N.E.2d 300 (2005); Thompson v. Bagley, 2005 WL 940872 (Ohio App.2005); Bundy v. Five Rivers Metroparks, 152 Ohio App. 3d 426, 787 N.E.2d 1279 (2003); Webb v. Greene County, Case No. 3:04cv190 (S.D.Ohio 2006) (Rice, J.); Swift v. Hickey, 2006 WL 293790 (S.D.Ohio 2006) (Sargus, J.); Samples v. Logan County, 2006 WL 39265 *900 (S.D.Ohio 2006) (Smith, J.); Armstrong v. U.S. Bank, 2005 WL 1705023 (S.D.Ohio 2005) (Dlott, J.); Grant v. Montgomery County Job and Family Services, 2005 WL 2211266 (S.D.Ohio 2005) (Beckwith, C.J.). Accordingly, this Court once again rejects the proposition that § 2744.02(A) violates either § 5 or § 16 of Article I of the Ohio Constitution.
In sum, having rejected Plaintiff's challenges to Riverside's contention that it is immune from liability for Plaintiff's state law claims under § 2744.02, the Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to Plaintiff's Twenty-Third Claim for Relief.
Based upon all of the foregoing, the Court sustains Brown's Motion for Summary Judgment (Doc. # 47) and the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35). Accordingly, the Court directs that judgment be entered in favor of Defendants and against Plaintiff.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
NOTES
[1] He had consumed approximately one and one-half pints of whiskey.
[2] In response to an officer's question about whether he needed help, Cabaniss growled, rather than answering.
[3] Fugate also told the officers Cabaniss' name.
[4] Naff also left that location.
[5] Carlton was intending to drive Cabaniss to the jail in his cruiser.
[6] The jail would not accept a person until the residue of pepper spray had been removed.
[7] Onello is alleged to be the City Manager, while Curp is alleged to be Riverside's Mayor. Lommatzsch, Reynolds, Doan, Best, Mike Smith and Weaver are alleged to be members of the Riverside City Council. Brown was the Chief of Police for Riverside when the events giving rise to this lawsuit occurred. He was subsequently replaced by Johnson. Alig is the Chief of the Fire Department in Riverside.
[8] Johnson has been sued in his official capacity alone.
[9] The Plaintiff has not indicated whether her Thirteenth Claim for Relief is predicated upon the Ohio common law or the civil rights conspiracy statute, 42 U.S.C. § 1985(3). That claim, however, must be predicated upon the common law of Ohio, since a claim under § 1985(3) is limited to conspiracies where there is "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Plaintiff does not contend that such an animus motivated the Defendants' actions toward Cabaniss.
[10] In accordance with that Rule, parties must also disclose certain categories of documents. Plaintiff does not contend that any Defendant has failed to make that disclosure.
[11] Plaintiff attempted to authenticate that document with the affidavit from her counsel in which he indicated counsel for the Defendants other than Brown had provided the transcript in discovery.
[12] In its Entry filed on November 3, 2005 (Doc. # 79), this Court noted that the motion of Defendants other than George Brown seeking to strike Fugate's affidavit/declaration had not been fully briefed, given that it had just been filed and that it could not rule upon the pending motions for summary judgment until it had been ruled upon. Nevertheless, the Plaintiff has not responded to that motion.
[13] That affidavit is attached to Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35).
[14] It bears emphasis that Fugate states in ¶ 2 of his affidavit/declaration that the transcript attached thereto is a true and accurate copy of the transcript of his interview (although he does not state that his statements within that transcript are true and accurate). Although the Defendants other than Brown argue that this statement is contradicted by his deposition testimony, this Court is unable to address that argument, since those Defendants have neglected to furnish a copy of that deposition. Accordingly, the statements in ¶ 2 of Fugate's affidavit/declaration lend support to this Court's conclusion that the Plaintiff has met her burden of authentication under Rule 901(a).
[15] These Defendants also argue that the Court should strike the affidavit/declaration of Fugate, because it is untimely. Certainly, the better course would have been for Plaintiff to present an affidavit from that witness with her Motion for Summary Judgment (Doc. # 35), rather than attempting to present Fugate's knowledge to the Court with the copy of the transcript of his interview. Nevertheless, the Court will not strike the affidavit/declaration for being untimely. Given that Fugate sets forth in his affidavit/declaration some of the information contained in the earlier filed transcript, the Defendants have not been prejudiced by the untimely submission of that document. Therefore, the Court will decline to strike the affidavit/declaration of Fugate, because it was untimely.
[16] These Defendants have also moved to strike the first and second sentences of ¶ 14 of Fugate's affidavit/declaration, arguing that he lacked personal knowledge of the matters set forth therein. Given that the Court has stricken the first sentence of ¶ 14 as inadmissible hearsay, it is not necessary to address the arguments in this regard concerning that sentence. In the second sentence of ¶ 14, Fugate states that he did not hear Cabaniss threaten emergency medical personnel. In the absence of evidence from these Defendants that Fugate has a physiological or psychological condition that prevents him from having personal knowledge of what he has not heard, the Court will not strike the second sentence of ¶ 14 for lack of personal knowledge.
[17] Rule 702 was amended effective December 1, 2000, in order to make its language consistent with Daubert and its progeny. Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 250 n. 4 (6th Cir.), cert. denied, 534 U.S. 822, 122 S. Ct. 56, 151 L. Ed. 2d 25 (2001).
[18] This Court has riot conducted a hearing in order to determine whether Marsh's opinions violate Rule 702 and Daubert. The Sixth Circuit has stressed that the District Court possesses discretion to determine whether to hold such a hearing. Nelson, 243 F.3d at 248. Herein, the Court declines to order such a hearing, because Plaintiff, although at one time requesting a general oral argument on all pending motions (since waived), has not requested an oral and evidentiary Daubert hearing for the purpose of supporting her Motion for Summary Judgment and opposing those of the Defendants.
[19] In his motion, Brown argues that the Court should not consider the transcript of the interview of Fugate. For the reasons set forth above, the Court will disregard that transcript when ruling upon Brown's and the other motions for summary judgment.
[20] Plaintiff has listed all Defendants in the caption of her Amended Complaint.
[21] Paragraph 104 is part of Plaintiff's Fourteenth Claim for Relief, which is a policy or practice claim under § 1983 against Riverside.
[22] In support of the proposition that the evidence raises a genuine issue of material fact as to whether Brown condoned, encouraged or knowingly acquiesced in the alleged unconstitutional misconduct by Craine, Carlton and Naff, Plaintiff has cited Brown's deposition testimony to the effect that, since the buck stopped with him, he had to take responsibility for everything that occurred when he was Chief of the Riverside Police Department. See Doc. # 55 at 6 (citing Brown Dep. at 61). Quite simply, Brown's willingness to take responsibility for the actions of Riverside's officers when he was its Chief of Police does not raise a genuine issue of material fact as to whether he condoned, encouraged or knowingly acquiesced in the alleged unconstitutional misconduct by Craine, Carlton and Naff.
[23] Notably, the only decision cited by Plaintiff in support of this theory of liability against Brown is Harris, wherein the Supreme Court addressed the liability of a municipality, the City of Canton, rather than that of a supervisor.
[24] Throughout her memorandum opposing Brown's motion, Plaintiff cites the portions of Brown's deposition testimony wherein he indicated that Riverside was a dangerous, different type of place to be a police officer and used language which could be interpreted as describing that municipality as a combat or battle zone. To the extent that the Plaintiff is arguing that this deposition testimony serves as the basis for imposing liability upon Brown under § 1983, this Court is unable to agree. As an initial matter, Brown was describing Riverside as a dangerous place to be a police officer, because of the attitude of its residents toward law enforcement. For instance, he testified that, during his tenure of Chief of Police of Riverside, which lasted less than two years, seven of Riverside's officers were physically assaulted by citizens and two others were shot at. In addition, Brown indicated that Riverside's detectives were unable to wear coats and ties on the job, because the citizens would not accept someone dressed in that manner. Therefore, this Court cannot accept the Plaintiff's implicit point that this deposition testimony raises a genuine issue of material fact as to whether the police had created a dangerous environment for the residents of Riverside.
[25] Brown also argues that he is immune in accordance with § 2744.03(A)(1). Given that the Court concludes that he is immune under § 2744.03(A)(6), it is not necessary to address the alternative argument.
[26] The First Claim for Relief also contains an allegation that the officers violated Cabaniss' rights under the Eighth Amendment, because their use of force constituted cruel and unusual punishment. It is axiomatic, however, that the Cruel and Unusual Punishment Clause of the Eighth Amendment applies only after an individual has been convicted. See e.g., Bass v. Robinson, 167 F.3d 1041, 1048-49 (6th Cir.1999). Since there is no evidence that Cabaniss had beer convicted before the officers used allegedly unreasonable force against him, the Court need not discuss this aspect Plaintiff's First Claim for Relief further.
Parenthetically, a pretrial detainee can recover under the Due Process Clause of the Fourteenth Amendment for a deprivation that amounts to deliberate indifference.
[27] Plaintiff alleges in her First Claim for Relief that the officers also used excessive force by throwing Cabaniss into the rear of Carlton's cruiser, striking him and deliberately causing him to fall. See Doc. # 23 at ¶ 38. There is, however, no evidence that Craine, Carlton and/or Naff threw Cabaniss into the rear of Carlton's cruiser, struck him or deliberately caused him to fall.
[28] As they drove from the shopping area, Champion, whose seat belt had not been fastened, began to hit himself in the head and bite himself on the hand. As a result, the employee stopped the vehicle, after which both she and Champion got out. Champion then began to rub the employee's hand all over his head, a technique which, unbeknownst to the employee, he had used in the past to calm down. The employee then became frightened and locked herself in her vehicle from which she called the police.
[29] When paramedics arrived, one of them observed Champion vomit and then exhale as if he had taken his last breath. Immediately thereafter, Champion ceased to have a pulse.
[30] After Cabaniss had been sprayed with pepper spray, Carlton transported him to the Riverside Police/Fire Station, where the residue from that spray was removed from Cabaniss' face with a garden hose. There is no evidence that a strong current of water was emitted from the garden hose. If Plaintiff's First Claim for Relief is, in part, based upon the premise that using a garden hose to clean the residue from pepper spray from Cabaniss' face, the Court concludes that the Defendants are entitled to summary judgment on that claim, since it is, as a matter of law, not objectively unreasonable for an officer to act in that manner.
[31] In his declaration, Marsh states in conclusory fashion that Carlton's use of pepper spray on Cabaniss constituted excessive force. It is axiomatic that a party does not raise a genuine issue of material fact by submitting the affidavit of an expert witness which is devoid of meaningful analysis or reasoning. Brainard, supra. Therefore, such statements in Marsh's declaration do not raise a genuine issue of material fact.
[32] In her Motion for Summary Judgment, Plaintiff suggests that a violation of the Due Process Clause of the Fourteenth Amendment will necessarily also violate the similar provision contained in the Ohio Constitution. See Doc. # 35 at 18-19. Plaintiff may suggesting that her Fourth and Fifth Claims for Relief are also predicated on the Ohio Constitution, even though each is captioned in bold lettering as a due process claim under § 1983. Section 1983 provides a remedy for one who has been denied a federal right by someone acting under color of law. See Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005) (noting that there are two elements of a § 1983 claim, "(1) the defendant was acting under color of state law, and (2) the offending conduct deprived the plaintiff of rights secured under federal law") (emphasis added). Nevertheless, the Court need not separately discuss claims under the due process component of the Ohio Constitution, since, as Plaintiff contends, such claims are indistinguishable from claims under the Due Process Clause of the Fourteenth Amendment.
[33] If Plaintiff's Second and Fourth Claims for Relief are predicated upon the allegation that Craine and/or Naff violated Cabaniss' constitutional rights, by failing to prevent Carlton from spraying him with pepper spray, those Defendants are entitled to summary judgment on such claims. Under certain circumstances, a police officer can be held liable under § 1983, for failing to prevent a fellow officer from violating the constitutional rights of a suspect by using excessive force. Durham v. Nu'man, 97 F.3d 862, 866-67 (6th Cir.1996), cert. denied, 520 U.S. 1157, 117 S. Ct. 1337, 137 L. Ed. 2d 496 (1997). Herein, the Court has concluded, as a matter of law, that Carlton did not use excessive force. Therefore, there would be no basis for imposing liability upon Craine and/or Naff for failing to prevent Carlton from violating Cabaniss' rights under the Fourth Amendment.
[34] Estate of Owensby arose out of the death of plaintiff's decedent, as a result of and during his encounter with police officers. The Sixth Circuit analyzed the plaintiff's claim that the officers had failed to obtain medical care for her decedent under the deliberate indifference standard applicable to pretrial detainees which the Sixth Circuit had restated in Watkins. Therefore, it is appropriate to apply that standard herein.
[35] Interestingly, despite the fact that his friend was suicidal, Fugate invited Cabaniss over to his house, so that the latter was able to consume one and one-half pints of whiskey and, after Cabaniss became too disruptive, took him outside and left him alone to sober up.
[36] Craine summoned medical assistance for Cabaniss immediately after he fell. Therefore, Cabaniss rights under the Due Process Clause were not violated, by a failure to provide medical care after he had stumbled and fallen.
[37] Fugate's statement to officers concerning Cabaniss' suicidal tendencies should have given the officers a heightened state of awareness concerning the possibility of the latter committing suicide. Nevertheless, in the absence of evidence that Cabaniss actually did commit suicide by intentionally diving into the ground or that these individual Defendants could have acted differently, such a sense of heightened awareness, alone, does not raise a genuine issue of material fact as to whether any one or more or all of them was deliberately indifferent to Cabaniss medical needs.
[38] Naff and Smith will be absent from the following discussion, given than Plaintiff has not explained what either of those Defendants did other than be present when some of the events giving rise to this litigation occurred.
[39] The Plaintiff has alleged that the officers threw Cabaniss into the rear of that cruiser; however, there is no evidence that they so acted.
[40] For instance, rather than answer Kronenberger's questions, Cabaniss swore at him and threatened to kill him and his family.
[41] With her Thirteenth Claim for Relief, Plaintiff sets forth a civil conspiracy claim against Riverside, Craine, Carlton, Naff, Kronenberger, Smith and "others," alleging that they conspired to deprive Cabaniss of his rights under the United States and Ohio Constitutions, as well as under federal and state law, by failing to provide him adequate medical care, and fabricating a false and exculpatory version of events in order to prevent Cabaniss and his heirs from obtaining a remedy. The Court sustains the Motion of Defendants Other Than George Brown for Summary Judgment (Doc. # 60), and overrules the Plaintiff's Motion for Summary Judgment as to Liability (Doc. # 35), as those motions relate to this claim. Above, the Court has concluded that the Defendants are entitled to summary judgment on Plaintiff's claims that they failed to provide medical care to Cabaniss. Moreover, there is no evidence that the Defendants fabricated a false version of events in order to prevent Cabaniss and his heirs from obtaining a remedy.
[42] Parenthetically, the Plaintiff also argues that Ohio's statute affording immunity to political subdivisions such as Riverside does not apply to claims arising under federal law. This Court agrees and has, therefore not applied that statute to Plaintiff's federal law claims against Riverside.
[43] Section 5 guarantees the right to a jury trial in civil cases, while § 16 provides, inter alia, that courts shall remain open and that every person shall have a remedy in the due course of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920031/ | 447 N.W.2d 639 (1989)
MILLER ENTERPRISES, INC., a North Dakota Corporation, d/b/a Dog N' Cat Pet Center No. 9, Plaintiff and Appellee,
v.
DOG N' CAT PET CENTERS OF AMERICA, INC., Defendant and Appellant.
Civ. No. 890097.
Supreme Court of North Dakota.
October 25, 1989.
*640 Maury C. Thompson of Christensen & Thompson, Bismarck, for plaintiff and appellee.
Kathryn L. Dietz (argued) and Larry D. Orvik of Dietz & Little, Bismarck, for defendant and appellant.
VANDE WALLE, Justice.
Dog N' Cat Pet Centers of America, Inc., appealed from a judgment of the district court of Burleigh County rescinding its franchise agreement with Jim Miller and his corporation, Miller Enterprises, Inc., on the basis of fraud. We affirm.
Dog N' Cat is a Colorado corporation with its principal place of business in Denver. In 1977, a former North Dakota resident named Steve Hintgen opened the first Dog N' Cat pet store in Colorado Springs, Colorado. Hintgen's business subsequently grew so that by 1985 he owned and operated five stores in the Colorado area. Encouraged by the growth of his pet-store business, Hintgen incorporated Dog N' Cat in early 1985 with the intention of selling franchises. At the time of its incorporation Dog N' Cat was a relatively small corporation operated by Hintgen, a shareholder named Michael Bernstone, and a few assistants including Jerri Raetz.
When Dog N' Cat became licensed to sell franchises, Hintgen contacted Don Miller, a Grand Forks, North Dakota, resident who had employed Hintgen in his retail grocery business when Hintgen was living in North Dakota. Hintgen told Don Miller he thought Columbia Mall in Grand Forks would be an ideal location for a Dog N' Cat franchise. Don Miller told his son, Tom, about Hintgen's proposal. Eventually, Tom Miller entered into a franchise agreement with Hintgen to operate a Dog N' Cat franchise in Columbia Mall. Don Miller also placed Hintgen in contact with his brother, Jim Miller, who was residing in Bismarck, North Dakota.
During May of 1985, Hintgen and Jim Miller began discussing the possibility of opening a Dog N' Cat franchise in Bismarck. Jim Miller had no previous experience or training in the pet business. Hintgen was aware of this, and was also aware that Miller was relying on Dog N' Cat to provide him with the necessary training to operate a pet store. In July of 1985, Jim Miller and Dog N' Cat entered into a written agreement in which Dog N' Cat granted Miller a franchise to operate a pet store in Bismarck. Hintgen's separate agreements with Tom Miller and Jim Miller constituted the first two sales of Dog N' Cat franchises.
Jim Miller, in return for his Dog N' Cat franchise, agreed to pay a franchise fee of *641 $18,500 and royalty payments calculated on a percentage of his monthly gross receipts. The franchise agreement also contained two key provisions. The first provision required the franchisor, Dog N' Cat, to provide a specific, two-week formal training program to its franchisees prior to the opening of a franchise business.[1] The second provision required the franchisor to provide the franchisee with reasonable operating assistance, including answering telephone and written inquiries.
After the execution of the franchise agreement, Hintgen negotiated a lease for Jim Miller at the Kirkwood Mall in Bismarck. Dog N' Cat also provided assistance to Miller by acquiring architectural drawings, supervising contractors, and ordering merchandise. Jim Miller's store was scheduled to open on the day after Thanksgiving in November of 1985.
Prior to the date set for his opening, Jim Miller traveled to Grand Forks to receive some initial training at Tom Miller's store in Columbia Mall. Hintgen sent his assistant, Jerri Raetz, to Grand Forks to supervise the training. Raetz spent half an hour reading from a lengthy training manual supplied by Dog N' Cat to Jim and Tom Miller. The rest of the two-day session was spent stocking Tom Miller's shelves and readying the store for his opening, which had been delayed due to construction.
Jim Miller's next opportunity for training occurred a week prior to the opening of his store in Kirkwood Plaza when Hintgen traveled to Bismarck to render some pre-opening assistance. Despite the fact that Jim Miller was in possession of the Dog N' Cat training manual, Hintgen spent no time going over it with Miller. During the week, Hintgen and Jim Miller helped the contractors finish the store's construction, set up shelves and fixtures, and stocked the shelves with merchandise. Hintgen also aided Miller with employee interviews, and worked with him regarding advertising. Hintgen left Bismarck prior to Miller's opening, but sent his assistant, Jerri Raetz, to Bismarck to be with Miller during the opening.
Jim Miller's store opening was far from smooth. During Miller's initial day of business a number of tanks of fish died, two dogs died while others had contracted parvo virus, and various birds and hamsters died from shipping diseases. In addition to receiving a number of complaints from customers, Miller's store gave refunds to individuals who had bought stressed fish, and paid veterinarian bills of persons who purchased sick dogs.
Subsequent to his store opening, many of Jim Miller's problems began to fade due in a large part to advice and training supplied by various pet-supply salesmen and distributors who had contacted Miller's store. Although Hintgen had given Jim Miller a Dog N' Cat telephone number in Colorado to contact when problems arose, Miller and his employees were often unable to reach anyone at Dog N' Cat when they used the number. Furthermore, messages left on Dog N' Cat's answering machine were not always returned.
In January of 1986, nearly two months after his store opening, Jim Miller attended a five-day training conference in Colorado Springs sponsored by Dog N' Cat. The conference involved a number of individuals from various pet-supply businesses who conveyed information to the participants on their companies' products and supplies.
*642 An advertising executive also gave a presentation on methods of advertising. At the completion of the conference, Dog N' Cat awarded Jim Miller a certificate of training indicating completion of Dog N' Cat's training program.
In late 1986, Jim Miller began to disassociate his pet store from Dog N' Cat.[2] Miller stopped making his monthly royalty payments to Dog N' Cat, and also refused to pay $8,500 of the original franchise fee which was still outstanding. On March 5, 1987, Dog N' Cat sent a letter to Miller complaining about his failure to abide by the franchise agreement. Shortly thereafter, Miller commenced this action seeking to declare the franchise agreement null and void on the basis of fraud.
Dog N' Cat moved for a partial summary judgment or partial judgment on the pleadings contending that Miller failed to allege fraud with particularity in his complaint. Moreover, in moving for summary judgment, Dog N' Cat attached to its brief a portion of the deposition of Jim Miller. Dog N' Cat contended that the excerpt showed no factual basis for an action for fraud. Miller opposed Dog N' Cat's motion and the trial court entered an order denying Dog N' Cat's motion for summary judgment.
After a bench trial, the trial court issued an oral memorandum opinion in which it found that Dog N' Cat had committed actual fraud as defined under Section 9-03-08(4), N.D.C.C.[3] Specifically, the trial court entered findings which demonstrated that Dog N' Cat made contractual promises of training and assistance without an intent to perform them. The trial court ordered that the franchise agreement be terminated with neither of the parties having any further rights or obligations thereunder. A judgment was entered and Dog N' Cat filed a timely notice of appeal to this court.
Dog N' Cat raises two issues on appeal: Dog N' Cat contends that the trial court erred in denying its motion for summary judgment or judgment on the pleadings; Dog N' Cat also argues that the trial court clearly erred in finding actual fraud.
Under Rule 56, N.D.R.Civ.P., a summary judgment should be granted only if it appears that there are no genuine issues of material fact or any conflicting inferences which may be drawn from those facts.[4] See Rule 56(c), N.D.R.Civ.P.; Production Credit Ass'n of Minot v. Klein, 385 N.W.2d 485 (N.D.1986); Poyzer v. Amenia Seed and Grain Co., 381 N.W.2d 192 (N.D.1986). The party moving for a summary judgment has the burden to demonstrate clearly that there is no genuine issue of material fact. Binstock v. Tschider, 374 N.W.2d 81 (N.D.1985); Latendresse v. Latendresse, 294 N.W.2d 742 (N.D.1980). In considering a motion for summary judgment the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom to determine whether summary judgment is appropriate. Everett Drill. Vent. v. Knutson Flying Serv., *643 338 N.W.2d 662 (N.D.1983); First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D.1983). In doing so, the court must view the evidence in a light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. See Stokka v. Cass Cty. Elec. Co-op., Inc., 373 N.W.2d 911 (N.D.1985); Everett Drill. Vent. v. Knutson Flying Serv., supra.
Dog N' Cat first contends that because Miller did not allege fraud with particularity in his complaint, the trial court erred in failing to grant its summary-judgment motion. Paragraph 6 of Miller's complaint stated:
"That there was misrepresentation and fraud in the inducement by the Defendant in getting the Plaintiff to sign said agreement. That had the Plaintiff been fully advised as to the actual services and assistance which would be provided by the Defendant, the Plaintiff would not have entered into the agreement."
Paragraphs 7 and 8 of the complaint further detailed the lack of operating assistance and the lack of formal training given to Miller.
In an averment of fraud, the circumstances constituting fraud must be stated with particularity. See Rule 9(b), N.D.R.Civ.P.; Krueger v. St. Joseph's Hospital, 305 N.W.2d 18 (N.D.1981). See generally 2A J. Moore, Moore's Federal Practice ¶ 9.03[1] (2d ed.1989). No particular form or language is required in alleging fraud so long as the elements constituting fraud may be found from reading the whole pleading. See Krueger v. St. Joseph's Hospital, supra; 37 C.J.S. Fraud § 81 (1943). However, when the plaintiff makes an allegation of fraud the defendant must receive enough information to prepare a response and defense, and the plaintiff must apprise the defendant fairly of the charge. See 2A J. Moore, Moore's Federal Practice, supra. See also Deutsch v. Flannery, 823 F.2d 1361 (9th Cir.1987) [pleading satisfies particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer]; Bosse v. Crowell Collier and MacMillan, 565 F.2d 602 (9th Cir.1977) [circumstances constituting fraud need only be so identified that the defendant can prepare an adequate answer from the allegations]; Zatkin v. Primuth, 551 F.Supp. 39 (S.D.Cal.1982) [pleading of fraud is sufficient if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer]. After examining the pleading as a whole, we believe that the trial court did not err in denying Dog N' Cat's summary-judgment motion. Miller's complaint alleged fraud by Dog N' Cat and stated that "had the Plaintiff been fully advised as to the actual services and assistance which would be provided" he would not have entered into the franchise contract. The next two paragraphs in the complaint allege the lack of operating assistance and formal training by Dog N' Cat. Dog N' Cat was apprised fairly of the charge of fraud against it.
Moreover, in moving for summary judgment Dog N' Cat also contended that there was no factual basis for a claim of fraud. Dog N' Cat submitted portions of Jim Miller's deposition to support its position that there was no genuine issue of fraud. Jim Miller countered Dog N' Cat's motion by submitting excerpts of his interrogatory answers and deposition along with a brief in opposition to the motion for summary judgment. These excerpts stated that Dog N' Cat misrepresented the training and assistance it would give to Miller, and that Jim Miller did not in fact receive the training and assistance which was represented to him. Evaluating the evidence presented to the trial court by both parties in a light most favorable to the party opposing the motion, we conclude that the trial court did not err in denying Dog N' Cat's motion for summary judgment. The trial court believed the issue of whether or not Dog N' Cat misrepresented the training and assistance it would provide Miller under the franchise agreement should be determined at trial. We affirm the trial court's denial of Dog N' Cat's motion for summary judgment.
*644 Dog N' Cat's second argument is that the trial court clearly erred in finding actual fraud under Section 9-03-08(4), N.D.C.C. It contends that the evidence did not support the findings by the trial court that Dog N' Cat made contractual promises without an intent to perform them.
Our review of the trial court's findings is limited by the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. See Russell Land Co. v. Mandan Chrysler-Plymouth, 377 N.W.2d 549 (N.D.1985). On appeal it is not the function of this court to substitute its judgment for that of the trial court, and the trial court's findings cannot be reversed merely because this court may have viewed the facts differently if we had been the trier of fact. See Russell Land Co. v. Mandan Chrysler-Plymouth, supra; In Interest of Kupperion, 331 N.W.2d 22 (N.D.1983); Rolfstad v. Hanson, 221 N.W.2d 734 (N.D.1974); Kee v. Redlin, 203 N.W.2d 423 (N.D.1972). Furthermore, in reviewing the findings we give due regard to the trial court's opportunity to assess the credibility and observe the demeanor of the witnesses. See Rule 52(a), N.D.R.Civ.P.; Russell Land Co. v. Mandan Chrysler-Plymouth, supra; In Interest of Kupperion, supra; Tower City Grain Co. v. Richman, 232 N.W.2d 61 (N.D.1975). A finding is not clearly erroneous under Rule 52(a), N.D.R.Civ.P., unless it has no support in the evidence or, although there may be some supporting evidence, the reviewing court is left with a definite and firm conviction that a mistake has been made. See Great Plains Supply Co. v. Erickson, 398 N.W.2d 732 (N.D. 1986); Bashus v. Bashus, 393 N.W.2d 748 (N.D.1986); Graber v. Engstrom, 384 N.W.2d 307 (N.D.1986); Russell Land Co. v. Mandan Chrysler-Plymouth, supra.
The trial court made a number of findings of fact in its oral memorandum opinion. In rendering its decision the trial court found that Jim Miller had no prior experience in the pet business, and that he was depending on Dog N' Cat to provide him with the necessary training. It also determined that the franchise agreement called for specific, formal training which was to consist of a two-week, six-days-perweek, training program to be provided prior to Jim Miller's store opening. The trial court further found that Hintgen had no prior experience in franchising, and that he did not have the necessary staff and ability to provide the training and operating support called for in the agreement. It also determined that Jim Miller received "one-half to one hour" training in Grand Forks, and that the "training" given to Miller in Denver after his store had opened was actually a "seminar" consisting of pet suppliers providing product information to store owners. The trial court concluded that the training and support provisions in the franchise agreement were made without an intention to perform them and thus constituted actual fraud under Section 9-03-08(4), N.D.C.C.
Dog N' Cat's main contention is that the findings do not demonstrate any "intention" to defraud. In other words, it claims the evidence failed to support findings that the promises were made without an "intention" of performing them. This court has often stated that actual fraud cannot exist unless an intent to deceive is present. See generally Zuraff v. Empire Fire & Marine Ins. Co., 252 N.W.2d 302 (N.D.1977); Verry v. Murphy, 163 N.W.2d 721 (N.D.1969); City of Granville v. Kovash, Incorporated, 118 N.W.2d 354 (N.D. 1962). However, intent to defraud is difficult to prove and can be proved circumstantially. See In re Valeu, 57 B.R. 488 (Bkrtcy.D.N.D.1986) [fraudulent intent is often incapable of direct proof and may be inferred from the circumstances]; Florenzano v. Olson, 387 N.W.2d 168 (Minn.1986) [fraudulent intent is rarely proved directly, but is normally established through circumstantial evidence]; Wilden Clinic, Inc. v. City of Des Moines, 229 N.W.2d 286 (Iowa 1975) [in fraud cases, circumstantial evidence may be utilized to prove intent to deceive]. In discussing this matter, 37 Am. Jur.2d Fraud and Deceit § 446 (1968) states:
"Ordinarily, intent to deceive is not susceptible of direct proof, but can be established only by circumstantial evidence. *645 As heretofore stated, fraud may be inferred from the circumstances.... In these cases, proof of scienter is not dispensed with. It is simply a question of the method and quantum of proof."
In the instant case the trial court found the requisite intent to not perform the contract from the circumstantial evidence presented. The circumstances demonstrated that Jim Miller had no prior experience in the pet business, and that Hintgen knew Miller was depending on Dog N' Cat for the necessary training. The evidence also reflected that Dog N' Cat, at the time of the franchise agreement, lacked the staff and resources to provide the training called for by the agreement.
We conclude that the judgment of the trial judge, who heard and observed the witnesses and evidence, should be respected. The record reflects adequate evidence to support the findings that Dog N' Cat made promises of training and operating support without an intention of performing them. We are not convinced that a mistake was made in finding fraud. The judgment of the district court is affirmed.
ERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.
NOTES
[1] Paragraph 8 of the franchise agreement provided in relevant part:
"FRANCHISE TRAINING
"The FRANCHISOR shall provide a formal training program for the FRANCHISEE and his designated manager or managers, at a location chosen by the FRANCHISOR at no charge for the initial two week (6 days per week) training program. The FRANCHISEE and his designated manager(s) are required to attend and successfully complete the training program provided by the FRANCHISOR prior to opening the Franchise Business. Training will be provided for up to three (3) FRANCHISEE representatives simultaneously. Training will be provided within six (6) weeks within signing of the Franchise Agreement and approval of the lease. Successful completion of the training program herein provided shall be indicated by the FRANCHISEE and his designated manager receiving a Certification of Training. The FRANCHISOR shall have complete discretion over the granting of the Certification of Training ..."
[2] On the advice of his attorney, Jim Miller terminated his relationship with Dog N' Cat. Miller removed the Dog N' Cat logo from his store, and changed the name of his business to Dakota Pet Center.
[3] Section 9-03-08, N.D.C.C., provides:
"Actual fraud within the meaning of this title consists in any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto or to induce him to enter into the contract:
"1. The suggestion as a fact of that which is not true by one who does not believe it to be true;
"2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true though he believes it to be true;
"3. The suppression of that which is true by one having knowledge or belief of the fact;
"4. A promise made without any intention of performing it; or
"5. Any other act fitted to deceive."
[4] When a motion is made for a judgment on the pleadings, and matters outside the pleadings are presented to the court, the motion is treated as one for summary judgment and is disposed of as provided in Rule 56, N.D.R.Civ.P. See Rule 12(c), N.D.R.Civ.P. Thus, because Dog N' Cat's motion for a summary judgment or judgment on the pleadings was supported by excerpts from Jim Miller's deposition, we consider the motion in light of the principles of Rule 56, N.D.R.Civ.P. | 01-03-2023 | 10-30-2013 |
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