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https://www.courtlistener.com/api/rest/v3/opinions/1178125/ | 92 Cal. App. 2d 277 (1949)
FAYE F. HAMILTON, an Incompetent Person, etc., Appellant,
v.
GEORGE D. FERRALL as Coexecutor, etc., et al., Respondents.
Civ. No. 16721.
California Court of Appeals. Second Dist, Div. One.
June 8, 1949.
Potter, Potter & Rouse for Appellant.
Earle M. Daniels, Burdette J. Daniels and Hallam Mathews for Respondents.
DRAPEAU, J.
Demurrer to plaintiff's complaint was of the complaint is necessary.
The complaint alleges:
1. That the plaintiff, Faye F. Hamilton, appears by guardian ad litem; that the plaintiff and the defendant George D. Ferrall are sister and brother, and that their father died in 1940, leaving a last will and testament. By this will the sustained without leave to amend, and judgment followed. Therefore, a somewhat detailed statement of the allegations defendant brother was nominated coexecutor with another person, the brother to serve without bond.
2. After payment of specific bequests, the will directed one-half of the residue of the estate to go to the brother, or to his children if he died before the testator; and the remaining one-half of the residue to go to the said brother and a bank named in the will, as testamentary trustees for the use and benefit of plaintiff daughter. After giving the trustees powers to carry on the trust estate, and to compensate themselves, the trust provides:
(a) That the plaintiff be paid the income of the trust, and if such income be insufficient to meet her needs, at the discretion of the trustees, corpus of the trust estate be used for that purpose.
(b) That the trust terminate and the corpus thereof go to the daughter "upon the death of Alex C. Hamilton, or his divorce from my said daughter. ..."
Alex C. Hamilton is the husband of plaintiff, with whom she lived for about 34 years as man and wife, with no dissension between them, and no suggestion or discussion of their separation.
(c) This contingency failing, it was directed that upon the death of plaintiff the trust should terminate and the corpus *279 thereof go to the defendant brother and his three children.
3. The complaint further alleges that at the time of the execution of the will plaintiff was suffering from illness which necessitated her placement in a sanitarium, where she remained until the filing of the complaint; that she was of unsound mind, incapable of caring for her property or understanding the nature or effect of her acts, prior to and since the entry of the decree of distribution which carried out the terms of the will and established the testamentary trust.
4. That it was the intention of the testator to give to his daughter one- half of the residue of his estate in fee simple if she would be divorced from her husband; that such a condition is contrary to good morals and legal policy, and therefore the trust was and is null and void.
5. That the defendant brother was executor of the estate until the decree of distribution, and since then has been trustee of the testamentary trust; that subsequent to the death of testator the brother entered into a conspiracy with a person named in the complaint to acquire plaintiff's property, and that while plaintiff's husband was away from California these two parties took the plaintiff to defendant brother's attorneys and induced her to make a will leaving all of her property except community to her said brother; that the making of this will was concealed from plaintiff's husband.
6. That in June of 1942, plaintiff employed an attorney at law (the guardian ad litem named in this proceeding) to procure an accounting in probate in decedent's estate, and to present a claim in her behalf that the trust was for maintenance and that she should be paid the income thereof from the date of death of the testator; that this claim was contested by the brother. That the brother called on plaintiff several times and told her that her husband and her attorney were endeavoring to beat her out of her property, that the brother would take care of her interests, and that she should dismiss her attorney. And that the defendant brother prepared in his own handwriting a note dated November 5, 1942, reading as follows:
"This is to notify you that I don't want the case of mine appealed. I would like to have the trust made at once."
That this note was delivered to said attorney.
That it was decided in the probate court that the provisions in the trust were for maintenance, and the plaintiff accordingly was paid accumulated income therefrom. And that *280 about the time of entry of the decree of distribution said attorney was discharged by plaintiff and ceased to act for her.
7. That thereafter plaintiff cancelled the will mentioned and requested the return to her of any documents signed by her in connection with it.
8. That in November of 1942, petitions were filed by the husband and the brother to be adjudged guardian of plaintiff's estate, but that both petitions were subsequently dismissed.
9. That plaintiff has never known that the trust was void; that she never attacked the trust, that there never was an adversary proceeding with relation thereto, and that because of the fraud of the defendant brother, and ignorance of the fact that the trust could be attacked, and because of her mental condition, mistake, and inadvertence, there never has been an adversary trial or adjudication of the issue; and that the defendant brother knew of the invalidity of the trust and never advised the plaintiff.
The complainant prayed for judgment declaring the trust void, that she is the owner of all of the trust property, and that the trustees are involuntary trustees thereof for her use and benefit.
[1a] The case turns upon whether the provision in the will and in the decree of distribution "upon the death of Alex C. Hamilton, or his divorce from my said daughter" renders the trust invalid. It would be possible for Mrs. Hamilton to divorce her husband, and thus acquire the trust estate, to do with as she pleases. If there is no divorce and the husband dies before the wife does, upon her death the trust estate will go to the brother and his children.
The position of plaintiff is well stated in Restatement, Trusts, section 62, comment d:
"A provision in the terms of the trust is against public policy and unenforceable if its enforcement would tend to induce the commission of acts, not in themselves illegal or immoral, by supplying an improper motive for their commission, where it is against public policy to encourage the doing of such acts from such a motive. Thus, a provision in the terms of the trust may be invalid on the ground that it affords a financial reward to a person for securing a divorce or separation from his spouse, or for neglecting his parental duties, or for refraining from marriage, or for changing his religious faith, or for refraining from performing acts beneficial to the nation or the State. Such a provision may be *281 invalid not only where the act to be rewarded involves a violation of law, such as the securing of a divorce through fraud or collusion, but also where the act is in itself lawful. The reason is that it is against public policy to induce persons for a reward to do such acts."
In the early California case of Born v. Horstmann, 80 Cal. 452, 455 [22 P. 169, 338, 5 L.R.A. 577], it was held that the following clause did not destroy a testamentary trust:
"And in the event of any of my said daughters becoming a widow or otherwise becoming lawfully separated from her husband, then to distribute" the estate to such daughter to which it might apply.
In the pending case the trial court adopted the view that the intention of the testator was to protect his daughter; that he knew that so long as she was married to Alex C. Hamilton she would be supported by him, but anticipating that the death or divorce of the husband would end his daughter's support from that source, the testator tried to provide for her better support in either of these contingencies.
[2] In such cases as this the primary consideration is the intention of the testator. When by will he creates a trust a liberal construction should be given to its terms, it being the policy of the law to carry out the testator's intention so far as possible. (Estate of Heywood, 148 Cal. 184 [82 P. 755].) The language of the trust must admit of no other reasonable construction than that of illegality before a court will declare it invalid. (Estate of Wellings, 197 Cal. 189 [240 P. 21].)
[1b] Therefore we approve of the holding of the trial court that the trust provision here in question is valid.
[3] Having come to this conclusion it is unnecessary to determine whether the complaint states sufficient facts in equity to require judicial inquiry as to extrinsic fraud which would warrant setting aside the decree of distribution. In the absence of pleading and proof of this essential prerequisite, the trust provisions of a will carried into the decree of distribution are final; all questions as to the validity of the trust are eliminated. (South End Warehouse Co. v. Lavery, 12 Cal. App. 449 [107 P. 1008].)
The judgment is affirmed.
White, P. J., and Doran, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614820/ | 502 So.2d 743 (1987)
Clevie Lee FRAZIER, as administratrix of the estate of Lloyd Reese, deceased
v.
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL NO. 559, et al.
85-1232.
Supreme Court of Alabama.
January 30, 1987.
*744 John L. Cole, Birmingham, for appellant.
James B. Carlson of Rives & Peterson, Birmingham, for appellees.
BEATTY, Justice.
This is an appeal by the plaintiff, Clevie Lee Frazier, in her capacity as administratrix of the estate of Lloyd Reese, from a summary judgment entered in favor of certain defendants in her action for the wrongful death of Lloyd Reese. The trial court made its order final under Rule 54(b), A.R. Civ.P. We affirm.
Plaintiff's decedent, Lloyd Reese, was a member of the Laborers International Union of North America, Local No. 559. On May 4, 1983, Reese was shot and killed during an altercation that broke out in an employment line formed for job registration on Local No. 559's premises. Apparently Reese was not involved in the altercation, but was, nevertheless, struck and killed by a stray bullet. Plaintiff brought this wrongful death action, naming as defendants Columbus Lawson, the man who fired the shot; Local No. 559; and eleven of Local No. 559's officers, individually and as agents of Local No. 559. As to these defendants, except Lawson, plaintiff alleged:
"[They] negligently/wantonly failed to maintain order and provide protection, or control of the conduct of people on their premises after they became aware of the dangerous and highly volatile environment that they had allowed and even encouraged to exist that caused the wrongful death of Lloyd Reese.
"... [They] failed to provide adequate security or protection for [the] union members after they became aware of the highly volatile environment and that they allowed and even encouraged to exist that caused the wrongful death of Lloyd Reese.
"... [They] failed to exercise due care in providing necessary security on their property after they became aware that their practice of having prospective employees line up days before in order to obtain jobs creating a dangerous environment which encouraged violence. Said practice of defendants caused numerous breaches of the peace such as knifings, fights, assaults and batteries, and homicides which had caused injuries before May 4, 1983. Defendants, having knowledge of these facts, failed to take any action to eliminate the peril for [the union's] other members and plaintiff. Defendants' general mode of operation of their premises attract or provide a climate for crime.
"... [They] created and were aware of the conditions of employment such that they invite attack upon the union members by creating highly unusual and unreasonable exposure to danger without the employment of reasonable protective measures.
"... [And they] knowingly and negligently/wantonly failed to provide adequate security at to-wit; 1229 22nd Street, North, Birmingham, Jefferson County, Alabama, and by their mode of operations in employment procedure on their premises attracted and provided a climate for crime which resulted in the assault and battery on Lloyd Reese."
*745 These defendants moved for summary judgment, arguing that they were under no duty to protect plaintiff's decedent from criminal attack. In support of their motion, defendants submitted the affidavits of defendants Willie W. Ball, business manager for Local No. 559, and Joe Nathan Black, secretary-treasurer and assistant business manager for Local No. 559. Both of these defendants stated that due to the nature of their respective duties and responsibilities, each was familiar with and had knowledge of the "practices and methods utilized for registration of members and others in Local No. 559 prior to, and on the date of, the accident made the basis of [this] lawsuit." Those practices and methods were described as follows:
"On May 4, 1983, and every Wednesday prior to that date, for approximately one year's time, it was customary for local union members to register for jobs. Registration would begin at noon, and the men seeking employment would form a line outside our offices."
Mr. Ball, who was not present on the day of Lloyd Reese's shooting, stated that he had "been present on many occasions preceding the date in question and [could] verify that there [had] been no fights or fist fights, stabbings or gunshots which have caused injury or disruption during this employment procedure." He further stated that, to his knowledge, the police had never been summoned to the Local No. 559 location to quell any major disturbance, fight, or argument, or to respond to a call for medical assistance for someone injured by another person while standing in the registration line. Mr. Ball conceded that there had been arguments among union members while standing in line, but he stated that "these disagreements [had] always been handled amicably and without incident."
Mr. Black, who was present on the day of Lloyd Reese's shooting, stated that he, too, was present on many other preceding Wednesdays, that he had been employed by Local No. 559 for approximately 12 years, and that, to his knowledge, this shooting was the first serious incident that ever occurred in the registration line.
In opposition to the defendants' motion for summary judgment, plaintiff submitted the affidavit of Floyd Reese, brother of the decedent, who is also a member of Local No. 559. Floyd Reese stated that he was present on the date of his brother's shooting, and had been present "on many occasions preceding [that] date." Floyd Reese further stated that he could, therefore,
"verify that there had been fights or fist rights, and guns have been drawn which have caused injury or disruption during this employment procedure. To my knowledge, the police have been summoned to the Labor Local 559 location to quell these disturbances, fights, arguments, or respond to a call where someone needed medical assistance as a result of any injury inflicted by another while standing in the registration line."
The trial court granted defendants' motion and this appeal followed.
Plaintiff makes two arguments. First, she contends that her decedent, Lloyd Reese, could be considered an employee of the defendants, and that this determination is a question of fact precluding summary judgment. Plaintiff argues that, if Reese was deemed to be an employee, this Court's decision in Parham v. Taylor, 402 So.2d 884 (Ala.1981), would apply to this case. In Parham, this Court followed a decision from the Kentucky Court of Appeals and held:
"`When conditions of employment are such that they invite attack upon employees by creating highly unusual and unreasonable exposure to danger without the employment of reasonable protective measures there is justification for imposing liability upon the employer when injury results.'"
402 So.2d at 886. Plaintiff contends that the evidence in this case gives rise to issues of fact under the above test, which was recently reiterated by this Court in Simpson v. Wolf Ridge Corp., 486 So.2d 418, 419 (Ala.1986).
*746 Plaintiff argues in her brief that Lloyd Reese should be considered an employee of the defendants rather than an invitee because he "paid dues to the union, was a member of the union, obtained employment under their employment procedures and obtained his employment at their premises." However, we have reviewed the record in this case in its entirety and are unable to find any allegation or proof whatsoever that an employer/employee relationship existed between the defendants and the plaintiff's decedent. The law in this jurisdiction is clear that:
"In deciding whether the employer-employee relationship exists, the deciding factor is the reserved right of control. An employer must reserve the right to direct the actions of the employee in carrying out the work for which the contract of employment was entered. United States Steel Corp. v. Matthews, 261 Ala. 120, 73 So.2d 239...."
Ford v. Mitcham, 53 Ala.App. 102, 105, 298 So.2d 34, 36 (1974). See also Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 398, 232 So.2d 638, 640 (1970):
"For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done...."
There are no allegations and no proof whatsoever that any of the factors used in deciding the existence of an employer/employee relationship are present in this case. Thus, the duty that we have held applicable to employers, to protect their employees from criminal attacks by third parties, is not applicable to the defendants in this case.
Plaintiff's alternative, yet clearly primary, argument is that the evidence gives rise to genuine issues of fact with respect to whether the defendants had the duty to protect their invitees from criminal attack because they "possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability. Henley v. Pizitz Realty Co., 456 So.2d 272, 277 (Ala.1984)." Ortell v. Spencer Companies, Inc., 477 So.2d 299 (Ala.1985). We agree with plaintiff that on these facts her decedent was an invitee and that there is an issue of fact with respect to whether there had, in fact, been any prior serious disturbances, fights, arguments, guns drawn, etc., to which the police had, on occasion, been called to respond. However, even viewing the evidence most favorably to the plaintiff, and taking her evidence as true, it, nevertheless, falls far short of establishing that the occurrence of such criminal activity was a probability. Floyd Reese merely stated in his affidavit that "there have been fights or fist fights, and guns have been drawn [causing] injury or disruption." He makes no mention of "the frequency of criminal incidents which put the defendant on notice and thus created the duty to protect." Henley, supra, at 276.
Because adducing at least a scintilla of evidence of such a probability of criminal activity is the plaintiff's burden in cases such as these, this Court has found that "it is difficult to impose liability on one person for an intentional criminal act committed by a third person." CIE Service Corp. v. Smith, 460 So.2d 1244, 1247 (Ala.1984). Indeed,
"This Court has not yet decided a case whose facts command the imposition of such a duty. See, e.g., Henley, supra; Stripling v. Armbrester, 451 So.2d 789 (Ala.1984); Latham v. Aronov Realty Co., 435 So.2d 209 (Ala.1983); Berdeaux v. City National Bank of Birmingham, 424 So.2d 594 (Ala.1982); Parham v. Taylor, 402 So.2d 884 (Ala.1981); City of Mobile v. Largay, 346 So.2d 393 (Ala. 1977)."
Ortell v. Spencer Companies, Inc., 477 So.2d at 299. Accord, Moye v. A.G. Gaston Motels, Inc., 499 So.2d 1368 (Ala.1986). This case proves to be no exception. Plaintiff has failed to present even a scintilla of evidence to show that criminal attack was a probability. Absent such a showing, summary judgment *747 for the defendants was properly entered.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614846/ | 502 So.2d 281 (1987)
STATE of Louisiana, Plaintiff-Appellee,
v.
Joseph LANDRY, Defendant-Appellant.
No. CR86-753.
Court of Appeal of Louisiana, Third Circuit.
February 4, 1987.
*284 Julie E. Cullen, Opelousas, for defendant-appellant.
Morgan Goudeau, Dist. Atty. and Donald Richard, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
KNOLL, Judge.
Joseph Landry was convicted by a jury of simple arson with damages amounting to $500 or more, a violation of LSA-R.S. 14:52. After a pre-sentence investigation, the sentencing judge ordered defendant to serve nine years at hard labor.
Defendant argues that the trial court erred: (1) in finding the State presented sufficient evidence to support a conviction of simple arson; (2) in its determination that defendant's statement to law enforcement officials was made freely and voluntarily, and was not based on the promise of leniency; (3) in its denial of defendant's motion for a mistrial when a police officer made reference at trial to the arrest and incarceration of defendant on an "unrelated charge"; (4) in its denial of defendant's motion for a mistrial when a State witness testified that defendant refused to give a statement to law enforcement officers; (5) in allowing Antonia Leday, defendant's estranged wife, to testify that defendant was "always making threats against me"; (6) in denying defendant's motion for a mistrial when a police officer testified in reference to defendant taking a polygraph test; and (7) in imposing an excessive sentence. We affirm.
FACTS
Joseph and Antonia Landry were legally separated. Antonia Landry and their two year old daughter resided in one apartment of a two story duplex in rural Swords, Louisiana which was owned by her father. On November 15, 1984, the duplex burned to the ground around 9:30 p.m. Earlier in the day defendant and his estranged wife had a heated discussion in the parking lot of Popeye's in Lafayette. Minutes before discovering the fire the next door neighbor noticed a brown Thunderbird parked across *285 the street and a black man walking away from the building. When the neighbor heard the car drive away she looked out of the window and saw flames coming from the adjoining apartment. The owners of the duplex testified that they saw the defendant drive by in a brown Thunderbird while the fire was blazing. Although defendant's father testified that his car (a brown Thunderbird) had not been used that night, police investigation revealed that the hood was still warm around midnight. Defendant testified that he was in Lafayette at the time of the fire, however, this fact could not be substantiated with certainty at the trial. The fire caused a total financial loss of $84,000.
SUFFICIENCY OF EVIDENCE
Defendant's contention that the evidence was insufficient to convict him was neither briefed nor argued and is therefore considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).
ADMISSION OF CONFESSION
Defendant contends that the trial court erred when it allowed a written confession to be admitted into evidence. Defendant specifically contends that the statement was not made freely and voluntarily and was based upon promises made by a police officer. The State asserts that any "promises" by the officer to make recommendations to the district attorney and/or judge were not sufficient to constitute an inducement which would render the confession inadmissible.
Confessions obtained by any direct or implied promises or by the exertion of improper influence are involuntary and inadmissible as a matter of constitutional law. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976).
In Louisiana the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces but whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. The State has the burden of affirmatively proving that a confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and must prove beyond a reasonable doubt that a confession was free and voluntary. R.S. 15:451. The admissibility of a confession is in the first instance a question for the trial judge. His conclusion on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless it is not supported by the evidence. State v. Jackson, 381 So.2d 485 (La.1980). Whenever the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the State to rebut these allegations specifically. State v. Welch, 448 So.2d 705 (La.App. 1st Cir.1984), writ denied, 450 So.2d 952 (La. 1984). Furthermore, when a ruling on a motion to suppress a confession or statement is adverse to the defendant, prior to presenting the confession or statement to the jury the State must introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement. LSA-C.Cr.P. Art. 703(G).
Two persons questioned defendant after arrest. Officer Clifford Moore arrested defendant and advised him of his rights. Detective Moore testified that he advised defendant that he would make recommendations for him to the district attorney if defendant cooperated and gave a statement. Defendant then made a written confession to Idal Guillot, a Deputy State Fire Marshall. To the contrary, defendant testified that Detective Moore indicated to him that "if I wouldn't said I did it he was going to take the key and throw it away on me. He said within two hours I could've got out of jail. Him and the judge was good and he could get things to where I *286 could get out of jail." Defendant contends such "promises" induced him to give the confession. We disagree.
The record reveals that defendant was advised of his Miranda rights prior to giving his confession. Detective Moore and Deputy Fire Marshall Guillot testified to the circumstances surrounding the confession, and squarely denied defendant's testimony that they made certain promises to induce the confession. Furthermore, the alleged promises themselves were not sufficient inducement to vitiate the free and voluntary nature of the confession. See State v. Vernon, 385 So.2d 200 (La.1980); State v. Sterling, 453 So.2d 625 (La.App. 1st Cir.1984); State v. Odds, 430 So.2d 1269 (La.App. 1st Cir.1983).
We find no error in the trial court overruling the motion to suppress defendant's confession. In resolving this issue questions of fact and credibility were presented and the record fully supports the trial court's determination.
REFERENCE TO DEFENDANT'S ARREST AND INCARCERATION ON UNRELATED CHARGE
Defendant contends that the trial court erred when it denied defendant's motion for a mistrial when a police officer made reference to an arrest and incarceration of defendant on an unrelated charge. We disagree.
In response to questioning by defense counsel, Officer Idal Guillot made the following remark:
"Q. And in fact, he had been in jail for some five days by the time this statement was given is that right?
A. I think you might be in error. I think he was under arrest on an unrelated charge, if my memory serves me right. I don't think he had been arrested for this arson prior to that statement."
A mistrial is a drastic remedy and absent a showing of substantial prejudice depriving the defendant of a fair trial it is unwarranted. State v. Williams, 447 So.2d 495 (La.App. 3rd Cir.1984), writ denied, 450 So.2d 969 (La.1984). It has been held that unsolicited and unresponsive testimony is not chargable against the State to provide a ground for reversal of a conviction. State v. Jackson, 396 So.2d 1291 (La.1981).
In State v. Henry, 461 So.2d 484 (La. App. 3rd Cir.1984), writ denied, 464 So.2d 313 (La.1985), we addressed a similar question as follows:
"We note first that the requirements of LSA-C.Cr.P. art 770 are not applicable to the comments to Deputy Arceneaux. Article 770 requires a mistrial in the event that a remark referring to another crime committed or alleged to have been committed by the defendant is made within the hearing of the jury by the judge, district attorney or a court official. The Louisiana Supreme Court has held that a policeman is not a court official within the meaning of the article and a mistrial is not required, but that the proper remedy would be an admonition to the jury. State v Hayes, 414 So.2d 717 (La.1982). When a remark regarding prior crimes is made by someone other than a judge, district attorney or court official, an admonition is required under LSA-C. Cr.P. art. 771; however, in order to trigger the need for such an admonition the remark must be an unambiguous reference to crimes alleged to have been committed by the defendant."
See also, State v. Watson 449 So.2d 1321 (La.1984); State v. Williams, supra.
In the present case, the defense counsel elicited the alleged prejudicial remarks from the witness. The witness showed no intention to prejudice defendant by his statement, but rather, was attempting to clarify his answer in response to defense counsel's inaccurate summary of his statement. The record reflects that the trial judge properly admonished the jury to disregard the officer's reference to defendant's incarceration on an unrelated charge.
*287 The record does not show that defendant suffered any undue prejudice by the officer's remark and likewise the record does not show that the trial court abused its discretion in denying defendant's motion for a mistrial. The admonition by the court was sufficient to cure any prejudice which the remark might have created and to assure defendant a fair trial.
DEFENDANT'S REFUSAL TO GIVE STATEMENT
Defendant contends the trial court erred when it denied his motion for a mistrial when a witness for the State testified that defendant refused to give a statement to the police when he was initially questioned.
During cross-examination by defense counsel, Officer Guillot testified as follows:
"Q. Were you present at all times whenever Clifford Moore was talking to Joseph Landry in connection with the fire that occurred at the house?
A. If I recall correctly, Mr. Moore talked to Mr. Landry quite a bit earlier. I think he had refused to give a statement to that effect or something, I don't recall."
Defense counsel then moved for a mistrial, which the court denied. Upon request by defense counsel, the court then admonished the jury to disregard any testimony indicating that defendant refused to talk to officers about the case.
Defendant argues that under the Fifth Amendment to the U.S. Constitution and under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), no adverse inference may be drawn from an accused's exercise of his right to remain silent and his refusal to make a statement. Defendant argues that the statement by Officer Guillot constitutes reversible error since it was prejudicially ambiguous and because inappropriate inferences could have resulted from it, thus denying defendant his Fifth Amendment privilege against self-incrimination.
It was within the trial court's discretion to either admonish the jury or to grant a mistrial if it believed it was the only way to insure a fair trial. LSA-C. Cr.P. Art. 771. It is well settled that the State may not use, for impeachment purposes, evidence of an accused's post-arrest and post-Miranda warnings silence. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976). In addition, it is reversible error for the prosecution to use evidence of an accused's silence at the time of arrest or after arrest because of its highly prejudicial nature and its lack of probative value. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); State v. Montoya, 340 So.2d 557 (La.1976).
Defendant cites the case of State v. Smith, 336 So.2d 867 (La.1976), as requiring the statement made by Officer Guillot to constitute reversible error. In Smith, the State, during direct examination questioned a police officer and included in its question a reference to the officer's testimony that the accused "refused to give a statement". Even with this strongly suggestive statement, the court held that, although it was an error for the State to comment on defendant's refusal to give a statement, a mistrial was not warranted because the trial as a whole was fairly conducted, the proof of defendant's guilt was strong, and the State made no use for impeachment purposes of defendant's silence appeared in the record.
In State v. Kersey, 406 So.2d 555 (La. 1981), the State, in its closing argument, referred to defendant's post-arrest silence by specifically asking an arresting officer if defendant had asserted his right to remain silent. The court ruled that a mistrial was not warranted because the State's remarks did not intend to call the jury's attention to it or make any inappropriate references.
In both Smith and Kersey, supra, the State, not the defense counsel, elicited the prejudicial statements. Additionally, the statements in those two cases more strongly emphasized defendant's refusal to make a statement than the statement at *288 issue in this case. Although the potential for prejudicial impact was greater, in both cases, the court held that a mistrial was not warranted. In the present case, defense counsel elicited the remark. The statement was not referred to by the State for any purpose, neither at the time of the statement, nor thereafter. The statement was not offered by the officer to prejudice defendant but was intended to clarify a time sequence on which defense counsel was questioning him. Additionally, any prejudicial impact was effectively reduced by the admonition to the jury by the trial judge. Unsolicited and unresponsive testimony is not chargable against the State to provide a ground for reversal of a conviction. State v. Jackson, supra. For the foregoing reasons, the motion for mistrial was properly denied. This assignment of error is without merit.
RES GESTAE
Defendant contends that the trial court erred when it allowed defendant's wife to testify that defendant was "always making threats against (her)." Defendant argues that the State failed to give notice of the introduction of other crimes evidence as required by State v. Prieur, 277 So.2d 126 (La.1973). The State argues that the statement constitutes res gestae and is admissible as an exception to the Prieur notice requirement, and that the trial court erroneously held that the husband-wife privilege applied.
At the trial, the State called Ms. Leday as a witness. She testified that she and her daughter had been in Lafayette at 4:00 p.m. on the afternoon of the fire. While stopped at a fast-food restaurant, the defendant saw her and attempted to speak to her. At this time they were still married, but had been physically separated. Before the State could question Ms. Leday further about the contents of the conversation, defense counsel objected and invoked the husband-wife privilege under LSA-R.S. 15:461. The court ruled that the privilege applied and then told Ms. Leday that she could not testify about what defendant said to her on the day in question. The State continued questioning Ms. Leday and the following testimony occurred:
"Q. How had relations been between you and your husband in the month prior to the fire?
A. To the fire?
Q. Yes.
A. Very bad. He was always making threats against me and"
At this point, defense counsel objected. Without explanation the court overruled the objection.
In State v. Prieur, supra, the Supreme Court held that in order for the State to introduce evidence of other crimes of a defendant in order to show system, knowledge or intent, it must furnish defendant before trial a written statement of the acts it intends to offer.
LSA-R.S. 15:447 defines res gestae as:
"[E]vents speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence."
Furthermore, LSA-R.S. 15:448 provides:
"To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction."
Evidence of offenses which are part of the res gestae or convictions used to impeach a defendant's testimony are exceptions to the Prieur notice requirements. State v. Prieur, supra.
Prieur notice is required when the State intends to introduce evidence of other crimes committed by the defendant. Even if the Prieur notice is complied with only evidence of conviction of a crime is admissible; not arrests, indictments, prosecutions or the possibility of arrest and prosecution. State v. Prieur, supra; LSA-R.S. *289 15:495. In this case the testimony complained of does not show a violation of a criminal statute. Accordingly, the State did not offer evidence of another crime and therefore was not required to give notice to defendant.
Furthermore defendant's statements to Ms. Leday were admissible as res gestae. Defendant's statements were part of a discussion which occurred a few hours before the arson and were circumstances and declarations which were "necessary incidents of the criminal act, or immediate concomitants to it, or form in conjunction with it one continuous transaction." R.S. 15:447, 448; State v. Billiot, 421 So.2d 864 (La.1982). The facts surrounding the conversation indicate defendant did not intend the conversation with his wife to be private. The conversation took place in a crowded parking lot while his wife remained in her car with their young child; people were passing by within hearing range. See State v. Bennett, 357 So.2d 1136 (La.1978). Therefore the trial court erred in finding the husband-wife privilege applicable. These statements were clearly admissible as res gestae events. See State v. Kimble, 375 So.2d 924 (La.1979). The reason no notice is required as to res gestae evidence is that for evidence of the other crime to so qualify, the other crime must be so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crimes as well. State v. Goza, 408 So.2d 1349 (La.1982). In this instance defendant should be deemed to have notice of the threats he made since the crime is so closely intertwined with it.
Since it was error for the trial court to prohibit the State to further question the witness on the testimony between the defendant and the witness on the day of the crime, the subsequent ruling by the trial court allowing similar testimony corrected the original ruling. Therefore, the court properly allowed the testimony of the witness regarding defendant's threats against her.
POLYGRAPH EXAM
Defendant contends that the trial court erred when it denied defendant's motion for a mistrial after a police officer made reference in testimony to a polygraph examination. We disagree.
Evidence of a polygraph examination or any reference thereto during trial is inadmissible in Louisiana. State v. Catanese, 368 So.2d 975 (La.1979); State v. Hocum, 456 So.2d 602 (La.1984). However, the fact that the witness made reference to a polygraph test does not warrant a mistrial where no evidence was introduced to show the test results or the circumstances surrounding the taking of the test. State v. Tonubbee, 420 So.2d 126 (La.1982), cert denied, 460 U.S. 1081, 103 St.Ct. 1768, 76 L.Ed.2d 342 (1983).
In the present case the testimony regarding the polygraph test did not indicate who took the polygraph nor were the test results introduced. The record clearly indicates the testimony regarding the test was the result of a witness' non-responsive answer. Moreover there has been no showing of bad faith on the part of the State by attempting to get this information into evidence. Accordingly, any error which might have occurred was harmless since no substantial right of the accused was affected. LSA-C.Cr.P. Art. 921. Therefore this assignment of error is without merit.
EXCESSIVENESS OF SENTENCE
Defendant contends that the sentence imposed is excessive and should be reduced.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition by law of excessive punishment. For a sentence to be excessive, the penalty must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980). The sentencing court is given wide discretion in the imposition of sentences within statutory limits, and the sentence should not be set aside as excessive in the absence of a manifest abuse of the sentencing court's *290 discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982).
The maximum sentence for simple arson is fifteen years imprisonment where the damage amounts to $500 or more. Defendant's sentence falls within the statutory limits. However, even a sentence which falls within the statutory limits may violate defendant's right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). The sentencing court's reasons for imposition of sentence are an important aid when we review a sentence for excessiveness. State v. Bourgeois, 406 So.2d 550 (La.1981). A sentence is deemed excessive if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Calloway, 432 So.2d 1064 (La.App. 3rd Cir.1983). In addition, the sentencing court must view the circumstances surrounding the offense committed and should impose a sentence particularized to defendant's conduct. State v. Lanclos, 419 So.2d 475 (La. 1982).
After carefully reviewing the record, we find that the record supports the sentence. The sentencing court found that it was likely defendant would commit another crime and that a lesser sentence would deprecate the seriousness of the crime. The court also considered any mitigating circumstances, all of which were reflected in the pre-sentence investigation report. State v. Quebedeaux, 446 So.2d 1210 (La.1984). In view of the wide discretion granted a sentencing court in imposing its sentencing choice within statutory limits, we find the sentence imposed is appropriate for this particular defendant and is not so disproportionate to the crime committed as to shock our sense of justice.
In regard to defendant's sentence, the record reveals only that the sentence imposed was not rendered precisely in accordance with the statutory requirements in question. The penalty for simple arson is set forth in LSA-R.S. 14:52(B) as follows:
"B. Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars and imprisoned at hard labor for not less than two years nor more than fifteen years."
The statute mandates both a fine and imprisonment. However, the sentence imposed failed to include a fine.
Our Supreme Court addressed this issue in State v. Jackson, 452 So.2d 682 (La.1984), as follows:
"However, when a defendant alone appeals and the record contains a patent error favorable to the defendant, the appellate court should ignore the error, unless the prosecution, having properly raised the issue in the trial court, has sought appellate review."
Therefore, when a trial judge imposes a sentence without mentioning or imposing a fine mandated by statute, it is inappropriate for an appellate court to correct the sentence when the defendant alone seeks appellate review. Only the prosecutor can seek correction of the error, and this should be done by applying first to the trial court, subject to subsequent appellate review. See State v. Jimmerson, 432 So.2d 1093 (La.App. 3rd Cir.1983); State v. Jackson, supra; State v. Fraser, 484 So.2d 122 (La.1986). Since the State failed to complain of the sentence as being illegal due to its leniency, either in the trial court or on appeal, we are therefore precluded from remanding the case to correct the technically illegal sentence. State v. Jackson, supra.
DECREE
For the foregoing reasons, the conviction and sentence of defendant, Joseph Landry, are affirmed.
AFFIRMED.
DOMENGEAUX, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2319480/ | 233 Md. 10 (1963)
194 A.2d 803
BONHAGE ET AL.
v.
CRUSE ET AL.
[No. 15, September Term, 1963.]
Court of Appeals of Maryland.
Decided November 12, 1963.
The cause was argued before BRUNE, C.J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.
Gordon C. Murray for appellants.
No brief and no appearance for appellees.
BRUNE, C.J., delivered the opinion of the Court.
Owners of residential properties fronting on both sides of a rather short dead end road, La Paix Lane, which runs west from a main north-south highway, the York Road, appeal from *12 an order of the Circuit Court for Baltimore County which affirmed an order of the County Board of Appeals granting a special exception permitting the use as a convalescent home of a one-acre square tract, zoned as residential, at the southwest corner of these two streets. The Zoning Commissioner denied the application for a special exception, the County Board of Appeals, by a 2-1 vote, granted it, and the Circuit Court affirmed the order of the Board, holding that there was evidence before the Board upon which it could reach its conclusion and hence that its action had to be sustained.
The subject property, which has been improved by an old residence, the protestants' properties and most of the properties in the immediate vicinity of the subject property on both sides of the York Road are zoned as residential, and to a large extent residential use continues, though there is some commercialization, especially at an intersection about 425 feet south on the York Road, where there are several filling stations. Immediately across La Paix Lane north of the subject property is a rather large parking lot belonging to a church which is located diagonally across the York Road and to the northeast of the intersection. Further to the north, on the west side of the York Road, beyond those houses and a part of the property of the Sheppard and Pratt Hospital, are two office buildings, one of which contains a cafeteria and drug store. There are also some permitted uses on residentially zoned properties in the neighborhood which are not strictly residential, such as doctors' offices. The same general area here involved was also involved in the case of Whittle v. Board of Zoning Appeals, 211 Md. 36, 125 A.2d 41, and we shall not go into any full description of it here. A large new medical center is now in course of construction not far away and it appears that this development increases the desirability of property in this area for use as a convalescent home.
The York Road is a very heavily traveled highway. La Paix Lane is a little backwater much in keeping with the peaceful atmosphere that its name implies. It is paved only to a width of fifteen feet, and is entered between two brick gateposts on the south and north sides, respectively, and is bordered on each side by a row of trees. The testimony indicates that a fifteen-foot *13 paved road would be inadequate for traffic to and from a convalescent home on the subject property and that an entrance and exit for vehicular traffic on the York Road side would be impractical. It is, therefore, proposed that ingress and egress be on the La Paix Lane side, just as the old residence on this property has been reached by a road entering La Paix Lane and not from the York Road. The testimony also indicated, though the Board's order did not so specify, that to accommodate traffic to and from the convalescent home, the paved portion of La Paix Lane should be widened to thirty feet approximately to the depth of the subject property. This, it appears, would require removal of the gate posts and of the rows of trees along the widened part of the street.
The Baltimore County Zoning Regulations permit a convalescent home in a residential area, if a special exception therefor is granted. It is also clear that special exceptions are not to be granted as a matter of course, but that all the items listed as possible special exceptions, though proper uses of land, "have certain aspects which call for special consideration of each proposal." Section 502.1 provides in part that "[b]efore any Special Exception shall be granted it must appear that the use for which the Special Exception is requested will not" produce any of six results, only two of which call for consideration here. The first (a) is that the use shall not be "detrimental to the health, safety or general welfare of the locality involved;" and the second (b) is that it shall not "[t]end to create congestion in roads, streets or alleys therein."
Section 502.2 of the Regulations directs that the Zoning Commissioner or the Board, in granting any special exception, "shall impose such conditions, restrictions, or regulations as may be deemed necessary or advisable for the protection of surrounding and neighboring properties." The Board did impose restrictions and conditions dealing with the preservation of a green space along the westernmost twenty-foot strip of the subject property and the maintenance and replacement of trees and shrubbery, and requiring that the home be completely air conditioned to prevent noises from emanating therefrom, and that "[a]ll site plans for the subject property, including plans for *14 egress and ingress from said property, must be approved by the office of Planning and Zoning."
There was testimony before the Board given by Mr. Frederick P. Klaus, a real estate expert, that "we felt that to apply for a special exception for a nursing home in this location would in no way depreciate or deteriorate the general surrounding neighborhood, due to its location." Mr. Klaus testified as an expert adviser to a Mr. Chew, who at the time of the hearing was the contract purchaser of the subject property, which was then owned by the Cruses. (Not more than about a month after the decision of the Board, Mr. Klaus had apparently taken over Mr. Chew's rights as purchaser, and he intervened in the proceedings in the Circuit Court.) There was strong testimony before the Board, contrary to that of Mr. Klaus, to the effect that the use of this property for a convalescent home would depreciate the value of the neighboring property.
We may assume that Mr. Klaus' testimony was sufficient to warrant the majority of the Board in finding that the granting of the special exception for a convalescent home would not be detrimental to the health, safety or general welfare of the locality involved, at least with the conditions above referred to as to the preservation of trees and shrubbery and the installation of complete air conditioning to prevent the emanation of noise, and that the action of the Board on this phase of the matter should therefore be affirmed. See Amberley Assn. v. Board of Appeals of Anne Arundel County, 229 Md. 261, 268, 182 A.2d 811. (For cases presenting converse situations in which Board action denying a special exception or permit was upheld, see Crowther, Inc. v. Johnson, 225 Md. 379, 170 A.2d 768; Dorsey Enterprises v. Shpak, 219 Md. 16, 147 A.2d 853.)
The majority of the Board did not discuss the traffic problem in its opinion, apparently considering that the evidence was insufficient to call for any such discussion. We note that plans for the proposed convalescent home when the matter was before the Board were exceedingly indefinite. Even the number of beds to be available in the home might have been anywhere between fifty and eighty or possibly a hundred. The uncertainty as to the number of people to be accommodated in the home, *15 of course, tended to render uncertain the number of persons who might be required to staff it, and all of these uncertainties created further uncertainties as to the number of vehicles, both passenger cars and delivery trucks, which might have occasion to enter and leave the premises and hence raised doubts as to traffic congestion. The testimony of the engineer called by the applicants is in some respects not very illuminating and it is based to a considerable extent upon anticipated new roads still in a rather indefinite stage of planning and development. He did, however, express the view that no serious traffic problem would be created if La Paix Lane were widened and were used for vehicular traffic to and from the home, and a representative of the the Office of Planning of Baltimore County was fairly strong in his opinion that no serious traffic congestion would be created by reason of the establishment of a convalescent home of any of the various capacities suggested. We suppose that the condition imposed by the Board requiring approval of the site plan and of ingress and egress routes by the Office of Planning and Zoning was designed at least in part to protect against the likelihood of traffic congestion. There would doubtless be some increase in traffic from the establishment of the proposed convalescent home, but this would not necessarily result in creating traffic congestion; we think that the Board could properly have reached the conclusion that if La Paix Lane were to be widened actual congestion would not be created. See Vestry of St. Mark's, etc. Church v. Doub, 219 Md. 387, 394-95, 149 A.2d 779 (a case involving comprehensive rezoning in which a comparable standard was applicable), and cases therein cited. However, we think that the Board could properly reach such a conclusion in the instant case, if, but only if, there were assurance that La Paix Lane would be widened sufficiently to accommodate the increased traffic to which that narrow road would be subjected; and we find no such assurance.
The County Board of Appeals, so far as we are informed, has no power to widen streets or to require them to be widened; nor, so far as we are informed, does the Office of Planning and Zoning. It seems to us clear from the applicants' own evidence before the Board that La Paix Lane as now constructed would be inadequate. Its widening is not a condition which the Board *16 attached to its approval (perhaps because of doubt as to its power to attach it perhaps because it did not deem it necessary); but without such widening, we think that on the applicants' own showing, condition b of Section 502.1 that the granting of the special exception would not tend to create traffic congestion has not been met. Such being the case, we think that the granting of the special exception in this case was unwarranted.
We express no opinion with regard to the Board's right to attach a condition which it might not be able to enforce, but which the applicants might be able and willing to comply with. Nor do we find it necessary at this time to go into the appellants' contention that the proposed convalescent home would in fact be a hospital and that as such it would violate the density requirements of the Regulations.
In accordance with the view above expressed, that the requirement of subdivision b of Section 502.1 of the Zoning Regulations of Baltimore County has not been met, we shall reverse the order appealed from and remand the case to the Circuit Court with instructions to enter an order reversing the order of the Board of Zoning Appeals and reinstating the order of the Zoning Commissioner, which denied the special exception.
Order reversed and case remanded for the entry of an order in accordance with this opinion; the costs to be paid by the appellees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615751/ | 215 S.W.3d 215 (2006)
In the ESTATE OF George J. GOLDSCHMIDT.
No. ED 87104.
Missouri Court of Appeals, Eastern District, Division Two.
December 26, 2006.
Application for Transfer Denied March 20, 2007.
*218 Jonathan E. Fortman, John C. Kress, Attorney at Law, St. Louis, MO, for petitioner.
Thomas C. DeVoto, Robert J. Benbenek, Attorney's at Law, St. Louis, MO, for respondents.
GARY M. GAERTNER, SR., Judge.
Appellant, Edward C. Schoenbein ("Appellant"), the personal representative of the estate of George J. Goldschmidt ("Decedent"), appeals from the judgment of the Circuit Court of St. Louis County, following a jury trial, entered in favor of Decedent's sister-in-law, Respondent, Gladys M. Goldschmidt ("Respondent Goldschmidt"). In entering judgment in favor of Respondent Goldschmidt, the trial court: (1) ordered that, pursuant to the jury's verdict, Decedent's signatures establishing a payable on death account for Respondent Goldschmidt and her deceased husband, Archie Goldschmidt, are genuine, and (2) entered a directed verdict on Appellant's claims of undue influence and fraud. We affirm in part and reverse and remand in part.
Decedent executed his last will and testament in July of 1983 ("Decedent's Will"). Decedent's Will does not provide for any specific bequests. Decedent's Will provides for Decedent's residuary estate to be divided equally among his five siblings: Appellant, Archie Goldschmidt, Norbert Goldschmidt, Virginia Beis, and Dale Schoenbein. Archie Goldschmidt was appointed executor of Decedent's Will.
Decedent lived by himself. Sometime in the early 1980's, Decedent was declared legally blind and unable to drive a vehicle. After this occurred, Archie Goldschmidt and Archie's wife, Respondent Goldschmidt, would periodically visit Decedent to help him with his finances and buy him groceries.
Respondent Goldschmidt testified that on March 25, 1998, while she and Archie Goldschmidt were visiting Decedent, Decedent *219 indicated that he wanted to go to the bank to establish a payable on death account. Respondent Goldschmidt and Archie Goldschmidt drove Decedent to NationsBank. At the bank, Decedent designated an existing account as a payable on death account ("the POD account"), naming Archie Goldschmidt and Respondent Goldschmidt as beneficiaries. The POD account contains the signatures of Decedent, Archie Goldschmidt, and Respondent Goldschmidt. In March of 1998, the amount in the POD account was approximately $70,000 to $80,000.[1]
Archie Goldschmidt passed away in 2001. Decedent passed away on March 11, 2004 at the age of 91.
According to Respondent Goldschmidt, between March of 1998 and Decedent's death in March of 2004, the amount in the POD account increased to over $500,000 as a result of Decedent's investments. On March 16, 2004, Respondent Goldschmidt went to Bank of America[2] with Decedent's death certificate and closed the POD account. On March 17, 2004, Bank of America issued a cashier's check to Respondent Goldschmidt in the amount of $507,710.10 ("the POD account funds").
Thereafter, Appellant became aware of the POD account. After Appellant petitioned the trial court, the court appointed him personal representative of Decedent's estate.
On October 12, 2004, Appellant filed a petition for temporary restraining order ("the TRO") seeking the court to prohibit Respondent Goldschmidt and her children, Respondents Richard Goldschmidt, Mark Goldschmidt, Barbara Weinhardt, and John Goldschmidt (collectively "Respondent Goldschmidt's children") from disposing of the POD account funds, which the trial court granted. On October 29, 2004, the court ordered the TRO would be extended if Appellant filed a $5,000 bond. Subsequently, the TRO expired because Appellant failed to post a bond.
On October 29, 2004, Respondent Goldschmidt and Respondent Goldschmidt's children filed a petition to determine title to property and for declaratory judgment against Appellant, which requested the court to, inter alia, declare that the POD account funds are an asset of Respondent Goldschmidt and not an asset of Decedent's estate.
On that same date, Appellant filed a petition to determine title to property against Respondent Goldschmidt and Respondent Goldschmidt's children, which requested the court to convey the POD funds to Decedent's estate. Appellant's petition claimed undue influence ("Count I"), actual fraud ("Count II"), constructive fraud ("Count III"), mental incapacity ("Count IV"), invalid gift ("Count V"), and conversion/trover ("Count VI"). Appellant thereafter requested the court for leave to file a first and second amended petition, which the trial court denied.
Appellant dismissed all claims against Respondent Goldschmidt's children. In addition, Appellant dismissed or withdrew Counts IV-VI of his petition against Respondent Goldschmidt.
At some point prior to the jury trial, Appellant asserted a claim alleging that Decedent's signatures on the POD account are not genuine. A jury trial took place from May 16-18, 2005. Appellant presented evidence to the jury on his remaining claims of undue influence, actual fraud, *220 and constructive fraud. Respondent Goldschmidt presented, inter alia, testimony from a handwriting expert that Decedent's signatures establishing the POD account are genuine. Following the close of all the evidence, Respondent Goldschmidt filed a motion for directed verdict on Appellant's claims that the POD account was procured by undue influence or fraud, which the trial court granted.
Following deliberation, the jury returned a verdict finding that Decedent's signatures on the POD account are genuine. On May 31, 2005, the trial court entered judgment pursuant to the jury's verdict and entered a directed verdict on Appellant's claims of undue influence and fraud. Appellant filed a motion for new trial on June 30, 2005, which was deemed denied ninety days later under Rule 81.05(a)(2)(A). This appeal followed.
In his first point on appeal, Appellant contends the trial court erred in entering a directed verdict on his claim of undue influence.
In reviewing a trial court's judgment granting a defendant's motion for directed verdict, we must determine whether the plaintiff made a submissible case. Hertz Corp. v. Raks Hospitality, Inc., 196 S.W.3d 536, 549 (Mo.App. E.D. 2006). In order to ascertain whether the plaintiff made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff, and disregard all evidence to the contrary. Id. If a plaintiff fails to produce substantial evidence of one or more of the elements of a cause of action, he fails to make a submissible case. Burke v. Kehr, 876 S.W.2d 718, 721 (Mo. App. E.D.1994). A trial court may only grant a defendant's motion for directed verdict when the evidence and all reasonable inferences therefrom "are so strongly against the plaintiff as to leave no room for reasonable minds to differ." Waggoner v. Mercedez Benz of N. America, 879 S.W.2d 692, 694 (Mo.App. E.D.1994).
For a nonprobate transfer of property, the rights and obligations of the owner, beneficiary, and transferring entity are governed by sections 461.003, RSMo 2004[3] to 461.081. Subsection 461.062.1; section 461.003. Sections 461.003 to 461.081 are referred to as the "Nonprobate Transfers Law of Missouri." Section 461.003. A "[n]onprobate transfer" is defined as "a transfer of property taking effect upon the death of the owner, pursuant to a beneficiary designation." Section 461.005(7). A "beneficiary designation" is "a provision in writing that is not a will that designates the beneficiary of a nonprobate transfer, including the transferee in an instrument that makes the transfer effective on death of the owner. . . ." Section 461.005(2) (footnote omitted). An instrument or account record may make a transfer effective on the death of the owner if the phrase "pay on death to" or the abbreviation "POD" appears after the owner's name and before the designation of the beneficiary. Section 461.005(15). Thus, a POD account is a beneficiary designation.
We initially note that in this case the Nonprobate Transfers Law of Missouri applies because the document at issue in this case is the POD account, which contained the abbreviation "POD" after Decedent's name and before the designation of Archie Goldschmidt and Respondent Goldschmidt as beneficiaries.
Subsection 461.054.1 of the Nonprobate Transfers Law of Missouri provides that a POD account that is procured by undue influence is void. Subsection 461.054.1.
*221 The term "undue influence" is generally defined as such overpersuasion, coercion, force, or deception that breaks the will power of the holder of assets and puts in its place the will of another. Duvall v. Brenizer, 818 S.W.2d 332, 335 (Mo. App. W.D.1991).
A presumption of undue influence arises where substantial evidence shows: (1) a confidential and fiduciary relationship; (2) that the fiduciary obtained a benefit; and (3) some additional evidence from which there is an inference of undue influence. Estate of Gross v. Gross, 840 S.W.2d 253, 257 (Mo.App. E.D.1992). When a presumption of undue influence is supported by substantial evidence, a submissible case is made and the case should go to the jury even if there is contrary evidence. Id. In determining whether a plaintiff has made a submissible case of undue influence, a case-by case analysis is usually required because the exercise of undue influence is often proved by circumstantial evidence. Id.
We will first consider whether there is substantial evidence that Respondent Goldschmidt and Decedent had a confidential and fiduciary relationship.
"Confidential" and "fiduciary" are virtually synonymous terms. Id. A confidential and fiduciary relationship exists when one relies upon and trusts in another to handle his property or business affairs. Id. at 257-58. Evidence to consider in determining whether there is a confidential relationship includes when another: (1) fills out checks for the holder of assets to sign or (2) helps the holder of assets with his taxes. See Vancil v. Carpenter, 935 S.W.2d 42, 45 (Mo.App. W.D.1996) (checks) and Lesh v. Lesh, 718 S.W.2d 529, 533 (Mo.App. E.D.1986) (taxes).
In this case, Respondent Goldschmidt testified that Decedent trusted her with his financial documents. For example, she filled out checks for Decedent to sign for the payment of his utility bills. Respondent Goldschmidt monitored all of Decedent's tax papers and took those documents to a tax preparer. Respondent Goldschmidt would tell Decedent the exact nature of each document he signed. In addition, Respondent Goldschmidt assisted Decedent with his insurance. She also obtained a key to Decedent's safety deposit box. The record reflects that most of the above assistance took place prior the time the POD account was established. We find that this collectively constitutes substantial evidence that Respondent Goldschmidt and Decedent had a confidential and fiduciary relationship.
Respondent Goldschmidt does not dispute that she received a benefit and therefore, the second prong is supported by substantial evidence. In fact, she received $507,010.10 at Decedent's death when she closed the POD account at Bank of America. Thus, we will now determine whether there is substantial, additional evidence from which there is an inference of undue influence.
Additional evidence includes the physical condition of the holder of the assets. See Lopiccolo v. Semar, 890 S.W.2d 754, 760 (Mo.App. E.D.1995) (finding this is a factor to consider in determining whether there should be a directed verdict on an undue influence claim in a will contest proceeding). Additional evidence of undue influence also includes evidence that the fiduciary has the power to influence the holder of the assets, the opportunity to do so, and if the disposition of property was a changed course of action. Gross, 840 S.W.2d at 258. Courts have adopted a liberal stance regarding the amount of evidence necessary to satisfy this prong. See id.
*222 In this case, Decedent was blind. Respondent Goldschmidt and Archie Goldschmidt were the only people who assisted Decedent with his financial affairs. Decedent relied upon them to drive him places, and they drove him to the bank on the day the POD account was created. Thus, there is substantial evidence that Respondent Goldschmidt had the power and opportunity to influence Decedent.
In addition, the establishment of the POD account was a changed course of action for Decedent. Prior to the establishment of the POD account in March of 1998, Respondent Goldschmidt was not entitled to any assets from Decedent. But in March of 1998, the establishment of the POD account designated Respondent Goldschmidt as a beneficiary to the POD funds.
We find that the above evidence collectively constitutes substantial, additional evidence from which there is an inference of undue influence.
Accordingly, because there is substantial evidence in the record that: (1) Decedent and Respondent Goldschmidt had a confidential and fiduciary relationship; (2) Respondent Goldschmidt obtained a benefit; and (3) there is additional evidence from which there is an inference of undue influence, the record reveals a presumption of undue influence and thus Appellant has made a submissible case. Therefore, the trial court erred in entering a directed verdict on Appellant's claim of undue influence. Point granted.
In his second point on appeal, Appellant maintains the trial court erred in entering a directed verdict on his fraud claim.
We review under the same standard of review discussed above in the first point on appeal. As also noted above, the Nonprobate Transfers Law is applicable to the POD account in this case.
In his first sub-point on appeal, Appellant asserts that he made a submissible case of fraud because there is substantial evidence that Respondent Goldschmidt perpetrated fraud by silence on Decedent.
The primary rule of statutory construction is to determine the legislature's intent from the statute's language. Tuft v. City of St. Louis, 936 S.W.2d 113, 118 (Mo.App. E.D.1996). Subsection 461.054.1 of the Nonprobate Transfers Law provides that a POD account that is procured by fraud is void. Subsection 461.054.1. Because "procured" is not expressly defined in the Nonprobate Transfers Law of Missouri, the term is given its plain and ordinary meaning as found in the dictionary. See Tendai v. Mo. Bd. of Reg. for Healing Arts, 161 S.W.3d 358, 366 (Mo.banc 2005). The term "procure" is defined in relevant part as "to cause to happen or be done: bring about." Webster's Third New International Dictionary 1809 (1976).
In this case, Appellant alleges Respondent Goldschmidt perpetrated fraud by silence on Decedent in that she was aware of the POD account's increasing balance and failed to inform Decedent of this information. But this evidence pertains to the period of time following the creation of the POD account and does not relate to the time the POD account was caused to happen or brought about. Thus, this evidence is irrelevant to the procurement of the POD account.
Moreover, Appellant did not present any evidence that Decedent did not know about the POD account's increasing balance. Although Respondent Goldschmidt testified that she did not inform Decedent about the POD account's increasing balance, she said she did not do so because "[Decedent] knew how much he had in the bank." The undisputed evidence is that Decedent knew in 1999 that he had $400,000-$500,000 in the POD account, an amount very close to *223 the amount of the POD funds at the time of Decedent's death.
Therefore, because we find that Appellant's argument does not have merit, the trial court did not err in entering a directed verdict on his fraud claim. Sub-point denied.
In his second sub-point on appeal, Appellant claims he made a submissible case of fraud because there is substantial evidence Respondent Goldschmidt perpetrated a constructive fraud on Decedent.
To prove constructive fraud, a plaintiff must show that a person breached a promise to another during the existence of a confidential relationship. Paletta v. Mercantile Bank, N.A., 889 S.W.2d 58, 61 (Mo.App. E.D.1994).
In this case, as discussed above in the first point on appeal, we find there is substantial evidence of a confidential relationship. But the only promise that Appellant maintains Respondent Goldschmidt breached is: "[Respondent Goldschmidt] . . . promis[ed] to take care of [Decedent] when in fact she permitted him to live in filth," and this alleged promise of care was the basis for the establishment of Respondent Goldschmidt as a POD beneficiary. But the portion of the transcript cited by Appellant for evidence of this alleged broken promise reveals the following:
Appellant's counsel: Did [Decedent] as far as you know ever discuss why he put you and Archie [Goldschmidt] on [the POD account]?
Respondent Goldschmidt: I don't know if he discussed why he put us there, but several times he mentioned the fact he didn't know what he would do without the two of us to help him.
Appellant's counsel: Do you recall hearing that before March 25th of 1998?
Respondent Goldschmidt: Yes.
Appellant's counsel: After being put on as the POD beneficiary did you feel any obligation to continue to take care of [Decedent] at that point?
Respondent Goldschmidt: I felt like I always wanted to take care of [Decedent] at any point. If he needed help he got it.
Contrary to Appellant's assertion, this testimony does not establish that Respondent Goldschmidt promised Decedent she would take care of him in exchange for being placed as a beneficiary on the POD account. Rather, the testimony establishes Respondent Goldschmidt always wanted to take care of Decedent. Therefore, because we find that Appellant's argument lacks merit, the trial court did not err in entering a directed verdict on his fraud claim. Sub-point denied.
Before addressing Appellant's third point on appeal, we will address his fourth point on appeal.
In his fourth point on appeal, Appellant contends that the trial court erred when it denied his motions to amend his petition. Appellant's first amended petition and second amended petition attempted to assert the following previously dismissed and additional claims against Respondent Goldschmidt: mental incapacity, invalid gift, conversion/trover, negligent misrepresentation, breach of fiduciary duty, two counts of negligence per se, unilateral mistake, breach of express promise, and breach of implied promise (collectively "the additional claims in this case").
A trial court has broad discretion in allowing amendments to pleadings. Wheelehan v. Dueker, 996 S.W.2d 780, 782 (Mo.App. E.D.1999). We will only reverse a trial court's denial of a motion to amend a pleading if the decision is clearly erroneous. Id. "A trial court does not err when it denies a motion to amend a pleading to *224 assert a claim that possesses no merit." Curnutt v. Scott Melvin Transport, Inc., 903 S.W.2d 184, 194 (Mo.App. W.D.1995).
For a nonprobate transfer of property, the rights and obligations of the owner, beneficiary, and transferring entity are governed by the Nonprobate Transfers Law of Missouri. Subsection 461.062.1. As discussed above under the first point on appeal, a POD account is a nonprobate transfer of property and thus governed by the Nonprobate Transfers Law of Missouri.
Subsection 461.054.1 of the Nonprobate Transfers Law of Missouri provides that a POD account that is procured by fraud, duress or undue influence is void. Subsection 461.054.1. Subsection 461.054.2 states: "A beneficiary who willfully and unlawfully causes or participates with another in causing the death of the owner . . . is disqualified from receiving any benefit" of a POD account. Section 461.054.2.
A general rule of statutory construction is that the express mention of one or more things implies the exclusion of others. Groh v. Ballard, 965 S.W.2d 872, 874 (Mo. App. W.D.1998). The legislature's express mention of fraud, duress, undue influence, and murder in subsections 461.054.1 and 461.054.2 as reasons for voiding a POD account imply that it did not intend the additional claims in this case be deemed causes for remedial action. See id. (holding that legislature's express mention of fraud, duress, undue influence, and murder as reasons for voiding a beneficiary deed under the Nonprobate Transfers Law imply that it did not intend the owner's unilateral mistake to be deemed a cause of remedial action).
Because the legislature did not intend that the additional claims in this case be deemed causes for remedial action for voiding a POD account, the additional claims in this case possessed no merit. Therefore, the trial court did not err in denying Appellant's motions to amend his petition. Point denied.
Although Points I, II, and IV are dispositive as to what claims will be addressed on remand, we review Appellant's remaining points because the analysis may be pertinent to the jury instruction and admission of evidence upon remand.
In his third point on appeal, Appellant argues that the trial court erred in submitting Instruction No. 6 to the jury. Instruction No. 6 provides: "Your verdict must be that the document in issue is a valid payable on death designation of [Decedent] if you believe: The two signatures on the document are those of [Decedent]." Appellant maintains that this instruction did not follow the substantive law because it did not require the jury to find that the POD account satisfied all of NationsBank's requirements for the opening of a POD account.
"Whether or not a jury was properly instructed is a question of law." Twin Chimneys v. J.E. Jones Const., 168 S.W.3d 488, 497 (Mo.App. E.D.2005). Where the challenged instruction is not found in MAI, the instruction is proper if it follows the substantive law and can be readily understood. Rice v. Bol, 116 S.W.3d 599, 606 (Mo.App. W.D.2003).
We initially note that the challenged instruction is not found in MAI. As discussed above under the first point on appeal, the Nonprobate Transfers Law governs the POD account in this case. Thus, the issue in this point on appeal is whether Instruction No. 6 follows the Nonprobate Transfers Law and can readily be understood.
The primary rule of statutory construction is to determine the legislature's intent from the statute's language. Tuft, 936 *225 S.W.2d at 118. Where two statutes concern the same subject matter, they must be read together and harmonized and effect must be given to the terms of each statute. City of Ellisville v. Lohman, 972 S.W.2d 527, 534 (Mo.App. E.D.1988). It follows that we apply the terms of the more specific statute rather than the terms of the more general statute. Id.
To summarize section 461.021 and the applicable definitions therein: a POD account transfers the right to receive property to the designated beneficiary who survives, effective on the death of the owner if the POD account is executed and delivered in accordance with the rules of the bank prior to the death of the owner. See sections 461.021, 461.005(2)(4)(15)(16). On the other hand, to summarize subsection 461.028.4 and the applicable definitions therein: a POD account transfers the owner's interest in the property to the designated beneficiary, effective on the owner's death if an account record or other written instrument evidences ownership of property in the owner's name followed by a transfer on death direction and before the designation of the beneficiary or if the request to make the transfer on death direction is delivered to the bank in accordance with the rules of the bank prior to the owner's death. See subsection 461.028.4; section 461.005(4)(13)(15)(16).
Thus, under section 461.021, a POD account is effective and thus valid if it is executed and delivered in accordance with the rules of the bank prior to the death of the owner. On the other hand, under subsection 461.028.4, a POD account is effective and thus valid if an account record evidences ownership of property in the owner's name followed by a POD designation and before the designation of the beneficiary or if the request to make the transfer on death direction is delivered in accordance with the rules of the bank prior the owner's death. Because section 461.021 and subsection 461.028.4 both concern the effectiveness of a POD account, we apply the terms of the more specific statute. We find that subsection 461.028.4 is more specific than section 461.021 because subsection 461.028.4 provides two alternate ways for a POD account to be effective.
Moreover, subsection 461.028.5 reveals the specific nature of section 461.028, providing:
An account record . . . that contains a transfer on death direction written as part of the name in which the property is held or registered, is conclusive evidence in the absence of fraud, duress, undue influence or evidence of clerical mistake by the transferring entity that the direction was regularly made by the owner and accepted by the transferring entity. . . . Subsection 461.028.5 (emphasis added).
In this case, because subsections 461.028.4 and 461.028.5 are the applicable substantive law, if there is no evidence of fraud, duress, undue influence or evidence of clerical mistake by the transferring entity, the POD account transfers Decedent's interest in the property to Respondent Goldschmidt, effective on Decedent's death if an account record or other written instrument evidences ownership of property in Decedent's name followed by a transfer on death direction and before the designation of the Respondent Goldschmidt or if the request to make the transfer on death direction is delivered in accordance with the rules of NationsBank prior to Decedent's death. Because it is undisputed that the POD account record with NationsBank contained the abbreviation "POD" after Decedent's name and before the designation of Archie Goldschmidt and Respondent Goldschmidt as beneficiaries, it was not mandatory to include this issue in *226 the jury instruction. See Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 20 (Mo.App. E.D.2005) (holding when a fact material to the plaintiff's case is undisputed by the parties, it is not mandatory to include it in the jury instruction). Nor was it necessary for the jury to find that the POD account was delivered in accordance with the rules of NationsBank.
Therefore, the trial court did not err in submitting Instruction No. 6 to the jury because it required the jury to make a finding on the only issue remaining for the jury at that time, i.e. whether Decedent's signatures on the POD account are genuine. Point denied.
In his final point on appeal, Appellant asserts the trial court erred in excluding testimony concerning events that took place years after the establishment of the POD account.
A trial court has broad discretion to exclude evidence and its ruling will be affirmed only if there is a clear abuse of discretion. Jone v. Coleman Corp., 183 S.W.3d 600, 608-09 (Mo.App. E.D.2005). A trial court abuses its discretion when its decision is clearly against the logic of the circumstances, shocks the sense of justice, and shows a lack of careful consideration. Id. at 609.
Subsection 461.054.1 provides that a POD account that is procured by undue influence is void. Subsection 461.054.1. As discussed in the first sub-point to Point II on appeal, because "procured" is not expressly defined in the Nonprobate Transfers Law of Missouri, the term is given its plain and ordinary meaning as found in the dictionary. See Tendai, 161 S.W.3d at 366. The term "procure" is defined in relevant part as "to cause to happen or be done: bring about." Webster's Third New International Dictionary 1809.
Appellant asserts that trial court erred in excluding, inter alia, the following testimony: (1) evidence concerning the lack of care Decedent received years after the establishment of the POD account, and (2) Respondent Goldschmidt's actions years after the establishment of the POD account. Because this evidence is not relevant to the causation, or bringing about, of the POD account, the trial court did not err in excluding it. Point denied.
Based upon the foregoing, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.
GEORGE W. DRAPER, III, P.J., and ROBERT G. DOWD, JR., J., Concur.
NOTES
[1] Both parties stated in oral argument that this was the approximate amount in the POD account in March of 1998.
[2] Sometime prior to March 16, 2004, NationsBank became Bank of America.
[3] All statutory references are to RSMo 2004, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615787/ | 425 So.2d 81 (1982)
Wallace McClure KELLY, a/K/a Scott A. Johnson, Appellant,
v.
STATE of Florida, Appellee.
No. 81-2563.
District Court of Appeal of Florida, Second District.
December 17, 1982.
Rehearing Denied January 19, 1983.
*82 Milton M. Ferrell, Jr., and Lawrence M. Malman of Ferrell & Ferrell, Miami, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
DANAHY, Judge.
The defendant appeals his convictions for conspiracy to traffic in cannabis in excess of 100 pounds and trafficking in cannabis in excess of 10,000 pounds. He asserts that he was denied his constitutional right to a full cross-examination of the state's star witness, Paul Scott. We agree and reverse.
The charges against the defendant stem from the arrival of a boat loaded with a large quantity of marijuana at the Gasparilla Marina in Placida, Florida, in the early morning hours of June 3, 1981. Paul Scott was an employee of the Gasparilla Marina and resided on the marina premises. On the night in question, he observed a black, 4-wheel-drive truck driving on the public road near the marina in what he believed to be a suspicious manner. He also observed other vehicles in the area and observed a large boat pull into the marina from the intercoastal waterway. Scott went to a nearby place of business and asked a guard to notify the Sheriff's Department.
At trial, Scott identified the defendant as being the driver of the black truck. On cross-examination, he admitted that he failed to give any reference to or description of the defendant in a statement given on June 8 to the Sheriff's Department and that his first identification of the defendant was made about a month later at a photo lineup. He also admitted that when his deposition was taken in a related case he had stated that the driver of the black truck could have been a female and that he could not identify the driver.
Prior to the trial, Scott was arrested in Miami for soliciting a bribe and carrying a concealed firearm. He allegedly had made a series of phone calls to solicit a bribe from a defense attorney for a co-defendant and offered to change his testimony for the sum of $120,000.
At trial, the state elicited the following testimony from Scott on direct examination:
Q... . were you arrested in Miami?
*83 A. Yes.
Q. What were you arrested for?
A. Soliciting a bribe.
Q. What is the actual charge, do you know?
A. No.
Q. Soliciting a bribe?
A. Yes.
Q. Were you offering to change your testimony for a sum of money?
A. No.
Q. What was the charge?
A. I don't know the charge.
Q. But you were arrested down in Miami for soliciting a bribe?
A. Yes.
On cross-examination by counsel for the defendant, the following took place:
Q. Mr. Scott, let's talk a little bit about the arrest that Mr. Berry inquired into. You were arrested for an infraction related to this case down in Miami, I believe, wasn't it.
A. No.
Q. Where was it?
A. Not this case.
Q. In relation to this incident?
A. Yes.
Q. Okay. What were you arrested for?
A. Soliciting a bribe.
Q. Soliciting a bribe?
A. Yes.
Q. Anything else?
A. Carrying a concealed firearm.
... .
Q. What did you do to lead up to that arrest?
A. May I speak to the Judge?
Q. You tell this Jury what you did to lead up to that arrest.
MR. BERRY: Your Honor, I will object at this point. I would ask the Jury be taken out.
The prosecutor then stated the ground for his objection to be that "Mr. Scott needs to be advised of his constitutional rights under the fifth amendment of the Constitution on self-incrimination." The trial judge thereupon declared a recess and brought in the public defender to advise Scott of his constitutional rights. The public defender advised Scott to invoke his fifth amendment privilege against self-incrimination in regard to his arrest in Miami as to any facts other than the facts of public record. When defense counsel resumed cross-examination of Scott, Scott invoked his fifth amendment privilege against self-incrimination and declined to answer any questions concerning the details of the charge in Miami against him for soliciting a bribe. Asserting a denial of the defendant's rights under the sixth amendment, defense counsel moved to strike Scott's testimony. That motion was denied.
The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right, among others, to be confronted with the witnesses against him. This confrontation clause of the sixth amendment is applicable to the states through the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Article I, section 16, of the Florida Constitution also contains a confrontation clause affording the accused the right "to confront at trial adverse witnesses."
A primary interest secured by the confrontation clause is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The right of cross-examination, of course, includes the right to examine a witness as to matters affecting his credibility, including a possible motive for testifying. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court said:
A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness *84 and affecting the weight of his testimony."... . We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. [Citations omitted.]
In this case, Scott was a star witness for the prosecution because his testimony was essential to the state's case. Only Scott identified the defendant as being at the scene on the night that the boat loaded with marijuana arrived at the Gasparilla Marina. Under such circumstances, denial of the right to explore on cross-examination possible bases for impeaching the credibility of the witness amounts to a denial of rights under the sixth amendment. Greene v. Wainwright, 634 F.2d 272 (5th Cir.1981); Beaudine v. United States, 368 F.2d 417 (5th Cir.1966); United States v. Cardillo, 316 F.2d 606 (2d Cir.1963); Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1978). If a defendant's right to cross-examination on such matters is thwarted, the remedy is to strike the witness' testimony. United States v. Cardillo.
Here, Scott testified on direct examination that he had been arrested in Miami on a charge of soliciting a bribe. When asked whether he had offered to change his testimony for money, he answered in the negative. Clearly, the defendant's sixth amendment rights were denied when he was foreclosed from inquiring into these matters on cross-examination of Scott. In a case involving the alleged solicitation of a bribe by a star witness for the prosecution, the United States Court of Appeals, Fifth Circuit, held that under such circumstances it was essential in the truth-finding function of the trial that the witness' motivations be explored fully and with vigor. Beaudine v. United States. The court pointed out that it is almost always the case when cross-examination directed to its main objective destruction of credibility is unduly restricted, the record, of necessity, does not and cannot reflect what would have been developed; appropriate cross-examination could only be accomplished by an adroit, penetrating, relentless cross-examination searching deeply into the motivation of the witness.
We reject the state's argument that the matter of Scott's alleged solicitation of a bribe was fully presented to the jury through other witnesses and the questions on direct and cross-examination which Scott actually answered. The cross-examination of Scott was abruptly curtailed, and no other evidence could substitute for a full cross-examination of Scott on this issue.
In view of our disposition, it is not necessary that we consider other points raised by the defendant.
REVERSED AND REMANDED FOR A NEW TRIAL.
OTT, C.J., and HOBSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615792/ | 677 F.Supp. 248 (1988)
BORDEN, INC. T/A Doxsee Food, Plaintiff,
v.
AMERICAN ARBITRATION ASSOCIATION; Retail, Wholesale Department Store Union, Local 1034, AFL-CIO, Defendants.
Civ. A. No. 87-437 MMS.
United States District Court, D. Delaware.
January 15, 1988.
*249 David J. Ferry, Jr. of Ahern & Ferry, Wilmington, Del. (Michael Kraemer of White & Williams, Philadelphia, Pa., of counsel), for plaintiff.
Joseph Benson, Wilmington, Del. (Ira Silverstein of Spear, Wilderman, Sigmond, Borish, Endy and Silverstein, Philadelphia, Pa., of counsel), for defendant Retail, Wholesale Dept. Store Union, Local 1034, AFL-CIO.
OPINION
MURRAY M. SCHWARTZ, Chief Judge.
Borden, Inc. (formerly Doxsee Food Corporation), seeks a declaratory judgment from this Court that the issue of transfer of all work out of the bargaining unit is not arbitrable under its collective bargaining agreement with Local 1034 of the Retail Wholesale Department Store Union (Local 1034). Based upon the strong presumption of arbitrability, the contract's broad arbitration clause and the lack of exclusions from arbitration in the contract, the Court finds the parties agreed in the contract to arbitrate this dispute, and the issue is properly left to the decision of the arbitrator.
I. BACKGROUND
Pursuant to its collective bargaining agreement with Doxsee Food Corporation (Doxsee/Local 1034 contract), Local 1034 filed a request for arbitration with the American Arbitration Association ("AAA") seeking to arbitrate the transfer of work out of the bargaining unit to another plant location. Borden filed a motion with this Court requesting a preliminary injunction restraining the AAA from arbitrating the dispute and a declaratory judgment that the collective bargaining agreement does not encompass arbitration of the current dispute.
The parties were previously before this Court in 1986 concerning the relocation of plaintiff's operations from its plant in Lewes, Delaware. Retail, Wholesale and Department Store Union Local 1034 v. Doxsee Food Corporation, 650 F.Supp. 861 (D.Del.1986). After Borden purchased Doxsee, Doxsee notified Local 1034 on October 24, 1986, that production was ceased at the Lewes plant as of that day and the work would be transferred to plants in *250 Maine and New Jersey. Id. at 862-63. As the exclusive bargaining agent, Local 1034 requested an injunction compelling Doxsee to arbitrate the closing of the plant as a violation of the subcontracting clause in the collective bargaining agreement. Id. at 863. The parties reached a settlement agreement in which Doxsee conceded the dispute was arbitrable and agreed both to cooperate so as to achieve arbitration in an expedited manner and to refrain from removing any equipment from the plant for a sixty-day period. Id. Local 1034 then filed a new request for injunction to prevent Doxsee from removing any equipment from the Lewes plant pending completion of the arbitration process. Id. Assuming the arbitrability of the dispute because of the parties' agreement, the Court refused to issue the injunction. Id. at 864, 866.
Several events have transpired since issuance of the Court's opinion in December 1986. Doxsee merged into Borden, Inc. Borden transferred the work formerly performed at the Lewes plant to a unionized plant in Cape May, New Jersey and a non-union plant in Pine Point, Maine. On the arbitration front, limiting his decision to the subcontracting clause, the arbitrator ruled that the closing of the Doxsee plant in Delaware did not violate the subcontracting clause of the collective bargaining agreement between Doxsee and Local 1034. Finally, the union submitted its second request for arbitration based upon different contract provisions.
The Court held a hearing on Borden's motion attended only by counsel for Borden and Local 1034. The AAA had notified the Court by letter that it did not intend to become involved in legal proceedings between Borden and Local 1034. At the hearing, Local 1034 declared it would not continue with the arbitration if the Court ruled the dispute was not arbitrable. As a consequence, plaintiff abandoned its request for an injunction against the AAA. In addition, Borden advised it was willing to arbitrate the company's alleged failure to offer employees at the Lewes plant work opportunities at the new location, as required by Article III, paragraph 4 of the collective bargaining agreement. Borden also agreed to arbitrate the union's claim that it violated Article VIII, paragraph 6 of the contract requiring notification to the union of any substantial reduction in the workforce, when it ceased operations at the Lewes plant without prior notification. The only remaining issue for the Court to determine is whether Local 1034 may compel Borden to arbitrate the question of whether the transfer of work out of the bargaining unit to the Maine and New Jersey plants violates the contract provisions.
The collective bargaining agreement signed by Doxsee and Local 1034 governs the arbitrability of the dispute over the closing of the Lewes plant and transfer of the work.[1] Article VII of the contract establishes a grievance procedure for "[a]ll differences, disputes, complaints and grievances of whatever nature that may arise between the Union and the Company," and provides that "[a]ll differences, disputes, complaints and grievances between the parties that shall not have been satisfactorily settled after following the [grievance] procedure hereinabove set forth shall, at the request of either party, be promptly submitted to arbitration" (emphasis added).[2]
The union argues the company is obligated to deal in good faith concerning the transfer of all work out of the bargaining *251 unit based both on specific contract provisions and on an implication to be made from the contract as a whole. Local 1034 contends the union recognition clause in Article I establishes the company's obligation to deal in good faith and not arbitrarily destroy the bargaining unit.[3] Further, according to the union, the non-discrimination clause in Article II forbids a transfer of work from union to non-union facilities with an intent to avoid the union.[4] The union also maintains that the seniority provisions in Article VIII of the contract create an expectation by the union members of continued employment.[5]
Borden asserts ordering arbitration would destroy the final and binding nature of arbitration because the arbitrator already ruled on the effect of the plant closing. Borden goes on to argue that the union has provided no evidence of anti-union animus in the closing of the Lewes plant. The company also asserts the arbitration clause is limited to disputes arising out of the contract and that the union cannot create an arbitrable dispute by citing contract clauses irrelevant to the dispute.
II. ANALYSIS
The United States Supreme Court and the United States Court of Appeals for the Third Circuit have established the judicial role in disputes over the meaning of collective bargaining agreements.
Unless the parties clearly provide otherwise, the Supreme Court has held the courts and not the arbitrator must determine which subjects the parties to the collective bargaining agreement agreed to arbitrate. AT & T Technologies v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (citing United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960)). Finding the judicial role narrowly limited to the question of arbitrability, the Supreme Court declared that a court must be careful not to rule on the merits of the underlying claim. AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418. See also Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53. The Supreme Court stated:
Whether "arguable" or not, indeed even if it appears to the court to be frivolous, the union's claim that the employer has violated the collective bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious."
AT & T Technologies, 475 U.S. at 649-50, 106 S.Ct. at 1418-19 (quoting United Steel-workers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960)).
In Warrior & Gulf, the Court declared that the grievance-arbitration system formed "the very heart of the system of *252 industrial self-government" and determined that the labor arbitrator brought special skills and expertise not possessed by the courts to the resolution of labor disputes. 363 U.S. at 581-82, 80 S.Ct. at 1352-53. Based on these considerations, the Court ruled that, "[a]part from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement." Id. at 581, 80 S.Ct. at 1352. In AT & T Technologies, the Court reiterated the position that any doubts should be resolved in favor of arbitration, especially where the contract clause concerning arbitration contains broad, all-inclusive language. 475 U.S. at 650, 106 S.Ct. at 1419.[6]
In E.M. Diagnostic Systems, Inc. v. Local 169, International Brotherhood of Teamsters, 812 F.2d 91 (3d Cir.1987), the United States Court of Appeals for the Third Circuit established guidelines for implementing the Supreme Court decisions. The appellate court held that an analysis of arbitrability should focus on three issues: "(1) Does the present dispute come within the scope of the arbitration clause? (2) does any other provision of the contract expressly exclude this kind of dispute from arbitration? and (3) is there any other `forceful evidence' indicating that the parties intended such an exclusion?" Id. at 95. The Third Circuit appellate court in Morristown Daily Record, Inc. v. Graphic Communications Union, Local 8N, 832 F.2d 31 (3d Cir.1987), determined that an accurate definition of the dispute facilitates the arbitrability decision. Id. at 33-35 (citing AT & T Technologies, 475 U.S. at 653-54, 106 S.Ct. at 1421-22 (Brennan, J., concurring) (issue before court must be defined so that question of arbitrability separate from merits of underlying dispute)).
The Court will look to the language used by the parties to define the dispute. Borden's motion for preliminary injunction refers to Local 1034's claim that the company "improperly transferred work out of the bargaining unit." In its letter to AAA on July 17, 1987, the union requested arbitration concerning "Doxsee's transfer of work out of the bargaining unit." The Court concludes the issue is twofold: one, whether the parties agreed in the contract to arbitrate the issue of transfer of work out of the bargaining unit even if that subject is not mentioned in the collective bargaining agreement; and two, if transfer of work is arbitrable, whether the parties agreed in the contract to arbitrate the existence of limits with respect to this transfer of all of the work out of the bargaining unit.
The Doxsee/Local 1034 contract has a broad arbitration clause. Article VII states that "[a]ll differences, disputes, complaints and grievances between the parties that shall not have been satisfactorily settled after following the [grievance] procedure hereinabove set forth shall, at the request of either party, be promptly submitted to arbitration" (emphasis added). The language of the arbitration clause is all-inclusive and excludes no subjects from arbitration.[7] Based upon the presumption of arbitrability, all areas not excluded from arbitration are deemed included. See Warrior & Gulf, 363 U.S. at 581, 80 S.Ct. at 1352. Therefore, because transfer of all work out of the bargaining unit is not excluded, it is within the scope of the arbitration clause in the collective bargaining *253 agreement. The issue of limits on the transfer of work out of the bargaining unit is properly left to the decision of the arbitrator. The first part of the E.M. Diagnostic test is satisfied.[8]
Second, the Court must examine whether this issue is expressly excluded from arbitration. The Court finds no part of the collective bargaining agreement which creates exclusions or limits the scope of the arbitration clause with regard to the transfer of work or cessation of operations.[9]
Third, is there "forceful evidence" the parties intended to exclude this issue from arbitration? The Court finds that Borden has introduced no evidence of prior intent to exclude the dispute from the arbitration process.
The Court declines to reach the merits of the dispute as raised by certain contentions of the parties. The union references specific contract provisions to support its claim of a duty of good faith. Borden also argues that the record contains no evidence of bad faith in its dealings with Local 1034. These matters reach the merits of the dispute, and are best left to the arbitrator. The Supreme Court has declared that even if claims appear frivolous or without basis in the collective bargaining agreement, the court is not to rule on the underlying merits of the dispute. See AT & T Technologies, 475 U.S. at 649-50, 106 S.Ct. at 1418-19.
In addition, Borden's argument that upholding the right to arbitrate this issue would destroy the final and binding nature of arbitration is without merit. The previous arbitration concerned the possible violation of the subcontracting clause by the transfer out of all work from the bargaining unit to other plants. The arbitrator specifically limited his decision to the subcontracting clause, and left undecided possible violations of other parts of the contract.
I hold that the issue of good faith limits on the transfer out of all the work in the bargaining unit should be decided by the arbitrator.
III. CONCLUSION
In view of the presumption of arbitrability, the broad arbitration clause, and the lack of specific exclusions, the Court finds arbitrable the issue of limits on Borden's right to transfer all bargaining unit work to another location. The Court will enter an order denying plaintiff's motion for declaratory judgment on the issue of arbitrability.
NOTES
[1] All references to contract provisions refer to the Collective Bargaining Agreement signed by Doxsee and Local 1034 on December 9, 1985, and in effect from that date until December 8, 1988 (the "collective bargaining agreement," or the "contract"). Borden has stipulated it is bound by the collective bargaining agreement.
[2] In addition, the management rights clause in Article III states:
[e]xcept as specifically limited by this Agreement, the Company reserves the exclusive right to manage and operate its business as it deems fit including, without limitation, to schedule work, to enlarge, expand, curtail contract or subcontract (but only if such contracting or subcontracting is required as a temporary emergency measure or if it will not result in the loss of jobs of any employee who has then completed his probationary period), or cease its operations or any part thereof, and to hire, discharge, discipline, promote, transfer or lay off its employees.
[3] Article I, paragraph 1 of the collective bargaining agreement reads:
1. (a) The Company hereby recognizes the Union as the sole and exclusive bargaining agent for all production and maintenance employees at its plant located at Lewes, Delaware, including warehouse employees and receiving employees but excluding office clerical employees, watchmen, guards and supervisors, as defined in the Labor Management Relations Act, as amended.
(b) The Company agrees that throughout the period of contractual relationship between these parties, no other organization will be recognized as the bargaining representative of any of the employees covered by this Agreement.
[4] Article II of the collective bargaining agreement reads:
Neither the Company nor the Union shall discriminate against any employee because of race, sex, color or creed, or membership in any organization or nonmembership in any organization not detrimental to the welfare of the United States.
[5] Article VIII establishes a seniority system affecting layoffs and recalls following layoffs.
[6] Reiterating the narrow role of the courts in reviewing arbitration decisions, the Court this term reinstated an arbitration award that had been reversed by the court of appeals based on a public policy against marijuana use. United Paperworkers International Union v. Misco, Inc., ___ U.S. ___, ___, 108 S.Ct. 364, 368, 98 L.Ed. 2d 286 (1987).
[7] The arbitration clause does not limit issues to the collective bargaining agreement. However, Article VII, paragraph 4 limits the power of the arbitrator to interpreting and applying the contract, and prohibits the arbitrator from altering, adding to, or deleting contract provisions. To allow the arbitrator to exceed the limits of the collective bargaining agreement would enable the arbitrator to create new terms of that contract. See Lodge 802, International Brotherhood of Boilermakers v. Pennsylvania Shipbuilding Co., 835 F.2d 1045, 1046-47 (3d Cir.1987) (arbitrator may not set the wage rate for a new job classification). The arbitrator may not exceed the bounds of the contract in the award.
[8] The Court in E.M. Diagnostic also found that a dispute is within the scope of the arbitration clause if it "is within the zone of interests that have received protection under the collective bargaining agreement." 812 F.2d at 95. Other clauses in the Doxsee/Local 1034 contract establish limits on the transfer of work out of the bargaining unit. Article III, paragraph 4 requires the company to offer employment opportunities if its operations are moved. Article VIII, paragraph 6 mandates notification to the union of any substantial reduction in the workforce. Limits on the transfer out of all bargaining unit work is within the zone of interests protected by the collective bargaining agreement.
[9] Article XIII, paragraph 2 does exclude discipline or discharge of employees for strike-related activities from the grievance and arbitration process. No other provision limits the scope of the grievance arbitration clause or provides for exclusions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615799/ | 668 N.W.2d 912 (2003)
JAS APARTMENTS, INC., et al., Appellants,
v.
The CITY OF MINNEAPOLIS, a Minnesota home-rule city, Respondent.
No. C5-02-2058.
Court of Appeals of Minnesota.
September 23, 2003.
Kevin D. Conneely, Leonard, Street & Deinard, P.A., Minneapolis, MN, for appellants.
Jay M. Heffern, Minneapolis City Attorney, Edward A. Backstrom, Assistant City Attorney, Minneapolis, MN, for respondent.
Considered and decided by WRIGHT, Presiding Judge, LANSING, Judge, and PETERSON, Judge.
*913 OPINION
WRIGHT, Judge.
Appellants challenge the district court's summary judgment in favor of the City of Minneapolis and denial of class certification. Because Minn.Stat. § 444.075, subd. 3 (2002), permits the City of Minneapolis to charge property owners sewer fees based on water consumption, we affirm.
FACTS
Respondent City of Minneapolis (the city) maintains two distinct sewer systems. The sanitary sewer collects sewage from sewer mains, street conduits, and pumping systems, and channels it to sewage treatment plants. The storm-water drainage system collects, transports, and manages water run-off from private and public properties.
Section 444.075 grants municipalities the authority to fund the operation of their sewer systems. Minn.Stat. § 444.075 (2002). In Minneapolis, the cost of maintaining and improving the sanitary-sewer system and storm-sewer system is funded exclusively through the assessment of a sewer charge paid by all private-property owners who receive municipal water service in Minneapolis. The sewer charge for storm-sewer services is based on the amount of water consumed by the property owner.
Appellants JAS Apartments, Inc. and other owners of multi-family properties in Minneapolis commenced this action for monetary damages and injunctive relief on August 10, 2000. Appellants challenge the legality of the city's sewer charge, arguing that the city does not impose storm-sewer charges in a "just and equitable" manner as required by Minn.Stat. § 444.075 because the storm-sewer charges are based on water consumption. The city moved for summary judgment on two occasions. The district court denied the city's initial motion.
The district court later granted summary judgment for the city, concluding that the sewer-charge provision of Minn. Stat. § 444.075, subd. 3, refers to both sanitary- and storm-sewer systems and authorizes the assessment of storm-sewer charges based on the amount of water consumed. This appeal followed, and the city filed a notice of review as to the district court's denial of defenses raised in its first summary judgment motion.
ISSUE
Does the sewer-charge provision in Minn.Stat. § 444.075, subd. 3 (2002), authorize storm-sewer charges based on the amount of water consumed?
ANALYSIS
On review from summary judgment, we consider whether genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Statutory interpretation presents a question of law, which we review de novo. Associated Builders & Contractors v. Carlson, 590 N.W.2d 130, 134 (Minn.App.1999), aff'd, 610 N.W.2d 293 (Minn.2000); Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990).
Section 444.075, subdivision 3, provides, in pertinent part:
To pay for the construction, reconstruction, repair, enlargement, improvement, or other obtainment and the maintenance, operation and the use of facilities, the governing body of the municipality or county may impose just and equitable charges for the use and for the availability of the facilities and for connections with them.... Charges made for service directly rendered shall be as nearly as *914 possible proportionate to the cost of furnishing the service, and sewer charges may be fixed on the basis of water consumed, or by reference to a reasonable classification of the types of premises to which service is furnished, or by reference to the quantity, pollution qualities and difficulty of disposal of sewage and storm water produced, or on any other equitable basis including, but without limitation, any combination of those referenced above.
Minn.Stat. § 444.075, subd. 3 (2002) (emphasis added).
Appellants assert that the term "sewer charges," as used in Minn.Stat. § 444.075, subd. 3, applies only to sanitary-sewer systems. Appellants contend that, when the term "sewer charges" is read in conjunction with the immediately preceding clause requiring that "[c]harges made for services directly rendered shall be ... proportionate to the cost of furnishing the service," the statute permits only sanitary-sewer charges to be based on water consumption because storm-sewer services are not directly rendered to property owners. Appellants argue that owners of apartment complexes and other similarly situated properties are charged a disproportionately higher storm-sewer fee based on their water consumption, which, appellants contend, violates the statute's "just and equitable" requirement for sewer charges.
The city counters with two arguments. First, the plain meaning of the statute does not support a definition of the term "sewer" that includes sanitary sewers and excludes storm sewers. Second, the statute explicitly designates sewer charges based on water-consumption levels to be equitable.
When we interpret a statute, we first decide whether the statutory language, on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). A statute is ambiguous when its language is "subject to more than one reasonable interpretation." Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). If the legislative intent "is clearly discernible from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute's plain meaning." Am. Tower, L.P., 636 N.W.2d at 312.
Here, the parties dispute the meaning of "sewer" in the portion of section 444.075, subdivision 3, which provides that "sewer charges may be fixed on the basis of water consumed." Section 444.075 does not define "sewer" in the context of a sewer-fee structure. We, therefore, discern the meaning of the statutory language "according to rules of grammar and according to their common and approved usage." Minn.Stat. § 645.08(1) (2002). A "sewer" is defined as "[a]n artificial, usually underground conduit for carrying off sewage or rainwater." American Heritage Dictionary 1653 (3d ed.1992) (emphasis added). The common meaning of the word sewer, as understood in the context of sewer charges, includes both sanitary-and storm-sewer systems. The plain meaning of the word "sewer" leads us to conclude that Minn.Stat. § 444.075, subd. 3, does not distinguish between sanitary-and storm-sewer services when authorizing a method for setting sewer fees based on water consumption.
Our conclusion is further supported by the statute's reference to an equally acceptable alternate method for setting sewer charges, which is based on the difficulty of disposing sewage and "storm water produced." After authorizing sewer fees based on water consumption, the statute provides that sewer charges also may be based on "pollution qualities and difficulty of disposal of sewage and storm water *915 produced." Minn.Stat. § 444.075, subd. 3. Consistent with principles of statutory construction, "[g]eneral words are construed to be restricted in their meaning by preceding particular words." Minn.Stat. § 645.08(3); Olson v. Am. Family Mut. Ins. Co., 636 N.W.2d 598, 602 (Minn.App. 2001). This clause informs the meaning of "sewer charges" by specifying another method of calculating sewer charges, which explicitly contemplates the use of storm-sewer services. Thus, the term "sewer charges" clearly refers to fees for both sanitary- and storm-sewer services. City of St. Louis Park v. King, 246 Minn. 422, 428-29, 75 N.W.2d 487, 492 (1956) (noting that the court should consider the meaning of words and phrases "by inquiring into the sense of their employment in the connection in which they are used"); Christensen v. Dept. of Conservation, Game, and Fish, 285 Minn. 493, 499-500, 175 N.W.2d 433, 437 (1970) (observing that statutes must be construed as a whole and that meaning should be ascertained from context).
Having concluded that "sewer charges" unambiguously encompass a fee structure for both sanitary- and storm-sewer services, we also conclude that sewer charges for storm-sewer services do not violate the "just and equitable" requirement set forth in section 444.075, subdivision 3, simply because they are based on water consumption. Subdivision 3 states that "the governing body of the municipality or county may impose just and equitable charges for the use and for the availability of the facilities and for connections with them." Minn.Stat. § 444.075, subd. 3. The statute also provides that "sewer charges may be fixed on the basis of water consumed ... or on any other equitable basis including, but without limitation, any combination of those referred to above." Id. (emphasis added). The statute's reference to "any other equitable basis" establishes that sewer charges based on water consumption are among the permissible bases that the legislature has deemed "equitable." Applying the rules of grammar and common usage, as we must, to the "just and equitable" clause, we conclude that the city's storm-sewer charges, which are based on water consumption, do not violate the just and equitable requirements of section 444.075.
Finally, while the record is unclear as to whether storm-sewer services are directly rendered, thereby requiring a rate "as nearly proportionate to the cost of furnishing the service[,]" this question of fact is not material because its resolution will not affect the outcome of the case. O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). In interpreting the proportionality clause, we resolve any conflict between the statute's proportionality clause and its authorization of sewer charges based on water consumption so that the more specific provision prevails over the more general provision. Minn. Stat. § 645.26 (2002); Hyland Hill N. Condo. Ass'n v. Hyland Hill Co., 549 N.W.2d 617, 622 (Minn.1996). Because the "sewer charges" provision authorizes a specific means of setting sewer charges and the proportionality provision states that charges should be proportionate to the service rendered, the sewer-charges provision controls. Moreover, were we to accept appellants' argument that the proportionality requirement is the controlling principle and that the term "sewer charges" refers only to charges for sanitary-sewer services, the statute's authorization of sewer charges based on "storm water produced" would be meaningless. See Minn.Stat. 645.17 (2002) (the legislature does not intend a result that is impossible to execute); Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn.2000) (noting that *916 various provisions of the same statute must be interpreted in light of each other).
In light of our conclusion that Minn. § 444.075, subd. 3, authorizes storm-sewer charges based on water consumption, we need not reach appellants' arguments regarding the voluntary-payment doctrine and class certification, nor the city's arguments regarding the exhaustion of administrative remedies and the application of Minn.Stat. § 444.075 to the city as "a city of the first class."
DECISION
Because Minn.Stat. § 444.075, subd. 3 (2002), authorizes the City of Minneapolis to base storm-sewer charges on the amount of water consumed, the district court properly granted summary judgment.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614703/ | 497 F. Supp. 2d 714 (2007)
WALNUT STREET SECURITIES, INC., Petitioner,
v.
Bonnie LISK, et al., Respondents.
No. 1:06CV1015.
United States District Court, M.D. North Carolina.
June 22, 2007.
*715 *716 Carrie J. Beehtold, Jeffrey Jamieson, Jeffrey Kalinowski, Blackwell Sanders Peper Martin, LLP, St. Louis, MO, Eric D. Welsh, Parker Poe Adams & Bernstein, Charlotte, NC, for Petitioner.
John S. Chapman, John S. Chapman & Associates, LLC, Cleveland, OH, Andrew O. Whiteman, Hartzell & Whiteman, LLP, Raleigh, NC, for Respondents.
ORDER
BEATY, District Judge.
On May 10, 2007, the United States Magistrate Judge's Recommendation was filed and notice was served on the parties *717 pursuant to 28 U.S.C. § 636(b). On May 24, 2007, an Amended Recommendation [Document # 191] was filed to correct a minor clerical error. Plaintiff subsequently filed timely Objections to portions of the Amended Recommendation. The Court has now reviewed de novo the Objections and the portions V the Amended Recommendation to which objection was made, and finds that the Objections do not change the substance of the United States Magistrate Judge's ruling. The Magistrate Judge's Amended Recommendation [Document # 191] is therefore affirmed and adopted.
IT IS THEREFORE ORDERED that Walnut Street Securities, Inc.'s Motion to Vacate or Modify the Arbitration Award [Document # 168] is DENIED. IT IS FURTHER ORDERED that Respondents' Motion to Confirm the Arbitration Award [Document # 165] is GRANTED, and the award entered in Bonnie Lisk, et al. v. Walnut Street Securities, Inc., NASD Case No. 95-06350, is CONFIRMED. A Judgment confirming the award and dismissing this action will be filed contemporaneously with this Order.
RECOMMENDATION OF MAGISTRATE JUDGE ELIASON
ELIASON, United States Magistrate Judge.
Petitioner has fled a motion pursuant to section 10 of the Federal Arbitration Act, 9 U.S.C. § 1, et seg., seeking relief from an arbitration award rendered against it in a National Association of Securities Dealers ("NASD") arbitration. Respondents were the claimants in the case denominated Lisk, et al., v. Walnut Street Securities, NASD Case No. 05-06350. Petitioner seeks to either vacate the award or modify it.
Each side has filed a brief accompanied by evidence and testimony from the arbitration hearing. Respondents have filed a motion to confirm the award (Docket No. 165).[1] Petitioner has supported its position with a second amended motion to vacate (Docket No. 168). In its brief, Petitioner sets out four reasons for vacating the award. It alleges:
1. The Award evidences a manifest disregard of the law in that it was in favor of Respondents where the only basis for Respondents' claim was an alleged violation of an NASD rule that does not create a private right of action. See Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 235-36 (4th Cir.2006) (describing "manifest disregard" basis for vacatur); Parsons v. Hornblower & Weeks-Hemphill, Noyes, 447 F. Supp. 482, 494 (M.D.N.C.1977) aff'd per curiam, 571 F.2d 203 (4th Cir.1978).
2. The NASD arbitrators exceeded their powers by issuing the Award against Walnut Street when the subject matter of the dispute a dispute against an NASD member by individuals who were never customers of that member or any of its associated persons was not eligible for submission to arbitration under the NASD Code of Arbitration Procedure. See 9 U.S.C. § 10(a).
3. The Award fails to draw its essence from the NASD Code of Arbitration Procedure, which here acts as the agreement to arbitrate, because the Award adjudicates a dispute that is ineligible for arbitration under the NASD Code of Arbitration Procedure. *718 See Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 235-36 (4th Cir.2006) (describing failure to "draw its essence" basis for vacatur)
4. Respondents fraudulently invoked the jurisdiction of the NASD by falsely claiming that Respondents were customers of a Walnut Street registered representative, thus procuring the Award by fraud or undue means. See 9 U.S.C. § 10(a)(1).
(Docket No. 169, Pet.'s Br. 1-2.)
Background Discussion
While a more specific discussion of the facts will occur later in this Recommendation, it will be helpful to first set out a broad outline of the facts and the legal position in which this case rests.
Petitioner Walnut Street Securities, Inc. ("Walnut Street") is a broker-dealer based in St. Louis, Missouri, and is a member of the NASD. It serves its customers through a network of registered representatives, one of whom was an individual named Marie Foil. The NASD requires its members to arbitrate some disputes, the parameters of which are set out in the NASD rules.
The Respondents are individuals who purchased unregistered securities of a fraudulent investment called ETS Payphones, Inc. ("ETS"). Petitioner agrees that had the Respondents purchased the securities from Marie Foil, then they clearly would qualify as customers of Walnut Street and could pursue an arbitration claim against it with respect to the sale of these securities. (Docket No. 170, Pet.'s Response 2-3.) Indeed, a number of cases have so held and, therefore, Petitioner's concession is, in fact, mandated. Washington Square Securities, Inc. v. Aune, 385 F.3d 432 (4th Cir.2004); MONY Securities Corp. v. Bornstein, 390 F.3d 1340 (11th Cir.2004); California Fina Group, Inc. v. Herrin, 379 F.3d 311 (5th Cir.2004); Vestax Securities Corp. v. McWood, 280 F.3d 1078 (6th Cir.2002); John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48 (2d Cir.2001); Washington Square Securities, Inc. v. Hicks, 271 F. Supp. 2d 1058 (S.D.Ohio 2003).
Those cases confirm that any dispute over whether the parties have agreed to arbitrate a matter is to be decided by the court and, further, that ambiguities should be resolved by employing a presumption favoring arbitration. But see California Fina Group, 379 F.3d at 316 n. 6(presumption only applies to scope of agreement, not the issue of whether an agreement to arbitrate exists). In those cases, the courts examined provisions of the NASD Code of Arbitration Procedure and determined that two provisions in NASD Code Rule 10301 were important in deciding whether NASD members have agreed to submit the dispute to arbitration in a situation such as the one presented in this case. One requirement of the rule is that the dispute must be between a customer and a member and/or associated person of the member; and the second is that the dispute must arise in connection with the business of such member or in connection with activities of such associated persons. Washington Square Securities, 385 F.3d at 436. With respect to what constitutes the business of a member, the courts held that the term should be construed broadly to cover the requirement that a member supervise its associated persons. Id. at 437. Thus, the fact that a customer did not know about the member and only dealt with the associate was not grounds to find that the matter lay outside of the arbitration agreement. John Hancock Life Insurance, 254 F.3d at 60. Nor does the dispute fall outside of the NASD arbitration provisions because the product sold by the associate was not sold by the member firm. California Fina Group, 379 F.3d at 317-318; Vestax Securities, 280 F.3d at *719 1080; see also MONY Securities, 390 F.3d at 1344 (product recommended by agent but order placed through another brokerage firm).
The issue in this case, however, extends one step beyond those presented in the previously cited cases. Here, Petitioner shows that none or the Respondents purchased their securities either from Walnut Street or Marie Foil. Although Ms. Foil had sold these unregistered securities, she did not sell them to the particular Respondents involved in this case. Instead, by the time these people purchased the securities, Ms. Foil had set up a corporation purportedly owned by her and her daughter. The Respondents then purchased the securities from the daughter or persons hired by the corporation. Some of the Respondents, in fact, had never met Marie Foil. Some had only met her in passing, and only one Respondent, Jan Cameron, believed she was dealing with Walnut Street. (See Docket No. 170, Pet's Response 5-6.) Because of this, Walnut Street contends that none of the Respondents were its customers, or customers of its associate, Marie Foil, and therefore the issue of whether it negligently supervised Marie Foil is not subject to arbitration.
Discussion
This issue of whether Respondents are customers of Walnut Street and/or its associate, Marie Foil, presents a basic question of whether the parties have agreed to arbitrate the dispute which, as previously indicated, is a question for the court to decide unless the parties have clearly provided otherwise. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002). Other issues, such as procedural questions, or ones which bear on the final disposition, including allegations of waiver, delay, or like defenses, are for the arbitrators to decide. Id.
Two factors distinguish this case from most of the others previously mentioned. First, in this case, the sale was not made directly by an associate of the member firm, but by a non-associate, albeit one who had some connection with the associate. Second, in this case, the parties went through a full arbitration before they called on the Court for intervention. As a result, even though the issue of arbitrability is normally a question to be decided by the court, Respondents claim that Walnut Street has waived the right to have a court decide the issue by failing to object to the arbitrators' jurisdiction and having the arbitrators decide the dispute on the merits. That, in fact, is a major issue in this case.
IA.
No Private Right of Action
Before deciding the waiver issue, the Court can quickly take care of one of Petitioner's grounds to vacate the arbitration award. Petitioner claims that the award evidences a manifest disregard of the law because the NASD Code does not create a private right of action, citing Parsons v. Hornblower & Weeks-Hemphill, Noyes, 447 F. Supp. 482, 494 (M.D.N.C. 1977), aff'd per curiam, 571 F.2d 203 (4th Cir.1978). The Court finds this argument to be inapposite to the question at hand. In Parsons, the plaintiff sought to establish a cause of action in federal court for violation of NASD rules. The court held that there was no right of a private action "in absence of facts which demonstrate fraud, independently cognizable under the antifraud provisions of the securities laws." Parsons, 447 F.Supp. at 494. The rule in question was NASD Rule 1, which required fair practice. The Court did not rule out the possibility that there might be a private cause of action created by NASD rules, but only that the Fair Practice Rule *720 was so nebulous that it could not be said to have established an independent duty.
In the instant case, Respondents allege that Petitioner is liable based on the failure to supervise its associates. The previously cited court decisions, in fact, found that such a claim created an issue upon which arbitrable liability could be based. Consequently, the Court finds that Parsons does not answer the issue before this Court and that the NASD rules relied upon by Respondents in this case can be a basis for failure to supervise liability, which would justify an arbitration award.
IB.
Waiver
Respondents contend that Petitioner voluntarily submitted the issue of the arbitrators' jurisdiction to the arbitration panel. They claim Petitioner never objected to the arbitrators' jurisdiction, expressly or otherwise and, therefore, waived any right to have this Court decide the issue of arbitrability.
Petitioner, on the other hand, responds with a two-prong attack. It claims that the arbitration panel exceeded its authority by ruling on the issue of whether Respondents were Petitioner's customers and second, that they did object to the arbitrators' jurisdiction during the arbitration hearing.
The issue of waiver is controlled by the Supreme Court's decision in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). There, the petitioner argued that the respondent agreed to let the arbitrators decide the issue of arbitrability by failing to sufficiently object at the appropriate time. The Supreme Court first pointed out that not only was a court, in the first instance, to decide the issue of whether a dispute was arbitrable, but also, in that same category, it was to decide who had the power to decide the issue of arbitrability. Id. at 943, 115 S. Ct. 1920. In other words, normally the court decides whether an issue should be submitted to arbitration. However, if a dispute arises over whether the parties have agreed that the arbitrators may decide which matters may be submitted to arbitration, then the court will normally also decide that issue. The Supreme Court in First Options further held: "When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally (though with a qualification we discuss below) should apply ordinary state law principles that govern the formation of contracts." First Options at 944, 115 S. Ct. 1920. The qualification was that any finding that the parties agreed to let the arbitrators decide an issue of arbitrability (including the issue of who decides such an issue, the court or the arbitrators) must be supported by clear and unmistakable evidence. Id. That is, whereas silence or ambiguity can be used to find that an issue was arbitrable, the opposite is true with respect to any issue over who should decide whether a particular merits issue is arbitrable. Nothing else appearing, the court should presume that without some substantial evidence, silence or ambiguity in the contract should be interpreted to mean that the court, not the arbitrator, will decide whether issues are arbitrable or not. Id.
In the case before it, the Supreme Court found that there was no evidence from which to imply that the respondent agreed to have the arbitrators decide which disputes were within the scope of arbitration. The respondents had filed a memorandum with the arbitrators objecting to the arbitrators' jurisdiction. The petitioner claimed that by filing an objection in the arbitration proceeding, instead of obtaining an injunction from a court, the respondents agreed to let the arbitrator decide which issues were arbitrable. The Supreme *721 Court disagreed and found that merely arguing arbitrability did not indicate a willingness to let the arbitrators decide that issue. It held that the mere fact that the respondent did not immediately file a motion in federal court to enjoin the arbitration, or to refuse to participate in the arbitration, did not necessarily imply that the respondent had agreed to let the arbitrators decide the issue.[2]Id. at 946, 115 S. Ct. 1920.
North Carolina law is quite clear with respect to the issue of waiver, and it governs the controversy.[3] In North Carolina, submitting a matter to arbitration and participating in the arbitration hearing without any objection results in a waiver of the right to subsequently challenge the arbitrators making a decision concerning arbitrability, which would normally be reserved for the court. McNeal v. Black, 61 N.C.App. 305, 300 S.E.2d 575 (1983). In McNeal, the party filed an agreement to arbitrate, answered the claim, and arbitrated, without making any objection to the arbitration. In fact, no objection was made until a month and one-half after the other party moved to have the arbitration award confirmed. The court found that if the defendant had prevailed at the arbitration hearing, it was clear that it would not have been challenging the procedure. It refused to allow a party to participate in an arbitration with an intent to take advantage of a favorable arbitration award and then after receiving an unfavorable ruling, seek to raise objections.
On the other hand, the court did not find waiver in a situation where the plaintiff immediately challenged the existence of the arbitration agreement, and also filed a complaint in state court seeking to determine the existence of an agreement before the tentative hearing date. Burgess v. Jim Walter Homes, Inc., 161 N.C.App. 488, 588 S.E.2d 575 (2003). At no point did the objecting party participate in an arbitration hearing or obtain a decision on the merits. Id.
Where the objecting party's actions are less clear, North Carolina requires clear and substantial evidence that the party intended to submit the question of arbitration to the arbitrators before a waiver will be inferred, as mandated by First Options, 514 U.S. 938, 115 S. Ct. 1920. Thus, in Ruffin Woody and Associates, Inc. v. Person County, 92 N.C.App. 129, 374 S.E.2d 165 (1988), the plaintiff at first agreed that the claims were arbitrable and engaged in the process of selecting the arbitrators. However, at the request of the defendant, the proceedings were postponed. Several months later, the plaintiff filed an amended answer which objected to the arbitrators' jurisdiction. The arbitrators then informed the parties that in spite of that objection, they would decide the issue. At that point, the plaintiff obtained a temporary restraining order in state court. The appellate court found that because the plaintiff's objection was filed before the hearing was commenced, it had properly and timely raised the issue of arbitrability and, therefore, there was no waiver of having the court decide the issue.
North Carolina law appears to be consistent with decisions from other states. Thus, in Moeller v. Cassedy, 364 F.Supp.2d *722 1340 (N.D.Fla.2005), the court found that by submitting a statement of claim covering the issue to be arbitrated and arguing for the arbitrators to decide the question, the party had implicitly agreed to submit the issue of arbitrability to the arbitrators and waived having the court determine that issue. In Saneii v. Robards, 289 F. Supp. 2d 855 (W.D.Ky.2003), the court held that when a party objected to arbitration, but was nevertheless compelled to do so by the district court, that party need not continue to raise objections to arbitrability before the arbitrators. Thus, in North Carolina, objections and participation are important factors in determining intent, and any decision on waiver will be highly fact dependent.
In the instant case, Walnut Street relies on three submissions made at arbitration to show that it raised its objection in a timely fashion. First, it cites to its answer. In that answer, Walnut Street generally denies jurisdiction. It also contends that: "Claimants were never customers of Walnut Street. These Claimants never transacted any securities business through Walnut Street and never opened any accounts with Walnut Street." (Docket No. 172, Ex. I-C Walnut Street's Answer to Statement of Claim 3.) Next, Walnut Street points to its motion to dismiss and that part of the motion wherein Walnut Street states that Marie Foil had an interest in an outside business entitled Foil & Associates. There, it contends that none of the Respondents alleged they dealt with or purchased securities from Marie Foil, but only through agents of Foil & Associates. It argues that Respondents were attempting to confuse the issue by making it seem as if Marie Foil was somehow involved in the sale of the investment when she clearly was not. It further emphasized that none of the Respondents allege any relationship with Ms. Foil. (Id., Ex. D Walnut Street's Motion to Dismiss 3.) Finally, Walnut Street refers the Court to the closing argument at Arbitration Transcript 1201-5. (Id., Ex. II-B-7.) At that point, Walnut Street argued that in order for there to be NASD jurisdiction, NASD Rule 10301(a) requires that the claimant be a customer of the broker-dealer member or of the member's representative. They argue that there was no duty to arbitrate because none of the claimants dealt with Marie Foil. Walnut Street concluded by telling the arbitrators:
So when you're thinking about what to do, I would ask you again to please apply the law in this case because if this case was in court where it should be because these people aren't customers, the case would be barred by the statute of limitations, in my opinion, and Mr. Chapman would not be able to file a cause of action that is purportedly a violation of NASD rule, and the case would be over. I want to point that out before I went into the merits of the case because you've been asked to do what is fair and what's equitable.
(Id., Ex. II-B-7, Arbitration Tr. at 1204.)
After considering this evidence, the Court finds that Walnut Street did not object, much less timely object, to the arbitrators deciding the issue of arbitrability. Walnut Street signed a Statement of Claim ("SOC") and participated in the arbitration. The answer and the motion to dismiss do not contain any clear objection. Instead, it would appear that Walnut Street merely argued the merits of its claim that the Respondents were not customers of Walnut Street. No issue of jurisdiction is mentioned. These documents actually support the inference that Walnut Street, in fact, submitted the issue of arbitrability to the arbitrators.
In the closing argument, Walnut Street does use the word jurisdiction by pointing out that NASD Rule 10301(a) requires a claimant to be a customer of the dealer-broker *723 member or such member's representative. However, the mere use of the word jurisdiction in no way implies any objection to the arbitrators deciding the jurisdictional issue. Again, it is consistent with Walnut Street's action in letting the arbitrators decide the issue of arbitrability in the first instance.
North Carolina law requires a timely objection to the arbitrators deciding issues of arbitrability to prevent litigants playing fast and loose with the other party, the arbitrators, and the court. Thus, the farther one goes into the arbitration proceeding without objection, the more one can assume the parties are submitting issues of arbitrability to the arbitrators.
Nothing in the record shows an objection being asserted by Walnut Street to the arbitrators deciding the issue of arbitrability. Instead, the record shows that by its action, Walnut Street clearly submitted the issue of arbitrability to the arbitrators, failed to make any objection to the arbitrators' jurisdiction, and waited until after the arbitration decision to file a motion to vacate the decision in federal court. By so doing, it waived its right to have a court decide the issue of arbitrability.
IC.
Fraud
Petitioner claims that the arbitration award was procured by fraud, pursuant to 9 U.S.C. § 10(a)(1), because Respondents falsely claimed that they were the customers of Marie Foil. However, § 10 was designed to encompass fraud based on false facts, not, as here, alleged "deception" arising from expressions of opinion and argument in a complaint or claim. Rather, the Court finds Petitioner's fraud allegations to be relevant, if at all, to whether Petitioner was misled into not making a timely objection to the arbitrators' jurisdiction, primarily because of Petitioner's claims in the SOC and other filings with the arbitrators.
This issue need not detain the Court for long because it is quite clear that from the very beginning, and at least by the time of the motion to dismiss, that Walnut Street knew the claimants did not deal with or purchase securities from Marie Foil. Walnut Street wants the Court to restrict its attention to Petitioner's SOC, where Respondents assert that the claimants were customers of Marie Foil doing business as Foil & Associates and that this statement somehow fraudulently invoked the arbitrators' jurisdiction. But, even accepting Petitioner's construction of the SOC, as noted previously, by the time Walnut Street filed a motion to dismiss, it clearly understood that the claimants did not deal directly with Marie Foil.
Walnut Street cites Lafarge Conseils Et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1339 (9th Cir.1986), for the proposition that an award may be overturned if it was based on fraud. However, that case involved a claim of false documents, as opposed to the claim of "false argument" which exists here. Moreover, even if actual fraud were involved, Petitioner would have to show by clear and convincing evidence that (1) there was fraud, and (2) it was not discoverable upon exercise of due diligence prior to the arbitration. (Id.) In the instant case, at most, it could be said that Respondents did not phrase their claim as Walnut Street would wish it. But by the time the motion to dismiss was filed, it was clear that Respondents asserted that Walnut Street was liable because it had a duty to supervise Marie Foil and that Foil was somehow connected with the sale of securities by Foil & Associates. It was also clear that by the time that Walnut Street filed its motion to dismiss that it understood the true relationship between Foil *724 and the Respondent purchasers of the unregistered securities. Consequently, not only has Walnut Street failed to establish by clear and convincing evidence that there was fraud in this case, but equally important, Walnut Street knew of the true facts prior to the arbitration. Petitioner has not shown any section 10 fraud.
II.
Challenge to the Arbitrators' Decision
Walnut Street's last request for review alleges that the award fails to draw its essence from the NASD Code of Arbitration Procedure because it adjudicates a dispute which is ineligible for arbitration. The issue before the Court is whether the arbitrators' decision finding Petitioner Walnut Street Securities to be liable for negligent supervision of an associate member was sufficiently supported by the evidence.
In the present case, the parties agreed to submit the issue of arbitrability to the arbitrators. Especially where, as here, the arbitrators do not explain their findings and reasoning, the court's review of the facts is limited. Remmey v. Paine-Webber, Inc., 32 F.3d 143 (4th Cir.1994). There, the court stated:
In the Federal Arbitration Act, 9 U.S.C. §§ 1-16, Congress has limited the grounds upon which an arbitral award can be vacated. Namely, a court may vacate an award:
(1) Where the award was procured by corruption, fraud, or undue means.
(2) Where there was evident partiality or corruption in the arbitrators, or either of them.
(3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Id. at 146.
In addition to the statutory grounds, or in conjunction with them, a claim may be overturned if it was in "manifest disregard" of the law. Id. at 150. See also Kurke v. Oscar Gruss and Son, Inc., 454 F.3d 350, 354 (D.C.Cir.2006). To show manifest disregard, the party challenging the arbitrators' decision must show that the arbitrators were aware of and understood the law, and found it applicable, yet chose to ignore it. Id. In all events, the court is not free to overturn the arbitration results simply because it would have reached a different conclusion on those facts. Remmey, at 146. Moreover, the court must be cognizant of its duty to discourage arbitration litigation based simply on a party's desire to have a second bite at the apple. Id.
In the instant case, Petitioner argues that the arbitrators ignored the law by finding that Respondents were customers of Marie Foil, Walnut Street's associated person, when all of the evidence shows they purchased the unregistered securities from Anne Ballard or other employees of Foil & Associates. At the time Respondents purchased the securities, Foil & Associates was allegedly a corporation owned by Foil and her daughter, Anne Ballard. Apparently, Foil & Associates also had employees who, along with Ballard, sold the securities to Respondents. In fact, the evidence shows that Respondents, except for perhaps Jan Cameron, either did not meet Marie Foil or only met her in passing, and that except possibly for Cameron, *725 none of them thought they were dealing with Walnut Street.[4]
The Court finds that because Respondents' claim against Walnut Street arises from allegations of lack of supervision, they need not establish that they purchased the unregistered securities directly from Marie Foil. Admittedly, the facts in this case appear to be one of first impression, or at least an extension from those cases previously mentioned where liability has been determined. However, it would appear that negligent supervision under the NASD may arise, even absent direct contact between the associated person and the "customer," should the evidence show that the associated person was sufficiently connected to the fraudulent scheme. In John Hancock Life Insurance, 254 F.3d 48, for example, the member firm was held to be liable for the fraudulent sale of promissory notes made not only by an associated person, but also by an associate of that person. Although the precedential value of the opinion is weakened by its failure to discuss the basis for the ruling or the relationship between the associated person and the individual working with him, this case clearly intimates that, in certain instances, no direct relationship is required for liability to attach under the NASD.
To refute this conclusion, Petitioner asserts that the present case is governed by Bensadoun v. Jobe-Riat, 316 F.3d 171 (2d Cir.2003). There, the associated person, Bensadoun, received funds from an individual named Autard, who had collected the funds from the defrauded individuals for investment. The individuals were found not to be customers of Bensadoun. Instead, the court found that only Autard was a customer of Bensadoun, and he was only a customer because there was no evidence that Bensadoun was involved in the fraudulent scheme. What is even more significant for our purposes is the dicta issued by the court when it said: "If Bensadoun was complicit in a fraudulent scheme that involved misleading the Investors into believing that they were customers of his and Paine Webber's, then the Investors were his customers for the purposes of the NASD code, and Bensadoun must arbitrate." Id. at 177. This, however, was not the case and the court found that the investors merely pooled their funds relinquishing all investment authority to Autard. Therefore, they had no connection to Bensadoun.
Petitioner gives a crimped reading to the dicta in Bensadoun as limiting liability to that situation where the associated person misleads the investors into believing that they were investing funds with him or the member firm. The Court does not believe that the court in Bensadoun intended its dicta to be so limited, but if so, this Court would disagree. Liability of the member firm may be predicated on negligent supervision so long as the associated person is sufficiently complicit in the fraud so as to be merely doing indirectly that which she would otherwise do directly. This would also seem to be the reading given it by the court in Malak v. Bear Stearns & Co. Inc., No. 02 CV 195 RCC, 2004 WL 213014 (S.D.N.Y. Feb.4, 2004). That case was similar to Bensadoun, wherein investors relinquished control over investments to a third party, who then dealt with a NASD broker or associated person. In finding that the defrauded individuals were not customers of the associated person, the court found it important (1) that there was no evidence that *726 the associated person had even communicated with the individual who defrauded the investors, and (2) that the evidence put forth by the investors that the associated person assisted in the perpetration of the fraud was unpersuasive and rebutted.
In contrast to the situation in Malak, the facts in the instant case do show that the associated person, Marie Foil, was complicit in the fraudulent scheme. She made at least one sale of the ETS investment herself (albeit not to Respondents) and, in addition, allowed the sale of the securities through her corporation, promoted the sales at program presentations, and profited from the sales by receiving commissions. The evidence of this is substantial, and were the Court itself to entertain the issue of arbitrability, it would be sufficient to find that Respondents were customers of the associated person, Marie Foil, who used Foil & Associates as the vehicle for her scheme. Further, the record discloses evidence that Walnut Street was negligent in supervising Foil, which allowed her to perpetrate the sale of unregistered securities to Respondents.
The evidence before the arbitrators concerning Foil's complicity in the fraudulent scheme is substantial and pervasive.[5] First, she personally sold ETS stock at one time. (Ex. 1.) She also participated in and led seminars in order to market the ETS stock. (Exs. 2 & 15.) The scheme for selling the unregistered securities, at first, apparently involved her as an individual and then through a business entity named Foil & Associates, which allegedly was incorporated some time in 1997. (Ex. 11.) Eventually, Foil decided to run the ETS sales entirely through Foil & Associates and her daughter, Anne Ballard. Ballard then personally, or through employees, sold over $30 million in ETS securities. The commissions were run through Foil & Associates and Marie Foil received part of those commissions. (Exs. 41 & 47.) In fact, it appears that Marie Foil's income from Foil & Associates and the sale of ETS stock grew substantially with the sales of ETS. Thus, in 1997, she reported $55,721.00 in commissions. In 1998, she reported $326,048.00. In 1999, she reported $615,898.00, and in 2000, $368,670.00. (Ex. 42.)
Marie Foil let Foil & Associates use the same office space and telephone number as she did with her personal sales of securities as an associated person of Walnut Street. (Exs. 8 & 9.) She also ran ads advertising the ETS investment through Foil & Associates. (Exs. 13, 14 & 34.) In fact, some of the ads commingled Foil & Associates and Marie Foil with Anne Ballard and Walnut Street, and indicated that they could sell securities as registered representative(s) of Walnut Street. (Ex. 30.) This commingling occurred in 1998, before the first sale to Respondents, and Walnut Street approved this ad. (Id.) Thus, there is substantial evidence that Marie Foil was personally involved in the promotion and sale of ETS stock at one time. Although she ran the sales through her daughter and Foil & Associates by 1997, she always received the associated commissions. Petitioner argues that there is no proof that the commissions which Foil received came from sales of ETS securities to Respondents. This is inaccurate, because the commissions were commingled. Moreover, Foil did more than receive commissions. She was actively involved in the promotion of unregistered securities.
Next, the evidence of Walnut Street's negligent supervision of Marie Foil is likewise substantial and pervasive. The first sale of stock to Respondents apparently occurred some time in 1999 and continued *727 forward. Petitioner attempts to paint a picture that it had no knowledge of Marie Foil's activities as summarized above until after the North Carolina Securities Commission placed a cease and desist order on Anne Ballard, thereby terminating the ETS sales some time in 2000. However, the evidence shows a very lackadaisical approach to supervision and may be summarized by Walnut Street's representatives' own statements that they simply would take the word of Marie Foil when questions arose (Ex. 31), and that so long as she was not personally involved in sales, that is not actually selling the securities, there was nothing Walnut Street could do (Ex. 32). Such an attitude could be viewed as a demonstration of a lack of will to supervise, which the arbitrators apparently concluded to be the case.
Of course, in hindsight, one can always find numerous clues to support a finding of negligent supervision. And, because they are now isolated from the surrounding noise, they appear blatant. Keeping this in mind, the quality and amount of clues still could support a finding of negligent or lack of supervision at the time in question. First, Marie Foil was required every year to list her outside business activities. In 1997, she listed Foil & Associates as an outside activity and listed it both as a corporation and as a sole proprietorship. (Ex. 5.) She did not answer the question of whether it issued securities. Notably, Foil did report that her outside business activity took up thirty-two hours per week and that her sources of income were twenty percent securities and eighty percent insurance commissions. Thus, reading this, one would assume that she spent most of her business hours conducting the business of Foil & Associates and receiving insurance commissions. (Ex. 5.)
However, the next year, in 1998, she listed Foil & Associates to be a partnership and that she spent the vast majority of her time doing the business of Foil & Associates by spending thirty-five hours a week with that business. In addition, her commissions increased to $140,000.00. (Ex. 6.) This substantial increase in income should have generated some interest by Walnut Street. Moreover, she admitted Foil & Associates sold mutual funds in addition to annuities and insurance. Yet, there was no investigation. By 1999, Ms. Foil listed Foil & Associates as a corporation that only sold insurance and indicated that she spent forty hours a week doing the business of Foil & Associates earning commissions of $150,000.00. (Ex. 7.) Yet, she reported that for all of her income, seventy-five percent came from securities commissions and only fifteen percent from insurance commissions. This would mean she had securities sales of around $750,000.00, about which Walnut Street surely would have known. The fact that Foil now received seventy-five percent of her income from securities commissions was a complete reversal from the previous years' listing and also should have required an immediate investigation to determine whether Foil & Associates was, in any way, involved in unreported sales of securities. In the year 2000, Foil again identified her outside business activity to be Foil & Associates. Although she then stated she only devoted twelve hours per week to it, she reportedly received more than $50,000.00 in commissions from that business. (Ex. 10.) In listing all sources of income, she then stated that securities commissions constituted ninety percent of the income and insurance commissions only ten percent. Again, this reversal, and the fact she would have had over $450,000.00 in securities sales, certainly should have sparked the interest of the investigator.
In addition, Marie Foil submitted ads indicating that she was commingling the Foil & Associates business with her sales *728 of securities and indicating Anne Ballard was also aligned with Walnut Street. (Ex. 30.) Walnut Street approved this ad. (Id.) More than that, in 1999 and 2000, she also submitted ads with improper information, indicating Foil & Associates was acting as an investment advisor, was promising fourteen percent returns, and listing a non-branch address. (Exs. 33 & 40.) While perhaps insignificant in isolation, the pattern and cumulation of these kinds of problems should have served as a basis for doing more investigation than that which Walnut Street did, which was simply to rely on what Marie Foil told them. (Ex. 11.)
In 1998, Walnut Street had knowledge that Marie Foil could possibly be involved in selling ETS stock. Their investigator, Reid Bradshaw, inconsistently testified that he understood that Anne Ballard was selling ETS stock only as an agent of Foil & Associates, yet at the same time, said that she was only operating as an insurance agent with Marie Foil. (Ex. 27.) In addition, he explicitly stated that when problems came up, he simply took the word of Marie Foil. (Ex. 31.) Walnut Street's supervision apparently consisted of taking Marie Foil's word that she was not improperly selling securities, and that was sufficient for Walnut Street. (Exs. 31 & 32.)
In May 2000, the NASD specifically questioned Walnut Street concerning its supervisory responsibilities with Marie Foil because Anne Ballard stated that Foil & Associates sells mutual funds. (Ex. 37.) During the same time period, Marie Foil herself told Walnut Street that mutual funds may well be sold through Foil & Associates. (Ex. 38.) In that statement, she supposedly warned people who work "in other divisions" that she was the only representative for Walnut Street involved in Foil & Associates and that everything she does has to be approved through Walnut Street. This memo implied that mutual funds could well be sold through Foil & Associates and that, at least in the past, securities may well have been sold by other employees of Foil & Associate,.. There was no investigation concerning this letter.
Walnut Street's response to this evidence is that none of the Respondents relied on Walnut Street or even on Marie Foil in order to purchase their investments and, therefore, they could not be customers of Marie Foil, much less Walnut Street. Walnut Street states that if Marie Foil had, in fact, sold ETS stock to Respondents, then it could well be held responsible. However, as noted above, direct sales by the associated person is not always required in order to make the respondent a customer of the associated person and, hence, the member firm.
Where the associated person actively participates in the investment scheme and, as here, has her minions or employees in her company carry out the effort on her behalf, the sales may be attributed to the associated person so as to establish a customer relationship for the purposes of determining whether the member firm was negligent in supervising the associated person under the NASD Code. The evidence in this case clearly documents Marie Foil's participation in the investment scheme. There is also ample documentation that Walnut Street failed in its duty to supervise its associated person, Marie Foil. Instead, the record shows a situation where Walnut Street was simply content to rely on the first excuse that Marie Foil provided to them despite clear warning signs that she was actually involved in some way in the sale of the ETS stocks, without any follow-up or closer investigation. Moreover, Walnut Street ignored evidence in the outside business reports which, when compared each other, contained clear warning signs that *729 something foul was afoot. These reports, combined with a review of Marie Foil's income tax returns, could have rung a warning bell loud enough to wake up the town. (Ex. 42.) But, this was not done. Therefore, on these facts, it cannot be stated that the arbitrators' decision was either in manifest disregard of the law or failed to draw its essence from the NASD Code.
IT IS THEREFORE RECOMMENDED that Walnut Street Securities, Inc.'s motion to vacate or modify the arbitration award (docket no. 168) be denied, that Respondents' motion to confirm the arbitration award (docket no. 165) be granted, and that the award entered in Bonnie Lisk, et al. v. Walnut Street Securities, Inc., NASD Case No. 95-06350, be confirmed.
May 10, 2007.
NOTES
[1] In Respondents' motion, there was a section in which they sought sanctions against Petitioner and/or Petitioner's counsel. During an April 12, 2007 telephonic conference, Respondents withdrew that request.
[2] In First Options, the court of appeals' opinion shows that the party objecting to arbitration in that case refused to sign any submission form. Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503 (3d Cir.1994). In addition, objections were filed challenging the arbitrators' jurisdiction. As noted above, the Supreme Court seemed to suggest that such issues of intent would also be dependent on state law. First Options, 514 U.S. at 946, 115 S. Ct. 1920.
[3] The parties so agreed in a telephone conference.
[4] Petitioner contends that Cameron's claim regarding Walnut Street's involvement is not credible. This is based on the fact that in her initial complaints to the FBI concerning her losses, she did not identify Marie Foil or Walnut Street as being in any way responsible for her losses.
[5] The number cited for the following evidence will be the tabbed numbers in Respondents' Outline of Evidence submitted to NASD arbitrators (docket no. 181). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697372/ | [Cite as Campbell v. George J. Igel & Co., Inc., 2013-Ohio-3584.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
WILLIAM M. CAMPBELL, :
Plaintiff-Appellant, :
Case No. 13CA4
vs. :
DECISION AND
GEORGE J. IGEL & CO., INC., : JUDGMENT ENTRY
Defendant-Appellee. : RELEASED 08/14/2013
APPEARANCES:
Abigail M. Saving, Lilley & Saving Co., L.P.A., Logan, Ohio, for Plaintiff-Appellant.
Christopher J. Weber, Kegler, Brown, Hill & Ritter, LPA, Columbus, Ohio, for Defendant-
Appellee.
Hoover, J.
{¶ 1} Plaintiff-appellant, William M. Campbell (“appellant”), appeals from the judgment
of the Hocking County Court of Common Pleas that granted the motion for summary judgment
of defendant-appellee, George J. Igel & Co., Inc. (“appellee”), as to the appellant’s claim for
breach of contract. For the reasons set forth below, we reverse the judgment of the trial court
and remand for further proceedings.
{¶ 2} Appellant raises two assignments of error for review.
First Assignment of Error:
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.
Second Assignment of Error:
Hocking App. No. 13CA4 2
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
{¶ 3} The record reveals the following facts and procedural history. Appellant owns real
property at 19577 State Route 664, Logan, Ohio (the “Property”). In the summer of 2011, the
Ohio Department of Transportation (“ODOT”) was preparing a construction project to realign
State Route 664 adjacent to Old Man’s Cave State Park (the “Project”). On June 20, 2011, a
representative of appellee, Jon Pulcheon, met with appellant to inform him that appellee intended
to submit a bid on the Project. That same day, appellant and appellee executed a Construction
Site Agreement (the “Agreement”). Mr. Pulcheon presented the Agreement, which appears to be
a pre-printed form contract with certain additional handwritten terms, to appellant.
{¶ 4} Under the terms of the Agreement, appellant gave appellee “permission to
establish a staging area [on the Property] for basing operations associated with the construction
project including storage of materials, equipment and other pertinent items of work.” The
Agreement also gave appellee “the right of ingress and egress to the [P]roperty in locations
selected by the [appellee] for all purposes necessary to complete the fulfillment of this
agreement.”
{¶ 5} In exchange for the permission to use the Property, appellee agreed to “place [an]
embankment [of] approx. 120,000 cy [cubic yards],” to “strip and replace topsoil,” to “grade and
seed all disturbed areas,” to “provide positive drainage as needed,” and to “place aggregate up to
the building site.” The Agreement also contains a provision labeled “Lump Sum Payment
$50,000.00,” requiring appellee to pay appellant Twenty-Five Thousand Dollars ($25,000.00) “at
start,” and Twenty-Five Thousand Dollars ($25,000.00) “upon completion and acceptance.”
Hocking App. No. 13CA4 3
{¶ 6} After the parties executed the Agreement, appellee submitted its bid to ODOT and
was awarded the Project in July 2011. In January 2012, appellee notified appellant that it would
not be using the Property to stage its operations on the Project or to dump fill dirt excavated from
the Project site. Appellee then proceeded to dump fill dirt from the Project on property owned
by the State of Ohio. The Property was never used, nor was it ever disturbed during appellee’s
completion of the Project. Appellee never paid the Fifty Thousand Dollars ($50,000.00) to
appellant.
{¶ 7} Appellant filed a complaint in the Hocking County Court of Common Pleas
against appellee for breach of contract alleging damages of Fifty Thousand Dollars ($50,000.00),
plus interest and costs. Appellee filed a motion for judgment on the pleadings. Appellant
responded with a memorandum contra and a motion for summary judgment. The trial court
converted appellee’s motion for judgment on the pleadings to a motion for summary judgment.
The trial court ultimately entered judgment on January 4, 2013, overruling appellant’s motion for
summary judgment and sustaining appellee’s motion for summary judgment. The trial court
found, inter alia, that a “review of the language of the contract leads to the conclusion that the
intent of the parties was that the $50,000.00 was not due until and unless the property was used.”
Appellant timely appealed the judgment of the trial court.
{¶ 8} Because appellant’s two assignments of error are interrelated, we will address
them together.
{¶ 9} Both assignments of error challenge the trial court’s rulings on the parties’ motions
for summary judgment. We review the trial court’s decision on a motion for summary judgment
de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12.
Hocking App. No. 13CA4 4
Accordingly, we afford no deference to the trial court’s decision and independently review the
record and the inferences that can be drawn from it to determine whether summary judgment is
appropriate. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. No. 11CA3277, 2012-Ohio-
2464, ¶ 12; Grimes v. Grimes, 4th Dist. No. 08CA35, 2009-Ohio-3126, ¶ 16.
{¶ 10} Summary judgment is appropriate only when the following have been
established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is
entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one
conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV,
Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion
for summary judgment, the court must construe the record and all inferences therefrom in the
nonmoving party’s favor. Civ.R. 56(C). The party moving for summary judgment bears the
initial burden to demonstrate that no genuine issues of material fact exist and that they are
entitled to judgment in their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). Once that burden is met, the nonmoving party then has a reciprocal
burden to set forth specific facts to show that there is a genuine issue for trial. Id.
{¶ 11} Furthermore, in order to succeed on a breach of contract claim, the plaintiff must
demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his obligations; (3) the
defendant breached his obligations; and (4) damages resulted from this breach. Chaney v.
Ramsey, 4th Dist. No. 98CA614, 1999 WL 217656, *5 (Apr. 7, 1999), citing Doner v. Snapp, 98
Ohio App.3d 597, 600, 649 N.E.2d 42 (2nd Dist.1994). “ ‘[B]reach,’ as applied to contracts is
defined as a failure without legal excuse to perform any promise which forms a whole or part of
a contract, including the refusal of a party to recognize the existence of the contract or the doing
of something inconsistent with its existence.” Natl. City Bank of Cleveland v. Erskine & Sons,
Hocking App. No. 13CA4 5
Inc., 158 Ohio St. 450, 110 N.E.2d 598 (1953), paragraph one of the syllabus. “ ‘When the facts
presented are undisputed, whether they constitute a performance or a breach of a written
contract, is a question of law for the court.’ ” Koon v. Hoskins, 4th Dist. No. 95CA497, 1996
WL 30018, *7 (Jan. 24, 1996), fn. 5, quoting Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241
(1939), paragraph five of the syllabus.
{¶ 12} Here, both parties agree that the Agreement is clear and unambiguous. It is
further undisputed that appellee did not utilize appellant’s land in the performance of its Project
duties despite appellant having made the Property available for use. Thus, whether appellant
may enforce the payment obligation (“Lump Sum Payment” provision) through this breach of
contract action rests upon a determination of whether, as a matter of law, the language of the
Agreement contained a condition precedent to performance, or alternatively, a mutual exchange
of promises.1
{¶ 13} If the Agreement contains an exchange of promises, then appellant may pursue a
remedy for its breach. Where, however, the formation of a contract is dependent upon a
condition precedent, such condition must be performed before the agreement becomes effective.
“A condition precedent is an occurrence that must take place before a contractual obligation
becomes effective.” Karr v. JLH of Athens, Inc., 4th Dist. No. 01CA16, 2001 WL 688543, *13
(June 12, 2001). Thus, “[i]f a condition precedent is not met, a party is excused from performing
the duty promised under the contract.” Id. “The determination of whether a contractual
provision ‘is a condition precedent or merely a promise to perform is a question of the parties’
1
The interpretation of a written contract is a matter of law. Karr v. JLH of Athens, Inc., 4th Dist.
No. 01CA16, 2001 WL 688543, *13 (June 12, 2001), fn. 30. In construing a written contract,
the primary objective is to ascertain the intent of the parties. Hoskins, 1996 WL 30018 at *5. “If
a contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue
of fact to be determined.” Id.
Hocking App. No. 13CA4 6
intent.’ Intent is best determined ‘by considering the language of a particular provision, the
language of an entire agreement, or the subject matter of an agreement.’ ” Adkins v. Bratcher,
4th Dist. No. 07CA55, 2009-Ohio-42, ¶ 32, quoting Hiatt v. Giles, 2nd Dist. No. 1662, 2005-
Ohio-6536, ¶ 23. “ ‘Condition precedents are not favored by the law, and whenever possible
courts will avoid construing provisions to be such unless the intent of the agreement is plainly to
the contrary.’ ” Id.
{¶ 14} Appellee argues that use of appellant’s Property is a condition precedent to its
obligation to pay under the Agreement. Appellant, on the other hand, contends that nothing in
the Agreement made the payment obligation contingent upon actual use of the Property. Instead,
appellant argues that the Agreement unambiguously imposed a legal duty on appellee to make
payment under the Lump Sum Payment provision upon his making of the Property available for
appellee’s use.
{¶ 15} The trial court determined that appellee was not required to pay under the
Agreement unless or until it actually made use of the Property. The trial court then concluded
that because appellee chose not to use the Property, the Agreement had not been breached.
{¶ 16} In support of its argument that its obligation to pay under the Agreement was
conditioned upon the use of the Property, appellee points to two provisions. First, it points to
paragraph one of the Agreement which states: “The Land Owner grants to the Contractor
permission to establish a staging area for basing operations associated with the construction
project including storage of materials, equipment and other pertinent items of work.” (Emphasis
added.) Appellee contends that use of the word “permission” demonstrates the parties’ intent
that it was permitted, not required or obligated, to use the Property. Next, appellee points to the
Hocking App. No. 13CA4 7
Lump Sum Payment provision, and argues that the words making payment due “at start” and
“upon completion” create express conditions precedent to its payment obligations.
{¶ 17} Appellee also contends that the subject matter of the Agreement supports a
finding of condition precedent, because fulfillment of the agreement “contemplated significant
use, disruption and alteration to [appellant’s] property had [appellee] used the Property.”
Appellee contends that interpreting the Agreement to require appellee to pay appellant despite
never having used, disturbed, or altered the Property would make the agreement unfair and
unreasonable; and would give the Agreement no meaning or purpose.
{¶ 18} In contrast, appellant argues that the four corners of the Agreement contains no
conditional language; but rather, clearly and unambiguously defines the contractual obligations
of the parties. Appellant also disputes that the use of the words “1/2 at start $25,000”, and “1/2
upon completion and acceptance $25,000” creates an express condition precedent. Appellant
contends that placement of this language under a section of the Agreement labeled “Lump Sum
Payment” “speaks solely to the timing of the payment of the contract price.” Appellant also
argues that appellee mischaracterizes the use of the word “permission”; and alleges that the word
is actually used to describe his obligations, not to modify the obligations of appellee. In support,
appellant points to the surrounding provisions and notes that the two paragraphs immediately
following the paragraph in which the word “permission” is used, relate solely to the obligations
of the appellant and have no bearing on the obligations of appellee.
{¶ 19} Applying the rules of interpretation set forth above, we conclude that the trial
court erred when it determined that appellee was not obligated to perform under the Agreement
until or unless the Property was used. As an initial matter, we reject appellee’s argument that the
Hocking App. No. 13CA4 8
Lump Sum Payment provision of the Agreement expressly made the use of the Property a
condition precedent to its payment obligation. Rather, we read the provision as an unambiguous
obligation of appellee to make payment in exchange for appellant making his Property available
for use during the duration of the ODOT Project. Put another way, the Lump Sum Payment
provision sets forth an unconditional promise by the appellee to perform – i.e., a promise to
make payment of Fifty Thousand Dollars ($50,000.00). The words “at start” and “upon
completion,” merely set forth the time that appellee was required to make payment. Had the
parties intended to make payment conditional upon appellee’s actual use of the Property, they
easily could have inserted language to that effect. We find that the Lump Sum Payment
provision is not explicit enough to indicate that the parties intended to create a condition
precedent.
{¶ 20} We also reject appellee’s argument that use of the word “permission,” in
paragraph one of the Agreement, demonstrates the parties’ intent to create a conditional contract.
As appellant points out in its reply brief, paragraph one is contained in a portion of the
Agreement that sets forth the duties and obligations of appellant. Thus, it is clear when reading
the provision in the context of the entire contract that use of the word “permission” is not
intended to grant appellee discretion in deciding whether to use the Property; but rather to
expressly set forth the promise of appellant to make the Property available to appellee.
{¶ 21} Moreover, a review of the entire Agreement further evidences an intent of the
parties to create an unconditional contract. For instance, the express terms of the Agreement
requiring appellee to place an embankment of 120,000 cubic yards, to strip and replace topsoil,
to grade and seed all disturbed areas, to provide positive drainage, and to place aggregate up to
building site, are all drafted as assurances and declarations. There is no language modifying
Hocking App. No. 13CA4 9
these obligations or evidencing an intent to make the obligations conditional. In fact, nowhere in
the Agreement will one find language that is typical of a conditional contract; i.e., nowhere in the
Agreement can be found the words “condition” or “conditional,” “contingent,” “subject to,”
“unless,” and etc…
{¶ 22} Finally, we also disagree with appellee’s argument that the subject matter of the
Agreement evidences an intent of the parties’ that the Agreement be conditional. The
Agreement is titled “Construction Site Agreement.” The introductory recital states that the
Agreement concerns “a certain construction contract between the [George J. Igel & Co., Inc.]
and Ohio Dept. of Transportation in Hocking County, Ohio, designated as ODOT 110417.” The
Agreement was clearly executed with the understanding that use of appellant’s Property was
necessary in order for appellee to fulfill its Project obligations with ODOT. Accordingly, the
subject matter of the agreement evidences an intent that the Agreement was unconditional, and
of vital importance to appellee’s ability to perform its contract with ODOT.
{¶ 23} Appellee also advances the argument that the timing of the Agreement execution
evidences the parties’ intent to create a conditional contract. More specifically, appellee argues
that the parties’ could not have intended that appellee was obligated to use the Property because
at the time the Agreement was executed, appellee had yet to even bid on the ODOT contract. In
essence, appellee is asking the court to consider parol evidence in support of its contention that
its obligations under the Agreement were conditioned upon use of the Property.
{¶ 24} “ ‘While parol evidence is inadmissible to vary the unambiguous terms of a
written contract, it is admissible to establish a condition precedent to the existence of a contract.’
” Hiatt, 2005-Ohio-6536 at ¶ 31, quoting Riggs v. Std. Slag Co., 9th Dist. No. 16199, 1993 WL
Hocking App. No. 13CA4 10
473817, *1 (Nov. 10, 1993). However, “[e]ven a condition precedent may not be shown by
parol evidence when the condition is inconsistent with the express terms of the writing. When
the subject matter of a condition precedent is dealt with in the written instrument, in any form,
the condition may not be shown by parol evidence to be different from the manner in which it is
expressed in the writing.” Id. at ¶ 32. Here, we have already determined that the Agreement
unambiguously imposes on appellee a contractual duty to perform. Because the Agreement
speaks specifically to the duties of the parties’, any parol evidence offered to prove a contingent
relationship would contradict the express terms of the Agreement. Even more, the Agreement
contains an integration clause which states that: “It is agreed that the terms and conditions of this
agreement are fully covered in the foregoing and that any oral or written statements made by
either party or agents, not set forth herein, are not binding on the parties and are not considered
as part of this agreement.” As such, reliance upon parol evidence is inappropriate in the case at
hand.
{¶ 25} In sum, we find that use of the Property was not a condition precedent to
appellee’s duty to perform under the Agreement. A contract existed; appellant fulfilled his
obligations under the contract; and appellee undisputedly failed to perform its obligations under
the contract. However, we believe that genuine issues of material fact exist with respect to
whether damages resulted from the breach. The trial court did not commit error by denying
appellant’s motion for summary judgment as damages still need to be proven to succeed on a
breach of contract claim. However, the trial court did err in granting appellee’s motion for
summary judgment. The trial court’s judgment is hereby reversed and this cause is remanded so
that a hearing may be held regarding damages.
Hocking App. No. 13CA4 11
{¶ 26} Based upon the foregoing, we sustain appellant’s first assignment of error and
overrule appellant’s second assignment of error. We reverse the judgment of the Hocking
County Court of Common Pleas; and we remand this matter to the trial court so that further
proceedings may be held regarding the damages.
JUDGMENT REVERSED AND CAUSE REMANDED.
Hocking App. No. 13CA4 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED.
Appellee shall pay the costs herein taxed. The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County
Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this
entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment and Opinion.
McFarland, P.J.: Dissents.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1745190/ | 998 So. 2d 622 (2008)
CALAMIA
v.
STATE.
No. 5D08-640.
District Court of Appeal of Florida, Fifth District.
December 31, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614764/ | 497 F.Supp. 519 (1980)
Dean A. PHEGLEY, Petitioner,
v.
James GREER, Warden, and William J. Scott, Attorney General of the State of Illinois, Respondents.
No. 80-3071.
United States District Court, C. D. Illinois, Springfield Division.
September 22, 1980.
*520 Dean A. Phegley, pro se.
Tyrone C. Fahner, Atty. Gen., Suzan Sutherland, Asst. Atty. Gen., Springfield, Ill., for respondents.
ORDER
J. WALDO ACKERMAN, District Judge.
In 1974, petitioner was convicted of murdering a two-year-old child and sentenced to fifty to one-hundred years in the penitentiary. Petitioner was also found guilty of involuntary manslaughter and endangering the life and health of a child. The verdicts for these two offenses were set aside. His conviction was affirmed and all available state remedies have been exhausted. Petitioner now seeks habeas corpus relief on the grounds that (1) the evidence produced at the trial failed to establish petitioner's guilt of the offense of murder; (2) the jury returned inconsistent verdicts, finding petitioner guilty of both involuntary manslaughter and murder; (3) the sentence of fifty to one-hundred years was so excessive as to deny petitioner due process and equal protection; and, (4) the trial court's failure to appoint a court reporter to record the testimony at the preliminary hearing deprived petitioner of due process and equal protection.
Pursuant to 28 U.S.C. § 2254(a), this Court may entertain an application for a writ of habeas corpus only on the ground that petitioner is in custody in violation of the Constitution or laws or treaties of the United States. His contention that his sentence was so excessive as to deny him due process and equal protection does not meet this standard. The sentence was within the range prescribed by statute and does not deprive petitioner of any constitutionally protected right. The severity of a sentence is not sufficient grounds for habeas corpus relief. United States ex rel. Sluder v. Brantley, 454 F.2d 1266, 1269 (7th Cir. 1972). See also, Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980). Accordingly, this claim for relief is denied.
Petitioner also contends that his convictions for both murder and involuntary manslaughter are inconsistent and therefore he is entitled to a new trial. This claim does not entitle petitioner to relief, again because no constitutional right has been infringed. Furthermore, in Illinois, the crimes of murder and involuntary manslaughter do not require proof of different mental states. The only distinction between the crimes is the degree to which a defendant's acts risk death or great bodily harm. See People v. Johnson, 33 Ill.App.3d 168, 337 N.E.2d 240 (1975). Consequently, as the Illinois Appellate Court for the Fourth District noted, there is nothing in the nature or elements of either crime to render a verdict finding defendant guilty of both murder and involuntary manslaughter inconsistent.
Petitioner next challenges his conviction on the ground that the evidence failed to establish beyond a reasonable doubt that he was guilty of murder. The United States Supreme Court recently set forth the applicable standard of review for such a claim. In Jackson v. Virginia, 443 *521 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), the Court stated that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
In Illinois, a person who kills an individual without lawful justification commits murder if, in performing the acts which cause death "[h]e knows that such acts create a strong probability of death or great bodily harm ..." Ill.Rev.Stat. ch. 38 § 9-1. The testimony at trial showed that petitioner was a six foot, three inch, twenty-one year old who weighed between 220 and 230 pounds. Record of Proceedings (hereinafter R.) at 265. The victim was a two-and-one-half year old child. Petitioner forced food down the child's throat, struck him and shook him, causing his head to snap back and forth. R. at 41-45. The child died three days later from a blood clot on the brain.
Upon reviewing the entire record, I find that there was sufficient evidence from which a jury could conclude the petitioner knew his conduct created a strong probability of death or great bodily harm. Accordingly, this claim for relief must be denied.
Petitioner's final contention relates to his request for the presence of a court reporter, at State expense, for the purpose of recording testimony at the preliminary hearing. Petitioner, an indigent, made a timely request for the appointment of a court reporter so that the preliminary hearing could be transcribed. See Common Law Record (hereinafter C.) at 15. The basis for the request was that the preliminary hearing was a "critical stage" in the criminal process and that "privately retained counsel would desire a copy of the transcript of this critical stage and would be able to hire a Court Reporter to transcribe the proceedings." C. at 15. In the alternative, petitioner requested that the preliminary hearing be transferred from the Associate Judge to a Circuit Judge who would have a court reporter available.
The request was denied on the ground that a court reporter would not be present for any defendant, indigent or not, because no appropriations are made for such services. C. at 17. The Illinois Appellate Court for the Fourth District affirmed the denial of petitioner's request for a court reporter, noting that although defendants who can afford to hire a private reporter may do so, "Macon County uniformly does not provide court reporters at preliminary hearings." Respondents' Exhibit C at 2. The Appellate Court held that since petitioner failed to demonstrate any prejudice resulting from the absence of a court reporter at his preliminary hearing, no violation of due process or equal protection occurred.
In order to put petitioner's claim in the proper context, it should be noted that the 1970 Illinois Constitution provides that defendants are entitled to a preliminary hearing to establish probable cause unless the initial charge is brought by grand jury indictment. Ill.Const. art. 1, § 7 (1970). The preliminary hearing in Illinois is a "critical stage" in the prosecution to which the right to counsel attaches. People v. Adams, 46 Ill.2d 200, 205-206, 263 N.E.2d 490 (1970), aff'd, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). See also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).
Petitioner's argument regarding the right to have the preliminary hearing recorded is two-pronged. First, he contends that the refusal to record the testimony violated his due process rights by denying him access to tools necessary to conduct his trial effectively. He relies on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), where the Supreme Court delineated its reasons for requiring the presence of counsel at preliminary hearings. "[T]he skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial." 399 U.S. at 9, 90 S.Ct. at 2003. Petitioner contends that the court's failure *522 to record the testimony denied him the ability to impeach witnesses at trial and thus deprived him of the effective assistance of counsel.
Second, petitioner claims that to refuse to appoint a court reporter for an indigent defendant denies him equal protection of the laws. For this proposition, plaintiff relies primarily upon Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), where the United States Supreme Court held that an indigent defendant may not be denied a transcript of his preliminary hearing because he is unable to pay for it.
Unfortunately, respondents in their legal memoranda did not sufficiently develop these issues, according only one paragraph of their motion to dismiss to these points. Petitioner's contentions raise substantial problems with Macon County's practice of failing to record the testimony elicited at preliminary hearings. After exhaustive research, however, I conclude that petitioner's request for habeas corpus relief must be denied.
In Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), the Supreme Court held that the denial of a preliminary hearing transcript to an indigent defendant violated the Equal Protection Clause. There, a record of the preliminary hearing existed and the petitioner had made a timely request for a free transcript. However, a New York statute provided that a transcript would be furnished upon payment of a certain fee. In reaching its conclusion, the Court stated, "Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Id., at 42, 88 S.Ct. at 196 citing Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also, Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). And, in People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294, cert. denied, 409 U.S. 979, 93 S.Ct. 331, 34 L.Ed.2d 242 (1972), the Illinois Supreme Court held the denial of a transcript of a recorded preliminary hearing to an indigent defendant deprived him of equal protection.
The United States Supreme Court, however, has not addressed the precise issue presented here, i. e., whether an indigent defendant has a right to have the testimony at his preliminary hearing either stenographically or mechanically recorded. The courts which have considered this contention have divided on the proper resolution. In Gardner v. United States, 407 F.2d 1266 (D.C. Cir. 1969), the United States Court of Appeals for the District of Columbia Circuit, in the exercise of its supervisory responsibility, ordered the courts in the District of Columbia to record all preliminary hearings either by tape recorder or court reporter. The court's decision was based upon the constitutional status accorded an indigent defendant's right to a transcript by Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967). It stated its rationale as follows:
In some cases denial of a written transcript may in fact be harmless error. But where ... there is any colorable claim of prejudice, it will be impossible for us to find the error harmless if there is no authoritative way for us to discover what actually transpired. Moreover, whereas an erroneous denial of a written transcript is generally remediable, a prejudicial failure even to record the proceedings may often be incurable.
In Brooks v. Edwards, 396 F.Supp. 662, 665 (W.D.N.C. 1974), the district court for the Western District of North Carolina held that a transcript of the preliminary hearing is a "basic tool" of an adequate defense that should not be denied solely because a defendant is indigent. The court there characterized the preliminary hearing as the first exposure of the prosecution's case.
In practice witnesses are less well prepared than at the Superior Court trial stage. In practice, the prosecuting attorney is less well prepared and the testimony is more spontaneous, ingenuous and less studied. The transcript of this evidence *523 provides a basis for attempting to hold witnesses to previous statements or admissions. It also may provide information so that later employed counsel, knowing what was actually said at the hearing, can give the defendant much more pragmatic advice as to his prospects in the later Superior Court trial on the merits. The use of recorded testimony to cross-examine with reference to prior inconsistent statements is an everyday phenomenon ....
It may well be that a transcript of a preliminary hearing is more important than a transcript of the trial itself; until convicted an accused is theoretically presumed innocent, and even small disadvantages can be critical, whereas after the trial that presumption has been dispelled and the use of a trial transcript may be of far less value to the accused.
Id., at 665.
Having set forth its view of the importance of the preliminary hearing, the court went on to find that (1) a preliminary hearing is a critical stage of the prosecution; (2) the rights of a defendant at such hearing must not depend upon his ability to pay for a court reporter's services; (3) a transcript of what is said at the hearing is a "basic tool" of defense of a criminal proceeding; and (4) an indigent defendant has the right to have the testimony recorded and transcribed upon request. Id., at 666. Although the refusal to record and transcribe the preliminary hearing was error of constitutional magnitude, the court found on the facts of the case that the error was harmless.
In Conley v. Dauer, 321 F.Supp. 723 (W.D.Pa. 1970), the district court held that Roberts v. LaVallee, supra, requires that the preliminary hearing proceedings be recorded and transcribed upon request for use by indigent defendants at trial. 321 F.Supp. at 729. The court relied on the defendant's right to have the effective assistance of counsel at a critical stage of the prosecution, and found that the benefits of counsel's presence, enumerated in Coleman v. Alabama, supra, i. e., impeachment and preservation of testimony, could not be attained without a transcript. And concomitantly, a transcript cannot be obtained if the preliminary hearing is not recorded in some fashion. See also, Moses v. Eyman, 328 F.Supp. 1227, 1228 (D.Ariz. 1969).
Other courts, however, have decided this precise question and have reached an opposite conclusion. The respondents rely on Bird v. Peyton, 287 F.Supp. 860 (W.D.Va. 1968), a case decided prior to Coleman v. Alabama, as support for their position that petitioner was not entitled to have his preliminary hearing proceedings recorded. There, the defendant made a timely request to have his preliminary hearing recorded. The district court, in denying the habeas corpus petition, found that the denial of a court reporter did not violate the constitutional rights of the petitioner. The decision was premised on the procedural nature of the preliminary hearing in Virginia, as well as there being no guarantee provided for a preliminary hearing in either the Virginia or United States Constitutions. The court obviously did not consider the preliminary hearing to be a "critical stage" of the prosecution. Therefore, this case is not useful in deciding this matter.
However, the United States Court of Appeals for both the First and Fourth Circuits have considered the issue presently before this Court. The First Circuit in Britt v. McKenney, 529 F.2d 44 (1st Cir. 1976), was faced with an identical factual situation as here. Five indigent Massachusetts plaintiffs were given preliminary hearings in their criminal cases where, according to the court's practice, no record of the testimony was made. Massachusetts, however, permitted parties to supply their own recorders. The plaintiffs sought a declaratory judgment that Massachusetts criminal defendants who were unable to afford stenographers or other means to record the testimony at probable cause hearings were constitutionally deprived by the Commonwealth's failure to create a transcript. The district court declined to grant their request and the court of appeals affirmed.
*524 The court recognized that the Massachusetts probable cause hearing, like that of Illinois, constituted a "critical stage" in the proceedings under Coleman. Relying on the state's ability to proceed by way of indictment rather than preliminary hearing and its ability to cure any errors which may occur at the preliminary hearing by use of a subsequent indictment, the court found there was no affirmative due process obligation to record testimony just because it might be beneficial to a defendant. 529 F.2d at 46.
The court then addressed the plaintiff's equal protection claim, characterizing the issue as "whether there is a constitutional violation in not providing plaintiffs with a transcript when affluent defendants could provide their own". Id., at 47. The court rejected the rationale that the right to the presence of counsel at a preliminary hearing established by the Supreme Court in Coleman v. Alabama, necessitated the recording of testimony. Although the court recognized that if the State recorded preliminary hearings it could not withhold the transcript because of a defendant's indigency, it did not feel that the need for a transcript of a preliminary hearing was great enough to require the state to take affirmative equalizing measures just because some parties were able to record transcripts on their own. Id., at 47. See, Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2446, 41 L.Ed.2d 341 (1974).
The United States Court of Appeals for the Fourth Circuit relied on Britt v. McKenney, supra, in holding that where there is no official transcript available to anyone, with or without a fee, failure to furnish a transcript to an indigent does not violate the equal protection clause. The court in Faison v. Zahradnick, 563 F.2d 1135 (4th Cir. 1977), cert. denied, sub nom., 436 U.S. 908, 98 S.Ct. 2241, 56 L.Ed.2d 406 (1978) reviewed the state court cases which discussed the right of an indigent to a transcript of his preliminary hearing and concluded if, by statute or court rule, the testimony at the preliminary hearing must be transcribed and is available on payment of a fee, the States hold that the indigent has the right to a free transcript. On the other hand, where recording is not required by statute or rule, failure to record does not violate his equal protection rights since an indigent is not entitled to more than anyone else. 563 F.2d at 1136 n.3 (collecting cases). See also, People v. Hanson, 44 Ill.App.3d 977, 982, 3 Ill.Dec. 778, 359 N.E.2d 188 (1977); People v. Lewis, 37 Ill.App.3d 870, 875, 346 N.E.2d 377 (1976).
It is obvious from the authorities discussed above that the decision made here is not free from question. Certainly, the preferred approach would be for the State to record in some manner the testimony at all preliminary hearings. However, as the Supreme Court noted in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the fact that certain services might benefit an indigent defendant does not mean that the service is constitutionally required.
The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process.
Id., at 616, 94 S.Ct. at 2447.
Although the weight of authority supports the constitutionality of the issue raised here, as will be discussed below, it is unnecessary to make such a determination in this case. Furthermore, had inconsistencies in testimony occurred, petitioner could have called persons who were present at the preliminary hearing to testify to what was said there, thus completing the impeachment process without the presence of a court reporter. Consequently, petitioner has not been deprived of due process by the absence of a court reporter at the preliminary hearing. See, People v. Hanson, 44 *525 Ill.App.3d 977, 982-83, 3 Ill.Dec. 778, 359 N.E.2d 188 (1977).[1]
Petitioner contends that he wanted the transcript of the preliminary hearing to impeach the mother of the deceased child, the only eyewitness to the beating. He does not allege, however, that any inconsistencies between the testimony at the preliminary hearing and that at trial even occurred. Petitioner was present and represented by counsel at his preliminary hearing. A review of the cross-examination of the child's mother at trial discloses that there was no attempt to introduce any inconsistent statement. Further, the mother's testimony was corrborated by a witness to whom defendant had described the beating. R. at 117-120. Thus, any error in failing to record the preliminary hearing was harmless and the writ will be denied on this ground. See, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also, Brooks v. Edwards, 396 F.Supp. 662 (W.D.N.C.1974); Moses v. Eyman, 328 F.Supp. 1227, 1228 (D.Ariz.1969); cf. United States v. Roach, 590 F.2d 181, 184 (5th Cir. 1979).
Consequently, for the reasons stated above, the application for habeas corpus relief is denied. However, because petitioner has raised a substantial question, this Court will issue to petitioner a certificate of probable cause to enable him to appeal this decision. Petitioner should examine Rules 3 and 4 of the Federal Rules of Appellate Procedure as well as Title 28 U.S.C. § 2253.
NOTES
[1] The United States Supreme Court has recognized that a verbatim transcript is not required everytime an indigent defendant requests one. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Court held that a substitute may suffice even for a trial transcript in some cases.
We do not hold, however, that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. For example, it may be that bystanders' bills of exceptions or other methods of reporting trial proceedings could be used in some cases.
351 U.S. at 20, 76 S.Ct. at 591 (citation omitted). See, Miller v. United States, 317 U.S. 192, 198, 63 S.Ct. 187, 190, 87 L.Ed. 179 (1942) for a detailed description of a bill of exceptions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614811/ | 23 So.3d 1031 (2009)
Mary Ann Charles CALBERT
v.
Orlando J. BATISTE.
No. 09-514.
Court of Appeal of Louisiana, Third Circuit.
November 4, 2009.
*1032 Guy Olden Mitchell, III, Attorney at Law, Ville Platte, LA, for Intervenor Appellant, Major Patrick Calbert.
Paul Daniel Gibson, John Blake Boudreaux, Gibson, Gruenert, et al., Lafayette, LA, for Defendant Appellee, Lafayette City-Parish Consolidated Government.
Randal Lee Menard, Attorney at Law, Lafayette, LA, for Plaintiff Appellee, Mary Ann Charles Calbert.
Laura Lee Putnam, Assistant Attorney General, Louisiana Department of Justice, Lafayette, LA, for Defendant Appellee, State of Louisiana, Dept. of Transportation & Development.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
SAUNDERS, Judge.
This case addresses whether the exceptions of lis pendens and prescription were properly granted in a suit instituted by Major Calbert (hereinafter referred to as "Major") asserting wrongful death and survival actions.
For the following reasons we affirm in part and reverse in part the trial court's granting of the exceptions.
FACTS AND PROCEDURAL HISTORY:
On July 23, 2007, while walking along Louisiana Highway 14, Raymond Calbert (hereinafter referred to as "Raymond") was struck by a vehicle driven by Orlando Batiste (hereinafter referred to as "Batiste"). Raymond subsequently died the same day as a result of the injuries he sustained in the accident. On July 14, 2008, an action was filed on behalf of Mary Ann Charles Calbert (hereinafter referred to as "Mary Ann"), individually and on behalf of her minor son, Rashaun Devon Calbert (hereinafter referred to as "Rashaun"), *1033 against Batiste. The suit is marked as Docket No. 2008-4022-B. Mary Ann is the surviving spouse of Raymond, and Rashaun is their minor child together. Not included as a party in the suit was Major, the son of Raymond and Patricia Dillon Calbert.
Major, on August 28, 2008, filed his own suit asserting wrongful death and survival action claims against Batiste and Appellees, the State of Louisiana Department of Transportation and Development (hereinafter referred to as "DOTD") and Lafayette City-Parish Consolidated Government (hereinafter referred to as "LCG"). The suit was filed separately from that of Mary Ann and Rashaun. Major asserts that the suit was an attempt to intervene in same, but that the caption was inadvertently given an independent docket number-Docket No. 2008-4932-A. Exceptions of prescription, vagueness, and improper service were filed by the defendants.
On December 1, 2008, Major filed a Petition of Intervention in Mary Ann's suit, Docket No. 2008-4022-B, adding DOTD and LCG as defendants along with Batiste. DOTD and LCG filed exceptions of prescription, vagueness, and no cause of action. They also brought an exception of lis pendens, claiming that the existence of Major's first suit, Docket No. 2008-4932-A, prevented him from intervening in the current matter.
On January 12, 2009, the exceptions filed in the separate Major suit, Docket No. 2008-4932-A, were heard by Judge Trahan of the 15th Judicial District Court. Judge Trahan ordered the Major suit to be transferred to the pending Mary Ann suit, Docket No. 2008-4022-B.
On February 17, 2009, the exceptions in the Mary Ann suit (those at issue before this court) were heard by Judge Jules Edwards. Judge Edwards granted the Appellees' exceptions of prescription and lis pendens. The exceptions of vagueness and no cause of action were not considered by the court in light of the granting of the other exceptions. Major then filed a Motion to Reinstate Lawsuit in the separate Major suit, Docket No. 2008-4932-A. Judge Trahan reiterated his order that the matter be transferred to Judge Edwards.
Major now appeals the granting of the exceptions of prescription and lis pendens in the Mary Ann suit, Docket No. 2008-4022-B. He asserts the following assignment of error:
ISSUE:
Whether the trial court erred as a matter of law in granting the exceptions of lis pendens and prescription in this matter.
LAW AND DISCUSSION ON THE MERITS:
Lis Pendens
We will first address the lis pendens exception. Appellees, DOTD and LCG, filed exceptions of lis pendens claiming that the existence of Major's initial suit, Docket No. 2008-4932-A, prevented Major from being able to intervene in the suit originally brought by Mary Ann, Docket No. 2008-4022-B. The trial court agreed and granted the exception. We disagree.
Louisiana Code of Civil Procedure Article 531 reads as follows:
When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution or any of the suits, but the first final judgment rendered shall be conclusive of all.
*1034 The article requires that three elements be satisfied in order for the granting of a lis pendens exception to be proper: (1) There must be two or more suits pending in Louisiana courts; (2) the suits must arise out of the same transaction or occurrence, and; (3) the suits must be made up of the same parties in the same capacities. In the present matter, requirements (2) and (3) are clearly met. The suits are virtually identical and include all the same parties. We find, however, that requirement (1) has been left unsatisfied.
The purpose underlying the lis pendens rules is to protect defendants from having to suffer the costs and burdens of litigating two or more suits when only one is needed to satisfy the dispute. We find that granting the exception in the present matter would be out of character with the article's intent. Major claims that the original suit was brought with the intent of it being an intervention into the suit brought by Mary Ann, but that it was inadvertently given a separate docket number. Whether or not this is true is irrelevant, although there is some indication that there may be some merit to Major's claim considering that he filed a pleading entitled "Petition to Intervene with Petition for Damages and Wrongful Death." What we are concerned with in this matter is the idea of barring a plaintiff from bringing a suit solely because another similar suit existed in name only.
Major's original suit was scheduled to be held in the court of Judge Trahan. Recognizing that the matter should be tried as an intervention into the suit brought by Mary Ann before Judge Edwards, Judge Trahan transferred the suit to that court. The original suit was not going to be heard, and there was no danger of the Appellees having to litigate multiple versions of the same suit. We saw evidence of this when, after Judge Edwards granted the exceptions dismissing Major's case, Major attempted, as a measure of last resort, to revive the suit before Judge Trahan. The request was rejected with the court reiterating that the matter had been transferred. If we were to uphold this exception, we would, in effect, be preventing Major from bringing his suit at all. Therefore, we find that, for the purposes of La.Code Civ. P. art. 531, multiple suits were not pending, and the granting of the lis pendens exception was not proper.
Prescription
Louisiana Civil Code Articles 2315.1 and 2315.2 state that, along with certain other relatives, the surviving children of a person, whose death was caused by the fault, offense, or quasi-offense of another, may bring wrongful death and survival actions within one year of the decedent's death.
Art. 2315.1 Survival Action
A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
2315.2 Wrongful death action
A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
. . . .
B. The right of action granted by this Article prescribes one year from the death of the deceased.
*1035 In the present matter, Major, without prescription being interrupted, would have had until July 23, 2008 to have brought his suit for wrongful death and survival damages.
Generally, the party pleading prescription bears the burden of proof. However, when, on the face of the petition, it appears that prescription has run, the burden shifts to the plaintiff to prove that prescription has been interrupted. Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La. 1993). In the present matter, it appears that such is the case. Since Major did not file his intervening suit until December 1, 2008, the burden of disproving prescription is his to bear.
The initial suit filed by Mary Ann, in which Major is seeking to intervene, was brought against Batiste only. Louisiana Code of Civil Procedure Article 1091 directs that:
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.
Here, Major is joining with the plaintiff in demanding the same or similar relief against the defendant. For the purposes of this discussion, we will consider only Major's claim of wrongful death damages. The survival action will be addressed later. As the one year liberative prescription period has already run against Major, we must consider whether the original petition brought by Mary Ann interrupted prescription for the benefit of an untimely intervening suit. To determine this, we look to the test set out by the Louisiana Supreme Court in Giroir v. South Louisiana Medical Center Div. Of Hospitals, 475 So.2d 1040 (La.1985). The test was originally used to determine whether an amended petition adding or substituting a plaintiff should be allowed to relate back to the date of the filing of the original petition, but multiple courts have used the same test in considering prescribed intervening suits. Riddle v. Simmons, 626 So.2d 811 (La.App. 2 Cir.1993), writ denied, 93-2920 (La.4/29/94), 637 So.2d 459; Harvill v. Arnold, 34,409 (La. App. 3 Cir. 1/26/01), 777 So.2d 1271.
[A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense. Giroir, 475 So.2d at 1044 (citations omitted).
In examining the four Giroir factors, it is clear that Major's intervening wrongful death claim against Batiste relates back to the time of the original filing by Mary Ann. The claims are virtually identical and arise from the same occurrence-the accident on Highway 14 that ultimately lead to the death of Raymond. Considering that the original suit was brought by Raymond's surviving spouse and minor child, it should have been anticipated that Raymond's other children might *1036 choose to enter the suit. Major is not a wholly new or unrelated party. He is suing in the same capacity as Mary Ann and Rashaun. For these reasons, Batiste would not be prejudiced in preparing and conducting a defense against Major, as the defense put forth would be identical to the one that would be presented against Mary Ann and Rashaun.
While we find that Major's wrongful death action against Batiste has not prescribed, his claims against the Appellees, DOTD and LCG, are not as clear. In considering this issue, we keep in mind that "[p]rescriptive statutes, under our jurisprudence, are strictly construed in favor of maintaining rather than barring actions. Taylor v. Liberty Mutual Ins. Co., 579 So.2d 443 (La.1991); Montminy v. Jobe, 600 So.2d 121 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992)." Riddle, 626 So.2d at 814.
Major argues that the original suit filed by Mary Ann interrupted prescription as to all the defendants because all the defendants are solidarily liable. In support of his position, Major points us to Sam v. Sorrel Electrical Contractors, Inc., 525 So.2d 244 (La.App. 1 Cir.), writ denied, 532 So.2d 133 (La.1988) and Fifth District Finance Co. v. Harvey, 189 So. 622 (La.App.Orleans 1939). Appellee, LCG, correctly points out that the jurisprudence relied on in Major's argument is outdated and inapplicable to the current case. We nonetheless find merit in Major's conclusion, although for different reasons. Major erred in contending that DOTD and LCG were liable in solido. Louisiana Civil Code Article 2324 addresses the liability of solidary and joint obligors:
A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation....
C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.
DOTD and LCG are not alleged to have conspired to commit an intentional or willful act. For the purposes of this litigation they are joint tortfeasors along with Batiste. Recent case law and the above article clearly show that when prescription is interrupted as to one joint tortfeasor, it is interrupted as to all joint tortfeasors. Wheat v. Nievar, 07-0680 (La.App. 1 Cir. 2/08/08), 984 So.2d 773; Boquet ex. rel. Billiot v. SWDI, LLC, 07-0738 (La.App. 1 Cir. 6/06/08), 992 So.2d 1059, writ denied, 08-2086 (La.9/04/09), 17 So.3d 958. "Thus, the addition of additional defendants in a suit will relate back to the date of the original if the defendants are joint tortfeasors." Id. at 1063.
Appellees, DOTD and LCG, contend that before prescription can be interrupted, there must be an analysis determining whether the claims relate back to the time of the original petition using the four factors established in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). We disagree. "Once a plaintiff establishes that a joint or solidary tortfeasor has been timely sued, consideration of the concept of relating back to interrupt prescription is not necessary. See Etienne v. National Automobile Ins. Co., 99-2610, p. 7 (La.4/25/00), 759 So.2d 51, 56-57; Perkins v. Willie, XXXX-XXXX, pp. 4 & 6 (La.App. 1 Cir. 4/2/04), 878 So.2d 574, 576 & 577-578." Wheat, 984 So.2d at 776. Thus, we find that in light of our determination that prescription was interrupted as to Major's wrongful death claim against Batiste, his *1037 wrongful death claims against the joint tortfeasors, DOTD and LCG, have likewise been interrupted.
The final issue before this court is whether prescription has run as to Major's survival action. We find that it has. The Supreme Court of Louisiana has made it clear that survival actions and wrongful death actions are separate and distinct causes of action.
We conclude that each of these actions is a separate and distinct cause of action. Although both actions arise from a common tort they are, nevertheless, separate and distinct because each arises at a different time. The survival actions [sic] comes into existence simultaneously with the commission of the tort and is transmitted to the beneficiaries upon the victim's death. The wrongful death action does not arise until the victim dies. Each right addresses itself to the recovery of damages for totally different injuries and losses. The survival action permits recovery only of the damages suffered by the victim from the time of injury to the moment of death. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter.
Guidry v. Theriot, 377 So.2d 319, 322 (La.1979), abrogated on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983).
The court in Guidry went on to hold that when prescription is interrupted as to a survival action, that interruption has no bearing on the running of prescription for the wrongful death action. It follows that the same principle applies when prescription has been interrupted as to the wrongful death action but not the survival action.
We have expressly held that the survival and wrongful death actions are separate and distinct causes of action, entirely independent of each other. We also expressly hold that regardless of whether or not suit is instituted by a tort victim during his life, his named beneficiaries must bring their wrongful death action within one year of the victim's death pursuant to the provisions of La.C.C. Article 3536. This is so because they do not bring the wrongful death action as substituted parties, in which capacity they may bring the survival action to recover the victim's damages. They must bring their wrongful death action as original plaintiffs suing on a different cause of action which arose upon the victim's death.
Guidry, 377 So.2d at 327-328.
In the matter before us, the decedent died on July 23, 2007. Mary Ann properly filed her wrongful death claim on July 14, 2008. Major's intervening suit was not brought until December 1, 2008. For reasons already discussed, the wrongful death action instituted by Mary Ann interrupted prescription as to Major's wrongful death action, but we find that it had no effect on the survival action in question. Thus, we find that the exception of prescription was correctly granted with regard to Major's survival action.
CONCLUSION:
For reasons discussed above, we find that the trial court's granting of the diclinatory exception of lis pendens was improper. We further find that the trial court's granting of the peremptory exception of prescription as to Major's wrongful death claims against DOTD and LCG was similarly improper. We do, however, agree with the trial court's finding that Major's survival action has prescribed.
AFFIRMED IN PART, REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614813/ | 497 F.Supp. 362 (1980)
William L. GUNTER and Camille S. Gunter, Plaintiffs,
v.
Theodore M. HUTCHESON et al., Defendants.
Civ. A. No. C76-1702A.
United States District Court, N. D. Georgia, Atlanta Division.
September 3, 1980.
*363 Harold L. Russell, Thomas W. Rhodes, and Jane K. Wilcox, Gambrell, Russell & Forbes, Atlanta, Ga., for plaintiffs.
J. D. Fleming, Jr., John A. Chandler and H. Wayne Phears, Sutherland, Asbill & Brennan, Atlanta, Ga., Myers N. Fisher, Robert J. Green, Legal Div. FDIC, Washington, D.C., Jerry Bonneau, FDIC, Chattanooga, Tenn., for defendants.
ORDER OF COURT
MOYE, Chief Judge.
Presently before the Court is the motion of the defendant FDIC to reconsider that part of the Court's order of May 13, 1980, 492 F.Supp. 546, 562 (N.D.Ga.1980), in which it denied the FDIC's motion for entry of final judgment. In that order the Court *364 also granted plaintiffs' motion for certification of immediate appeal, pursuant to 28 U.S.C. § 1292(b), of the Court's non-final order of March 4, 1980, 492 F.Supp. 546 (N.D.Ga.1980), granting the FDIC's motion for summary judgment. As grounds for the instant motion, the FDIC contends that certification and direction for entry of judgment under Fed.R.Civ.P. 54(b) is the only proper avenue for appeal of the March 4 order. That contention actually raises two distinct questions: (1) whether certification and direction for entry of judgment under Rule 54 is appropriate, and (2) whether certification under section 1292(b) is precluded where a court enters an order which would be final as to one of multiple parties but for the failure of the Court to grant a Rule 54(b) certification.[1] For the reasons stated below, the Court believes that Rule 54(b) certification is inappropriate in this case and that section 1292(b) certification is proper; accordingly, the motion for Rule 54(b) certification remains DENIED.
I. CERTIFICATION UNDER RULE 54(b)
The Court previously denied the motion for Rule 54 certification because to do so might subject the plaintiffs to a large bond on appeal. Such a possibility presents a "just reason for delay" of the entry of judgment in this case, because the granting of summary judgment to the FDIC required the Court to decide several novel and difficult questions of law.
The FDIC relies upon Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980), in arguing that this Court should consider the economic loss to the FDIC during the pendency of the appeal, which results from the failure to enter judgment. In Curtiss-Wright the district court made a Rule 54(b) certification and the Third Circuit reversed. A unanimous Supreme Court then also reversed, strongly emphasizing that 54(b) determinations fall within the sound discretion of the district court. Id. 100 S.Ct. at 1466-67. Chief Justice Burger observed that Rule 54(b) requests should not be "granted routinely" and that "because the number of possible situations is large, we are reluctant either to fix or sanction narrow guidelines for the district courts to follow." Id. 100 S.Ct. at 1466. "[T]he task of weighing and balancing the contending factors is peculiarly one for the trial judge who can explore all facets of a case." Id. 100 S.Ct. at 1467.
In Curtiss-Wright the district court considered several economic factors:
The difference between the prejudgment and market interest rates was not the only factor considered by the District Court. The court also noted that the debts in issue were liquidated and large, and that absent Rule 54(b) certification they would not be paid for "many months, if not years" because the rest of the litigation would be expected to continue for that period of time. The District Judge had noted earlier in his opinion on the merits of the release clause issue that respondent General Electric contested neither the amount of the debt nor the fact that it must eventually be paid. App., at 164a-172a. The only contest was over the effect of the release clause on the timing of the payment, an isolated and strictly legal issue on which summary judgment had been entered against respondent.
Id. Curtiss-Wright is distinguishable from this case; the only factors of the several mentioned in the quoted passage which are present here are the interest rate differential and the agreement as to amount owed. Both of those factors should be present in most cases involving asserted liability on a note, and in this case, unlike in Curtiss-Wright, plaintiffs vigorously contest liability on the note in issue.
The Court believes that in this case the balance of equities concerning delay in the *365 entry of judgment favors the Gunters. As was indicated in the previous order, the Court is strongly persuaded in this regard by the fact that the Court was required to address unique and difficult questions in rendering summary judgment in favor of the FDIC. Extensive briefing and oral argument by capable counsel and the Court's own considerable research failed to disclose any binding authority on any of the four issues mentioned in the previous order. Were the issues less difficult or were there fewer difficult issues, the Court would be less inclined to find that there is "just reason for delay" in entering judgment. Thus, the Court does not intend by any means that a finding of "just reason for delay" should automatically follow where the Court has confronted novel and difficult issues. In this case, however, the novelty and difficulty of the issues is such that their significance as a reason for delay outweighs any potential economic loss to the FDIC resulting from failure to enter judgment.
For the foregoing reasons, the Court concludes that there is just reason for delay in the entry of judgment.
II. RULE 54(b) AND SECTION 1292(b)
The FDIC also contends that Rule 54(b) and section 1292(b) are mutually exclusive i.e., that where a court order would be final with respect to one or more of multiple parties but for the lack of a Rule 54(b) certification, the appealability of the order must be determined according to Rule 54(b) and not section 1292(b).
The FDIC has not directly moved for reconsideration of the certification under 1292(b). Indeed, it never even opposed the motion for 1292(b) certification. Rather, it attacks the 1292(b) certification indirectly by saying in essence that the 1292(b) certification is improper because the court should have used Rule 54(b). A major flaw in the FDIC's reasoning is that the Court has already decided that Rule 54(b) certification is not appropriate in this case. The FDIC, of course, disputes that decision, but there must be some situation in which an order, final but for the lack of a Rule 54(b) certificate, is not properly certifiable under Rule 54(b) because there is "just reason for delay" in entering judgment. In that situation, it would preclude immediate appellate review to hold that section 1292(b) certification always is improper for orders which are final but for the Rule 54(b) certification.
Although the Court is not entirely sure of the FDIC's position with respect to section 1292(b), the Court will proceed to address the question of whether Rule 54(b) is the only avenue for immediate appeal where an order would be final with respect to one or more of multiple parties but for the lack of Rule 54(b) certification.
The FDIC relies most heavily on the following statement in the Advisory Committee's Notes with respect to the 1961 amendment to Rule 54:
There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C. § 1292(b), added in 1958, may now be available for the multiple-parties cases here considered. See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960). The Rule 54(b) procedure seems preferable for those cases, and § 1292(b) should be held inapplicable to them when the rule is enlarged as here proposed. See Luckenbach Steamship Co., Inc., v. H. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir. 1960); 1 Barron & Holtzoff, supra, § 58.1, p. 321 (Wright ed. 1960).
28 U.S.C.A.Fed.R.Civ.P. 52 to 58 at p. 247.
The leading commentators on federal procedure make general statements similar to that of the Advisory Committee:
If an order can be made appealable by a Rule 54(b) certificate, it, and not a § 1292(b) certificate, should be sought.
9 Moore's Federal Practice ¶ 110.22[5] at p. 266 (emphasis added) (2d ed. 1975).
Section 1292(b) and Rule 54(b) are mutually exclusive. . . . Therefore, if an order is final under § 1291, 1292(b) cannot apply and resort must be had to Rule 54(b) in the multiple-party or multiple-claim situation.
*366 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2658 at p. 62 (emphasis added) (1973).
Finally, the FDIC points to Civil Aeronautics Board (CAB) v. Tour Travel Enterprises, Inc., 605 F.2d 998, 1003 (7th Cir. 1979) (emphasis added), where the court observed:
Although Rule 54(b) and section 1292(b) are generally considered mutually exclusive avenues to appellate review .. in actions in which it is unclear whether the rule or statute governs, alternative certification is permissible.
Rule 54(b) is applicable in those actions in which the district court adjudicates a matter in a multi-claim or multi-party action that but for the multiple claims or parties would be immediately appealable under 28 U.S.C. § 1291.
This language used by the Seventh Circuit is dicta, because the court determined that the district court's order was not final and that the appeals court had jurisdiction under section 1292(b). More significantly, the language and holding admits of the possibility that 1292(b) may be used in a multi-party case where the court has refused to enter final judgment.
While the above quotations lend some general support to the FDIC's position, case holdings and the conclusions of the commentators quoted above convince the Court that 1292(b) is not necessarily improper in a multi-party case. After noting the above-quoted language from the Advisory Committee Notes, Wright and Miller state that
There may be cases in which use of Section 1292(b) would be warranted even though Rule 54(b) would not apply, either because finality is lacking or because not all the rights or liabilities of one or more parties have been determined. Under those circumstances an appeal under Section 1292(b) should be possible since Rule 54(b) was not intended to be the only avenue to secure review in multiple-party actions in the absence of a final judgment covering the entire action.
10 C. Wright & A. Miller, supra, § 2658 at p. 64 (emphasis added). While this passage does not expressly concern the situation where the Court has, as here, found "just reason for delay," the highlighted language is certainly broad enough to include such a situation. Moreover, in a later volume of their text, Professors Wright and Miller along with Professors Cooper and Gressman make it clear that their position contemplates circumstances like those present here:
Civil Rule 54(b) provides that no judgment disposing of less than all the claims as to all of the parties is final, unless the district court explicitly determines there is no just reason for delay and expressly orders entry of judgment. Since the Rule itself provides that absent such entry of judgment, any order disposing of less than all the claims or parties is not final, § 1292(b) should be available to permit certification and appeal.
16 C. Wright, A. Miller, E. Cooper, E. Gressman, Federal Practice and Procedure, Civil § 3929 at p. 146 (1977).
Likewise, Moore's Federal Practice indicates that where the court finds "just reason for delay," section 1292(b) certification may be proper:
[E]ven though the adjudication is "final" and within the coverage of Rule 54(b), if the district court does not make the express determination and express direction, the order remains interlocutory and, if not appealable as of right, then literally it should be reviewable under § 1292(b) if the order meets the criteria of that statute.
6 Moore's Federal Practice ¶ 54.30[2.-2] at p. 455 (emphasis added) (2d ed. 1976). See Huckeby v. Frozen Food Express, 555 F.2d 542, 546 (5th Cir. 1977) (order not final until so certified).
Moore's cites one case which holds that section 1292(b) certification is proper even where an order would be final as to one of multiple parties but for the lack of Rule 54(b) certification. Sass v. District of Columbia, 316 F.2d 366 (D.C.Cir.1963). In Sass the district court granted a motion to dismiss filed by a third-party defendant. The court of appeals discussed its jurisdiction as follows:
*367 We add a comment about a procedural matter, not raised by the parties. We assume that in this case an application could properly have been made for a certificate under Rule 54(b), Fed.R.Civ.P., and if granted, the appeal might have proceeded on that basis. However, that course was not followed. Instead, the District Court found that there was presented a controlling question of law, and we allowed the appeal under Section 1292(b) of Title 28 of the United States Code. While we no doubt had power to do this, see Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960), we think the better practice is to make application under Rule 54(b). In Chvala v. D.C. Transit System, Inc., 110 U.S.App. D.C. 331, 334, 293 F.2d 519, 522 (1961), we quoted from the Advisory Committee's Note accompanying the Amendments to Rule 54(b), adopted April 17, 1961, to the following effect:
"There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C. § 1292(b), added in 1958, may now be available for the multiple-parties cases here considered. See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir., 1960). The Rule 54(b) procedure seems preferable for those cases, and § 1292(b) should be held inapplicable to them when the rule is enlarged as here proposed. See Luckenbach Steamship Co., Inc. v. H. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir., 1960); 1 Barron & Holtzoff, supra, § 58.1, p. 321 (Wright ed. 1960)."
Id. at 368. The Sass approach was reaffirmed by the D.C. Circuit in Courembis v. Independence Avenue Drug Fair, Inc., 316 F.2d 658 (D.C.Cir.1963) (per curiam). The district court there also dismissed a third-party complaint. The circuit court dismissed the appeal, citing Sass, reasoning that the district court had made neither a 54(b) nor 1292(b) determination. The court's reasoning clearly implied that nothing is wrong with 1292(b) certification in a multi-party case. Similarly, in the CAB case cited by the FDIC, the court upheld jurisdiction under section 1292(b) even though multiple parties were involved.
This Court agrees with the FDIC and the authorities it cites that it is indeed "preferable" to issue a Rule 54(b) certification rather than a section 1292(b) certification in a multi-party case. But where, as here, Rule 54(b) is inappropriate the Court may properly certify an appeal under section 1292(b).
The Court is strongly persuaded by the fact that it would be ironic to hold that section 1292(b) is unavailable in a multi-party case where an order would be final but for the lack of the Rule 54(b) certification. Rule 54(b) certification is never automatic; the Court must in its discretion determine whether there is just reason for delay in the entry of judgment. The factors which govern the determinations under 54(b) and 1292(b) may be similar, 10 C. Wright & A. Miller, supra, § 2658 at p. 61, especially if the district court views the Rule 54(b) determination solely from the perspective of conferring immediate appealability by entering judgment. Thus in many cases, where the finding required by section 1292(b) can appropriately be made, there will be no just reason for delay in the entry of judgment.
The entry of judgment has other consequences than conferring immediate appealability, however. The FDIC has not argued that Rule 54(b) does not permit the Court to consider those other consequences, and the Court knows of no reason why it should not do so. Indeed, economic consequences such as those relied upon in part I of this order were properly relied upon by the district court in Curtiss-Wright. 446 U.S. 1, 8, 100 S.Ct. 1460, 1467, 64 L.Ed.2d 1. See pp. 364-365 supra. If, in deciding whether to make the Rule 54(b) certification, a court considers factors unrelated to the need for immediate appeal, then inevitably there will be cases, such as this one, where section 1292(b) certification is appropriate and Rule 54(b) certification is not. If 1292(b) could not be applied then the availability of an immediate appeal would be lost. The irony lies in the fact that no immediate *368 appeal could be had simply because the Court was denying Rule 54(b) certification solely for reasons having nothing to do with the need for an immediate appeal.
In its argument for mutual exclusivity of 54(b) and 1292(b), the FDIC relies heavily upon the Advisory Committee Notes for the 1961 amendment to Rule 54(b). See p. 365 supra. First, the Notes do not clearly support the FDIC's position. Where the Notes indicate that "The Rule 54(b) procedure seems preferable for those cases, and § 1292(b) should be held inapplicable to them . . .," they are referring to "the multiple-parties cases here considered." The cases considered in the Notes consist solely of cases which would satisfy Rule 54(b).
Second, in Curtiss-Wright, the Supreme Court admonished the court of appeals for relying on the Advisory Committee Notes for the 1946 amendment to Rule 54(b), stating that "its error derives from reading a description in the commentary as a standard of construction." 446 U.S. 1, 7, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1. It would only compound the error to rely upon language which does not even clearly stand for the proposition for which the FDIC urges it.
Third, the legislative history to 28 U.S.C. § 1292(b) mentions a multi-party case as an example of a situation in which 1292(b) would apply. S.Rep.No. 2434, 85th Cong., 2nd Sess., reprinted in [1958] U.S.Code Cong. & Admin.News, pp. 5255, 5256. That example is clearer and more forceful than the Advisory Committee statement. The Court thus finds it persuasive even though it was given several years before Rule 54(b) was amended.
Finally, the Advisory Committee Notes cite Luckenbach Steamship Co. v. H. Muehlstein & Co., 280 F.2d 755 (2d Cir. 1960). See p. 365 supra. There an order dismissing a third-party complaint was certified by the district court under section 1292(b); the district judge also stated that he thought the order was final and appealable. The Second Circuit dismissed the appeal. Rule 54(b) was not applicable because no "express determination . . . and express direction . . ." had been made. Section 1292(b) certification was improper because the district court had expressly found its order final and appealable. Here the Court has not made such a determination. The Court has expressly refused to direct the entry of judgmentthereby making the order final and appealablebecause there is just reason for delay. Thus, to the extent the Advisory Committee intended Luckenbach as an example,[2] the Committee must have meant only that section 1292(b) is precluded where all elements of 54(b) except the "express direction . . ." are present.
For the reasons given in this part of the order, the Court concludes that 28 U.S.C. § 1292(b) certification is not improper where an order would be final as to one of multiple parties but for the lack of the court's Rule 54(b) certification, and for all the reasons set forth above the motion for reconsideration is hereby DENIED.
III. SECTION 1292(b) CERTIFICATION OF DENIAL OF 54(b) CERTIFICATION
Also before the Court is the FDIC's alternative motion for certification under section 1292(b) of the Court's denial of the FDIC's motion for Rule 54(b) certification. The Court hereby GRANTS the motion for section 1292(b) certification for the reasons stated below.
To certify an order for appeal under 28 U.S.C. § 1292(b), the Court must
*369 be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation ...
and so state in writing. Matters within a district court's discretion are typically not appropriate for 1292(b) certification, Garner v. Wolfinbarger, 433 F.2d 117 (5th Cir. 1970), because the statute by its terms only permits certifications of questions of law, 16 C. Wright, A. Miller, E. Cooper, and E. Gressman, supra, § 3930 at pp. 160-161, and because discretionary matters run a lower risk of reversal. Id. at 161. At least one issue considered by the Court in this order is not a matter of discretion. That issue is whether section 1292(b) certification is improper for an order which would be final but for the fact that the Court has refused to grant Rule 54(b) certification on the grounds that there is just reason for delay in entering judgment. It is, however, a discretionary question whether Rule 54(b) certification has been properly denied on the grounds that entry of judgment may be justifiably delayed because of the extraordinary novelty and difficulty of the issues decided.
Nevertheless, both issues satisfy the remaining factors set forth in 1292(b). There is certainly "substantial ground for difference of opinion" as to both issues. None of the authorities discussed in this order deal directly with the issues as posed in the preceding paragraph. Although a complete absence of authority on the issue under consideration is, of course, not dispositive, e. g., United States ex rel. Hollander v. Clay, 420 F.Supp. 853, 859 (D.D.C.1976); Barrett v. Burt, 250 F.Supp. 66, 68-69 (S.D.Iowa 1966), here the strong preference for Rule 54(b) certification over 1292(b) certification could reasonably be deemed strong enough to preclude 1292(b) certification and the just reason for delay identified by the Court could reasonably be deemed insufficient to override the other factors which the Court may consider in making that determination.
The Court also believes that the two issues previously mentioned are controlling questions and that an immediate appeal will materially advance the ultimate termination of the litigation. If the Court of Appeals were to deny the Gunters' petition under Section 1292(b), either because only Rule 54(b) is applicable or for any other reason, then the FDIC's motion for summary judgment would remain granted, without the availability of appellate review for the remainder of this complex and protracted litigation. For the reasons stated in the May 12 order, this Court believes that this should not happen. An excellent means of providing an alternative to such an eventuality is to certify this order for appeal pursuant to 1292(b).
For the foregoing reasons the motion of certification is hereby GRANTED.
IV. DISCOVERY
In its brief accompanying its motion for reconsideration (but not in its motion), the FDIC requests that the Court permit it to engage in discovery concerning the Gunters' assets. The FDIC's request is hereby DENIED without prejudice. Counsel for the FDIC and the Gunters are hereby ORDERED to meet and confer in a good faith attempt to resolve any discovery disputes between them. It shall be the duty of counsel for the FDIC to arrange the conference, but if a mutually convenient conference cannot be agreed upon the Court will set a conference by order. If after conferring on any discovery disputes they may have, counsel are unable to reach agreement, they may submit to the Court a single document containing both parties' views on all issues as to which there is a dispute.
V. SUMMARY
The FDIC's motion for reconsideration is DENIED. The FDIC's motion for certification pursuant to 28 U.S.C. § 1292(b) of the denial of Rule 54(b) certification is hereby GRANTED. The FDIC's discovery request is DENIED without prejudice and counsel are ORDERED as set forth in part IV.
NOTES
[1] The Court considered the first issue in the May 13 order, but did so without the benefit of the recent Supreme Court opinion in Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). In the earlier order the Court did not discuss the second issue as a distinct problem.
[2] The significance of Luckenbach is not entirely clear. The citation to Luckenbach is preceded by the introductory signal "see." The "see" signal is generally understood to indicate that the proposition follows from or is supported by the authority cited. See A Uniform System of Citation Rule 2.3 at 6-7 (12th ed. 1976). The proposition that Section 1292(b) certification is precluded in a multi-party case where the Court has entered an order which would be final but for the failure of the Court to certify the case under Rule 54(b) does not follow from and is not supported by the holding in Luckenbach. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646521/ | 9 So.3d 587 (2007)
ELVIN JOHNSON
v.
STATE.
No. CR-06-1037.
Court of Criminal Appeals of Alabama.
June 22, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96379/ | 200 U.S. 71 (1906)
HOWARD
v.
PERRIN.
No. 110.
Supreme Court of United States.
Submitted December 6, 1905.
Decided January 2, 1906.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.
*73 Mr. E.E. Ellinwood for appellant.
Mr. Edward M. Doe for appellee.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The statement of facts discloses a title in the plaintiff (now appellee) sufficient to sustain the judgment for the recovery of possession, although no patent had been issued. Deseret Salt Company v. Tarpey, 142 U.S. 241.
The certified copy of the records and papers in the General Land Office was competent evidence. Rev. Stat. § 891. This section determines the question of competency but not of materiality. Some of the letters between the officials of the railroad company may not have been material, but there was nothing in them prejudicial. The certificate of the local land officers was competent to show that on the records of their office were no homestead, preemption or other valid claims, and that the land had not been returned or denominated as swamp or mineral land. It is true there was no positive evidence that there were no minerals in the land, and of course nothing to show affirmatively that a mine might not be discovered prior to the issue of the patent, but the same could have been said of the showing in Deseret Salt Company v. Tarpey, supra. While the question of mineral was not discussed at that time and was first fully considered in Barden v. Northern Pacific Railroad, 154 U.S. 288, it appears from the opinion of the majority in the latter case that there was no intention to disturb the former *74 ruling. Neither is there anything in Corinne Company v. Johnson, 156 U.S. 574, to the contrary. In that case a judgment of the Supreme Court of Utah against a grantee of the railroad company was affirmed, but it was affirmed on the ground that the record did not purport to contain all the evidence, and, under those circumstances, we could not assume that there was not evidence to fully sustain the judgment of the territorial court, or that it was not in fact based upon an adjudication by the Land Department of the presence of mineral.
It must also be noticed that this land was within the place limits of the Atlantic and Pacific Company, and that, therefore, on the completion of the road, and without any selection or approval thereof by the Secretary of the Interior, the title passed unless the tract was within the excepted classes, and there was no testimony tending to show that it was. On the contrary, the testimony pointed in the other direction.
It is further claimed by appellant that he was protected by a statute of limitations of the Territory, paragraph 2301, Rev. Stat. Arizona, 1887, reenacted as section 2941, Rev. Stat. Arizona, 1901, which reads:
"2941 (SEC. 7.) In all cases when the party in possession claims real property by right of possession only suits to recover the possession from him shall be brought in two years after the right of action accrues and not afterwards, and in such case the defendant is not required to show title or color of title from and under the sovereignty of the soil as provided in the preceding section as against the plaintiff who shows no better right."
But this applies only in cases of mere possessory rights and is without force after the passing of the full legal or equitable title from the Government. Such was the construction placed on the statute by the Supreme Court of Arizona, and is undoubtedly correct. The language is clear. The claim of the defendant is a "right of possession only," and the limitation applies solely against a "plaintiff who shows no better right." To hold that the section gives to a mere occupation of public *75 land a title by prescription against one subsequently acquired from the United States would limit the full control of the Government over its landed property and qualify or destroy the effect of its patent or grant. Toltec Ranch Company v. Cook, 191 U.S. 532, does not conflict with this, for there a possession sufficient for the running of the statute of limitations was held after the full equitable title had passed from the Government, and when such title has passed the land comes under dominion of the State and is subject to its laws. But in this case the possession had not been long enough to create under the Arizona laws a defense to a title, legal or equitable, and the sole reliance was upon this section, which only applies to contests between possessory rights.
The remaining question arises under the cross complaint of the appellant, who claims a prior appropriation of all the water flowing in a subterranean stream which had been reached by digging a well, relying on these provisions of the Arizona Revised Statutes of 1887:
"3199 (SEC. 1.) All rivers, creeks and streams of running water in the Territory of Arizona are hereby declared public, and applicable to the purposes of irrigation and mining, as hereinafter provided."
"3201 (SEC. 3.) All the inhabitants of this Territory, who own or possess arable and irrigable lands, shall have the right to construct public or private acequias, and obtain the necessary water for the same from any convenient river, creek or stream of running water."
We need not stop to inquire whether these sections apply to subterranean streams, because the finding of fact which is sustained by the testimony is "that the only water upon said land is percolating water oozing through the soil beneath the surface in an undefined and unknown channel." Of course this excludes the idea of a "river, creek or stream of running water."
We see no error in the record, and the judgment of the Supreme Court of Arizona is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1614831/ | 502 So.2d 1114 (1987)
STATE of Louisiana
v.
Dianne GRAY (Two Cases).
Nos. KA-2739, KA-4280.
Court of Appeal of Louisiana, Fourth Circuit.
January 14, 1987.
*1115 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William A. Marshall, Asst. Dist. Atty., New Orleans, for appellee.
George A. Blair, III, New Orleans, for appellee.
Before GULOTTA, CIACCIO and LOBRANO, JJ.
LOBRANO, Judge.
Defendant, Diane Gray, and her husband were charged by bill of information with two counts of cruelty to juveniles, violations of La.R.S. 14:93. On April 12, 1983, defendant's husband was acquitted on both counts, and defendant was acquitted on one count. No verdict was rendered on the other count. On July 25, 1983 defendant was found mentally competent to stand retrial on count one. That trial took place September 12th and 13th, 1983, and defendant was found guilty on count one by a six-member jury. After the denial of a motion for a new trial, defendant was sentenced to serve ten (10) years at hard labor with credit for time served. This appeal followed.
FACTS:
On the morning of September 16, 1982, Amanda and Michael Gray arrived at Thomas Edison Elementary School between 8:30 a.m. and 8:45 a.m. Amanda's teacher, Mr. Thomas Hamme, became alarmed because the child, then six years old, was limping badly, crying hysterically, had one eye swollen nearly shut and had numerous scratches on her face. Mr. Hamme attempted to elicit from Amanda what had happened to her but she was so hysterical she was unable to speak properly. Unable to calm her, Mr. Hamme took Amanda to the principal's office where she was questioned. At first she said another child had beat her. Believing this to be unlikely, Amanda was questioned further about her injuries and finally stated her mother beat her. The police were notified.
Upon observing Amanda's condition the police requested that Michael be brought to the office. Michael had bruises on his body as well.
Sometime after 9:00 a.m., Detective Joan Charles of the New Orleans Police Department Child Abuse Bureau and two Department of Health and Human Resources social workers, Patrice Green and Celestine Dandridge, interviewed the children. All three testified that both children were frightened and reluctant to speak. Amanda told all three that her mother beat her. Ms. Green testified that she learned of the use of the hammer and chair to beat Amanda at this initial interview. Detective Charles testified that Amanda indicated her mother beat her using her hand. When questioned as to how she received specific bruises and lacerations, Amanda denied knowledge of these. Michael denied any knowledge of his or Amanda's injuries. While playing with a toy, Michael banged the toy on the top of his head and was heard to say, "If you talk to the police I'll beat you on the head." When questioned *1116 as to why he made that statement and what he meant, he refused to answer.
Both children were taken into protective custody and brought to Charity Hospital for treatment. It was not until a second interview was conducted one week later, on September 24th, that Amanda admitted to Detective Charles that her mother used a hammer and chair to beat her. Detective Charles conducted this second interview because she felt further investigation was necessary after discussing the children's injuries with Dr. Winston Levy, who examined them at Charity Hospital the day they were taken into custody.
Drs. Sproels and Levy testified that during their examinations of the children, Amanda stated she had been beaten with a hammer. Dr. Levy's examination was September 16, 1982, the day the authorities became involved and Dr. Sproels' examination was five days later.
Defendant appeals her conviction and sentence alleging the following assignments of error:
1. The trial court erred in allowing various witnesses to testify concerning out of court statements made by the two six-year old victims.
2. The trial court abused its discretion and violated the constitutional prohibition against excessive punishment.
ASSIGNMENT OF ERROR 1:
Hearsay is an out of court statement made by a third party and offered for the truth of its content. State v. Elzie, 351 So.2d 1174 (La.1977); State v. Simmons, 484 So.2d 894 (La.App. 1st Cir.1986). Hearsay is inadmissible evidence unless it falls under an exception to the hearsay rule. La.R.S. 15:434. One such exception is the res gestae exception defined in La. R.S. 15:447 as follows:
"Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence."
Our Supreme Court has expanded the res gestae exception to include the original complaint of a young child "when the particular facts and circumstances of the case indicate that it was a product of a shocking episode and not a fabrication. The original complaint of the young child is the statement made at the first reasonable opportunity under the particular facts and circumstances of the case." State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Noble, 342 So.2d 170 (La.1977); State v. Pace, 301 So.2d 323 (La.1974); State v. Garay, 453 So.2d 1003 (La.App. 4th Cir.1984).
The traumatic condition of the child must also be considered in determining the res gestae or first reasonable opportunity for the child to tell his or her story. The initial complaint of a victimized child is often quite traumatic due to the fact that more often than not the abusive experience involved a close relative or friend. State v. Simmons, supra; State v. Adams, supra; State v. Garay, supra.[1]
Amanda was traumatized to the point that she was unable to speak clearly. Amanda's teacher was unable to calm her enough to obtain any meaningful facts. Amanda's admission came the morning after she was beaten. The testimony of virtually every state witness attested to the atrocious nature of the injuries sustained by Amanda. She had bruises over the majority of her body, a fracture around her eye, her foot was so swollen she could barely walk, loop-welt marks were on her legs, arms, chest and back. Her face bore classic typical gag marks caused when defendant gagged her to keep her from crying out, and a burn scar on her buttocks *1117 caused when defendant burned her with a curling iron.
The first people able to calm her were Ms. Green and Ms. Dandridge. This was the first "reasonable" opportunity for Amanda to explain what really happened to her and their testimony falls clearly within the res gestae exception to the hearsay rule. La.R.S. 15:447, supra.; State v. Garay, supra. Detective Charles' testimony as to what Amanda told her during the initial interview is likewise admissible. However, any statements made to Detective Charles by Amanda during the second interview of September 24th constitutes inadmissible hearsay since it goes beyond the first "reasonable opportunity" for the child to state who harmed her. State v. Anderson, 450 So.2d 684 (La.App. 4th Cir. 1984), writ den. 452 So.2d 696. We do not find, however, the admission of this testimony to be reversible error. Any prejudice it created was cured by subsequent corroborating evidence and testimony. State v. Banks, 439 So.2d 407 (La.1983).
The testimony of Drs. Sproels and Levy is clearly admissible as information received as "an integral part of the doctor's examination ..." In the Interest of Gray, 454 So.2d 307 (La.App. 4th Cir.1984).
This assignment of error is without merit.
ASSIGNMENT OF ERROR 2:
Defendant asserts that her maximum ten (10) year sentence violates the constitutional prohibition against excessive punishment.
The penalty provision of La.R.S. 14:93 states as follows: "Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than ten years, or both."
The Louisiana Constitution prohibits the imposition of excessive punishment. Art. 1, Sec. 20. The imposition of a sentence, although within the statutory limit, may violate a defendant's constitutional right against excessive punishment. State v. Thomas, 447 So.2d 1053 (La.1984); State v. Soco, 441 So.2d 719 (La.1983); State v. Sepulvado, 367 So.2d 762 (La.1979).
A sentence which appears to be severe is considered excessive and unconstitutional if it is "grossly out of proportion to the severity of the crime" or "nothing more than the purposeless and needless imposition of pain and suffering". State v. Brogdon, 457 So.2d 616 (La.1984); State v. Telsee, 425 So.2d 1251 (La.1983).
The trial judge must articulate reasons for an apparently severe sentence tailoring it to the individual offender and the particular offense. State v. Tilley, 400 So.2d 1363 (La.1981). Code of Criminal Procedure Art. 894.1 sets forth criteria to be used by the trial court in its determination. The trial court need not articulate every circumstance cited, but it must indicate that it considered the 894.1 guidelines in tailoring a particular sentence to a particular defendant convicted of a particular crime. State v. Guiden, 399 So.2d 194 (La.1981). Not only the aggravating circumstances but the mitigating circumstances as well must be considered, State v. Franks, 373 So.2d 1307 (La.1979) and the court must state the factual basis underlying its conclusion. State v. Saunders, 393 So.2d 1278 (La.1981). Accordingly, the sentencing record must reflect that the trial judge considered the personal history of the defendant in addition to the seriousness of the crime and the past criminal history of the defendant. State v. Quebedeaux, 424 So.2d 1009 (La.1982), affirmed on remand 446 So.2d 1210 (La.1984); State v. Jones, 398 So.2d 1049 (La.1981); State v. Molinet, 393 So.2d 721 (La.1981).
A review of the record reflects that the trial court considered the evidence presented at trial, pre-sentence report, as well as reports and testimony of several psychologists before imposing sentence. In sentencing defendant, the trial court reiterated the seriousness of the injuries and the needless cruelty inflicted by defendant. The court's comments clearly show its conclusion that defendant was one of the most *1118 egregious of offenders, State v. Brogdon, supra; State v. Quebedeaux, supra.:
"... it was established to the satisfaction of the trier of fact that you, Miss Gray, had abused your daughter, Amanda, and you had gagged her. We saw on the pictures that they had all these cuts going around the mouth of Amanda ... And, in addition to that, evidence was brought out that in order to beat Amanda, chairs were used and hammers and to put it mildly, it shocked the conscious of the court that anybody can think of such methods of punishment, if indeed it is punishment. The court has waited a long time to sentence Miss Gray and my concern was the safety and welfare of the children ... My only concern are the children and its going to take ten years before they are going to reach the age of eighteen. I feel a lot better having Miss Gray away from them."
Thus, the trial court adequately considered the Art. 894.1 guidelines in imposing this particular sentence for this particular defendant. State v. Guiden, supra.
Although not unbridled, the trial judge is given great discretion in sentencing within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Bradley, 414 So.2d 724 (La.1982); State v. Washington, 414 So.2d 313 (La.1982).
In reviewing the sentence, this court must determine whether this sentence is too severe in light of the particular defendant and the circumstances of the particular crime. State v. Quebedeaux, supra; State v. Jones, supra.
Insofar as the length of the sentence, our Courts have evaluated a number of claims of excessive sentences by defendants' receiving ten year sentences for convictions of cruelty to juveniles where the alleged disciplinary action constitutes nothing more than needless cruelty. The courts have consistently affirmed such sentences.
In State v. Davis, 485 So.2d 981 (La.App. 4th Cir.1986), writ den. 488 So.2d 1019, this court affirmed the maximum sentence where defendant placed her child in scalding water causing second degree burns on both feet, his buttocks and left upper arm. Inflicting grievous injury to a young defenseless child was found to mandate severe punishment, in this case the maximum sentence.
In State v. Meshell, 473 So.2d 935 (La. App. 3rd Cir.1985), a ten year sentence was upheld where a defendant severely beat the victim's buttocks and then rubbed salt into the wounds.
In State v. Helsley, 457 So.2d 707 (La. App. 2nd Cir.1984), a ten year sentence was upheld where a defendant disciplined his twelve-year old daughter by striking her repeatedly with a piece of pipe and a pipe wrench.
In the instant case, defendant, with little or no provocation, gagged and beat her daughter with a chair and a hammer causing severe physical and emotional injuries to her child.
Accordingly, we hold that defendant's assertion that her ten year sentence is excessive in light of the circumstances, including defendant's vehement and continued denial of the perpetration of these acts and the evidence presented at the sentencing hearing, is without merit.
For the foregoing reasons, defendant's conviction and sentence is affirmed.
AFFIRMED.
NOTES
[1] Although the instant case involves physically rather than sexually abused children, the rationale is the same. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614866/ | 502 So.2d 1325 (1987)
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Appellant,
v.
Gerald UNDERWOOD and Darlene Underwood; Robert L. Ackerman, Inc., a Florida Corporation, et al., Appellees.
No. 85-688.
District Court of Appeal of Florida, Fourth District.
February 25, 1987.
*1326 Rosemary Wilder and Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale and Robert M. Klein of Stephens, Lynn, Chernay & Klein, P.A., Miami, for appellant.
Barbara J. Compiani of Edna L. Caruso, P.A., and Phil Houston of Kocha & Houston, P.A., West Palm Beach, for appellees-Underwood.
DOWNEY, Judge.
This litigation had its genesis in a suit by appellees, Gerald and Darlene Underwood, to recover damages for injuries that Gerald sustained while working for an electrical contractor, Robert J. Ackerman, Inc., (Ackerman) on a job that Ackerman was performing for Florida Power & Light Co. (FP & L). During trial the Underwoods settled with FP & L for a total of $462,500, payable $162,500 in cash and assignment of an indemnity contract in which Ackerman indemnified FP & L up to a maximum of $300,000 against negligence arising out of the work.
The Underwoods then brought this suit against Ackerman for $300,000 based upon Ackerman's contractual indemnity contract. They also sued National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National) for $300,000, based upon National's breach of contract in denying coverage to FP & L in the original suit, referred to here as Underwood # 1. Underwood's complaint alleged that National had issued a policy of general liability insurance to Ackerman with an endorsement naming FP & L as an insured. National contested this allegation, claiming that the certificate of insurance attached to the complaint did not show that FP & L was an additional insured. As a result, the Underwoods requested that the court determine the rights and obligations of each party under the insurance contract, and award them damages plus prejudgment interest, reasonable attorney's fees and taxable costs.
Ackerman and National moved to dismiss the complaint, arguing, among other things, that, since Ackerman had paid workers' compensation benefits to Gerald Underwood this action was barred. The motion also challenged the validity of the *1327 assignment of rights by FP & L to the Underwoods, the effectiveness of the indemnity agreement, and FP & L's status as an insured. When the motion to dismiss was denied, Ackerman and National answered and counterclaimed for a declaration of rights under the National policy. In answer to the counterclaim the Underwoods asserted, by way of affirmative defenses, that National's attorneys had stipulated in a pretrial stipulation in Underwood # 1 that FP & L was a named insured in the National policy and that National was now estopped from taking an inconsistent legal position.
The Underwoods moved for partial summary judgment and the court entered an extensive order granting partial summary judgment and partial final judgment. In this order, the court found that the indemnity agreement expressed the clear and unequivocal intent to indemnify FP & L against its own negligence. The court also noted that National had admitted insurance coverage for Ackerman. As to coverage for FP & L, the court took judicial notice of the fact that National had moved to dismiss under the nonjoinder statute in Underwood # 1 and such motion is only made if there is no question as to coverage. The court also judicially noticed the fact that it had been stipulated in the pretrial stipulation in Underwood # 1 that FP & L was a named insured on the National policy and, therefore, National was equitably estopped from denying coverage to FP & L. Finally, the court ordered that the Underwoods recover $162,500 from the defendants.
Thereafter, the Underwoods moved for a second summary judgment, which was granted, finding that Ackerman and National were liable for the additional $300,000 due on Underwood's original claim against FP & L. The court found that there was no genuine issue of fact as to the good faith and reasonableness of Underwood's settlement with FP & L and entered judgment against Ackerman for the balance of $137,500 and against National for $300,000 and against both for prejudgment interest. Finally, an order was entered allowing the Underwoods attorney's fees of $40,000 after a hearing in which expert testimony was adduced applying Rowe[1] standards for determining attorney's fees.
From the two orders granting summary judgment and the order allowing fees and costs National alone has perfected this appeal.
In its first point National contends that the Underwoods were precluded by the Workers' Compensation Law from maintaining a suit against FP & L for damages arising out of injuries incurred on the job in question. We reject this contention as the Workers' Compensation Law does not immunize FP & L under the facts of this case because FP & L was not a contractor within the meaning of section 440.10, Florida Statutes (1985), but a third party. Third parties are, of course, not immune to suit by workers injured on a job covered by workers' compensation benefits. Vanlandingham v. Florida Power & Light Co., 154 Fla. 628, 18 So.2d 678 (1944). Under the facts of this case FP & L was not a contractor because in order to qualify as a contractor for workers' compensation immunity, a company's primary obligation in performing a job or providing a service must arise out of a contract. Southern Sanitation v. DeBrosse, 463 So.2d 420 (Fla. 1st DCA 1985). In this case, regardless of whether it has a contract or not, FP & L's primary obligation, as a public utility, is to provide electric power to its customers as provided by statute. Florida Power & Light Co. v. Brown, 274 So.2d 558 (Fla. 3d DCA 1973). See also Williams v. Pan American World Airways, Inc., 448 So.2d 68 (Fla. 3d DCA 1984).
National also contends that the attorney's fee award was excessive and not based upon substantial evidence. We find no merit in that argument. There was conflicting evidence adduced, some of which would have supported an even larger fee. Furthermore, all of the Rowe criteria were considered by the witnesses and the trial court.
*1328 Two judgments were entered below, one against Ackerman and one against National, both for the total sum due. National contends this was error because it may be subjected to double recovery by the Underwoods. Although the record shows that National agreed to this procedure, it is clear that recovery on both judgments was not intended and the Underwoods agreed they could not recover on both. Nevertheless, it is not necessary to take any specific action to rectify this oversight because a new judgment will ultimately be entered in view of our disposition of this appeal.
National presents several other arguments on the merits to support its contention that the trial court's ruling was erroneous. It argues that the indemnity contract between FP & L and Ackerman is not effective because it purports to indemnify FP & L against its own negligence, that such contracts are not favored in law, and that they are against public policy. It further contends the stipulation of counsel for National in Underwood # 1 is not binding because counsel did not continue to represent National in the litigation. It also claims that stipulations in one case are not effective in another case. We have carefully considered all of these contentions and the authorities cited therefor and find them not controlling in this case. We hold the indemnity contract is clear and not subject to the common law rule applicable to indemnification in tort actions. Barnett Bank of Miami v. Mutual of Omaha Insurance Co., 354 So.2d 114 (Fla.3d DCA 1978). Furthermore, we hold that a stipulation entered into in one action may be used in another unless limited by its terms. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla. 1971).
Nevertheless, in our considered opinion, appellant's second point, that the trial court erred in taking judicial notice of a certain stipulation and motion to dismiss from Underwood # 1, requires reversal and further proceedings. In order to conclude in this case that there was no genuine issue of material fact, the trial court, pursuant to section 90.202(6), Florida Statutes (1985), took judicial notice of a stipulation by National in Underwood # 1 that National's policy afforded coverage for FP & L. In addition, judicial notice was also taken of a motion to dismiss filed by National seeking to dismiss it from said suit in view of the nonjoinder statute, section 627.7262, Florida Statutes (1983), which the court considered an implicit admission of coverage.
The problem presented is the manner in which the trial court purported to take judicial notice of the aforementioned important facts from Underwood # 1. The statutory authority for taking judicial notice of pleadings or documents contained in said prior case is section 90.202(6) of the evidence code, which simply codified the case law at the time. We know that judicial notice should be exercised with great caution because not every fact is the subject of proof by judicial notice only those matters of common and general knowledge. Nielsen v. Carney Groves, Incorporated, 159 So.2d 489 (Fla.2d DCA 1964). If the court proposes to take judicial notice of documentary evidence, such as pleadings in another case, whether the same court or not, copies of said documents judicially noticed must be brought into the record of the case under consideration. § 90.204(3), Fla. Stat. (1985). The proper way to handle judicial notice of such records is aptly described in Kelley v. Kelley, 75 So.2d 191 (Fla. 1954). See also Bergeron Land Development, Inc. v. Knight, 307 So.2d 240 (Fla.4th DCA 1975). The problem with a trial judge's browsing through his own court records or calling upon his memory of other cases is that the appellate court is restricted to the record before it to reach its determination of the soundness of the decision below. Absent those judicially noticed records or documents, such review is impossible. Unfortunately, in the present case, while the judicially noticed records were discussed at some length, none of them were brought into the record and, thus, we do not have a sufficient record to rule on the propriety of their consideration. Contrary to appellees' contention, we find this oversight was not waived by National. A sufficient objection was made at the summary judgment hearing to support appellate review.
*1329 Accordingly we reverse the judgments appealed from and remand the cause to the trial court for further proceedings, which may include, if the parties be so advised, a further motion for summary judgment involving the matters which were the subject of the prior ineffective attempt at judicial notice.
REVERSED AND REMANDED with directions.
WETHERINGTON, GERALD T., Associate Judge, concurs.
GLICKSTEIN, J., concurs specially with opinion.
GLICKSTEIN, Judge, concurring specially.
When this case was argued in July, I felt the summary judgment should be reversed because a coverage question existed. Sometimes it is more difficult for me to direct my focus upon a case several months after oral argument than at the time of oral argument. Other times, as here, the opportunity to review it again after oral argument results in a clearer view. After another look, I am still comfortable with a reversal, albeit for a different reason than that given by the majority.
First, the only judicial notice issue before the trial court as I read the transcript of the hearing of February 15, 1985 was whether the trial court should take judicial notice of what was in another court file. The majority opinion appears to turn upon whether the procedural mechanics employed by the trial court were in error.
Second, reversing on a procedural basis, rather than on the basis of the trial court's decision, is a waste of the parties' time and the taxpayers' money, in my opinion. I do not question the absence of the documents from the record. They are not here, although the Underwoods' response to request to produce before the trial court describes the stipulation in question as being attached. Their later motion for summary judgment recites that it is already in the file. Assuming they were correct, it would be wiser, in my view, to have the record supplemented here pursuant to Florida Rule of Appellate Procedure 9.200(f) than to treat appellees as Sisyphus because of a procedural issue raised here for the first time, and send them back down the mountain. It would be better, in my opinion, first to come to grips with the first issue; namely, whether it was correct to take judicial notice.
Third, I believe the trial court erred in taking judicial notice of the motion to dismiss and stipulation in the other case. The pleadings raised red flags that the pretrial posture of the previous case changed substantially at trial. Nothing that occurred at the hearing of February 15, 1985, was under oath; so whatever the trial court and this court had or has was in the pleadings herein. Paragraphs 6, 12, 13 and 14 of the Underwoods' complaint in the present case provide respectively:
6. That case of GERALD UNDERWOOD and DARLENE UNDERWOOD, his wife, v. Florida Power and Light was eventually settled prior to the second day of trial for the sum of $462,500.00. Florida Power and Light paid $162,500.00 in cash and assigned it's [sic] rights under the hold harmless and/or indemnity contract between Florida Power and Light and Robert J. Ackerman, Inc. to the Plaintiffs. This assignment is attached as Exhibit B.
12. Throughout the course of the original litigation surrounding this accident, the Defendant, NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURG [sic], PENNSYLVANIA, defended the original Defendant, Florida Power and Light, until shortly before the actual trial began at which point NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURG [sic], PENNSYLVANIA denied coverage to Florida Power and Light.
13. Subsequent to that denial of coverage by NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURG [sic], PENNSYLVANIA, for which no reason was ever given to Florida Power and Light, Florida Power and Light, Florida Power and Light entered into the abovementioned *1330 settlement with the original Plaintiffs as referred to in Paragraph 6 of Count I.
14. Florida Power and Light was and is an insured under that policy of insurance issued by NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURG [sic], PENNSYLVANIA to ROBERT J. ACKERMAN, INC. The Plaintiffs are not in the possession of a copy of that policy; however, a certificate of insurance is attached hereto as Exhibit C.
National Union's answer herein denied the Underwoods' allegations; and in its "complaint" for declaratory relief, filed with its above answer, alleged that the pertinent certificate of insurance does not name FP & L as an insured or as an additional insured.
The Underwoods' answer to that "complaint" raises the following affirmative defense:
The attorneys representing Nation [sic] Union Fire Insurance Company of Pittsburg [sic], Pennsylvania stipulated in the Pretrial Stipulation in the Case of Underwood v. Florida Power & Light that Florida Power & Light was a named insured of National Union Fire Insurance Company of Pittsburg [sic], Pennsylvania as reflected by the attached Pretrial Stipulation entered into by all counsel in that case.
National Union Fire Insurance Company of Pittsburg [sic], Pennsylvania is estopped from taking an inconsistent legal position to that that was taken by its attorneys in the previous action of Underwood v. Florida Power & Light.
The pretrial stipulation if it was attached as represented is not attached here.
Fourth, the real issue as I can see from just what I have quoted herein is whether this case was ripe for summary judgment. I did not think so at oral argument and do not think so now. In short, there are genuine issues of material fact as to coverage so far as I can see, which preclude summary judgment.
NOTES
[1] Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/461196/ | 777 F.2d 704
Pruittv.City of Montgomery, Ala.
84-7571
United States Court of Appeals,Eleventh Circuit.
10/28/85
M.D.Ala., 771 F.2d 1475 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1614923/ | 23 So.3d 726 (2009)
JORDAN
v.
STATE.
No. 3D09-2512.
District Court of Appeal of Florida, Third District.
November 24, 2009.
Decision Without Published Opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615795/ | 215 S.W.3d 836 (2006)
Rodney Shane CURTIS
v.
Christy Suzanne HILL (Curtis).
Court of Appeals of Tennessee, Eastern Section, at Nashville.
June 29, 2006 Session.
August 7, 2006.
Permission to Appeal Denied November 27, 2006.
*838 C. Tim Tisher, Columbia, Tennessee, for the Appellant, Christy Suzanne Hill (Curtis).
Paul A. Bates, Lawrenceburg, Tennessee, for the Appellee, Rodney Shane Curtis.
Permission to Appeal Denied by Supreme Court November 27, 2006.
OPINION
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.
This is a post-divorce change of custody case. The trial court changed custody of the parties' two minor children from the mother to the father. We hold that the evidence preponderates against the trial court's finding that there had been a material change of circumstances to justify a change in custody in the absence of proof that the mother's sexual indiscretions and other alleged misconduct had affected or would affect the children in an adverse way. We therefore reverse the judgment of the trial court.
I. Background
After seven and a half years of marriage, the parties were divorced in June of 2000. The parties' marital dissolution agreement, which was incorporated into the divorce decree, provided that Ms. Curtis was the primary residential parent of the parties' children: Baylee Dawn Curtis (born June 27, 1994) and Gracie Louise Curtis (born September 3, 1997). Mr. Curtis had shared parenting time one night per week and on alternate weekends.
Mr. Curtis filed a petition on June 27, 2005, alleging that a material change of circumstances had occurred and seeking custody of the children. Specifically, Mr. Curtis alleged that Ms. Curtis was living out of wedlock with her paramour, Jeff Kersteins; that prior to her cohabitation with Mr. Kersteins, she had "cohabitated with two other paramours without the benefit of wedlock"; that Mr. Kersteins "verbally berates" the minor children; that Ms. Curtis had not fostered a positive father-daughter relationship between him and the children, and that she "does not attend church regularly and does not encourage the children spiritually." Ms. Curtis answered, denying a material change of circumstances had occurred, and filed a counter-petition asserting that Mr. Curtis's income had increased substantially and that she was entitled to an increase in child support.
Following a hearing at which the trial court heard the testimony of the parties, Mr. Curtis's sister, and the children in camera, the court entered an order concluding *839 that a change of custody was warranted due to a material change of circumstances and stating as follows:
[T]he Petition for Change of Primary Custodial Parent filed by the father, Rodney Shane Curtis should be granted and the Counter-Petition filed by the mother, Christy Suzanne Hill (Curtis) should be dismissed.
It further appeared to the Court having heard the testimony of both parties and the children that a material change of circumstances has occurred and after conducting a comparative fitness analysis in accordance with T.C.A. § 36-6-404, the Court finds that it would be in the best interest of the minor children for the father to become the primary residential parent.
The trial court made no findings of fact supporting its conclusions that a change of circumstances had occurred and that the children's best interest was served by the change of custody. Ms. Curtis appeals the trial court's decision.
II. Issue Presented
The issue before us is whether the trial court erred in ruling that a material change in circumstances occurred that necessitated changing primary custody of the children from Ms. Curtis to Mr. Curtis.
III. Standard of Review
In a non-jury case, ordinarily our review is de novo upon the record of the proceedings below, with a presumption of correctness as to the trial court's factual determinations that we must honor unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court's conclusions of law are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993). In the present case, the trial court made no findings of fact. When the trial court fails to make factual findings, there is nothing to which the presumption of correctness can attach. Hickman v. Continental Baking Co., 143 S.W.3d 72, 75 (Tenn.2004); Kesterson v. Varner, 172 S.W.3d 556, 566 (Tenn.Ct.App. 2005); Archer v. Archer, 907 S.W.2d 412, 416 (Tenn.Ct.App.1995). Under these circumstances, "we must conduct our own independent review of the record to determine where the preponderance of the evidence lies." Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn.2002); Devorak v. Patterson, 907 S.W.2d 815, 818 (Tenn.Ct.App.1995).
Trial courts are vested with wide discretion in matters involving custody of children. Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973). Accordingly, a trial court's decision regarding custody or visitation should be set aside only when it "falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.2001).
IV. Analysis
We begin our review by reaffirming the premise that custody and visitation decisions are among the most important decisions that courts make. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn.Ct.App. 2001); Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn.Ct.App.1997). Promoting the child's welfare by creating an environment that promotes a nurturing relationship with both parents is the chief purpose in custody decisions. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn.1996). *840 Because children are more likely to thrive in a stable environment, the courts favor existing custody arrangements. Id. at 627; Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn.1993); Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn.Ct.App.1999). A custody decision, once made and implemented, is considered res judicata upon the facts in existence or reasonably foreseeable when the decision was made. Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Steen, 61 S.W.3d at 327; Solima v. Solima, 7 S.W.3d 30, 32 (Tenn.Ct.App.1998).
The governing statute in this case, T.C.A. § 36-6-101(a)(2)(B), provides that in cases wherein a party seeks to modify an existing custody arrangement, the threshold issue is whether a material change in circumstances has occurred since the initial custody determination:
(B) If the issue before the court is a modification of the court's prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child. (i) In each contested case, the court shall make such a finding as to the reason and the facts that constitute the basis for the custody determination.
T.C.A. § 36-6-101(a)(2)(B).
We recognize that the circumstances of children and their parents changechildren grow older, their needs change, one or both parties remarry. But not all changes in the circumstances of the parties and the child warrant a change in custody. There are no hard and fast rules for when there has been a change of circumstance sufficient to justify a change in custody. Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn.2003). A court's decision with regard to modification of custody is contingent upon the circumstances presented, and the court should consider whether:
1) the change occurred after the entry of the order sought to be modified,
2) the changed circumstances were not reasonably anticipated when the underlying decree was entered, and
3) the change is one that affects the child's well-being in a meaningful way.
Kendrick, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d 137 (Tenn.2002); Cranston, 106 S.W.3d at 644. Custody decisions are not intended, and should not be designed, to reward parents for prior virtuous conduct, nor to punish them for their human frailties or past missteps. Oliver v. Oliver, No. M2002-02880-COA-R3-CV, 2004 WL 892536 at *2 (Tenn.Ct.App. M.S., Apr. 26, 2004); Kesterson, 172 S.W.3d at 561; Earls v. Earls, 42 S.W.3d 877, 885 (Tenn.Ct.App.2000).
The party seeking to change an existing custody arrangement has the burden of proving that there has been a material change of circumstances. T.C.A. § 36-6-101(a)(2)(B). If the person seeking the change of custody cannot demonstrate that the child's circumstances have changed in some material way, the trial court should not reexamine the comparative fitness of the parents, Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn.Ct.App. 1999), or engage in a "best interests of the child" analysis. In the absence of proof of a material change in the child's circumstances, the trial court should not change custody. Hoalcraft, 19 S.W.3d at 828.
*841 Applying the above analysis to the present case, our review of the record persuades us that the evidence preponderates against a conclusion that Mr. Curtis has proven a material change of circumstances affecting the children's well-being in a material way that would justify the "drastic remedy" of changing custody. See Oliver, 2004 WL 892536 at *5; Perez v. Kornberg, No. M2004-01909-COA-R3-CV, 2006 WL 1540254 at *16 (Tenn. Ct. App. W.S., June 6, 2006). We address the allegations of the complaint, and the proof at the hearing supporting them, individually.
Regarding Ms. Curtis's history of living with men outside marriage, she testified that after the divorce, she lived with John Townsend for a period of time before marrying him. Her marriage to Mr. Townsend lasted approximately two months. Ms. Curtis testified that Mr. Townsend got very abusive with her while the children were with Mr. Curtis, and that she had him arrested for abuse, divorced him and "the kids never saw him again."
Ms. Curtis admitted that at the time of the hearing, she was living with Mr. Kersteins outside wedlock.[1] She testified without contradiction that at those times when the children are present at her residence, Mr. Kersteins always sleeps on the couch. Ms. Curtis stated that since the divorce, two other men had spent the night at her residence, but not when the children were present. Mr. Curtis similarly admitted to having overnight guests of the opposite sex when the children were not present.
A custodial parent's non-marital sexual activities may be appropriately considered in the context of a custody decision. Earls, 42 S.W.3d at 890. However, "we have repeatedly pointed out that cohabitation alone does not necessarily provide grounds for changing custody when there is no proof that it has or will adversely affect the children." Id.; see Varley v. Varley, 934 S.W.2d 659, 666-67 (Tenn.Ct.App.1996); Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn.Ct.App. 1991); Nelson v. Nelson, 66 S.W.3d 896, 902 (Tenn.Ct.App.2001); Fain v. Fain, No. M1999-02261-COA-R3-CV, 2000 WL 1879548 at *5 (Tenn.Ct.App.E.S., Dec. 29, 2000). A parent's sexual conduct, if practiced inappropriately or indiscriminately, can adversely affect a child's well-being and in those cases, such conduct can be an important factor in custody determinations. Berry v. Berry, No. E2004-01832-COA-R3-CV, 2005 WL 1277847 at *5 (Tenn.Ct.App.E.S., May 31, 2005). In Parker v. Parker, 986 S.W.2d 557, 563 (Tenn.1999), the Tennessee Supreme Court acknowledged that "sexual indiscretion does not, by itself, disqualify a parent from being awarded custody, but it may be a relevant factor if it involves the neglect of the child." See also Lockmiller v. Lockmiller, No. E2002-02586-COA-R3-CV, 2003 WL 23094418 at *5, 2003 Tenn.App. LEXIS 953 at *14 (Tenn.Ct.App.E.S., Dec. 30, 2004).
The record before us offers no proof that Ms. Curtis neglected the children because of sexual indiscretion, nor that they suffered any adverse consequence because of the presence of Mr. Kersteins at her residence. There is proof in the record supporting the conclusion that the children are generally healthy, well-adjusted, and doing well in school in the primary custody of Ms. Curtis. The testimony in the record does not support *842 Mr. Curtis's allegation that Mr. Kersteins "verbally berates" the children, although it does show that he "raises his voice" to them on occasion. We do not condone Ms. Curtis's choice to cohabitate without benefit of marriage; but, standing alone, it clearly does not rise to the level of a material change in circumstances warranting change of custody.
Regarding Mr. Curtis's allegation that Ms. Curtis had not fostered a positive father-daughter relationship between him and the children, the parties testified about a single incident which might arguably support this assertion. Mr. Curtis, who coaches his daughters' softball teams, testified as follows about this incident:
A: The altercation that we had on the ball field was the first that's happened at a ball field. But no, she's tried to keep me from coaching in the past.
Q: So there was an altercation actually on the field?
A: It wasn't on. She was sitting in the stands. I was on the field coaching.
* * *
A: Okay. Well, Baylee was getting frustrated. She was pitching. She was getting frustrated with herself because she couldn't throw a strike. So she stomped the ground. Her mother yells at her from the stands. I turned around to her mother and said, "You can't do that because it's your fault the way she's acting, the way she is."
Q: So your daughter stomped the ground in disgust and anger on the field. Her mother yelled at her to not act that way. You turned around and confronted her mother and said, "You can't say anything because it's your fault she's that way?"
A: Yes.
Q: You think that was her mother's fault?
A: You wouldn't let me tell the example of why. But yes, it's her mother's fault.
Mr. Curtis further stated that Ms. Curtis "gave me an ultimatum that I had to quit coaching or she was going to make the girls quit playing." While Ms. Curtis did not deny making a statement to this effect, there is no evidence that she carried out the threat to make her daughters stop playing softball. In summary, the record reflects that the parties' relationship has not been harmonious, but Mr. Curtis has not presented evidence that Ms. Curtis has behaved in such a way as to undermine his relationship with his daughters, particularly not to a degree that would require the trial court to reexamine the parties' comparative fitness, or to make a change in the existing custodial situation.
Regarding Mr. Curtis's allegation that Ms. Curtis does not encourage the children spiritually and does not take them to church regularly, Ms. Curtis stated that she did not attend church on a regular basis, either with or without the children. While this decision may not be one that a court approves or condones, we do not believe that it is an appropriate role of the courts to punish a parent for such a decision by taking custody of his or her children away. There was no evidence that the decision not to regularly attend church represented a change of circumstances from the time of the execution of the MDA.
V. Conclusion
For the aforementioned reasons, we hold that the evidence preponderates against the trial court's finding that there had been a material change of circumstances to justify a change in custody and therefore the trial court erred in changing primary residential parent status from Ms. Curtis to Mr. Curtis. The judgment of the *843 trial court is reversed, and the case remanded for a determination of Mr. Curtis's child support obligation, pursuant to the Tennessee Child Support Guidelines. Costs on appeal are assessed to the Appellee, Rodney Shane Curtis.
NOTES
[1] Ms. Curtis's brief states that she and Mr. Kersteins have gotten married since the hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615803/ | 668 N.W.2d 222 (2003)
STATE of Minnesota, Respondent,
v.
Richard Edward WINTER, Appellant.
No. CX-02-1911.
Court of Appeals of Minnesota.
September 2, 2003.
*223 Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, and Doug Johnson, Washington County Attorney, Stillwater, for respondent.
John M. Stuart, Minnesota Public Defender, Lawrence W. Pry, Assistant Public Defender, Minneapolis, for appellant.
Considered and decided by MINGE, Judge, HARTEN, Judge, and STONEBURNER, Judge.
OPINION
STONEBURNER, Judge.
Appellant Richard Edward Winter challenges his conviction of second-degree criminal sexual conduct and fourth-degree criminal sexual conduct. Appellant argues that the district court's admission into evidence of a taped police interview without redacting repeated references to polygraph testing constitutes plain error entitling him to a new trial. Because admission of repeated references to polygraph testing is plain error, we reverse and remand for a new trial.
FACTS
Appellant Richard Edward Winter was charged with second-degree and fourth-degree criminal sexual conduct for the sexual assault of a 14-year-old girl, T.M., for whom he was caring while her mother was out of town. Appellant denied guilt. Appellant did not testify at trial. The state's case depended primarily on the credibility of the victim.
At trial, the district court, without objection, admitted into evidence a tape and transcript of appellant's police interview in which appellant described one incident during which he said he may have accidentally *224 touched the victim when she fell as she came out of the shower while appellant was in the bathroom to urinate. During the interview, the interviewing officer discussed polygraph testing with appellant four times, making numerous references to polygraph testing on each occasion. References to polygraph testing were not redacted from the interview or transcript. The first discussion occurred early in the interview when the interviewing officer asked:
Q. Do you knowdo you know what a polygraph test is?
A. Yeah. Something you hook up.
Q. It's a lie detector.
A. They see if you're lying or not.
Q. Right. What would it say if you were hooked up on it right now as to whetherif the question was asked
A. If I did anything?
Q. Right. If you did anything, if you touched her or anything like that.
A. Nope, never touched her.
Q. Is that what it would say?
A. Well, yeah.
Q. Ever? It wouldthe question would say have you ever touched her
A. Inappropriately.
Q. Inappropriately, like have you ever touched her in any of her private parts or anything like that?
A. No. Nope. Nothing.
Q. Nothing like that. Okay, would it say that you were
A. No, I'm telling the truth. I'm telling the truth right now. Like I said, I'm an honest person
Later in the interview, after the officer had stopped the tape to call his office, he initiated the following discussion:
Q. Turn that back on. Its 25 after 4:00. What do you think you would do on a lie detector test
A. You asked me that already.
Q. I know, but you want to let me finish my question buddy?
A. Yep, sure.
Q. All right. I let you finish your answers.
A. Yes you do, man. All right, I just didn't want to go over the same thing again.
Q. If the question was asked of you that you got into the shower with her today, what do you think your answer would be?
A. No.
Q. No, you didn't?
A. No, I didn't?
Q. How do you think the answer would come out on the polygraph?
A. No, I didn't.
The officer raised the issue of a polygraph test again later:
Q. Okay. Now, do you think you'd take that polygraph, Rick, to see if you were telling the truth as to what
A. I am telling the truth.
Q. Nope. No, now do you think you'd take the polygraph about being truthful about whether your touch was inadvertent or on purpose, `cause she's saying that her private part was touched.
A. Nope.
Q. She's saying that you touched her in her vaginal area, mm-hmm, and she's also saying that you penetrated her digitally, with your finger.
A. No, never did that.
Q. What do you think a polygraph would say if you were asked those questions now?
*225 A. It would say I'm telling the truth. I did not, I did not penetrate her or put my finger there, or do whatever.
And the fourth exchange is as follows:
Q. Well, your stories are a little bit different, you know what I mean, that your stories are different?
. . . .
Q. You know, that's why it would be interesting for you to take a polygraph for me, to find out who's being truthful, you or her.
A. Well, I don'twhy? I never, everI never put my hand down there and touched her.
Q. I didn't say that, I said it would be real interesting to
A. I know. I know what you're saying.
Q. As to who youif you took a polygraph for me as to who would bewho's story is the truth, you or hers? Don't you think it would be interesting?
A. If Iif I take it to get this done with, yeah. I mean, I can understand if she says, you know, I'm sorry I was missmisunderstanding of it, `cause, you know, it happened to her before, you know.
Winter was convicted of second- and fourth-degree criminal sexual conduct. This appeal followed.
ISSUE
Does the admission of a police interview with appellant that contained multiple references to polygraph testing constitute plain error entitling appellant to a new trial?
ANALYSIS
In general, a defendant is deemed to have forfeited his right to have an alleged error reviewed on appeal if he fails to object to the error at trial. State v. Quick, 659 N.W.2d 701, 717 (Minn.2003). But this court has discretion to review a previously unraised issue if it is plain error. Id. The elements of plain error are (1) that there has been error; (2) that this error is plain; and (3) that the error affected substantial rights of the appellant. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); see also Minn. R.Crim. P. 31.02. Winter argues that the admission of the polygraph-related portions of the interview into evidence constitutes plain error. We agree.
Rulings on evidentiary matters rest within the sound discretion of the district court. State v. Riley, 568 N.W.2d 518, 527 (Minn.1997). This court will not reverse a district court's evidentiary ruling absent a clear abuse of discretion. Id. But it has long been the rule in Minnesota that, with one exception, results of polygraph tests as well as any direct or indirect references to the taking of or refusal to take such a test are inadmissible. State v. Fenney, 448 N.W.2d 54, 61 (Minn.1989); See also State v. Schaeffer, 457 N.W.2d 194, 197 (Minn.1990) (establishing as exception to rule that defendant has a right to present polygraph information as part of circumstances surrounding a confession).
In Anderson, we noted that polygraph tests had been almost universally held to be inadmissible and concluded: "[i]nasmuch as the results of such tests are inadmissible, it must follow that the refusal or willingness of a defendant to take the test is also inadmissible."
Riley, 568 N.W.2d at 527 (citing State v. Anderson, 261 Minn. 431, 437, 113 N.W.2d 4, 8 (1962)). Even when the parties have stipulated to the admission of polygraph testing evidence, we have held that the district court erred in admitting such evidence. State v. Litzau, 377 N.W.2d 53, 55 (Minn.App.1985).
*226 The state argues that admission of the references to the polygraph in this case is not error because the discussion with appellant about the polygraph test did not involve either polygraph test results or evidence that appellant agreed to or refused to take such a test. We disagree. The questioning clearly is a request or strong suggestion that appellant should submit to a polygraph test to establish his innocence. The inference of the questioning is that if appellant is not guilty, he would submit to the test and that failure to submit to the test is evidence of his guilt. We hold that admission of appellant's police interview without redacting all references to polygraph testing constitutes error.
"An error is `plain' if it was `clear' or `obvious.'" State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002) (citations omitted).
[W]e have held that the state cannot "be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes which plant in the minds of the jury a prejudic[i]al belief in the existence of evidence which is otherwise inadmissible."
Id. (citation omitted). Because the references to polygraph testing in this case do not fit within the narrow exception to the court's consistent ban on the introduction of such evidence, we conclude that admission of such references constitutes plain error.
Even if there is plain error, this court will not reverse unless the error affected the defendant's substantial rights. Griller, 583 N.W.2d at 740. An appellant's substantial rights have been affected if the error was prejudicial and affected the outcome of the case. State v. Lindsey, 654 N.W.2d 718, 724 (Minn.App.2002). Error is prejudicial if there exists a reasonable likelihood that it had a significant effect on the jury's verdict. Griller, 583 N.W.2d at 741. The defendant bears the burden of persuasion on this prong of establishing the right to appellate review of un-objected-to error. Id.
In some cases involving admission of polygraph-related testimony, the reviewing court has determined that although admission of the evidence was error, it was not reversible error because a mass of other more concrete physical and testimonial evidence negated any effect of the error on the verdict. See, e.g., Fenney, 448 N.W.2d at 61-62 (holding, in homicide case, that although admission of polygraph testimony to lay foundation for opinion testimony is inadmissible, there was no reversible error where state presented evidence of bloody footprints at the crime scene matching defendant's shoes and of blood stains consistent with the victim's blood found on defendant's clothes, as well as other evidence). In this case, however, appellant was convicted primarily on the basis of the victim's testimony and the credibility of appellant's admission during his police interview of an incident in which he may have "accidentally" touched the victim as she came out of the shower. There is a reasonable likelihood that the repeated references to polygraph testing contained in appellant's police interview had a significant effect on the jury's decision. The jury may have concluded that appellant refused to take the test because he was guilty or that he took the test and failed it. We hold that admission of evidence related to polygraph testing in this case affected defendant's substantial rights. And we conclude that the erroneous admission of references to polygraph testing deprived appellant of a fair trial. It is therefore necessary to reverse appellant's conviction and remand for a new trial. See Quick, 659 N.W.2d at 717 (stating that when plain error is established, reviewing court may correct the error if *227 the fairness, integrity, or public reputation of the judicial proceeding is seriously affected).
DECISION
The district court committed plain error by admitting into evidence a police interview that included numerous references to polygraph testing. The error deprived appellant of a fair trial, making it necessary to reverse appellant's conviction and remand for a new trial to ensure the fairness and integrity of the judicial proceeding.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618719/ | 303 S.W.3d 638 (2010)
Lavern ROBINSON, Respondent,
v.
TITLE LENDERS, INC., d/b/a Missouri Payday Loan, Appellant.
No. ED 92913.
Missouri Court of Appeals, Eastern District, Division Four.
February 23, 2010.
*639 Jane E. Dueker, Cicely I. Lubben, Claudia Callaway, St. Louis, MO, for appellant.
John G. Simon, Erich Vieth, John Campbell, St. Louis, MO, for respondent.
GARY M. GAERTNER, JR., Judge.
Introduction
Title Lenders, Inc., d/b/a Missouri Payday Loan (Title Lenders) appeals from the trial court's order granting Title Lenders's Motion to Stay and Compel Arbitration and striking certain language contained in an arbitration clause prohibiting class arbitration or participation in a class action. We dismiss the appeal.
Factual and Procedural Background
Lavern Robinson (Robinson) filed a proposed class action alleging that Title Lenders violated Missouri law in making certain unsecured loans under five hundred dollars ("payday loans") to Robinson and others. The loan contracts signed by Robinson and the proposed class members each contain an arbitration clause that specifically prohibits class actions (the Arbitration Clause):
By agreeing to arbitrate any dispute, neither you nor we will have the right to litigate that dispute in court, or to have a jury trial on that dispute, or engage in discovery proceeding except as provided for above or in the arbitration rules. Further, you will not have the right to participate as a representative or member of any class pertaining to any dispute subject to arbitration. The arbitrator's decision will be final and binding, except to the extent it is subject to review in accordance with applicable law governing arbitration awards. Other rights that you or we would have in court may also not be available in arbitration.
Robinson's petition contained seven counts: Count IDeclaratory ReliefArbitration Clause Unconscionable; Count IIMissouri Merchandising Practices Act; Count IIIPer Se Violation of the Missouri Merchandising Practices Act; Count IVViolation of Mo.Rev.Stat. 408.500.6[1] (excessive renewals); Count VViolation of Mo.Rev.Stat. 408.500.6 (failure to reduce debt by 5%); Count VIViolation of Mo. Rev.Stat. 408.500.7 (failure to consider borrower's ability to repay); and Count VII Violation of Mo.Rev.Stat. 408.505.3 (exceeded 75% interest cap).
In its Motion to Stay and Compel Arbitration, Title Lenders sought enforcement of the Arbitration Clause under the Federal Arbitration Act. Both Title Lenders and Robinson sought an order from the trial court ordering the parties to proceed to arbitration with the American Arbitration Association. Additionally, Robinson argued that the class waiver portion of the Arbitration Clause should be stricken as unconscionable and unenforceable in that its prohibition of all class actions resulted in immunization for Title Lenders due to the fact that damages are not significant enough to encourage individual resolution. Robinson also asked the court to declare *640 that Title Lenders would pay for the costs of class arbitration. Title Lenders's Motion to Stay and Compel Arbitration was called and heard; thereafter, the trial court instructed the parties to file post-hearing briefs.
Finding the class waiver provision unconscionable and unenforceable, the trial court determined the Arbitration Clause should be enforced without the class waiver provision and struck the language prohibiting class arbitration or participation in a class action. The trial court declined to rule on Robinson's request to order Title Lenders to pay a portion or all of the costs of arbitration, stating that the arbitrator would be best situated to determine that issue. The trial court stayed Robinson's action pending arbitration of the class action claims before the American Arbitration Association. Title Lenders then filed the instant appeal.
Discussion
In the jurisdictional statement of its brief, Title Lenders asserts:
This Court has jurisdiction pursuant to the Missouri Uniform Arbitration Act, Mo.Rev.Stat. Sections 435.440.1(1) and 435.440.1(6), and the Federal Arbitration Act, 9 U.S.C. Section 16(a)(1)(B), which provide for an appeal from an order denying an application to compel arbitration. In a final Order dated March 13, 2009, the trial court denied Appellant's Motion to Dismiss Claims and Compel Arbitration, which sought to compel individual arbitration, as required by the parties' contracts. (emphasis ours)
Initially, we note Title Lenders's characterization of the trial court's order as a "denial" is incorrect. The March 13, 2009 Order, as previously noted, actually granted Title Lenders's Motion to Compel Arbitration. At the outset then, we must determine our own jurisdiction of this appeal. Comm. for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994).
First, we do not have jurisdiction pursuant to Section 435.440.[2] The trial court's March 13, 2009 order stayed Robinson's action and compelled the parties to arbitrate their claims; an order compelling arbitration is not an appealable judgment. Nat'l Mgmt. Corp. v. Kaplan, 271 S.W.3d 55, 56 (Mo.App. E.D.2008); Deiab v. Shaw, 138 S.W.3d 741, 743 (Mo.App. E.D.2003).
Second, although an alternate basis for this Court's jurisdiction can exist under Section 512.020, the procedural posture of this case and its attendant circumstances do not establish such here. Under Section 512.020, we have jurisdiction over final judgments that dispose of all parties and claims in a matter and that leave nothing for future determination. Rule 74.01(b)[3]; Nat'l Mgmt. Corp., 271 S.W.3d at 55. However, unless the trial court resolves all issues as to all parties and claims, or disposes of one claim and expressly designates "there is no just reason for delay" under Rule 74.01(b), this Court does not acquire jurisdiction and the appeal must be dismissed. Id.
Here, the claims remain pending in the trial court, even though the proceedings have been stayed pending the outcome of arbitration. Accordingly, we do not derive *641 jurisdiction under Section 512.020 unless there has been a final resolution of one of the claims in Robinson's petition and a certification by the trial court under rule 74.01(b).
Due to this issue, this Court requested that the parties be prepared to address at oral argument whether it had jurisdiction of this appeal. Thereafter, the parties jointly filed a January 12, 2010 Order and Judgment, in which the trial court, at the request of Robinson and Title Lenders, entered a consent judgment determining that "there is no just reason for delay and therefore, pursuant to Rule 74.01(b), redenominates its 3/13/09 Order as a `Judgment' so that appeal is proper." Prior to this certification by the trial court that there was "no just reason for delay," there was no final appealable judgment under Section 512.020, because there had been no resolution of any of Plaintiff's claims by the circuit court, nor had any claims been dismissed. Robinson v. Advance Loans II, L.L.C., 290 S.W.3d 751, 754 (Mo.App. E.D.2009).
When questioned about the jurisdictional basis for the appeal, given the trial court's order compelling arbitration, Title Lenders responded that, although the trial court ordered the cause to proceed to arbitration, the court's striking of the arbitration clause's class waiver provision "in effect" denied Title Lender's motion because the order granting arbitration did not enforce the arbitration clause "as written." Although the parties' filing of the January 12, 2009 certification might appear to remedy the jurisdictional issue, this Court's opinion in Robinson v. Advance Loans II, L.L.C, addressing this same issue, rejected a similar argument for jurisdiction.
In Robinson v. Advance Loans II, L.L.C, this Court noted that Robinson framed her challenge as "an appeal of the circuit court's denial of (or alternatively its failure to rule on) her application for arbitration in a different forum." Robinson, 290 S.W.3d at 754. Nevertheless, we rejected Robinson's contention that she was appealing a denial of her application for arbitration, pointing out that her true claim was that the court erred in compelling arbitration, and concluded we had no jurisdiction over her appeal under Section 435.440.1. Id.
During oral argument in Robinson v. Advance Loans II, L.L.C, Robinson contended that because the first count of her petition asserted a declaratory-judgment action, the circuit court's order in that case resolving that count was appealable. Id. at 754. In discussing whether we derived jurisdiction under Section 512.020 RSMo. (Supp.2008), we determined that we lacked jurisdiction because claims remained pending in the circuit court, and the circuit court did not certify that there was no just reason for delay pursuant to Rule 74.01(b). Id. at 754-55. We further noted that a third obstacle to our review existed in that the arbitration order the Plaintiff appealed was denominated an "order," rather than a "judgment" or "decree." Id. at 755.
In a footnote to Robinson v. Advance Loans II, L.L.C., we elaborated on our response to Robinson's final-judgment argument, emphasizing that, even where the circuit court certifies its ruling pursuant to Rule 74.01(b), the decision must dispose of one claim. Id. at 754 n. 3. Citing Columbia Mut. Ins. Co. v. Epstein, 200 S.W.3d 547 (Mo.App. E.D.2006), we explained that declaratory judgment provides only one of several remedies, and is not a substantive claim. Robinson, 290 S.W.3d at 754 n. 3. We further stated, "And a judgment that fails to dispose of all remedies asserted as to the same legal rights, leaving some legal rights open for future adjudication, is not a final judgment, even with a Rule 74.01(b) designation." Id.
*642 For certification pursuant to Rule 74.01(b), a trial court's decision must dispose of one claim. Rule 74.01(b); Comm. for Educ. Equality., 878 S.W.2d at 450. In determining whether a cause presents more than one claim for relief, the inquiry focuses on the number of legal rights asserted in the action. Id. "If a complaint seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies." Id. A claim is considered distinct if it requires proof of different facts and the application of distinguishable law. Id.
The purpose of Rule 74.01(b) is to avoid redundant review of multiple appeals based on the same underlying facts and similar legal issues. Id. Applying the principles used to determine whether an action presents more than one claim for relief to the case at hand, we hold that the trial court's order granting Title Lenders's Motion to Stay and Compel Arbitration and striking certain language contained in an arbitration clause prohibiting class arbitration or participation in a class action did not dispose of one claim, and thus its certification is ineffective for purposes of making the order a final judgment. Id.
Although the trial court determined that the arbitration clause was enforceable after the class action provision was stricken, the trial court's ruling left unresolved the determination of other legal rights raised by the declaratory-relief count, including Robinson's request for a declaration that the cost of arbitration, to the extent it exceeded the costs of court, should be paid in all or part by Title Lenders in accordance with the clause's provision governing arbitration costs. The determination of the parties' other legal rights will be based on the same underlying facts, the same contract, and similar legal issues as presented here. Because remedies are left unresolved regarding each of the claims for relief made before the trial court, the judgment is not final. As the trial court order was not a final judgment, this Court lacks jurisdiction and the appeal must be dismissed.
The appeal is dismissed.
KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J. concur.
NOTES
[1] All statutory citations are to RSMo 2000, unless otherwise indicated.
[2] Section 435.440 allows appeals from: "(1) an order denying an appeal to compel arbitration made under Section 435.355; (2) an order granting an application to stay arbitration made under subsection 2 of section 435.355; (3) an order confirming or denying confirmation of an award; (4) an order modifying or correcting an award; (5) an order vacating an award without directing a rehearing; or (6) a judgment or decree entered pursuant to the provisions of 435.350 to 435.470."
[3] All rule references are to Mo. R.Civ. P.2008, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618765/ | 303 S.W.3d 450 (2009)
2009 Ark. 170
William Mack EUBANKS, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 08-953.
Supreme Court of Arkansas.
April 2, 2009.
*451 John Wesley Hall, Jr., Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.
PAUL E. DANIELSON, Justice.
Appellant William Mack Eubanks appeals the judgment of the Franklin County Circuit Court convicting him of the rape of S.T., his then-nine-year-old stepdaughter, and sentencing him as a habitual offender to life imprisonment. Eubanks argues on appeal that the circuit court erred by: (1) admitting testimony regarding alleged prior sexual misconduct pursuant to the "pedophile exception"; (2) admitting testimony of the victim pertaining to medical problems she experienced subsequent to the date of the rape in violation of Rule 401 of the Arkansas Rules of Evidence; and (3) admitting testimony regarding prior bad acts in violation of Rules 401, 402, 403, and 404(b) of the Arkansas Rules of Evidence. We find no error and affirm.
Eubanks does not challenge the sufficiency of the evidence; therefore, only a brief recitation of the facts is necessary. The State alleged that Eubanks, during one continuous course of conduct between May 1994 and June 1995, raped and digitally penetrated S.T. A trial date was set for October 3, 1996; however, Eubanks did not appear. Eubanks was subsequently arrested on August 5, 1997. A trial date was rescheduled for February 19, 1998, and Eubanks again failed to appear. Eubanks was not arrested again until October 8, 2005, after he was located in New Mexico using a false identity. A jury trial was conducted on November 16, 2006, which ended in a mistrial. A second trial commenced on March 20, 2008.
*452 I. Rules 403 & 404(b)
A jury heard testimony from multiple witnesses including the victim herself, law enforcement officials, medical professionals, and several others about the events and circumstances occurring before, during, and after the rape. Eubanks was found guilty, and a judgment and commitment order was entered against him on March 31, 2008. He filed a timely notice of appeal on April 10, 2008. We relate the evidence in detail only as required to understand Eubanks's three assignments of error.
During Eubanks's trial, the circuit court allowed testimony from another young woman, R.E., who testified that she had also been molested by digital penetration by Eubanks when she was a child. Eubanks contends that R.E.'s testimony was improper under Rule 404(b) because the evidence was offered to serve no other purpose than to demonstrate that he must have committed the same acts against S.T. and because he did not have an intimate relationship with her as the pedophile exception requires. He also claims error under Rule 403, arguing that the probative value of the evidence was greatly outweighed by unfair prejudice. The State avers that the circuit court correctly applied the pedophile exception to Rule 404(b) and that the probative value of the evidence at issue was not substantially outweighed by any danger of unfair prejudice.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, which this court will not disturb on appeal absent a showing of manifest abuse. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). We review a circuit court's decision to admit evidence over a Rule 403 objection under an abuse-of-discretion standard as well. See Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005).
Rule 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2008). Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. See id.
This court has long recognized a "pedophile exception" to Rule 404(b). See id. We have approved allowing evidence of the defendant's similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. See id. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. See id.
For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. See Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). We also require that there be an "intimate relationship" between the perpetrator and the victim of the prior act. Id. at 652, 232 S.W.3d at 468-69.
Eubanks argues that the pedophile exception does not apply here because a *453 parental relationship did not exist between him and R.E. This court has specifically rejected a requirement that the alleged victim of a prior bad act be a member of the defendant's family or household for the evidence to be ruled admissible under the pedophile exception. See Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004); Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). Here, the State sufficiently established the existence of the required intimate relationship between R.E. and Eubanks. R.E. testified that as a child her mother had been friends with Eubanks's wife and that she was friends with their child, Chris. She and Chris became friends when R.E. was about five or six years old. The two would spend the night together frequently, and R.E. often spent the night in Eubanks's home. The alleged molestation that R.E. testified about did not occur until R.E. was eight or nineillustrating that R.E. frequently spent the night at Eubanks's home under the care of him and his wife for several years. We hold that this evidence is sufficient to demonstrate a relationship "close in friendship or acquaintance, familiar, near, or confidential." Parish v. State, 357 Ark. at 270, 163 S.W.3d at 849.
We find Eubanks's 403 argument to be without merit. Rule 403 provides that, "[a]lthough 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 consideration of undue delay, waste of time, or needless presentation of cumulative evidence." Ark. R. Evid. 403 (2008). This court has noted that evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice. See Morris v. State, 367 Ark. 406, 240 S.W.3d 593 (2006).
In cases involving evidence subject to the pedophile exception, we have looked to the similarities between the alleged prior conduct and the charged conduct to determine whether they make the evidence probative on the issue of the accused's motive, intent, preparation, plan, and scheme. See id. When the similarities are significant, we have permitted the evidence, despite the prejudice to the accused. See id.; Flanery v. State, supra. We have also noted that the evidence is permissible when the similarities make it probative on the issue of the accused's deviate sexual impulses. See Flanery v. State, supra.
In the instant case, Eubanks is alleged to have both digitally penetrated and raped S.T. and to have digitally penetrated R.E. In addition, R.E. and S.T. were both, to a certain degree, under Eubanks's care at the time of the abuse. These similarities are significant and probative on the issue of Eubanks's deviate sexual impulses. Accordingly, we cannot say that the probative value of the evidence at issue was substantially outweighed by any danger of unfair prejudice.
II. Medical Testimony
During the State's direct examination of S.T., the State elicited testimony regarding the fact that S.T. was diagnosed with a brain tumor in 2005, which was surgically removed but grew back. S.T. testified that she had a second surgery and underwent both radiation and chemotherapy. For his second point on appeal, Eubanks contends that the testimony should not have been admitted because it was irrelevant pursuant to Rule 401 and because the prejudicial effect outweighed any probative value pursuant to Rule 403. The State first argues that Eubanks did not preserve his challenge to the testimony for appellate review because he did not object at the first opportunity. Alternatively, the State maintains that the circuit court did not abuse its discretion in allowing the testimony *454 and that Eubanks cannot show that he was prejudiced by it.
We have previously held that the circuit court is afforded wide discretion in evidentiary rulings. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Specifically, in issues relating to the admission of evidence under Ark. R. Evid. 401, 403, and 404(b), we have held that a circuit court's ruling is entitled to great weight and will not be reversed absent an abuse of discretion. See id. This court will, likewise, not reverse absent a showing of prejudice. See id.
Before S.T.'s testimony regarding her brain tumor began, counsel for Eubanks objected, stating in part, "I understand she can testify to what medical problems that had [sic] but I don't want her getting into diagnosis." A brief discussion took place, and Eubanks's counsel agreed that he did not have a problem with testimony regarding the fact that S.T. had her head operated on and tumors removed. After a line of seventeen questions regarding that medical issue, counsel for Eubanks then objected to its relevance. We have held that an argument is not preserved for our review when an appellant does not object at the first opportunity to a line of questioning. McClain v. State, 361 Ark. 133, 205 S.W.3d 123 (2005). This is because an appellant's failure to make a contemporaneous objection prevents him from asserting on appeal any error on the part of the circuit court for admitting the evidence. See id. We have stated that if a contemporaneous objection is not made during a jury trial, the proverbial bell will have been rung and the jury prejudiced. See id. Here, Eubanks's counsel did not make a timely objection with regard to relevance.
III. Prior Bad Acts
During the cross-examination of Carrie Eubanks, Eubanks's wife and S.T.'s mother, the State elicited testimony that Eubanks hit her. Eubanks contends on appeal that the testimony should not have been admitted because it was irrelevant pursuant to Rules 401, 402, and 403, and because it was improper character evidence pursuant to Rule 404(b). The State avers that Eubanks opened the door to the testimony and the circuit court did not err by allowing it.
As previously noted, the circuit court is afforded wide discretion in evidentiary rulings, a circuit court's ruling is entitled to great weight specifically relating to the admission of evidence under Rules 401, 403, and 404(b), and this court will not reverse the circuit court's ruling absent an abuse of discretion and a showing of prejudice. See Cluck v. State, supra.
First, we do not reach Eubanks's argument on Rule 404(b) presented here because he did not object to this testimony based on 404(b) before the circuit court. This court has repeatedly held that arguments not raised below will not be addressed for the first time on appeal. See Frye v. State, 2009 Ark. 110, ___ S.W.3d ___. Parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. See id. Eubanks only objected to the relevancy and unfair prejudice of this testimony pursuant to Rules 401, 402, and 403. Therefore, that is the only argument we address here.
One defense theory that Eubanks attempted to establish at trial was that S.T.'s allegation was false and was the result of some sort of conspiracy between Carrie's mother, Linda St. Mary, Eubanks's ex-wife, Debbie, and a few of their mutual friends. Therefore, during Carrie's direct examination, Eubanks's counsel *455 elicited testimony to establish that Carrie's mother, Linda St. Mary, and Eubanks's ex-wife, Debbie Eubanks, knew one another and did not like Eubanks. Carrie was asked "Your mother wasn't very fond of Bill Eubanks?" Carrie responded "No, not at all." Prior to that question, Carrie was asked about what happened one time when Eubanks showed up at her mother's house when she was staying there. She responded that "[Linda St. Mary] called the law and the law came and was involved and it was a big scene."
On cross-examination, Carrie confirmed her testimony that her mother, Linda St. Mary, was not fond of Eubanks. The State, attempting to establish why that might be the case, then elicited testimony that Linda St. Mary might not like Eubanks because she knew he hit Carrie. Clearly, the defense opened the door to this testimony by questioning Carrie about her mother's feelings for Eubanks. The State simply elicited testimony to establish that Linda St. Mary might have had a specific reason to dislike Eubanks. Therefore, we cannot hold that the testimony was irrelevant. Furthermore, Eubanks has failed to demonstrate that he was prejudiced by the evidence because he opened the door to this testimony in the first place. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998).
For all these reasons, we affirm Eubanks's conviction and sentence. Pursuant to Arkansas Supreme Court Rule 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to the appellant, and no prejudicial error has been found.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618760/ | 303 S.W.3d 456 (2009)
2009 Ark. App. 225
RAUSCH COLEMAN HOMES, LLC, Appellant,
v.
Gene BRECH, et al., Appellees.
No. CA 08-1113.
Court of Appeals of Arkansas.
April 1, 2009.
*457 Dover Dixon Horne PLLC, by: Thomas S. Stone, Little Rock, for appellant.
Russell D. Carter, III, P.A., by: Russell D. "Davy" Carter, III, Cabot, for appellees.
ROBERT J. GLADWIN, Judge.
Appellant, Rausch Coleman Homes, LLC, appeals the July 18, 2008 order of the Lonoke County Circuit Court granting summary judgment to appellees, who are thirty-two owners and residents of the land development at issue. Appellant argues that the trial court erred as a matter of law in granting appellees' motion for summary judgment because the trial court improperly construed the bill of assurance. We disagree and affirm the trial court's order.
Appellant is the owner of numerous lots in both Phase I and Phase II of Southern Comfort Estates in Cabot, Arkansas. Appellees are thirty-two owners and residents of Southern Comfort Estates Phase I and Phase II. The bill of assurance for Southern Comfort Estates Phase II provides that the minimum size for a principal residential structure would be 1700 square feet, heated and cooled. The bill of assurance also provides as follows:
20. DURATION OF COVENANTS. These covenants and restrictions are to run with the land and shall be binding upon all parties and all persons claiming under them until January 1, 2024, at which time said covenants and restrictions shall automatically be extended for successive periods of (10) ten years from each termination, unless 70% of the then owners of the lots agree in writing to amend said covenants and restrictions, either in whole or in part.
21. TO CHANGE THE COVENANTS. These covenants and restrictions shall not be amended, canceled, or supplemented unless an instrument signed by the owners of at least 70% of the then owners of the lots is placed on record agreeing to change the covenants and restrictions in whole or in part.
Also at the center of this litigation is a document entitled "Amendment to Bill of Assurance of Southern Comfort Estates, Phase II," which was executed on February 29, 2008. It purported to change the minimum size for principle residential structures from 1700 to 1400 square feet, heated and cooled.
Appellees filed a Complaint for Injunction in Lonoke County Circuit Court on March 25, 2008. They asserted that they had complied with the restrictive covenants contained in the bills of assurance "at great expense" and relied on their enforcement to "maintain their desired life style and property values." Appellees alleged that appellant had wrongfully obtained four building permits[1] from the City of Cabot, and that the four house plans did not meet the minimum square footage requirements of the respective bills of assurance. Appellees contended that they would suffer irreparable harm if appellant were allowed to construct these houses and requested an injunction.
Appellant Rausch Coleman Homes, LLC, filed a motion for summary judgment on April 25, 2008, essentially arguing that there was no basis for an injunction because the proposed buildings were within *458 the requirements of the properly amended bill of assurance. A hearing was held on June 20, 2008, and the trial court thereafter issued a letter ruling denying appellant's motion for summary judgment. Appellees filed a motion for summary judgment on July 2, 2008.
On July 18, 2008, the circuit court entered an order denying appellant's motion for summary judgment and granting appellees' motion for summary judgment. The trial court found that "the plain language of paragraph twenty (20) of the Bill of Assurance of Phase II of Southern Comfort Estates of Lonoke County, Arkansas, prohibits any amendment of the Bill of Assurance until the year of 2024." The trial court noted that restrictions on land are not favored in the law, but found that because the language of the bill of assurance clearly and unambiguously prohibited any amendment until 2024, the instrument styled "Amendment to Bill of Assurance of Southern Comfort Estates, Phase II, Lonoke County, Arkansas" filed of record on March 4, 2008, violated paragraph twenty (20) of the bill of assurance. Appellant was enjoined from constructing any buildings inconsistent with the bill of assurance filed of record on July 24, 2006. This appeal timely followed.
Normally, on a summary-judgment appeal, the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party, but in a case where the parties agree on the facts, the appellate court simply determines whether the appellee was entitled to a judgment as a matter of law. Aloha Pools & Spas, Inc. v. Employer's Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). Our supreme court has written:
[R]estrictions upon the use of land are not favored in the law. Further, a restrictive covenant will be strictly construed against limitations on the free use of land. Thus, all doubts are resolved in favor of the unfettered use of land.
....
Any restriction on the use of land must be clearly apparent in the language of the asserted covenant. Where the language is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the provision. In addition, we have said that the general rule governing the interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs.
Cochran v. Bentley, 369 Ark. 159, 166, 251 S.W.3d 253, 260 (2007) (internal citations omitted).
The rule of strict construction is limited by the basic doctrine of taking the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 255 S.W.3d 424 (2007). The court must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. It is a well-settled rule that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. Different clauses of the contract must be read together and the contract construed so that all of its parts harmonize, if that is possible. See Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may *459 safely be assumed that such was the aspect in which the parties themselves viewed it. Magic Touch Corp. v. Hicks, 99 Ark.App. 334, 260 S.W.3d 322 (2007). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Id.
The issue in this case is whether the bill of assurance for Phase II allowed for amendment of its covenants prior to January 1, 2024. Appellant argues that the covenant at issue could be amended at any time by agreement of seventy percent of the then owners. First, appellant points to the language and punctuation of Paragraph 20. Appellant urges this court to view the renewal provision, which is set off by commas, as a "separate provision." Appellant is arguing that Paragraph 20 should be read as stating that the covenants shall be binding until 2024 unless seventy percent of the owners agree in writing to amend them and that it had the authority under the original bill of assurance to amend as it did.
Furthermore, appellant contends that the use of the word "unless" is significant as meaning "except on the condition that." However, there is no disagreement that the covenants contained in the bill of assurance can be amended on the condition that seventy percent of the then owners agree to the amendment in writing; the question is when that amendment can take place.
Appellant's next argument is that Paragraph 20 must be read in conjunction with Paragraph 21. It is true that different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible. Tyson Foods, Inc. v. Archer, supra. A construction that neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Id. However, we agree with appellees that paragraph twenty-one simply provides the proper procedures for which the then owners of the lots must take to amend the covenants during the times authorized by the preceding paragraph.
In the case of Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997), the supreme court interpreted the language of a bill of assurance to determine when amendment could take place. The bill of assurance read:
The covenants and restrictions of the Bill of Assurance shall be binding for a period of 25 years from the date of recording, after which time the covenants and restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners has been recorded agreeing to change or terminate the covenants and restrictions.
Id. at 253, 953 S.W.2d at 581.
The supreme court concluded that this language was clear and unambiguous. It found that the twenty-five year period provided in the original bill of assurance would have expired in November 1993, making the amended bill of assurance executed in August 1995 untimely and therefore invalid. Id. The court cited to White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), another case the parties cite as significant here. In White v. Lewis, our supreme court held that the bill of assurance providing that covenants restricting the use of land in a subdivision to residential purposes were to be binding for twenty-five years from the date of recordation, after which they could be automatically extended for successive periods of ten years. The supreme court noted there that, unless an instrument signed by a majority of property owners was filed agreeing to change in whole or in part, the bill of assurance could not be amended *460 prior to the end of the twenty-five-year period. Id.
Appellant attempts to distinguish our case by pointing out that the bill of assurance in Barber was unambiguous because it used the language "after which" and contained no separate amendment clause. Appellees, on the other hand, argue that the restrictive covenants in Barber and White are "virtually identical" to the one at issue and that the supreme court's interpretation in those cases requires that the trial court's interpretation be affirmed in this case. We agree. There is no reason for the January 1, 2024 date to be included in the bill of assurance other than as the beginning point for the then owners to be able to amend the covenants. While appellant makes a fairly persuasive argument, the plain language and simple logic dictate otherwise. Accordingly, we affirm.
Affirmed.
ROBBINS and BAKER, JJ., agree.
NOTES
[1] Three were in Phase II and one in Phase I. The permit for the house in Phase I was amended to reflect 1910 square feet of heated and cooled space, thus conforming with the bill of assurance for Phase I. Therefore, request for injunction became moot as to the Phase I house. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618772/ | 303 S.W.3d 850 (2009)
FORT WORTH TRANSPORTATION AUTHORITY and McDonald Transit, Inc., Appellants,
v.
Ricky C. THOMAS, Appellee.
No. 2-08-236-CV.
Court of Appeals of Texas, Fort Worth.
October 29, 2009.
Rehearing Overruled February 4, 2010.
*852 J. Frank Kinsel, Jr., Stephen L. Tatum, David B. Dowell, Bridget A. Blinn, Cantey Hanger, LLP, Fort Worth, TX, for Appellants.
Art Brender, Jason C.N. Smith, Law Offices of Art Brender, Fort Worth, TX, for Appellee.
Panel: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
OPINION
ANNE GARDNER, Justice.
Introduction
Appellants Fort Worth Transportation Authority (FWTA) and McDonald Transit, Inc. appeal the trial court's order granting appellee Ricky C. Thomas's motion for summary judgment in this breach of contract case. In two issues, appellants contend that the trial court improperly granted Thomas's summary judgment motion because he failed to exhaust contractual remedies before filing his lawsuit and because a collective bargaining agreement unambiguously permitted the termination of his employment. We affirm.
Background Facts
Thomas's employment with appellants
Thomas began working for appellants[1] as a bus driver in January 1989. He injured his back in 2001 and was unable to *853 work for an extended period of time. Thomas requested and received twelve weeks' leave under the federal Family and Medical Leave Act (FMLA),[2] from July 13 through October 3, 2001. Appellants classified Thomas's absences on his Operator Work Record as "FMLA" from July 13 through October 3, 2001. One of appellants' employees wrote in an e-mail on October 3, 2001, that "[t]oday is the last day of FMLA for Ricky. Starting tomorrow, 10/4, he is just out sick." Appellants thereafter changed the classification of Thomas's absences on his Operator Work Record to "ill/sickness" beginning October 4, 2001.
While he was unable to work, Thomas collected workers' compensation benefits and received a series of approximately seven injections as treatment for his back injury. Thomas was initially released to return to work in April 2002, but appellants did not allow him to return to work because he failed an April 16, 2002 performance evaluation.[3] In the interim, Thomas received a verbal warning, on April 5, and a written warning, on April 30, regarding his absences. The written warning stated, in part, "You now have 146 absences. Please keep in contact with the `T' every two weeks."
Appellants terminated Thomas's employment by letter dated August 1, 2002. The letter cited a provision in a Union Contract Agreement[4] that required automatic termination for an absence from work lasting greater than one year when such an absence was caused by anything other than military leave.
Thomas filed a grievance with appellants on August 5, 2002, asking for reinstatement because he alleged that his performance evaluation was not required for all of appellants' employees. Appellants denied the grievance four days later. Thomas proceeded through two more unsuccessful steps in the grievance process,[5] and the union did not thereafter pursue arbitration on his behalf.
The CBA and the Operator Handbook
Effective October 1, 2000, appellants entered into the CBA with Teamsters Local Union No. 997.[6] The provision in Article 20 under which appellants terminated Thomas's employment states in relevant part: "the following shall be cause for immediate dismissal without prior warnings: *854... being on light duty status and/or absence [sic] from work for any reason other than military leave for a period of more than one (1) year."[7]
Appellants also issued employees an Operator Handbook, effective July 2001. The Operator Handbook included, among other things, appellants' FMLA and attendance control policies. Concerning FMLA leave, the Operator Handbook stated: "The T complies with the Family and Medical Leave Act (FMLA) for serious health problems" and that "[a]s with holidays, vacation leave, personal days, funeral leave and jury duty, FMLA is not counted as absenteeism." The attendance control policy in the Operator Handbook stated that it should be "constructed [sic] in accordance with" the CBA and outlined a progressive disciplinary process for excessive absenteeism. The Operator Handbook also specifically defined "absence" under its attendance control policy:
Definition of "Absence"
The term "absence" means every absence from work, regardless of the reason, except for the following:
1. vacations
2. holidays
3. floating holiday
4. jury duty
5. court appearance as defined in Article 37 of the labor agreement
6. military leave
7. approved union business
8. approved bereavement
9. approved administrative leave
10. leave of absence approved under Article 19
11. absences protected by the Family and Medical Leave Act of 1993
12. absent from assigned work for no more than sixty (60) minutes [Emphasis added.]
The proceedings in the trial court
Thomas filed suit against appellants in January 2003, alleging in his original petition that they violated Texas labor laws when they terminated his employment. Thomas filed a second amended petition in August 2006 that included a breach of contract claim and claims of retaliation and discrimination under the labor code.[8]
Thomas filed a motion for summary judgment in November 2007, contending that appellants breached the CBA.[9] Thomas argued that because the Operator Handbook's definition of "absence" excluded FMLA leave, he was actually "absent" for less than one year; appellants therefore breached the CBA by terminating his employment when they did. Appellants responded to Thomas's summary judgment motion by asserting that his contractual claim was precluded because he did not seek arbitration before bringing suit, that the Operator Handbook could not be treated as a contract, and that the CBA justified *855 his termination. The trial court granted Thomas's summary judgment motion in January 2008. Thomas then nonsuited his other claims, and appellants timely filed their notice of appeal.
Standard of Review
We review the trial court's grant of summary judgment de novo. See Gray v. Nash, 259 S.W.3d 286, 289 (Tex.App.-Fort Worth 2008, pet. denied). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex.R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). In other words, the plaintiff meets the summary judgment burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
When reviewing the trial court's grant of a plaintiff's summary judgment motion, we take as true all evidence favorable to the defendant, and we indulge every reasonable inference and resolve any doubts in the defendant's favor. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Evidence that favors the plaintiff's position will not be considered unless it is uncontroverted. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). However, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex.2005). Summary judgment is proper where, as here, the parties do not dispute the relevant facts. Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex.2000).
Exhaustion of Contractual Remedies
In their first issue, appellants contend that the trial court's summary judgment was improper because Thomas waived his breach of contract claim by failing to fully comply with the CBA's grievance procedure. Specifically, appellants assert that Thomas failed to pursue arbitration after the three-step grievance procedure, thus waiving his breach of contract claim. Thomas contends, in response, that the CBA specifically exempts "management rights" from mandatory arbitration and that the decision to terminate Thomas's employment was one of the "management rights."[10]
"Where there is a labor contract between a union and an employee which provides procedures for settlement of disputes between the employee and employer, an employee is not entitled to redress in the courts where he fails to exhaust his remedies under the contract." Lindsey v. Gen. Dynamics Corp., 450 S.W.2d 895, 895-96 (Tex.Civ.App.-Waco 1970, no writ); see Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 565 (Tex.App.-Dallas 1991, writ denied) *856 (op. on reh'g) (indicating that claims may be barred because of a plaintiff's failure to comply with the grievance process in a collective bargaining agreement); Roberts v. City of Corpus Christi, 744 S.W.2d 214, 215-16 (Tex.App.-Corpus Christi 1987, no writ) ("[A]n employee generally must exhaust the grievance remedies provided for in a collective bargaining agreement or other contract before bringing suit."). Here, Article 12 of the CBA indicates that "any controversy" concerning the application of any of the CBA's provisions "shall be treated as a grievance and shall be settled, if possible." Appellants relied on a provision of the CBA to justify Thomas's termination, and Thomas has contested the application of this section; thus, his complaints were subject to the CBA's grievance procedure.
The parties agree that Thomas proceeded through the three steps of the CBA's grievance process described above. They also agree that the union did not demand arbitration following the three-step grievance process. Thomas asserts, however, that his discharge was not subject to arbitration under the CBA. We agree.
Article 13 (titled "Arbitration"), Section A of the CBA provides: "Should any grievance remain unsettled after exhausting [the three-step grievance procedure], either party hereto shall, if the party desires, demand arbitration. ... Otherwise, the grievance shall be considered settled." However, Article 13, Section C of the CBA states in part, "Issues arising out of the exercise of the rights reserved to management under the title Rights of Management above, including management's determination of the facts underlying its exercise of such rights, shall not be subject to arbitration." Article 3 of the CBA, titled "Management Rights,"[11] states,
Except to the extent expressly abridged by a specific provision of [the CBA], the Company reserves and retains, solely and exclusively, all of its Common Law rights to manage its business, as such rights existed prior to the execution of [the CBA]. Prominent among such unqualified rights ... are the following:... to hire, lay-off, assign, transfer, and promote employees ... [;] to adopt and enforce working rules; to discipline and discharge employees for just cause.[12] [Emphasis added.]
We conclude that the unambiguous cumulative effect of Article 13, Section C and Article 3 is that appellants' "unqualified" decision to discharge Thomas based on what they allege was just cause under the CBA was not subject to arbitration because this decision was one of their "Management Rights." Therefore, we hold that Thomas complied with the Article 12 grievance procedure, although not successfully demanding arbitration, by proceeding through all three grievance steps and that the CBA did not require Thomas to also seek arbitration.[13] We overrule appellants' first issue.
*857 Thomas's Discharge Under the CBA and the Operator Handbook
In their second issue, appellants argue that the trial court improperly granted summary judgment because the Operator Handbook should not have been considered to alter the CBA's unambiguous language. Thomas argues that the definition of "absence" in the Operator Handbook, which excludes FMLA leave from an "absence," must be considered with Article 20 of the CBA because the CBA does not define "absence."[14] Neither party argues that the CBA is ambiguous. Instead, they offer competing contentions as to whether the definition of "absence" in the Operator Handbook may be considered when interpreting Article 20 of the CBA.
Lack of clarity or a disagreement among the parties does not necessarily create an ambiguity. See Universal Health Servs., Inc. v. Renaissance Women's Group, P.A., 121 S.W.3d 742, 746 (Tex.2003). Rather, whether "a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered." Id.
When construing contracts and other written instruments, our primary concern is to ascertain the true intent of the parties as expressed in the instrument. See NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex.App.-Fort Worth 2007, no pet.); see also City of San Antonio v. Scott, 16 S.W.3d 372, 377 (Tex. App.-San Antonio 1999, pet. denied) (applying general principles of contract construction to the interpretation of a collective bargaining agreement). To ascertain the parties' intent, we may consider together all writings relating to the same transaction, even if they were executed at different times. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999). We must examine and consider the entire contract in an effort to harmonize and give effect to all provisions so that none are rendered meaningless. Potter, 230 S.W.3d at 463; see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). "We construe contracts `from a utilitarian standpoint bearing in mind the particular business activity sought to be served' and `will avoid when possible and proper a construction which is unreasonable, inequitable, and oppressive.'" Frost Nat'l Bank v. L & F Dist., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987)). "If, after the pertinent rules of construction are applied, *858 the contract can be given a definite or certain legal meaning, it is unambiguous and we construe it as a matter of law." Id. (citing Webster, 128 S.W.3d at 229).
To resolve appellants' second issue, we must determine whether the parties intended to exempt FMLA leave from a one-year absence under Article 20 of the CBA. The provision at issue permits termination of employment for an absence exceeding one year and specifically exempts military leave; it does not expressly reference FMLA leave. In fact, the CBA does not define "absence" and does not set forth appellants' FMLA policy. Appellants' FMLA policy and a definition of "absence" are instead contained in the Operator Handbook.[15] The question, then, is whether the Operator Handbook should be considered with the CBA to determine if Thomas's "absence" exceeded one year.
"Under generally accepted principles of contract interpretation, all writings that pertain to the same transaction will be considered together, even if they were executed at different times and do not expressly refer to one another." Parks, 1 S.W.3d at 102. The CBA became effective October 1, 2000, and the Operator Handbook is dated July 2001, so they were not contemporaneously executed. They may nevertheless be considered together if they relate to the same transaction and the surrounding circumstances do not indicate that they should not be considered together. Id.; see also Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, 65 (1959).
The CBA set forth the agreements between appellants and the union with regard to the terms and conditions of employment for the union's members. It addressed, among other things, rights reserved to management, strikes and lockouts, uniforms, work schedules, discipline, termination for "just cause," and grievance procedures. The Operator Handbook similarly set forth appellants' personnel policies, generally with more specificity than the CBA, and included policies relating to employee benefits, health and safety, FMLA leave, and absenteeism. The Operator Handbook referenced the CBA, and its attendance control policy provided that it was to be "constructed [sic] in accordance with" the CBA. Under the circumstances of this case, the CBA and the Operator Handbook related to the same transaction because they set forth the terms and conditions of Thomas's employment with appellants.
We must next consider whether the surrounding circumstances prevent the CBA and the Operator Handbook from being considered together. In this regard, the CBA stated in Article 42: "This Agreement together with its Exhibits constitutes the only agreement between the parties hereto, and no previous addenda, memoranda[,] understandings or practices, whether written or oral, shall be binding upon either party."[16] [Emphasis added.] The CBA did not, however, state that subsequent documents, such as the Operator Handbook, cannot be considered with the *859 CBA. The Operator Handbook, on the other hand, stated that its attendance control program was "intended to be and should be constructed [sic] in accordance with" the CBA and any successor CBAs. The Operator Handbook also stated, however, that "[i]t is not an employment contract," that it "is not intended to create contractual obligations of any kind," and that it is "not intended to disagree in word or intent with the current Labor Agreement." Even though the Operator Handbook does not purport to create contractual rights, we find that we may consider its terms in determining whether the parties intended to exempt FMLA leave from the provision in Article 20 under which appellants terminated Thomas's employment. The CBA and the Operator Handbook related to the same transaction, and their terms do not clearly prevent them from being considered together. See Parks, 1 S.W.3d at 102; Miles, 321 S.W.2d at 65. Thus, we will consider the CBA and Operator Handbook together to determine the parties' intent with respect to FMLA leave and absences exceeding one year.[17]
Appellants terminated Thomas's employment under the provision in Article 20 that states: "the following shall be cause for immediate dismissal without prior warnings: ... being on light duty status and/or absence [sic] from work for any reason other than military leave for a period of more than one (1) year." The provision does not expressly exempt FMLA leave from an absence justifying termination.[18] However, the Operator Handbook states: "The T complies with the Family and Medical Leave Act (FMLA) for serious health problems." The Operator Handbook also provides that "[a]s with holidays, vacation leave, personal days, funeral leave and jury duty, FMLA is not counted as absenteeism." [Emphasis added.] The Operator Handbook further defines "absence" as "every absence from work, regardless of the reason, except for the following: ... (11) absences protected by the Family and Medical Leave Act of 1993."[19] Considering the CBA and the Operator Handbook together, we conclude that FMLA leave cannot be counted as an "absence" under Article 20 of the CBA when terminating an employee for an absence exceeding one year.[20]
Based on the foregoing, we hold that Article 20 of the CBA must be interpreted *860 to exclude FMLA leave when calculating whether Thomas was absent from work for more than one year. The summary judgment evidence establishes that Thomas first missed work on July 13, 2001, when his FMLA leave began, and that his FMLA leave ended on October 3, 2001. The summary judgment evidence also establishes that appellants terminated Thomas's employment on August 1, 2002. Excluding Thomas's FMLA leave, Thomas was actually "absent" from work for less than one year when appellants terminated his employment on August 1, 2002. Appellants therefore breached the CBA by terminating Thomas's employment when they did. The trial court properly granted summary judgment to Thomas on his breach of contract claim. We overrule appellants' second issue.
Conclusion
Having overruled each of appellants' issues, we affirm the judgment of the trial court.
LIVINGSTON, J., filed a dissenting opinion.
TERRIE LIVINGSTON, Justice, dissenting.
The majority holds that a unilateral, nonbargained employee handbook may create contractual rights (thus serving as the basis of a breach of contract claim) and alter the unambiguous language of a collective bargaining agreement (CBA) even though the handbook specifically and plainly says that it cannot do so. For this and other reasons, I respectfully dissent.
The CBA unambiguously required the immediate termination of Thomas's employment if he was absent "from work for any reason other than military leave for a period of more than one (1) year." [Emphasis added.] The undisputed evidence shows that Thomas did not work from July 2001 until August 2002 (a period of more than one year) and that he did not take military leave. Despite the evident justification for Thomas's termination when connecting those facts, the majority holds that Thomas may succeed on his sole claim which must focus on a breach of the CBA itself, the only agreement between the partiesbecause his twelve weeks' leave under the federal Family and Medical Leave Act (FMLA) must expand the one-year absence limitation. See Majority op. at 859-60.[1] The record and the law preclude the majority's holding for several reasons.
First, although the majority correctly explains that in some circumstances documents related to the same transaction may be considered together, we should not rely on that manner of construction when the *861 documents themselves prohibit such reliance. See Jones v. Kelley, 614 S.W.2d 95, 99 (Tex.1981) (explaining that the principle of construing writings together is a "device for ascertaining and giving effect to the intention of the parties and cannot be applied arbitrarily and without regard to the realities of the situation") (quoting Miles v. Martin, 159 Tex. 336, 341, 321 S.W.2d 62, 65 (1959)).
Here, the handbook indicates that it does not enlarge collectively-bargained provisions; its first textual page states that it is
intended to provide employees with a general understanding of [appellants'] personnel policies. Employees are encouraged to familiarize themselves with the contents of the handbook, as it will answer many common questions concerning employment with [appellants].
However, this handbook cannot anticipate every situation or answer every question about employment. It is not an employment contract and it is not intended to create contractual obligations of any kind. ...
... These policies and/or benefits are not intended to disagree in word or intent with the current Labor Agreement. [Emphasis added.]
Other parts of the CBA and the handbook also weigh against the majority's conflated construction of those two documents. For instance, while the CBA references work rules and rule books, it limits an employee's duty to follow such provisions to "rules and regulations of [appellants] which are not in conflict with [the CBA]," which dictates the superiority of the CBA's provisions. Also, the CBA's reference to such rules does not provide that any definitions from the rules should be incorporated into the CBA's provisions. The CBA further states that it is the "only agreement between the parties." Finally, although the handbook indicates that it is to be construed in accordance with the CBA in use at the time of Thomas's termination, it does not state the inversethat the CBA is to be construed in accordance with the handbook.
Second, as the majority recognizes, our precedent establishes that as a general rule, employee handbooks and policy manuals constitute general guidelines in the employment relationship and do not create implied contracts between the employer and employee that alter the at-will employment relationship. Majority op. at 858-59; see Brown v. Sabre, Inc., 173 S.W.3d 581, 585 (Tex.App.-Fort Worth 2005, no pet.) (describing that the rule particularly applies where, as here, "a specific disclaimer in the employee handbook warns the employee that the manual is intended to provide guidelines only, and does not create contractual rights"); see also Fed. Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993); Day & Zimmermann, Inc. v. Hatridge, 831 S.W.2d 65, 69 (Tex.App.-Texarkana 1992, writ denied) (explaining that "[u]nder Texas law ... a statement of company policy, unaccompanied by an express agreement, does not create contractual rights"). In the same way, although Thomas's employment was not at-will, the handbook should not be construed to alter the provisions of the collectively-bargained contract on which Thomas bases his claim without an expressed intention to do so. The majority has failed to explain why the precept that guided our decision in Brown, that unilateral employment manuals cannot per se constitute written employment contracts, should not also apply to the ability of such manuals to alter preexisting contractual employment relationships. *862 See Brown, 173 S.W.3d at 586 (citing Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1198 (5th Cir.1987)).
Third, Thomas's argument that the handbook's "absence" definition should be incorporated into the CBA to excuse FMLA leave does not make sense when considering the CBA's specific and limited designation of military leave as an excused absence because military leave is also excluded as an absence in the handbook. In other words, if appellants and Thomas's union had intended to add FMLA leave to an "absence" lasting greater than one year in the CBA by tacitly incorporating the handbook's definitional provision, there would be no need to specifically mention military leave in the CBA, which is also excluded in that same definitional provision. If that had been their intent, the specific mention of military leave in the CBA's termination provision would amount to unnecessary surplusage. And, of course, by the majority's decision that indicates its opinion of the contracting parties' intent to tacitly incorporate the handbook into the CBA, the "for any reason other than military leave" phrase in the CBA's termination provision is rendered wholly inconsequential.
Thus, the majority's decision to alter the CBA's language by the handbook's provisions defeats its stated goal of giving effect to "all provisions so that none are rendered meaningless." Majority op. at 857; see NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex.App.-Fort Worth 2007, no pet.). For the same reason, the decision also weighs against the entitlement of parties to a contract to select their own obligationsrather than having a court create obligations for themby carefully choosing the words they select to include in the contract.[2]See Doe v. Tex. Ass'n of Sch. Bds., Inc., 283 S.W.3d 451, 458 (Tex.App.-Fort Worth 2009, pet. filed) (citing Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.-Amarillo 2000, no pet.)).
Fourth, the majority's decision that the handbook adds an employee's FMLA leave to the one-year limitation in the CBA makes even less sense when considering the other types of leave that are mentioned in the handbook and are also necessarily added to the one-year period under the majority's reasoning, such as holidays and vacations. The CBA provides appellants' employees with eleven holidays. Because Thomas had been employed by appellants for more than nine years, he also received three weeks' paid vacation. Thus, under the majority's reasoning, when considering Thomas's twelve weeks of FMLA leave, his more than two work weeks of combined holidays, and his three weeks of vacation, appellants could not have terminated Thomas's employment until more than seventeen weeks (about four months), at a minimum, had passed after he had already been unable to work for a year. Appellants would then have to further add to that time any days off related to his jury duty, bereavement or administrative leave, or "approved union business." As can be seen, the majority's decision has turned a simple phrase"absence from work for any reason other than military *863 leave for a period of more than one (1) year"into a mathematical enigma that could justify Thomas's absence from work for close to a year and a half.
Finally, the majority's holding that the handbook adds to the CBA's contractual language becomes further strained when considering that in the handbook, appellants "reserve[d] the right to change, revise, or eliminate any of the [handbook's] policies." Under the majority's reasoning, although FMLA leave must be added to the CBA's one-year limitation today, it may not be added to that limitation tomorrow if appellants choose to modify the handbook. Such fluidity is obviously at odds with our task of interpreting the parties' contractual bargain. See Gamble v. Gregg County, 932 S.W.2d 253, 255 (Tex. App.-Texarkana 1996, no writ) (indicating that an employee handbook does not express an intent to vest contractual rights when it "expressly provides that the [employer] may unilaterally change the policies and practices"); Ryan v. Superior Oil Co., 813 S.W.2d 594, 596 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (holding that a vacation plan that stated that it could "be terminated or modified at any time" did not create a contractual obligation).
For all of these reasons, the handbook, as a matter of law, cannot enlarge or modify the CBA's provisions, and it cannot serve as the basis for Thomas's breach of contract claim. And even if the handbook's provisions created doubt on interpreting the CBA's termination language, the majority should have resolved those doubts in appellants' favor. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).
Because the trial court improperly granted summary judgment on Thomas's claim for breach of the CBA, I would sustain appellants' second issue and reverse this case. Because the majority affirms the trial court, I respectfully dissent.
NOTES
[1] McDonald manages the public transportation bus system owned by FWTA, which is a political subdivision of the state. McDonald and FWTA do not argue on appeal that their liability should be considered separately. Thus, we refer to McDonald and FWTA, collectively, as appellants.
[2] See 29 U.S.C.A. §§ 2601-2654 (West 2009). The FMLA guarantees qualifying employees twelve weeks of unpaid leave each year for disabling health problems, family members' serious illnesses, or the birth of a new son or daughter; employers are prohibited from interfering with such leave. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 84-86, 122 S. Ct. 1155, 1158-60, 152 L. Ed. 2d 167 (2002).
[3] Thomas again failed a performance evaluation in June 2002.
[4] The parties refer to this agreement as a collective bargaining agreement, and we will refer to the agreement as the "CBA" in this opinion.
[5] During the grievance process, appellants gave Thomas another opportunity to pass the performance evaluation and be reinstated. It is unclear from the record whether Thomas accepted appellants' offer to retake the performance evaluation.
[6] Thomas affirmed during deposition testimony that he was a member of this union; he also filed an affidavit stating that he was "covered by the [CBA]."
[7] Appellants have maintained throughout the proceedings in the trial court and on appeal that this provision of the CBA was the sole basis of the termination of Thomas's employment.
[8] Thomas's only pleaded theory of recovery at this time is his theory that appellants breached the terms of the CBA. Thomas nonsuited all of his other claims.
[9] Thomas also sought summary judgment on his discrimination claim, but the trial court denied the motion as to that claim. Thomas does not challenge that ruling in this appeal.
[10] Appellants contended in their reply brief and at oral argument that Thomas failed to assert the "Management Rights" exclusion from the arbitration requirement in the trial court and that this exclusion cannot be raised for the first time on appeal. We disagree. The record indicates that Thomas raised the "Management Rights" issue in his reply to appellants' response and objections to his amended summary judgment motion.
[11] While there is no provision of the CBA titled "Rights of Management" as denoted by Article 13, Section C, we conclude that Article 3, pertaining to "Management Rights," is the title to which Article 13, Section C refers.
[12] Appellants have not asserted that any provision of the CBA expressly abridged its "management right" to discharge Thomas's employment.
[13] Thomas also contends that appellants forfeited any right to arbitration by violating the grievance procedure and by their litigation conduct and that any failure to arbitrate was harmless error. Because we conclude that the arbitration requirement did not apply to Thomas's discharge, we do not address these other assertions.
[14] Thomas also argues on appeal that his FMLA leave cannot be counted as an "absence" under Article 20 because doing so violates the FMLA. Because "[t]he assertion of new grounds before the appellate court in support of summary judgment may prejudice the nonmovant's ability to demonstrate that the issue raises a genuine issue of material fact," we cannot affirm a summary judgment "on grounds not expressly set out in the motion or response." Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). Thomas did not include this argument in his amended motion for summary judgment or in any other document filed with the trial court. Thomas cited the applicable federal regulation, 29 C.F.R. § 825.220 (2009), in his reply to appellants' response and objections to his first amended motion for summary judgment, but only for the proposition that he was not required to arbitrate his claim against appellants. We are therefore prohibited from affirming the summary judgment on this ground. See Stiles, 867 S.W.2d at 26; Franco v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 786 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
[15] Federal law requires appellants to include their FMLA policies in the Operator Handbook. See 29 C.F.R. § 825.300(a)(1), (3) (West 2009) (requiring FMLA-covered employers to provide its eligible employees with a notice explaining the provisions of the FMLA and to "includ[e] the notice in employee handbooks ... if such written materials exist").
[16] This type of contractual provision is commonly referred to as a "merger clause." "Merger occurs when the same parties to an earlier agreement later enter into a written integrated agreement covering the same subject matter." Texas A & M Univ. Kingsville v. Lawson, 127 S.W.3d 866, 872 (Tex.App.-Austin 2004, pet. denied). This merger clause does not prevent consideration of the Operator Handbook because the CBA pre-dates the Operator Handbook.
[17] Our precedent establishes that as a general rule, employee handbooks and policy manuals constitute general guidelines in the employment relationship and do not create implied contracts between the employer and employee that alter the at-will employment relationship. Brown v. Sabre, Inc., 173 S.W.3d 581, 585 (Tex.App.-Fort Worth 2005, no pet.). Our decision today does not conflict with Brown. Thomas was not an at-will employee; the CBA governed the terms and conditions of his employment with appellants. And, contrary to the dissent's characterization of our holding, we do not say that the Operator Handbook created contractual rights. We consider the CBA with the Operator Handbook only to determine the intent of the parties concerning FMLA leave in the context of Article 20 of the CBA.
[18] This provision also does not exempt bereavement leave from an absence justifying termination, but we note that Article 36 of the CBA provides: "Employees taking approved bereavement leave shall not be charged with an absence."
[19] There is no dispute in this case that Thomas was in fact eligible for leave under appellants' FMLA policy as stated in the Operator Handbook.
[20] Although "a court may conclude that a contract is ambiguous even in the absence of such a pleading by either party," McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727, 730-31 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd), we do not find that the CBA is ambiguous. Instead, after applying the pertinent rules of construction and considering the CBA and the Operator Handbook together, we find that the provision in Article 20 under which Thomas was terminated is susceptible to only one reasonable interpretation: FMLA leave cannot be counted as an absence when terminating an employee for an absence exceeding one year.
[1] As the majority explains, Thomas relies on portions of the handbook that state that FMLA leave is "not counted as absenteeism" and exclude FMLA leave from the handbook's definition of "absence." Majority op. at 859. Those portions of the handbook are relevant to the handbook's Attendance Control Program, which sets forth increasing disciplinary actions for employees accumulating several absences during a rolling twelve-month period. The program does not explicitly relate to absences lasting longer than one year, as does the CBA.
[2] In accordance with that entitlement, the CBA expresses that in crafting that document, Thomas's union and appellants each "had the unlimited right and opportunity to make demands and proposals with respect to all proper subjects of collective bargaining and that all such subjects [had] been discussed and negotiated upon and the agreements contained in this contract [had been arrived upon] after the free exercise of such rights and responsibilities." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1780890/ | 848 So. 2d 258 (2002)
A.M. and B.M.
v.
LAMAR COUNTY DEPARTMENT OF HUMAN RESOURCES.
2010564.
Court of Civil Appeals of Alabama.
October 4, 2002.
*259 Glenn Carlyle Noe, Sulligent, for appellants.
William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
PITTMAN, Judge.
The Lamar County Department of Human Resources ("DHR") filed a petition to terminate the parental rights of A.M. ("the father") and B.M. ("the mother") in September 2001 as to their two children, P.A.M. ("the son") and B.A.M. ("the daughter"). Following a one-day hearing, the juvenile court terminated the parental rights of the father and the mother. Both parents appeal; they argue that the juvenile court erred by terminating their parental rights when, they contend, (1) DHR did not make reasonable efforts to rehabilitate them; (2) DHR did not prove that the efforts it did make to rehabilitate them had failed; and (3) DHR did not properly consider and reject all viable alternatives to a termination of their parental rights.
A nonparent who seeks to terminate a parent's parental rights must prove by clear and convincing evidence that the children are dependent and that there are no viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So. 2d 950 (Ala.1990).
Section 26-18-7(a), Ala.Code 1975, states, in pertinent part:
"If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
"(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
"(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
"(4) Conviction of and imprisonment for a felony.
"(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional *260 conduct or willful neglect of the parent.
"(6) That reasonable efforts by the [DHR] ... leading toward the rehabilitation of the parents have failed.
". . . .
"(8) That parental rights to a sibling of the child have been involuntarily terminated."
Section 26-18-7(b) further provides that if the child is not in the custody of the parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their "circumstances to meet the needs of the child."
During the hearing, Melanie Dulaney, the mother's DHR case manager, testified that she began working with the mother in 1990 when the mother was pregnant with the son. She was the mother's case manager throughout most of the 1990s. Initially, Dulaney testified, the mother needed basic home-management and parenting skills. Dulaney testified that she needed to learn to break housecleaning chores into manageable tasks. Dulaney also testified that after the son was born, the mother needed to learn the basic skills in taking care of a baby, e.g., how to change diapers, how to bathe a baby, and how to properly feed a baby. Beginning in 1991, shortly after the son's birth, DHR sent a case aide to assist the mother in learning the rudimentary housekeeping and child-raising skills she needed.
During direct examination, Dulaney was asked about the progress the parents made during the years she supervised the mother.
"Q. Was there any progress made in those parenting areas during the time that you were working with them?
"A. No."
Dulaney testified that the parents regularly had loud arguments that often called for crisis intervention. She also stated that the mother regularly, as frequently as every other day before DHR removed the children, complained that her son's behavior was out of control and that she needed help handling him.
Charity Moore, a social worker with DHR, began visiting the family in February 2001. During her initial visit, she noticed that the bathroom and refrigerator needed cleaning, and she discussed with the mother the causes of roach infestations. A week later she returned and the house was much dirtier than it had been during her previous visit. There was food on the floor in the kitchen and in the dining room. The kitchen floor was tracked with mud as well. Clothes and toys were on the floor in the son's room, and he had written on the floor with markers. There were clothes and dirty diapers on the floor of the parents' bedroom. The bathroom had dirty clothes and dried urine on the floor, and several live roaches were in the bathtub. Moore and the mother discussed the cleaning tasks that needed to be performed and the types of cleaners that should be used.
Four days later, Moore returned to the house and noticed that the rooms were much cleaner. The dirty diapers and food were no longer on the floor, and the bathroom had been cleaned. Moore talked to the mother about taking steps to "baby-proof" the house, such as putting medicines out of reach.
Two weeks later Moore returned to the house to discuss a report that the mother had given her son a dose of her anti-depressant medication. The mother stated that her son had been out of control, and, because she could not find the medicine he had been prescribed for treatment *261 of attention deficit hyperactivity disorder, she had given him some of her prescription medication to calm him. The mother also stated that, later that same day, she had given him a dose of his own ADHD medicine. Moore testified that she discussed the potential dangers of giving a child medicine that had not been prescribed for him with the mother. During this visit Moore also observed an argument between the mother and her son regarding the television. The mother tried to discipline the son for changing the television station while the five-week-old daughter was seated in front of the television set. Moore had to explain to the mother that a newborn does not actually watch or understand television programs.
During her final visit, Moore observed the father trying to feed the baby with a filthy bottle; the mother said she had not washed it between feedings. Moore also observed dishes with dried food on the countertops, the stovetop, and the floor, and she noticed unidentifiable food in uncovered containers in the refrigerator. Floors were scattered with clothes, papers, and refuse; the bathroom floor had dried urine on it. Following this visit, DHR filed a dependency petition and removed the children from the parents' custody.
DHR placed the children in foster care. DHR formulated an Individualized Service Plan ("ISP") for the parents and assigned a case aide to teach the parents basic homemaking skills. According to the case aide, the parents made no improvement in their homemaking skills. The same case aide testified that she had been in the parents' home in 1991 and had tried to teach them the same skills at that time. During the ISP meetings both parents were hostile and threatened the DHR employees. After the parents continued to make no improvement, DHR filed its petition to terminate their parental rights.
Both the mother and the father have moderate to severe mental-health problems. Dr. Teresa Davis, a clinical psychologist, stated that as part of the review process before the termination hearing, both parents received thorough evaluations at a mental health center. The reports indicate that the mother has borderline intellectual functioning, which makes her prone to making poor judgments and impulsive decisions because she is unable to think through a specific situation completely. A person with borderline intellectual functioning can usually perform adequately in everyday settings but does not tolerate stress or frustration well and needs constant supervision to succeed in anything but simple, repetitive tasks. The mother also has been diagnosed with "schizotypal" personality featurese.g., paranoid behavior, bizarre thoughts, and inappropriate actions. The report concluded that the combination of her two conditions makes the mother incapable of supervising and raising a child without constant supervision. The evaluation concluded that the mother needs frequent, perhaps daily, guidance regarding housekeeping, nutrition, budgeting, and child raising. She cannot perform these tasks unassisted.
The father is receiving supplemental social security income for his mental disability; he falls into the bottom 20 percent of the general population for mental function. The father also suffers from a generalized anxiety disorder that causes problems with sleeping and eating, which in turn results in constant irritability and nervousness. He also has a personality disorder that causes him to interact inappropriately with people. His combination of problems leads to an inability to manage stress in everyday life. In periods of stress, his temper becomes uncontrollable. Without continuous counseling and anger-management intervention, the evaluation concluded that the father should not have children in his care.
*262 I. Efforts to Rehabilitate
The parents first argue that DHR did not provide reasonable efforts to rehabilitate them. We disagree. The parents specifically argue that because Sue Thomas, the case aide, testified that she might not have spent two hours each week in their house, as required by the ISP, DHR did not provide reasonable efforts to rehabilitate them. Thomas's testimony is that she could not recall exactly how much time she spent at the parents' house each week. Furthermore, the evidence indicates that DHR provided a variety of in-home services to instruct the parents on caring for the newborn daughter, on meal preparation, and on budgeting for food costs. However, the evidence indicates that the parents did not ever learn how to perform these basic tasks without supervision. As stated above, DHR began its involvement with the family in 1991, and in 2001 DHR was still attempting to teach the parents basic housekeeping and child-caring skills. If the mother and the father had not mastered the basic principles of child care and housekeeping during a 10-year period of ongoing instruction, we conclude that requiring the case aide to spend more time with the parents during 2001 would not have resolved the problem. Therefore, we conclude that DHR provided reasonable efforts to rehabilitate the parents.
II. Whether Rehabilitation Efforts Failed
The parents next argue that DHR failed to prove that the efforts to rehabilitate them had failed. We interpret this as a sufficiency-of-the-evidence argument. As stated above, DHR is required to prove by clear and convincing evidence that the children are dependent. The mother has borderline intellectual functioning and the father has a mental-retardation diagnosis. The evidence indicates that neither parent has learned basic parenting or housekeeping skills. During the 10-year period of DHR intervention, the caseworkers repeatedly tried to teach those basic skills to the parents. The evidence indicated that the son had to tell the mother how to feed the daughter her bottles. The evidence also showed that the father watched R-rated movies with inappropriate subject matter for children while they were present and that he became hostile with the caseworkers. By the time of the hearing, the mother had formally refused any further assistance from DHR and only accepted some general counseling. Based on this evidence, we conclude that clear and convincing evidence supports a finding that the children are dependent.
III. Viable Alternatives
The parents lastly argue that the trial court erred by not properly considering and rejecting all viable alternatives to a termination of their parental rights. The alternative suggested by the parents is for DHR to reinstate the degree of services DHR provided when it first became involved with the family in 1991. The record indicates that a case aide was in the parents' home almost five days a week to ensure that the parents developed and maintained sufficient parenting and household skills. As stated above, clear and convincing evidence supports a finding that the children are dependent and that the parents are unable or unwilling to change their condition to care for the children. Therefore, on the facts of this case, we conclude that the viable alternative of providing intensive in-home help is not required and, in fact, would be futile, at this time.
IV. Conclusion
The juvenile court's judgment terminating the parents' parental rights is affirmed.
AFFIRMED.
*263 YATES, P.J., and CRAWLEY, J., concur.
THOMPSON, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614760/ | 502 So.2d 1098 (1987)
STATE of Louisiana
v.
William H. HANCOCK, Sr.
No. KA-5576.
Court of Appeal of Louisiana, Fourth Circuit.
January 14, 1987.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., A. Hammond Scott, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
Before GARRISON, LOBRANO and WARD, JJ.
GARRISON, Judge.
The defendant, William H. Hancock, Sr., was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. After he was found guilty as charged, the defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence.
On May 19, 1985, the New Orleans Police Department responded to a medical emergency call at the French Quarter apartment of Allen Watson. Upon their arrival, the police found Watson dead as a result of multiple stab wounds. Several days later, an employee of a local jewelry store called *1099 the police when a man named Barry Tregob brought in a diamond ring to be sized which the employee recognized as the ring he had sold previously to Watson. This employee was a personal friend of Watson's and had seen Watson wearing the ring on the night before his murder. The police arrived and brought Tregob to the police station for questioning. Tregob told the police that he had agreed to buy the ring from the defendant and had taken it to the jeweler to be sized. Tregob cooperated with the police in apprehending the defendant by setting up a meeting with the defendant on the pretense that he wanted to pay for the ring at that time. As the defendant arrived at a restaurant for his meeting with Tregob, he was arrested by the police. Subsequently, the defendant confessed to the killing of Allen Watson.
On appeal, the defendant requests that the record be reviewed for errors patent. The record in the case indicates that the trial court erred in sentencing the defendant immediately after denying his motion for new trial, rather than observing the twenty-four hour delay period required by LSA-C.Cr.P. art. 873. This article provides that this delay period may be waived by the defendant; however, the record does not reflect such a waiver. Although the failure of the trial judge to observe this delay period is an error patent, it is harmless because the defendant has made no showing of actual prejudice as a result thereof. State v. Brogdon, 426 So.2d 158 (La.1983).
Another error patent exists in that the minute entries in this case do not indicate whether or not the defendant was present at the calling, examination, challenging, impanelling and swearing of the jury as required by LSA-C.Cr.P. art. 831.[1] Although the minutes state the names of the jurors, the number of challenges for cause by each side and the fact that the jury was sworn in, no mention is made of the defendant's presence during this stage of the proceedings.
LSA-C.Cr.P. art. 832 states that a defendant charged with a felony not punishable by death cannot object to his temporary voluntary absence at the proceedings listed in Article 831 if his counsel was present. Defense counsel was present during the jury selection phase. However, as noted above, the minutes do not indicate whether the defendant was present or absent and if he was absent, whether that absence was temporary or voluntary.
The Louisiana Supreme Court has held that the minute entries must affirmatively show that a defendant tried for a felony was present at all of the important trial stages listed in Article 831. State v. Pope, 214 La. 1026, 39 So.2d 719 (1949). In State v. Williams, 260 La. 1153, 258 So.2d 534 (1972), the court faced a similar problem in that the minutes did not indicate whether or not the defendant was present as required under article 831 when the jury returned to the courtroom and requested additional instructions. Without disturbing the verdict or the sentence imposed, the Williams court remanded the case temporarily to the trial court so that a contradictory hearing could be held to show whether or not the defendant was present when the jurors returned for additional instructions. That court also ordered that the minutes be corrected to reflect this information. In this case, because the trial court minutes omit this necessary information *1100 as to defendant's presence during jury selection, the same action must be taken. Therefore, it is ordered that this case be remanded temporarily to the trial court for a contradictory hearing to determine whether or not the defendant was present during the calling, examination, challenging, impanelling and swearing of the jury as required by LSA-C.Cr.P. art. 831. The court is further ordered to furnish this court with a certified copy of the corrected minute entry and a copy of the transcript from the contradictory hearing so that this court can decide this appeal.
TEMPORARILY REMANDED.
NOTES
[1] LSA-C.Cr.P. art. 831 states as follows:
A defendant charged with a felony shall be present:
(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614778/ | 23 So.3d 120 (2009)
WATSON
v.
STATE.
No. 2D09-916.
District Court of Appeal of Florida, Second District.
November 25, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920087/ | 921 So.2d 421 (2005)
ALABAMA DEPARTMENT OF HUMAN RESOURCES
v.
Damon DYE.
2030614.
Court of Civil Appeals of Alabama.
March 18, 2005.
Rehearing Denied May 13, 2005.
Certiorari Denied August 12, 2005.
*422 Michael S. Ballard, Birmingham, for appellant.
Brian C. Bugge, Birmingham, for appellee.
Alabama Supreme Court 1041278.
CRAWLEY, Presiding Judge.
In 2001, the Department of Human Resources ("DHR") investigated a complaint alleging that Damon Dye and Melissa Headrick, who were then employees of the Shades Valley YMCA, had been guilty of child neglect by allowing a four-year-old boy to be left without supervision at a skating rink on a YMCA-sponsored field trip. DHR determined that findings of neglect were "indicated" as to both individuals. See § 26-14-8(a)(1), Ala.Code 1975. Dye and Headrick requested a hearing pursuant to § 26-14-7.1(3), Ala.Code 1975.
Following separate hearings before the same administrative law judge ("ALJ"), the ALJ determined that the neglect allegation against Headrick was "not indicated" but that the neglect allegation against Dye was "indicated." Dye appealed to the Jefferson Circuit Court, raising two issues: that responsibility for the child's being left at the skating rink lay with the faulty procedures of the YMCA or with Headrick, his supervisor, and that the ALJ erred by prohibiting him or his attorney from attending the hearing of his codefendant Headrick, thus denying him access to exculpatory evidence.
The circuit court reversed the determination by the ALJ and entered a judgment in favor of Dye. The circuit court's judgment states:
"The Court finds in favor of [Dye] on all issues presented for review, and herein reverses the ruling of the [ALJ] to a finding of `NOT INDICATED' with regard to all charges brought against [Dye] .... In reversing the underlying [administrative determination], it is this court's intention to relieve [Dye] from placement on the State of Alabama child-abuse-and-neglect registry."
DHR appeals to this court; we affirm.
For a summary of the facts of this case, we use the ALJ's "Findings of Fact" without omission, but with the addition of certain undisputed facts indicated in brackets:
*423 "The Shades Valley YMCA operated a Christmas camp during the December 2000 holiday time. Mr. Damon Dye was at that time employed at the Shades Valley YMCA as a counselor. Ms. Melissa Headrick was at that time employed as the program coordinator at the Shades Valley YMCA.
"The director of the YMCA programs had left the Shades Valley YMCA two or three days prior to December 27, 2000. As a result of her departure, Mr. Dye and Ms. Headrick, in addition to their normal job titles, also carried the working title of interim director. As such, Ms. Headrick had overall responsibility for the Christmas camp being operated at that time. Mr. Dye had other responsibilities including the Indian Guide program.
"Jacob Cotton (DOB 10/25/96) and his brother Zack Cotton (DOB 5/7/95) were enrolled in the Christmas camp at the Shades Valley YMCA. On December 27, 2000, a field trip to a skating rink was planned for the children who attended the Christmas camp.
"Two buses were used to transport the children to and from the skating rink. Ms. Headrick drove one bus and Mr. Dye drove the other. The driver of the bus is the individual with primary responsibility for the children on the bus. Mr. Dye transported 21 children and two [19-year-old] counselors on his bus. Jacob Cotton was a passenger on Mr. Dye's bus.
"At the time of the incident in question, the procedure in place at the YMCA program for checking children on and off the bus consisted of only a head count of the children. No checklist with the children's names was present on the bus. Established procedures [which were formulated by Dye's superiors] did not require identifying each child on the bus by name nor did they require checking each child on and off the bus. These procedures were clearly inadequate, as is evidenced by this case, and they have since been changed to better account for the children. [The changes were suggested and drafted by Dye and approved by the YMCA management].
"The children and counselors arrived at the skating rink and skated for approximately two hours. Other non-YMCA children were also at the skating rink that day. Ms. Headrick made the decision to return to the YMCA and announcements were made [over the skating rink public-address system] for all of the YMCA children to clear the skating rink, return their skates and line up by the doors. Ms. Headrick, Mr. Dye and the counselors gathered the children, checked the skating rink floor for YMCA stragglers and boarded the children on the buses.
"Ms. Headrick counted the children on her bus and determined that she had the correct number of children on her bus. Mr. Dye counted the children on his bus and determined that he had one less child than he had arrived with. Mr. Dye, Ms. Headrick and several counselors then returned to the skating rink and searched for a missing child [whose identity was unknown and who could be identified as a YMCA skater only by a yellow wrist bracelet issued by skating rink employees to all the YMCA children]. They did not discover a missing YMCA program child in the rink.
"Ms. Headrick repeated the head count on her bus and Mr. Dye repeated the head count on his bus. They searched the buses to determine that there was not a child hiding on the bus. They also asked the children on the bus *424 if they could identify who might be missing from the bus.
"Mr. Dye then recalled that [Murray], one of the older children, had boarded his bus that morning, left his bus and rode on Ms. Headrick's bus to the skating rink. He thought that he [might have] counted [Murray] as being on his bus going to the skating rink and that this was the explanation for his undercount on the return trip. Ms. Headrick accepted this explanation and the two buses then returned to the YMCA.
"After returning to the YMCA, the children went inside and were eating a snack. Mr. Timothy Cotton, Jacob and Zack's father, arrived at the YMCA at approximately 4:00 p.m. to pick up his sons. He saw his older son but was unable to find Jacob. He then informed YMCA staff that his son could not be found. The premises of the YMCA were searched and the skating rink was then called to see if Jacob was still there. Jacob was discovered at the skating rink.
"Mr. Dye and Jacob's father then went to the skating rink. Jacob [who had been unsupervised at the rink for approximately 1½ hours] was unharmed and his father took Jacob home."
Francine Fenderson, a DHR child-abuse-and-neglect investigator, testified at the administrative hearing that when she talked with Rick Madison, the executive director of the Shades Valley YMCA, about the incident, Madison stated that both employees Dye and Headrick "knew what they were supposed to do, but they simply did not do it and he felt that they may have been a little relaxed due to the fact that this was a holiday program and not the regular camp program." When, during the administrative hearing, Rick Madison was asked whether he believed that Dye was responsible for the incident, he answered, "We didn't spend a lot of time worrying about who was responsible. We wanted to focus on what to do to keep it from happening again." Madison testified that the YMCA policies and procedures were then changed to "roll call attendance," and Dye was later promoted within the YMCA organization. Madison denied that he had ever told a DHR investigator that Dye and Headrick "knew what they were supposed to do that day but didn't do it." He testified that he did tell DHR that, under the circumstances, "a simple head count was not good enough." He explained:
"I made that statement because the head count did not work. So it was not because anyone didn't do what they were supposed to do. It was because the system failed, and we needed to make changes so that we could put in place a system that hopefully in the future would not fail."
This court reviews a trial court's judgment regarding the decision of an administrative agency "without any presumption of its correctness, since [the trial] court was in no better position to review the [agency's decision] than" this court. State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App.1985). Section 41-22-20(k), Ala.Code 1975, a part of the Alabama Administrative Procedure Act ("AAPA"), § 41-22-1 et seq., Ala.Code 1975, governs judicial review of agency decisions. It provides:
"Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the *425 agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) In violation of any pertinent agency rule;
"(4) Made upon unlawful procedure;
"(5) Affected by other error of law;
"(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion."
If the decision of the ALJ prejudiced the substantial rights of Dye for one of the reasons enumerated in § 41-22-20(k), then the circuit court's judgment is due to be affirmed; if it did not, then the ALJ's determination is due to be upheld and the circuit court's judgment reversed.
On appeal, DHR argues that the circuit court erroneously substituted its judgment for that of the administrative hearing officer when it determined that Dye's conduct did not amount to "indicated" child neglect. We disagree. Section 41-22-20(k) states, in pertinent part, that a court "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." (Emphasis added.) That section does not state that a court may not substitute its judgment for that of the agency on a question of law, and that, we conclude, is what the circuit court did in this case.
The material facts in this case were undisputed. Although we have not quoted the circuit court's judgment, which also included findings of fact, the circuit court's findings were, in all material respects, the same as the ALJ's findings. The circuit court did not substitute its judgment for that of the administrative hearing officer on any questions of fact. Instead, the circuit court held that the ALJ's determination (that the undisputed facts amounted to child neglect) was, as a matter of law, "unreasonable, arbitrary, or capricious."
We are in accord with the circuit court's holding that the ALJ's determination was "unreasonable, arbitrary, or capricious" for two reasons. First, the ALJ explicitly found that the policies and procedures of the YMCA were inadequate to prevent the occurrence that gave rise to these proceedings.
"At the time of the incident in question, the procedure in place at the YMCA program for checking children on and off the bus consisted of only a head count of the children. No checklist with the children's names was present on the bus. Established procedures did not require identifying each child on the bus by name nor did they require checking each child on and off the bus. These procedures were clearly inadequate, as is evidenced by this case ...."
The evidence was undisputed that Dye neither formulated the YMCA "head-count" procedure nor had the authority to change it on December 27, 2000. The evidence was also undisputed that there was no YMCA procedure with respect to "inconsistent head-counts." The record before us demonstrates that, while DHR *426 has the authority to cite individuals for child neglect, it had no authority to cite the YMCA, as an entity, for child neglect.
In Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir.2004), the United States Court of Appeals for the Third Circuit, in construing 5 U.S.C. § 706, the judicial-review provision of the federal Administrative Procedure Act, upon which the AAPA is modeled, explained a court's review of agency action under the "arbitrary and capricious" standard:
"The scope of review under the `arbitrary and capricious' standard is `narrow, and a court is not to substitute its judgment for that of the agency.' Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).... Nevertheless, we must ensure that, in reaching its decision, the agency examined the relevant data and articulated a satisfactory explanation for its action, including a `rational connection between the facts found and the choice made.' Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). Normally, we may find an agency [action] is arbitrary and capricious where the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. Id. (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)); see also Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 273, 280 (3d Cir.2002). Put another way, we reverse an agency's decision when it `is not supported by substantial evidence, or the agency has made a clear error in judgment.' AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C.Cir.2000) (citing Kisser v. Cisneros, 14 F.3d 615, 619 (D.C.Cir.1994)).
"....
"Finally, the traditional APA standard of review is even more deferential `where the issues involve "elusive" and "not easily defined" areas....' Sinclair [Broad. Group, Inc. v. FCC], 284 F.3d [148] at 159 [(D.C.Cir.2002)]. Yet even when an administrative order involves policy determinations on such elusive goals, a `rationality' standard is appropriate. See [FCC v. Nat'l Citizens Comm. for Broad.], 436 U.S. [775] at 796-97, 98 S.Ct. 2096 [(1978)] (finding that the Commission acted rationally in determining that diversification of ownership would enhance the possibility of increasing diverse viewpoints). Additionally, when an agency has engaged in line-drawing determinations and our review is necessarily deferential to agency expertise, see AT & T Corp. [v. FCC], 220 F.3d [607] at 627 [(D.C.Cir.2000)], its decisions may not be `patently unreasonable' or run counter to the evidence before the agency. Sinclair, 284 F.3d at 162."
373 F.3d at 389-90. See generally King v. City of Birmingham, 885 So.2d 802 (Ala.Civ.App.2004)(holding that denial of a liquor license to applicants based upon speculation that applicants might operate their lounge in the same manner as the prior unrelated licensees had done was arbitrary and capricious). The circuit court could properly have determined that the ALJ's decision was unreasonable, arbitrary, or capricious if the court concluded that DHR was inclined to assign responsibility *427 to someone for the incident of December 27, 2000, and, being without authority to sanction the entity that was accountable, held accountable an individual whom it did have the authority to sanction.
We are in accord with the circuit court's holding that the ALJ's determination was unreasonable, arbitrary, or capricious for a second reason: the different treatment of Headrick and Dye, without legally sufficient reasons for the difference.
"`"In legal usage, a decision is capricious if it is so unreasonable as to `shock the sense of justice and indicate lack of fair and careful consideration.'
"`"Typical of the cases in which the epithet capricious may properly be applied are those where an agency has given different treatment to two respondents in identical circumstances, or has exhibited an irrational unfairness which suggests malice or discrimination." 2 Cooper, State Administrative Law (1965), p. 761.'"
Westring v. James, 71 Wis.2d 462, 476-77, 238 N.W.2d 695, 702-03 (1976)(quoting Scharping v. Johnson, 32 Wis.2d 383, 390, 145 N.W.2d 691, 695 (1966)). See also ANR Pipeline Co. v. FERC, 71 F.3d 897, 901 (D.C.Cir.1995) (stating that where an agency treats similar situations differently without a reasoned explanation, its decision will be vacated as arbitrary and capricious).
In Bracco Diagnostics, Inc. v. Shalala, 963 F.Supp. 20 (D.D.C.1997), the manufacturers of contrast imaging agents for use with ultrasound equipment in the diagnosis of cardiac dysfunction challenged a decision by the Food and Drug Administration ("FDA") to treat the manufacturers' agents as "new drugs" while it treated a similar product made by a competitor as a "device." Concluding that the distinction made by the FDA was arbitrary and capricious, the district court for the District of Columbia granted the manufacturers' request for a preliminary injunction. The court stated:
"Our court of appeals has repeatedly held that `an agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so.' `Government is at its most arbitrary when it treats similarly situated people differently.' ... `If an agency treats similarly situated parties differently, its action is arbitrary and capricious in violation of the [Administrative Procedure Act].'
"In this case, the [manufacturers'] and [competitor's] products are identical in all material respects, and the FDA has not provided a legitimate reason for failing to regulate these similar products in the same way. Under the Administrative Procedure Act, the FDA either must provide a rational basis for treating [one] imaging agent as a device while simultaneously regulating essentially identical agents as drugs, or it must treat all four of these similar products in the same way. A failure to do one of these two things is arbitrary and capricious agency action and therefore is a violation of the [Administrative Procedure Act], 5 U.S.C. § 706(2)(A)."
963 F.Supp. at 27-28 (citations omitted).
In the present case, the circuit court's judgment concluded that the ALJ's decision was "unreasonable, arbitrary and capricious in failing to place responsibility on the inadequate YMCA policies and/or Melissa Headrick." We cannot disagree, and we therefore affirm the circuit court's judgment. Our resolution of this issue makes it unnecessary to consider whether the circuit court was correct in reversing the ALJ's decision to prohibit Dye from attending Headrick's hearing.
AFFIRMED.
*428 THOMPSON, PITTMAN, and BRYAN, JJ., concur.
MURDOCK, J., concurs in the result, without writing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920091/ | 921 So.2d 400 (2006)
Billy C. WILCHER, Appellant
v.
STATE of Mississippi, Appellee.
No. 2004-CP-01631-COA.
Court of Appeals of Mississippi.
February 14, 2006.
Billy C. Wilcher, Appellant, pro se.
*401 Office of the Attorney General by Billy L. Gore, attorney for appellee.
EN BANC.
KING, C.J., for the Court.
¶ 1. On August 22, 2000, Billy C. Wilcher pled guilty in the Lincoln County Circuit Court to manslaughter and aggravated assault. Wilcher was sentenced to a term of twenty-eight years with twenty-five years to serve in the custody of the Mississippi Department of Corrections followed by three years of post-release supervision. On October 16, 2002, Wilcher filed a petition for post-conviction relief on the grounds that his plea was involuntarily given due to threats made by his attorney, Joseph A. Fernald. Attached to his petition Wilcher submitted identical affidavits from three family members which declared that Wilcher would not have plead guilty but for counsel telling Wilcher and his family that the only way he could avoid receiving a forty-five year sentence was to plead guilty. Fernald subsequently submitted an affidavit detailing the events leading up to Wilcher's guilty plea. Fernald revealed that on the day the State offered Wilcher a plea, Fernald met with Wilcher and his family to discuss the option of pleading guilty. Fernald stated that he left the room while Wilcher and several family members discussed Wilcher's options. Fernald was later called back into the room where he was told that Wilcher would plead guilty to manslaughter and aggravated assault rather than face the possibility of being convicted of murder and aggravated assault.
¶ 2. An evidentiary hearing was held on July 26, 2004. The following day the judge denied Wilcher's petition for post-conviction relief. Wilcher appeals his denial of post-conviction relief to this Court raising the following issues,
I. Whether Appellant's plea was voluntarily made
II. Whether Appellant received ineffective assistance of counsel
Finding no error, we affirm.
ANALYSIS
1. Voluntariness of plea
¶ 3. In reviewing a denial of post-conviction relief, this Court will not disturb the trial court's factual findings unless they are proven to be clearly erroneous. Rankins v. State, 839 So.2d 581, 582(¶ 3) (Miss.Ct.App.2003) (citing Newman v. State, 820 So.2d 768, 769(¶ 3) (Miss.Ct.App. 2002)). This Court also employs the clearly erroneous standard in determining whether an appellant's plea was voluntarily given. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001) (citing Schmitt v. State, 560 So.2d 148, 151 (Miss.1990)). "The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence." Id.
¶ 4. Wilcher argues that his plea was involuntary because it was induced by fear when his attorney threatened him that unless he pled guilty he would receive a forty-five year sentence. As the trier of fact, the judge was charged with weighing Wilcher's version of the events leading up to his guilty plea against Fernald's version. In support of Wilcher's version, the judge had three identical affidavits submitted by family members which stated that Fernald told Wilcher "the only way to keep from getting a forty-five year sentence was to *402 plead guilty." In support of Fernald's version, the judge had Fernald's detailed affidavit and a "Know Your Rights Before Pleading" form signed by Wilcher.[1] Among other things, the form informed Wilcher that he had a right to a trial by jury, the right to not give any incriminating information, and the right to have the State prove his guilt beyond a reasonable doubt. Wilcher indicated on the form that he understood his rights and that no one had threatened him to plead guilty. He further indicated that he was pleading guilty for no other reason than he was guilty of the charged offenses.
¶ 5. "Where the decision of the trial court is supported by substantial credible evidence, this Court is obligated to affirm." Hentz v. State, 852 So.2d 70, 74(¶ 12) (Miss.Ct.App.2003) (citing Price v. State, 752 So.2d 1070(¶ 9) (Miss.Ct.App.1999)). We find that the trial court's determination that Wilcher's plea was voluntarily given was supported by substantial, credible evidence. Therefore, we are obligated to affirm the decision of the trial court.
2. Ineffective assistance of counsel
¶ 6. Wilcher's claim of ineffective assistance of counsel is based on his argument that Fernald essentially forced him to plead guilty. Since we have found Wilcher's involuntary plea argument to be without merit, his ineffective assistance claim must also fail.
¶ 7. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.
LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
NOTES
[1] Presumably, the trial court also had the transcript of the plea hearing to consider. However, the transcript was not submitted to this Court for review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920045/ | 91 B.R. 190 (1988)
In the Matter of SCOTT HOUSING SYSTEMS, INC. (Chapter 7 Case XXX-XXXXX), Debtor.
James D. WALKER, Jr., Trustee, Plaintiff,
v.
MAURY COUNTY, Defendant.
Adv. No. 587-0025.
United States Bankruptcy Court, S.D. Georgia, Waycross Division.
July 22, 1988.
*191 James D. Walker, Jr., Augusta, Ga., for plaintiff.
Dennis J. Meaker & William M. Leech, Jr., Columbia, Tenn., Lawton Jordan, Jr., Hull, Towill, Norman & Barrett, Augusta, Ga., of counsel, for defendant.
MEMORANDUM AND ORDER
LAMAR W. DAVIS, Jr., Bankruptcy Judge.
The Defendant, Maury County, filed three separate motions in response to the Trustee's Complaint for Declaratory Judgment. On November 25, 1987, the Honorable Herman W. Coolidge denied the Defendant's Motion for Partial Summary Judgment and Ordered that 11 U.S.C. Section 362 tolled the running of the Maury County Zoning Resolution until further order of this Court. Judge Coolidge made no *192 ruling on the Defendant's Motion to Abstain or on the Defendant's Motion to Stay Discovery. For reasons set forth herein, the Defendant's Motion to Abstain is denied and the Defendant's Motion to Stay Discovery is moot. In addition to these three Motions, the Defendant has also filed a Motion to Reconsider the November 25, 1987, Order Denying Motion for Partial Summary Judgment. For reasons set forth herein, the Defendant's Motion to Reconsider is Denied.
The Plaintiff, James D. Walker, Jr., Trustee, ("Trustee") filed a Motion for Summary Judgment and an Amended Motion for Summary Judgment. These Motions came on for hearing on March 29, 1988, wherein counsel for the Plaintiff and counsel for the Defendant presented oral arguments.
After consideration of the Plaintiff's Motion and Defendant's Response, their respective affidavits, oral arguments and briefs, I make the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
The Findings of Fact set forth in the November 25, 1987, Order of this Court are expressly adopted and restated herein as follows:
The Debtor owns property in Maury County, Tennessee ("the property") and, before filing its petition in bankruptcy, had used the property to conduct the business of manufacturing mobile homes. At the time the Debtor commenced its manufacturing operations, Maury County had no zoning ordinances. In April, 1986, Maury County adopted zoning ordinances. The property was zoned Rural A-2 and the mobile home operations of Debtor continued as a non-conforming use, subject to a provision which provided that the right to engage in the non-conforming use would terminate if the use was discontinued for a period of six months.
The Debtor filed its Chapter 11 petition on August 25, 1986, and continued its operations until December, 1986. Since that time, the Debtor has used its facility primarily for storage of machinery, equipment, inventory and vehicles.
On April 8, 1987, the case was converted to one under Chapter 7 of the Code, and James D. Walker, Jr., was appointed as Trustee. In an effort to liquidate this asset of the estate, the Trustee scheduled a public auction of both the real and personal property on August 27, 1987, but only conducted a sale of the personalty when Maury County officials took the position that the property was now zoned Rural A-2.
CONCLUSIONS OF LAW
The questions presented by this case are two-fold. First, does the automatic stay toll the running of the six month "discontinuance" period under the local zoning resolution,[1] after which the right to engage in a non-conforming use is lost? Second, if the automatic stay does not toll the six-month period, did the debtor and/or trustee "discontinue" the non-conforming use for a period of six months?
The state law non-conforming use question whether the storage of equipment, inventory and vehicles on the site of the property in question constitutes a continued non-conforming use was raised in the Plaintiff's Motion and Amended Motion for Summary Judgment. At the March 29, 1988 hearing, however, the focus was on the issue of whether the automatic stay operated to toll the six month period rather than whether the non-conforming use had been discontinued. Although this issue was not formally raised in the Plaintiff's Motion for Summary Judgment, it was raised without objection and argued at length by both the Plaintiff and the Defendant at the hearing. Under Bankruptcy Rule 7015 [Fed.R.Civ.P. 15(b)], the matter was placed before me by the express or *193 implied consent of the litigants. It is clear that a resolution of the federal stay question is at the heart of the instant controversy, and its determination is in turn critical in determining whether the state law question need be addressed.
As an initial matter, the Defendant's Motion to Reconsider Judge Coolidge's prior order is addressed. The Defendant contends that partial summary judgment should be granted in its favor because the Court found that Maury County violated neither 11 U.S.C. Section 362(a)(1) nor 362(a)(3). In essence, the Defendant asserts that this finding as to the lack of liability establishes that there are no material facts in dispute and, therefore, entitles the Defendant to summary judgment as a matter of law. Whatever the merits may be of the Defendant's Motion to Reconsider, they will not be considered at this time because the Defendant's Motion is untimely. Bankruptcy Rule 9023 adopts Rule 59 of the Federal Rules of Civil Procedure, which requires that:
"a motion to alter or amend the judgment shall be served not later than ten (10) days after the entry of the judgment."
Fed.R.Civ.P. 59(e). This Court's judgment was entered on November 25, 1987, and it was not until March 8, 1988, over three months after the entry of this Court's order, that the Defendant served its Motion to Reconsider. Accordingly, the Defendant's Motion to Reconsider is denied.
In the November 25, 1987, Order, Judge Coolidge found that the County had undertaken no action to obtain possession or exercise control over the property of the estate. The Court did not find, however, that a future attempt to enforce the zoning ordinances by the County would not violate 11 U.S.C. Section 362(a)(3). Moreover, the November 25, 1987, Order did not dispositively resolve the issue of whether the automatic stay operates to toll the running of the six month period.
The Plaintiff contends that the reach of the automatic stay is sufficiently broad under Sections 362(a)(1) and (a)(3) to toll the six-month period. It is axiomatic that the automatic stay is ". . . one of the fundamental debtor protections provided by the bankruptcy laws. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or organization plan or simply to be relieved of the financial pressures that drove him into bankruptcy." H.R. Rep. No. 95-595, 95th Cong., 2nd Sess. 340 (1978), Reprinted in 1978, U.S. Code Cong. and Admin. News, 5787, 5963, 6297-98.
Although the reach of the stay is broad, it is not all encompassing. Under 11 U.S.C. Section 362(b)(4) ". . . the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power" is excepted from the broad reach of the automatic stay. The legislative history and case law, however, make it clear that the (b)(4) exception is to be construed narrowly.[2]
An analysis of 11 U.S.C. Section 362(a)(1) and the (b)(4) exception demands a finding that neither (a)(1) nor (b)(4) operate *194 to control the instant case. 11 U.S.C. Section 362(b)(4) provides that:
"The filing of a petition . . . does not operate as a stay (4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power;" (Emphasis added)
Therefore, the (b)(4) exception relates only to actions that are stayed under (a)(1). That subsection, in turn, operates only to stay:
"The commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case . . . or to recover a claim against a debtor that arose before the commencement of the case . . ." (Emphasis added)
The evidence is clear that as of August 25, 1986, the date the Debtor filed its Chapter 11 petition, the Debtor was engaged in continuing operations and did not cease manufacturing until December, 1986 at the earliest. Because the Debtor did not cease operations until after the Chapter 11 case was filed, the six month discontinuance period could not have begun to run until after the petition was filed. As such, there was no "action or proceeding against the Debtor that was or could have been commenced before the commencement of the case". It is clear, therefore, that no stay exists under 11 U.S.C. Section 362(a)(1) which would toll the six-month period or preclude the County from enforcing its zoning ordinance because at the time the petition was filed the County had no judicial, administrative or other right of action upon which it could have moved against the Debtor. Whatever right of action the County may have against the Debtor arose, if at all, during the post-petition period. It should be equally clear that the (b)(4) exception is not triggered in the absence of a Section 362(a)(1) stay.
Because Section 362(a)(1) does not operate as a stay in this case, it is necessary to examine other provisions of 11 U.S.C. Section 362 to determine whether the automatic stay tolls the running of the six month period. Section 362(a)(3) operates to stay "any act . . . to exercise control over property of the estate". Property of the estate is determined at the time the petition is filed. 11 U.S.C. § 541. The reach of Section 541 is broad and includes all legal and equitable interests of the Debtor in property. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed. 2d 515 (1983). Statutory zoning rights which exist at the time the petition is filed are included as property of the estate and may be protected under 11 U.S.C. Section 362(a)(3). Matter of IDH Realty, Inc., 16 B.R. 55, 58 (Bankr.E.D.N.Y.1981). Also see: Bernstein v. B.C. Williams Inc., 47 B.R. 1020 (D.Colo.1985) (Certificate of public convenience and necessity is property of the estate and consideration of post-petition non-use in determining whether the certificate is dormant is stayed by 11 U.S.C. Section 362(a)(3) as an act to obtain property of the estate); Matter of R.S. Pinellas Motel Partnership, 2 B.R. 113, 118 (Bankr. M.D.Fla.1979) ("Intangible property rights, e.g. rights acquired under a license agreement are properties of the estate . . . an attempt to cancel such rights, after the commencement of the case may come within the protective provisions of the Code under subclause (a)(3) of Section 362").
The legislative history of Section 362(a)(3) makes it clear that:
"The purpose of this provision is to prevent dismemberment of the estate. Liquidation must proceed in an orderly fashion. Any distribution of property must be by the trustee after he has had an opportunity to familiarize himself with the various rights and interests involved and with the property available for distribution." (Emphasis added)
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 341 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 50 (1978), U.S.Code Cong. & Admin.News 1978, 5836, 6298. The assertion or enforcement of a zoning classification change due to the passage of time, which carries the potential of adversely affecting the marketability and value of the land is clearly an act which limits or regulates the *195 debtor's use of its land in a particular manner and thus constitutes an "act . . . to exercise control over property of the estate". I therefore conclude that the effect of Section 362(a)(3) is to toll the six month discontinuance period, which would otherwise run and unduly compromise the Trustee's opportunity to familiarize himself with and administer the assets of the estate at the maximum possible price. This result is manifestly consistent with the statutory language, the legislative intent that the Trustee be given an opportunity to familiarize himself with the various rights and interests in property and with the underlying fundamental protection which the automatic stay provides the debtor a breathing spell in which he can attempt to reorganize or orderly liquidate his affairs. Only after relief from stay is granted under Section 362(d) will the six month period run.
The County argues that under 28 U.S.C. Section 959(b), the Trustee and the debtor-in-possession who preceded him are required to:
"Manage and operate the property in his possession . . . according to the requirements of the valid laws of the state in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof."
28 U.S.C. Section 959(b). In support of its position, the County cites Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) for the proposition that "the filing of a bankruptcy petition does not create a zone around the property of the estate which is immune from state regulation." Defendant's Memorandum in support of its Motion for Partial Summary Judgment at p. 3. An analysis of Midlantic reveals that the court only drew an analogy between its holding and Section 959 but did not base its decision on it:
"Even though § 959(b) does not directly apply to an abandonment under § 554(a) of the Bankruptcy Code . . . the section [§ 959(b)] nevertheless supports our conclusion that Congress did intend for the Bankruptcy Code to pre-empt all state laws that otherwise constrain the exercise of a trustee's powers."
Id. 106 S.Ct. at 762. (Emphasis added). The Court did not analyze or apply Section 959(b) further, except to the extent that it stated that "the petitioners have contended that § 959(b) is relevant only when the trustee is actually operating the business of the debtor, and not when he is liquidating it". Id. at 761. The Court neither endorsed nor rejected the petitioner's contention. But see: In re Security Gas & Oil, Inc., 70 B.R. 786, 796 (Bankr.N.D.Cal. 1987) (Citing Midlantic in support of the proposition that § 959(b) does not govern where the debtor's business ceased all operations). In the dissenting opinion, Justice Rehnquist does, however, find that
". . . a trustee's filing of a petition to abandon, as opposed to continued operation of a site pending a decision to abandon, does not constitute `manage[ment]' or `opera[tion]' under [§ 959(b)] . . . a contrary reading [would] strain the language of § 959(b), cf. In re Adelphi Hospital Corp., 579 F.2d 726, 729, n. 6 (CA2 1978) (per curiam) (in pre-Code liquidation proceeding trustee "is in no sense a manager of an institution's operations)."
Id. at 766. Justice Rehnquist's citation of Adelphi Hospital lends support to the proposition that Section 959(b) does not apply to a liquidation. Further support is found in Matter of Borne Chemical Company, Inc., 54 B.R. 126, 135 (Bankr.D.N.J. 1984) in which the Court found no case law applying Section 959(b) to situations where the receiver, trustee or debtor-in-possession was closing down operations, and concluded that "Section 959(b) is applicable only where the property is being managed or operated for the purpose of continuing operations."
The conclusion reached in Borne Chemical Company, has a certain appeal and appears consistent with the statutory language of Section 959(b) which requires that a trustee, receiver, or manager, including a debtor-in-possession "shall manage and operate the property . . . according to the *196 requirements of the valid laws of the state in which such property is situated . . ." (emphasis added). The "manage and operate" language of Section 959(b) when read in conjunction with Section 959(a), which provides in relevant part that: "Trustees, receivers or managers of any property, including debtors in possession, may be sued . . . with respect to any of their acts or transactions in carrying on business connected with such property" (emphasis added), evidences a statutory intent that Section 959 applies when the business is being operated, not when its operations have ceased and its assets are being liquidated.
In interpreting "carrying on business" the eminent jurist Learned Hand held in Vass v. Conron Bros. Co., 59 F.2d 969 (2nd Cir.1932) that mere administration and liquidation is not carrying on the business as contemplated by 28 U.S.C. Section 125, the predecessor to 28 U.S.C. Section 959. Justice Hand stated: "Merely to hold matters in the status quo; to mark time, as it were; to do only what is necessary to hold the assets intact; such activities are not a continuance of the business." Id. at 971. See also: Austrian v. Williams, 216 F.2d 278, 285 (2nd Cir.1954) ("Merely to attempt to collect and liquidate the assets of a debtor is not to carry on its business in any proper sense of the term"); Field v. Kansas City Refining Co., 9 F.2d 213, 216 (8th Cir. 1925), cert. den., 271 U.S. 676, 46 S.Ct. 489, 70 L.Ed. 1146 (1925) ("Mere continuous administration of property under order of court does not constitute an `act' or `transaction' on part of the receiver"); In re Kalb & Berger Mfg., 165 F. 895 (2nd Cir. 1908) (The mere arrangement for storage of machinery by receiver is not an act or transaction in carrying on the business).
In excepting a liquidation from the reach of Section 959(b), I am aware of the Sixth Circuit's decision in In re Wall Tube & Metal Products Co., 56 B.R. 918 (Bankr.E. D.Tenn.1986), rev'd, 831 F.2d 118 (6th Cir. 1987). While the Sixth Circuit did frame the issue before it in terms of whether "28 U.S.C. § 959(b) requires the Chapter 7 liquidating trustee . . . to comply with the State's hazardous waste statute", Id. at 121, its holding, however, was predicated on an analysis of Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985) and Midlantic, not 28 U.S.C. § 959(b). Under the rule of law set forth in Midlantic and Kovacs, there can be no doubt that the debtor-in-possession or trustee, liquidating or otherwise, "must comply with the environmental laws of the state", Kovacs, 105 S.Ct. at 711, and "may not abandon property in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards." Midlantic, 106 S.Ct. at 762. It must be emphasized, however, that neither the Kovacs or Midlantic decisions, analyzed, applied or predicated their holdings on 28 U.S.C. Section 959(a) or (b). There is no mention of Section 959(a) or (b) in Kovacs, and in Midlantic the Court cited Section 959(b) for the limited proposition that it "supports our conclusion that Congress did not intend for the Bankruptcy Code to pre-empt all state laws that otherwise constrain the exercise of a trustee's powers". Id. Neither the United States Supreme Court nor the Sixth Circuit analyzed the statutory language of or case law construing Section 959(b). I further distinguish Wall Tube because it dealt with the issue of hazardous waste clean up costs which more clearly come within the scope of Section 362(b)(4) under the "urgent public necessity" rationale. (Footnote 2 at page 193, supra.)
In reaching this conclusion, I do not suggest that a debtor-in-possession or trustee who is liquidating the assets of the estate may operate carte blanche. Clearly, their actions are constrained by "state statute[s] or regulation[s] that [are] reasonably designed to protect the public health or safety from identified hazards". Midlantic at 762. (emphasis added). Identified hazards are narrowly construed as "imminent and identifiable harm". Id. n. 9. The public interest to be protected here is, however, not in such a category.
Furthermore, implicit in Midlantic's recognition that "Congress did not intend for the Bankruptcy Code to pre-empt all state laws", Id. at 762 (emphasis added), is that Congress did intend the Bankruptcy Code *197 to pre-empt some state laws. The automatic stay of 11 U.S.C. Section 362 is one of the fundamental protections of the Bankruptcy Code it gives the debtor a breathing spell to reorganize or liquidate and the trustee an opportunity to familiarize himself with the property available for distribution. The automatic stay is broad and pre-empts state law, subject to the exceptions listed in Section 362(b) none of which are applicable here.
The only additional matters which have not been formally addressed by order of this Court are the County's pending Motion to Abstain and Motion to Stay Discovery. Addressing the later first, it is clear that the determination made herein on the Plaintiff's Motion for Summary Judgment renders the Defendant's Motion to Stay Discovery moot. In support of its Motion to Abstain the Defendant had cited authority for the proposition that abstention is appropriate when a case presents an issue that is essentially one of state law and involves parties who otherwise have no interest in the estate. Contrary to the Defendant's position, this case presents an issue that is essentially one of federal law, not state law. Although the County is a party in interest and arguably has no interest in the estate, the Debtor and creditors in the case have a substantial interest in the outcome of this case. 28 U.S.C. Section 1334(c)(1) grants discretion as to whether I should abstain "in the interest of justice, or in the interest of comity with state courts or respect for state law." In the exercise of the discretion vested in me I decline to abstain because the interest of the estate and the parties are best served by an adjudication of the federal bankruptcy issues in the Bankruptcy Court. Notwithstanding the Defendant's assertions to the contrary, the issue which was presented to this Court and resolved herein is not an issue involving unsettled questions of state property law.[3]
ORDER
Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER OF THIS COURT that:
1) The Defendant's Motion to Reconsider is denied;
2) The Defendant's Motion to Abstain is denied;
3) The Defendant's Motion to Stay Discovery is moot; and
4) The Plaintiff's Motion for Summary Judgment is granted. The zoning classification and right to engage in a non-conforming use on Debtor's property are hereby declared not to have changed from that which existed on the date of the filing of this case.
NOTES
[1] The zoning resolution of Maury County adopted April 21, 1986, provides in Section 7.020 in relevant part that: "Lawful non-conforming uses . . . shall be allowed to remain subject to the following provision: When a non-conforming use of any structure or land . . . has been discontinued for a period of six (6) months, it shall not be reestablished or changed to any use not in conformity with the provisions of this resolution."
[2] The statement of the drafters of the Code indicate that: "This section [362(b)(4)] is intended to be given a narrow construction in order to permit governmental units to pursue actions to protect the public health and safety and not to apply to actions by a governmental unit to protect a pecuniary interest in property of the debtor or property of the estate." 124 Cong.Rec. H11089, Reprinted in U.S.Code Cong. and Admin.News 6436, 6444-45 (1978). Some courts have further narrowed the (b)(4) exception to only those situations where there is an urgent public necessity or where there is an imminent and identifiable harm to public health and welfare. See In re Island Club Marina, Ltd., 38 B.R. 847, 854 (Bankr.E.D.N.Y.1981); Matter of IDH Realty, Inc., 16 B.R. 55, 57 (Bankr.E.D.N. Y.1981); In re King Memorial Hospital, Inc., 4 B.R. 704, 708 (Bankr.S.D.Fla.1980). The judicial engrafting of an "imminent and identifiable harm" or "urgent public necessity" requirement on the (b)(4) exception has been roundly criticized. See Matter of Commonwealth Oil Refining Company, 805 F.2d 1175, 1184 (5th Cir. 1986). But cf.: Midtlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 766, 88 L.Ed.2d 859 (1986) (The Court found "an imminent and identifiable harm to the public health or safety" exception to the abandonment powers vested in the trustee under 11 U.S.C. § 554).
[3] The result might be different were I to hold that the six month period was not tolled. In that event the question of whether Debtor had "discontinued" its non-conforming use might well be a matter that should be decided in a state forum. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614921/ | 502 So.2d 459 (1986)
Jason Edward BRYANT, a Minor, et al., Appellants,
v.
DUVAL COUNTY HOSPITAL AUTHORITY, d/b/a University Hospital, Florida Patients' Compensation Fund, and St. Paul Fire and Marine Insurance Company, Appellees.
No. BK-204.
District Court of Appeal of Florida, First District.
December 31, 1986.
Rehearing Denied March 9, 1987.
*460 Richard R. Townsend for Larry Smith, of Kopelousos, Head, Smith, Townsend & Metcalf, P.A., Orange Park, for appellants.
Gerald A. Schneider, Gen. Counsel and Lee S. Carlin, Asst. Counsel, Jacksonville, and Paul M. Hardin, of Smith, Davenport, Bloom, Harden & Johnson, Jacksonville, for appellees.
JOANOS, Judge.
This is an appeal from an order dismissing appellants' third amended complaint with prejudice. Appellants present two questions for our review: (1) whether appellee has waived or is estopped to raise lack of notice as a defense, and (2) whether notice to the Department of Insurance is a condition precedent to an action against an agency of a municipality. We affirm in part and reverse in part.
The original complaint in this cause was filed in July 1982. That complaint alleged that due to the negligence of the Duval County Hospital Authority (DCHA) and others, Jason Edward Bryant, a minor, incurred serious injuries. At paragraph 26 of the original complaint, appellants alleged:
Plaintiffs have complied with Florida Statute 768.28. Notice to the Defendant Duval County Hospital Authority d/b/a University Hospital as required by Florida Statute 768.28, was mailed December 16, 1981, and said Notice was received December 18, 1981.
In its answer served on August 16, 1982, appellee DCHA admitted the allegations of paragraph 26 of the original complaint. As its "Third Defense," DCHA alleged that it
is an independent agency of the City of Jacksonville, a corporation primarily acting as an instrumentality or agency of the City, and its liability is limited by s. 768.28, Florida Statutes, to $50,000 per person per claim, or a maximum of $100,000 per occurrence.
There is no reference in the answer to the notice provisions set forth at section 768.28, Florida Statutes.
On February 10, 1984, appellants filed an amendment to the complaint, again alleging compliance, this time at paragraph 32, with the provisions of section 768.28. In their answer to the amendment to the complaint, appellees admitted the allegations of paragraph 32.
On April 1, 1985, the trial court entered an order directing appellants to file an amended complaint setting forth all existing causes of action against all remaining parties defendant to the action. Pursuant to that order, appellants filed an amended *461 complaint which restated compliance with the section 768.28 notice provision.
On April 5, 1985, appellees filed a motion to dismiss both counts of the amended complaint. As ground for dismissal appellees raised, for the first time, appellants' failure to provide notice to the Department of Insurance. In addition, appellees filed motion to strike certain language and all of count two of the amended complaint. In an order entered September 9, 1985, the trial court granted appellees' motion to strike and directed appellants to file their amended complaint deleting the stricken words and including the allegations of count two in one count. Pursuant to this order, on September 9, 1985, appellants filed their second amended complaint.
On September 13, 1985, the trial court entered an order dismissing the second amended complaint without prejudice to afford appellants an opportunity to amend their complaint to allege compliance with the notice requirements of section 768.28, Florida Statutes. Pursuant to the trial court's order, appellants filed their third amended complaint, alleging in relevant part:
8. Plaintiffs have complied with Florida Statute 768.28. Notice to defendant, DUVAL COUNTY HOSPITAL AUTHORITY d/b/a UNIVERSITY HOSPITAL, as required by Florida Statutes, Section 768.28, was mailed December 16, 1981, and said Notice was received December 18, 1981.
9. Plaintiffs did not serve notice upon the Department of Insurance for the following reasons:
.....
c. Said defendant did not allege that it was entitled to have service of notice on the Department of Insurance or raise by Motion to Dismiss or otherwise plaintiffs' failure to give said notice, although at the time of said Answer plaintiffs could have complied with the notice requirements of s. 768.28, Florida statutes.
.....
j. Plaintiffs reasonably relied upon the allegations in said defendant's prior Answers and upon defendant's failure to raise the lack of notice to the Department of Insurance by assuming that defendants were either not entitled to notice to the Department of Insurance or that said defendant was waiving said notice.
k. Defendant, Duval County Hospital Authority, d/b/a University Hospital, is an agency or instrumentality of the municipality, City of Jacksonville, and is not entitled to notice to the Department of Insurance under Section 768.28(6)(a), or, in the alternative, by its actions and inaction alleged above has waived or is estopped to raise said lack of notice in this action almost three (3) years after this action was filed and at a time when plaintiffs cannot comply with the provisions of Section 768.28.
On November 19, 1985, the trial court dismissed the third amended complaint with prejudice, finding, inter alia, that plaintiffs conceded they did not give the notice required by s. 768.28(6)(a) to the Department of Insurance but maintained that notice to the Department of Insurance was waived or that the defendant was estopped to raise that as a defense, and more than three years had elapsed since plaintiffs' cause of action accrued so there was no possibility of providing the required notice.
The notice provision at issue in this case is set forth in section 768.28(6)(a), Florida Statutes (1983), which provides in relevant part:
An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing; ...
*462 In applying the provisions of this section, the supreme court has noted that the plain language of the statute
clearly requires written notice to the department within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality. Because this subsection is part of the statutory waiver of sovereign immunity, it must be strictly construed. (citations omitted.)
.....
Under section 768.28(6), not only must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). Where the time for such notice has expired so that it is apparent that the plaintiff cannot fulfill the requirement, the trial court has no alternative but to dismiss the complaint with prejudice. (citation omitted.)
Levine v. Dade County School Board, 442 So.2d 210, 212-213 (Fla. 1983). See also Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010, 1022 (Fla. 1979), where the court held that compliance with the notice provisions of section 768.28(6) "is clearly a condition precedent to maintaining a suit."
We recognize, as of course we must, that the notice provisions which form a part of the statutory waiver of sovereign immunity, must be strictly construed. Nevertheless, there are decisions holding that the notice provisions of section 768.28(6)(a) can be waived. See Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1368 (Fla. 1979); In Re Forfeiture of One 1978 Datsun Pickup Truck, 475 So.2d 1007 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 598 (Fla. 1986); City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986). In City of Pembroke Pines, the court held that appellant had waived the pleading requirement of an allegation of compliance with section 768.28(6), Florida Statutes (1983). On motion for rehearing in that case, appellant urged that the court's holding was in conflict with Levine v. Dade County School Board. In rejecting this argument, the court noted that Levine did not overrule Commercial Carrier Corp. v. Indian River County, in which the supreme court held that compliance with section 768.28(6) is a condition precedent to suit. The court, in Pembroke Pines, stated that "[t]he crucial `facts of this case' are that appellant, with knowledge of the claim and with knowledge of the suit, failed to raise the pleading defect until after entry of the final judgment." 474 So.2d at 238. Accord: Hutchins v. Mills, in which this court considered the rationale of Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla. 1965), and concluded that "under certain conditions, the state or its agencies might be deemed to have waived the claim notice requirements of 768.28(6). If it may be so waived it cannot be jurisdictional." (emphasis supplied).
Accordingly, we reject appellees' contention that the notice requirements of section 768.28(6) are jurisdictional. It is undisputed in this case that appellants did not present written notice of their claim to the Department of Insurance. It is also undisputed that appellees filed responses to the initial complaint, to the amended complaint, and to the second amended complaint, and in so doing made no reference to the failure to provide written notice to the Department of Insurance. The motion to dismiss predicated on failure of such notice was filed nearly two years after the time appellants could have complied with this provision. We conclude, therefore, that the DCHA's conduct in failing to plead the notice requirement as a defense while at the same time affirmatively asserting entitlement to the section 768.28 limitation of liability, constitutes a waiver of the intention to rely on the notice provision applicable to the Department of Insurance.
Appellants' second argument is addressed to the section 768.28(6)(a) exception, which provides that notice to the Department of Insurance is not a prerequisite to a claim against a municipality. In advancing *463 this argument, appellants would have us equate the DCHA with the City of Jacksonville. It is clear, however, that the DCHA is an entity separate from the City. Martin v. Consolidated City of Jacksonville, 490 So.2d 138, 139 (Fla. 1st DCA 1986), citing Ch. 63-1305, s. 7(a) and Ch. 67-1320, s. 24.01(7), Laws of Fla. See also Eldred v. North Broward Hospital District, 498 So.2d 911 (Fla. 1986); and McSwain v. Dussia, 499 So.2d 868 (Fla. 1st DCA 1986). We conclude, therefore, that notice to the Department of Insurance of a claim against the DCHA is a condition precedent to suit which, in proper circumstances, may be waived.
Accordingly, we find the allegations of the third amended complaint are sufficient to assert a defense of waiver of estoppel to the requirement of written notice to the Department of Insurance.
Affirmed in part; reversed in part, and remanded for proceedings consistent with this opinion.
THOMPSON and NIMMONS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614922/ | 23 So.3d 241 (2009)
Melvin LeBLANC, Naomi Faulkin, Lucille Moore, Ronald Newman, Delilah Hall, Marlene Dumas, and Betty Washington
v.
Dwayne THOMAS, Chief Executive Officer, Medical Center of Louisiana at New Orleans, Dr. Larry Hollier, Chancellor, LSU Health Sciences Center New Orleans, LSU Health Sciences Center New Orleans, and Dr. Michael K. Butler, Acting Chief Executive Officer, LSU Health Care Services Division.
No. 2008-CC-2869.
Supreme Court of Louisiana.
October 20, 2009.
Taylor, Porter, Brooks & Philips, LLP, Harry Joseph Philips, Jr., Baton Rouge, William Shelby McKenzie, Kati Desrouleaux, Tom Samuel Easterly, Preston Joseph Castille, Jr., Baton Rouge, for Applicant.
Tracie L. Washington, Thomas Welch Milliner, New Orleans, William Patrick Quigley, Calvin Johnson, The Jupiter Law *242 Firm, Steven Mark Jupiter, New Orleans, Rosenfeld & Rafik, P.C., Stephen Rosenfeld, Hagens, Berman, Sobol & Shapiro, LLP, Leonard W. Aragon, for Respondent.
JOHNSON, Justice.[1]
We granted this writ application to address the proper venue and the application of LSA-R.S. 13:5104 in a suit where a state agency is no longer a party to the lawsuit. Initially, the Plaintiffs filed suit against several Defendants,[2] who allegedly closed the state hospital in New Orleans, known locally as Avery C. Alexander Charity Hospital of New Orleans ("Charity Hospital"), without seeking legislative approval, in violation of LSA-R.S. 17:1519.3(B).
In this class action suit, the Plaintiffs argue that venue is proper in Orleans Parish under LSA-R.S. 13:5104 because the operative facts giving rise to this cause of action all occurred in New Orleans, and Charity Hospital, which is the subject matter of this case, is located in New Orleans. In response, the Defendants filed, among other exceptions not at issue in this writ application, a Dilatory Exception of Lack of Procedural Capacity and a Declinatory Exception of Improper Venue, arguing that the only proper venue for this suit is East Baton Rouge Parish where the LSU Board of Supervisors is located, because the suit involves an administrative decision by a state agency. The trial court denied both exceptions. The court of appeal denied the writ as it related to the Exception of Improper Venue, but granted the writ as it related to the Exception of Lack of Procedural Capacity, and dismissed LSU HSC-NO as a party to the litigation, leaving only the individually-named administrators as Defendants. The Plaintiffs did not seek review of the court of appeal decision. The Defendants then filed a writ application with this Court, which we granted. LeBlanc v. Thomas, 08-2869 (La.2/13/09), 2 So.3d 432.
FACTS AND PROCEDURAL HISTORY
In this class action suit, the Plaintiffs,[3] who are residents of Orleans Parish and the surrounding area, filed the instant suit in Civil District Court for the Parish of Orleans against LSU HSC-NO and the individually-named administrators of the Medical Center of Louisiana, the LSU Health Sciences Center and the LSU Health Care Services Division.[4] In the *243 Petition for Injunctive and Declaratory Relief, the Plaintiffs sought a determination that Charity Hospital was illegally closed after Hurricane Katrina in violation of LSA-R.S. 17:1519.3(B)[5] and requested that the court reopen it or the Defendants timely submit a plan detailing how and under what schedule the care terminated by Charity Hospital's closure will be replaced. Initially, in their petition, the Plaintiffs alleged that venue was proper in Orleans Parish pursuant to LSA-R.S. 13:5104, stating:
The operative facts giving rise to this case all occurred in New Orleans, Louisiana, and Charity Hospital the subject matter of this complaint is located in New Orleans. Plaintiffs, moreover, are residents of New Orleans and have been denied health care in New Orleans. Plaintiffs are low income and do not have the means to adjudicate this case in any other venue. In fact, many Plaintiffs have medical conditions that make traveling long distances extremely difficult, if not impossible. Likewise, Plaintiffs' attorneys are located in New Orleans and are handling this case on a pro bono basis.
The Plaintiffs specifically allege that the Chancellor of LSU HSC-NO issued the order to close Charity Hospital and that his employees followed his instructions and closed the building. Additionally, the Plaintiffs allege that venue was proper in Orleans Parish because the Defendants, in their official capacities as managers of Charity Hospital, located in New Orleans, made an administrative decision in Orleans Parish to close the hospital without legislative approval.
In response, the Defendants filed several exceptions, including a Declinatory Exception of Improper Venue, pursuant to LSA-C.C.P. art. 925, and a Dilatory Exception of Lack of Procedural Capacity pursuant to LSA-C.C.P. art. 926. In the Exception of Lack of Procedural Capacity, the Defendants argued that LSU HSC-NO lacked procedural capacity, and that the Board of Supervisors of Louisiana State University & Agricultural and Mechanical College ("the Board") was the proper party to sue. The Defendants pointed out that in 1997, the Louisiana State University Health Services Division Act granted authority to the Board to own and operate the state hospitals. See, LSA-R.S. 17:1519.2.[6] The Act specifically made the Board responsible for the operation and management of the LSU HSC-NO. Interestingly, prior to 1997, Charity Hospital did have the authority to sue or be sued under LSA-R.S. 46:759. However, LSA-R.S. 46:759 was repealed by Act No. 3, Section 8 of 1997. Particularly, *244 Section 8 of Acts 1997, No. 3 repealed Part II, "Charity Hospital of Louisiana in New Orleans," containing LSA-R.S. 46:751 to 46:776 and abolished the Louisiana Health Care Authority and transferred Charity Hospital to the Louisiana Board of Supervisors to be operated by Louisiana Medical Center.
After a hearing, the trial court denied the Defendants' exceptions. In oral reasons for judgment, the trial court stated:
It's the court's belief that the Health Sciences Center New Orleans is, in fact, an agency of the State, and it's an agency located here in New Orleans, that the cause of action arose here, and they could be sued here.
The Fourth Circuit Court of Appeal dismissed LSU HSC-NO as a party to the lawsuit after concluding that LSU HSC-NO lacked the procedural capacity to sue or be sued. The court of appeal relied on Boston v. Tanner, 29 F.Supp.2d 743 (W.D.La.1998) in concluding that LSUMC (now LSU HSC) was not a proper defendant, stating:
For the purposes of analyzing the claims presented in this case, LSUMC, as an entity in and of itself, cannot be distinguished from the Board of Supervisors because the Board of Supervisors is the operative arm of the medical center. Article 8, section 7 of the Louisiana Constitution of 1974 created the Board of Supervisors and charged it with supervising and managing the institutions administered through its system. LSUMC was established under the administration of the Board of Supervisors and, therefore, the correct defendant is the Board of Supervisors and any reference to the Board of Supervisors includes LSUMC.
Id. at 745.
The court concluded "it is clear that the legislature placed in the [LSU Board of Supervisors], and not the individual institutions under its control, the juridical power to sue and be sued." While acknowledging that the Chancellor of LSU HSC-NO may be able to exercise the power to sue and be sued on behalf of the Board, the court held that LSU HSC-NO itself had no authority to act.
Because the Defendants failed to raise Exceptions of Lack of Procedural Capacity on behalf of the individual Defendants in the trial court, this argument was not considered. The court of appeal also denied the Exception of Improper Venue, relying on this Court's decision in Colvin, stating:
In Colvin v. Louisiana Patient's Compensation Fund Oversight Board, 06-1104 (La.1/17/07), 947 So.2d 15, plaintiffs sought declaratory and monetary relief against the PCFOB for negligent adjustment and administration of their malpractice claims....
....
[T]he Supreme Court adopted the test established by this court in Avenal v. State, Dept. Of Natural Resources, 95-0836 (La.App. 4 Cir. 11/30/95), 668 So.2d 1150, that "the place where the operative facts occurred which support plaintiff's entitlement to recovery is where the cause of action arises for venue purposes under La. R.S. 13:5104(A)." Colvin, p. 13, 947 So.2d at 24 (internal citations and brackets omitted.)
Accordingly, the [Supreme] Court ruled that the proper venue was East Baton Rouge Parish as "the operative facts which support plaintiffs' entitlement to recovery, i.e., the PCFOB's administrative decision not to settle their claims, all occurred in East Baton Rouge Parish." Id., p. 14, 947 So.2d at 24.
Applying Colvin, the court of appeal found no error in the trial court's decision to deny the exception of improper venue. *245 The court of appeal found that the Defendants failed to present factual evidence as to where the operative facts occurred, i.e., whether the decision to close the hospital was made in East Baton Rouge Parish or Orleans Parish, and whether the Board of Supervisors or the Chancellor of LSU HSC-NO actually made the decision to not reopen the facility.
On March 6, 2009,[7] the Plaintiffs amended their petition, which once read:
76. Defendant Larry Hollier, Chancellor, LSU Health Sciences Center-New Orleans is sued in his official capacity. Mr. Hollier resides in New Orleans.
The amended pleading now reads:
76. Defendant Larry Hollier, Chancellor, LSU Health Sciences Center-New Orleans is sued in his official capacity as the statutorily designated agent of the Louisiana State University (LSU) Board of Supervisors under La. R.S. 17:1519.5. Dr. Hollier resides in New Orleans.
DISCUSSION
Since the Plaintiffs did not seek review of the appellate court's decision to dismiss LSU HSC-NO as a party to the litigation, the only issue before this Court is whether the court of appeal erred in denying the Defendants' Exception of Improper Venue.
The Defendants argue that the lower courts have erroneously interpreted the venue statute LSA-R.S. 13:5104 to find that venue is proper in Orleans Parish. The Defendants argue that under LSA-R.S. 13:5104 venue is only proper in East Baton Rouge Parish, where the state agency that has the authority to make an administrative decision to close Charity is located. The Defendants argue that venue is mandatory in East Baton Rouge Parish, according to Colvin, id., irrespective of which employee of the state agency made the decision to close the facility, or where that person may be domiciled. The Defendants further argue that the Plaintiffs' cause of action based on the Defendants' alleged failure to obtain legislative approval prior to the closure of Charity Hospital was an omission which could have only occurred in East Baton Rouge Parish.
The Plaintiffs allege that the Defendants misconstrue the Court's holding in Colvin. The Plaintiffs maintain that the Court did not find as a matter of law that any lawsuit contesting a decision by a state agency or employee requires that the suit be brought in East Baton Rouge Parish, as the Court clearly stated that venue is a factual matter. Id.
This Court has determined that the Louisiana Civil Code of Procedure "articles governing venue are based on legislative considerations for allocating cases, according to the particular action and the particular parties, among the various parishes which have an interest in the action ..." Underwood v. Lane Memorial Hospital, 97-1997 (La.7/8/98), 714 So.2d 715, 716. This Court has recognized venue as a "convenience factor as opposed to a jurisdictional factor." Id.
In determining the proper venue, the general principles of venue are usually analyzed to determine the proper parish where an action may be tried before a judge or a jury. See, LSA-C.C.P. art. 42. The general rules of venue provide a "home base" where the defendant must be sued, which is subject to the numerous exceptions. Id. This Court has determined that a suit against a state agency is not governed by the general rules of venue *246 or its exceptions; instead, LSA-R.S. 13:5104 governs, unless a more specific venue governing a specific state agency is found elsewhere in the statutes. Colvin, 947 So.2d at 22.
LSA-R.S. 13:5104 provides, in pertinent part, that:
A. All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arises. [Emphasis added.]
This Court noted in Colvin, supra, that in determining the parish where the cause of action arises, we must focus on the place where the "operative facts occurred which support plaintiff's entitlement to recovery." Prior to determining where the operative facts occurred, the first pre-requisite of LSA-R.S. 13:5104 must be met, i.e., the suit must be filed against the State of Louisiana or a state agency. Here, the only state agency named in this suit, LSU HSC-NO was dismissed from the suit.
We next consider the amended petition, in which Dr. Hollier was sued in his official capacity as Chancellor of the LSU HSC-NO, and the statutorily designated agent for the LSU Board of Supervisors. The U.S. Supreme Court in Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978), stated "Official-capacity suits, in contrast, `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" See, Sommer v. State Department of Transportation, 758 So.2d 923, 936 (La.App. 4th Cir. 2000). We therefore conclude, based on our jurisprudence, that when Plaintiffs amended their petition and sued Dr. Hollier in his official capacity, they were really suing the LSU Board of Supervisors.
Now, that the LSU Board of Supervisors has been effectively added as party defendant by amended pleadings, we can now consider LSA-R.S. 13:5104(A), and whether a suit against the state agency based on an administrative decision can be brought in any parish other than East Baton Rouge Parish.
According to Colvin, this Court has determined that "when the Plaintiffs are challenging a ministerial [or administrative] action of a state agency ... and the conduct complained of occurred in Baton Rouge where the decisions are made," East Baton Rouge Parish is the only proper venue as "the parish where the decisions are made should review all complaints against that agency rather than have courts all over the state review the actions." Id. at p. 23. Stated differently, "where a state agency's ministerial or administrative actions are called into question, East Baton Rouge offers the only appropriate forum, as that is both `the district in which the state capital is located' and `the district court having jurisdiction in the parish in which the cause of action arises'." Anderson v. State, 05-0551(La.App. 3 Cir. 11/2/05), 916 So.2d 431, 435, writ denied, 05-2493 (La.6/2/06), 929 So.2d 1243. This Court ruled that LSA-R.S. 13:5104(A):
[W]ould render exceptionally rare the circumstances under which a state entity who opposes litigation away from home might be required to litigate issues of great import statewide, as opposed to causes of action whose immediate consequences merely reverberate locally.
See, Abshire v. State, through Department of Insurance, 93-923 (La.App. 3 Cir. 4/6/94), 636 So.2d 627, 629-630, writ denied, *247 94-1213 (La.6/24/94), 640 So.2d 1332. In Abshire, where the Plaintiffs sued the Department of Insurance for fraud and mismanagement in Rapides Parish, the court found that because the administrative actions of the state agency were challenged, East Baton Rouge Parish was the only appropriate forum in which to sue. 636 So.2d at 629. Also, in Anderson, supra, where the Plaintiffs filed suit against the Governor and the Legislature for failing to properly fund the indigent defender system in Calcasieu Parish, the court held that venue was only proper under LSA-R.S. 13:5104(A) in East Baton Rouge Parish. In Cameron Parish Police Jury v. McKeithen, 02-1202 (La.App. 3 Cir., 10/14/02), 827 So.2d 666, writ denied, 02-2547, 02-2548 (La.10/23/02), 827 So.2d 1148, 1149, where suit was filed against the Secretary of State seeking to enforce his ministerial duties, the court held that East Baton Rouge Parish was the proper venue.
On the other hand, this Court clearly explained in Colvin, that there may be instances where suits are filed against state agencies, and the venue is proper in a parish other than East Baton Rouge Parish. These instances exist "where the operative facts occurred which support plaintiff's entitlement to recovery" and the Plaintiffs are not contesting the ministerial or administrative duties of the state agency. See, 947 So.2d at 26.
In this case, the Plaintiffs continue to argue that the cause of action arose in Orleans Parish where the Chancellor, Dr. Hollier resides, where Charity Hospital is located, and where the decision was made to close Charity Hospital. Following our prior decision in Colvin, we conclude that the decision to close Charity Hospital (or not reopen the facility) was an administrative decision. The controlling factor is not the location of the person issuing the order. In cases against state agencies involving administrative decisions, East Baton Rouge Parish is the district having jurisdiction, and the district in which the cause of action arises under LSA-R.S. 13:5104(A). See, Colvin, supra. Accordingly, we find that East Baton Rouge Parish is the proper venue for a suit against a state agency where an administrative decision is involved. For the foregoing reasons, we reverse the court of appeal and grant the Defendants' Exception of Improper Venue. This action is transferred to East Baton Rouge Parish.
REVERSED and RENDERED.
NOTES
[1] Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor.
[2] In the Petition for Injunctive and Declaratory Relief, the named Defendants were: 1) Dwayne Thomas, who was the Chief Executive Office ("CEO") of the Medical Center of Louisiana at New Orleans, Louisiana State University Hospitals, Health Care Services Division, sued in his official capacity; 2) Larry Hollier, Chancellor, LSU Health Sciences Center-New Orleans, sued in his official capacity; 3) Michael K. Butler, Acting Chief Executive Officer, Louisiana State University Health Care Services Division, sued in his official capacity; and 4) Louisiana State University Health Sciences Center-New Orleans ("LSU HSU-NO").
[3] According to the Petition, the Plaintiffs "were statutorily entitled to receive medical care at Charity Hospital because they are uninsured and low-income. Further, each has a serious continuing `chronic' medical condition that would have caused them to go to Charity Hospital for care if it had not been closed. The unlawful closure violated their entitlement to care, and they are unable to reasonably obtain equivalent care from any other source."
[4] For all intent and purposes, LSU Health Sciences Center and the LSU Health Care Services Division are one and the same. See, LSA-R.S. 17:1519.1, which provides in pertinent part:
(5) "Health care services division" or "division" means the organizational unit of the LSU Health Sciences Center at New Orleans comprised of the hospitals and administrative personnel immediately responsible for the operation of the division.
[5] La. R.S. 17:1519.3(B) provides:
B. No hospital nor any emergency room may be closed without legislative approval. Such approval may be granted by the legislature either by concurrent resolution or by appropriate action in the General Appropriation Act.
[6] LSA-R.S. 17:1519.2 provides, in pertinent part, that:
A. (1) The board shall own and operate the hospitals set forth in Subsection B, and any successor entities, in its discretion, as more specifically provided in this Subpart.
....
B. (1) The LSU Health Sciences Center-New Orleans shall be responsible for the following hospitals, including all programs and facilities thereof:
(a) Medical Center of Louisiana at New Orleans.
....
(2) Operation and management of the LSU HSC-NO hospitals shall be the responsibility of the board pursuant to this Subpart.
[7] The parties have acknowledged and do not dispute that the petition was amended and is part of the pleadings contained in the record before this Court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920015/ | 660 So.2d 1074 (1995)
KOCHA & JONES, P.A., Appellant,
v.
Philip E. GREENWALD, Robert James Taylor, Thelma Taylor, Eric Nelson and Ruth Nelson, Appellees.
No. 94-1391.
District Court of Appeal of Florida, Fourth District.
August 9, 1995.
Rehearing Denied October 12, 1995.
Stuart E. Kocha of the Law Offices of Stuart E. Kocha, P.A., West Palm Beach, for appellant.
Philip E. Greenwald, Boca Raton, pro se appellee.
GUNTHER, Chief Judge.
Appellant, Kocha & Jones, P.A., intervenor below, (Appellant) appeals the final order and judgment awarding the Appellee, Philip Greenwald, lien-claimant below, (Greenwald) an attorney's fee from the Appellant in the sum of six thousand dollars ($6,000.00) bearing interest at the rate of 12% a year. We reverse based upon the authority of Faro v. Romani, 641 So.2d 69 (Fla. 1994).
On April 15, 1994, when the trial court entered the final order and judgment awarding attorney's fees to Greenwald, this court had pending before the Florida supreme court the following certified question of great public importance:
WHETHER IN AN ACTION ON A CHARGING LIEN, A TRIER OF FACT MAY CONCLUDE ON DISPUTED EVIDENCE THAT COUNSEL IS ENTITLED TO COMPENSATION FOR SERVICES RENDERED, NOTWITHSTANDING THE CONTINGENCY OF THE FEE CONTRACT, WHERE COUNSEL IS FOUND TO HAVE JUSTIFICATION AND GOOD CAUSE FOR WITHDRAWING APART FROM, OR IN ADDITION TO, DISAGREEMENTS OVER SETTLEMENT NEGOTIATIONS?
Faro v. Romani, 629 So.2d 872, 873 (Fla. 4th DCA 1993). The Florida supreme court answered our question with a qualified affirmative. Faro v. Romani, 641 So.2d 69 (Fla. 1994). In qualifying its answer, the supreme court explained that once an attorney withdraws from representation, the contingency *1075 agreement, like the attorney-client relationship, terminates. Id. at 71. The supreme court held that when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation. Id. The supreme court further held, however, that if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs. Id.
The client in Romani, John Faro, entered into a contingency fee agreement with Romani and the firm of Farish, Farish, and Romani. Id. Before the case went to trial, Romani filed a motion to withdraw as counsel based on "irreconcilable differences." The supreme court found that there was insufficient evidence of justification and good cause to warrant a fee in Romani. Id. at 70. Additionally, the supreme court found that the record did not support a finding that Faro breached the attorney contract or legally caused it to be breached. Id. at 71. Nor did the record support a finding that Faro's conduct placed Romani in an ethical dilemma. Id.
Decisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since the time of trial. Lowe v. Price, 437 So.2d 142 (Fla. 1983); see also Wheeler v. State, 344 So.2d 244 (Fla. 1977), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979); Collins v. Wainwright, 311 So.2d 787 (Fla. 4th DCA), cert. dismissed, 315 So.2d 97 (Fla. 1975).
Given that Romani is applicable to this court's appellate determination, Romani is factually similar to the instant case. Greenwald testified that he told his clients, the Taylors, that he thought it would be best for them to engage other counsel. In addition, Greenwald testified that Mr. Taylor had become increasingly more difficult as a client. At trial, Mr. Taylor testified that Greenwald gave him no reason why Greenwald would not handle the new trial for Mr. Taylor. Mr. Taylor further testified that Greenwald had quit. Finally, Mr. Taylor testified that he never made the decision to discharge Greenwald.
Thus, the record evidence in the instant case clearly suggests that Greenwald withdrew from representation upon his own volition. Because the contingency had not yet occurred, Greenwald forfeited all rights to compensation. See Romani, supra. Here, we do not find that Greenwald has alleged any conduct by the Taylors that would render the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating the Florida Bar. See Romani, supra.
Accordingly, we reverse and remand with instructions to discharge Greenwald's lien.
REVERSED AND REMANDED.
STONE and FARMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920017/ | 660 So.2d 374 (1995)
Kevin ANTHONY, Appellant,
v.
STATE of Florida, Appellee.
No. 95-1725.
District Court of Appeal of Florida, Fourth District.
September 13, 1995.
*375 Kevin Anthony, Immokalee, pro se appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PARIENTE, Judge.
Defendant appeals summary denial of his rule 3.850 motion without an evidentiary hearing. We reverse because an evidentiary hearing should have been held on defendant's allegations that his trial counsel failed to properly present his alibi defense resulting in ineffective assistance of counsel.
Defendant was convicted after a jury trial of delivery of cocaine within 1,000 feet of a school. His defense was one of mistaken identity. The undercover operation took place at night, but defendant was not arrested at the scene. There was a discrepancy in the description of the seller by the two police officers involved in the sting operation. One officer stated that the seller was dressed all in red; the other testified the seller wore a green shirt. One of the officers further testified that the lighting in the area was not very bright, while the other testified that there were crime lights in the area, leaving the scene well lit.
Defendant took the stand in his own defense testifying that at the time of the operation he was at home with his wife. When cross-examined by the state as to whether his wife would testify, defendant responded that she was at work. Defendant's wife was not called to testify.
Defendant claims that he was prevented from properly presenting his alibi defense because his trial counsel did not file a notice of alibi as required by the rules of criminal procedure. The state's response, adopted by the trial court, did not contest this fact, and even added that defense counsel did not list defendant's wife on the defense witness list. The state asserted and the trial court agreed that the decision not to put on an alibi defense *376 beyond the defendant's own testimony was reasonable trial strategy because it meant the defense did not have to disclose its theory of defense before trial and defense counsel was able to present rebuttal closing argument.
Defendant alleges in his sworn memorandum that several unidentified individuals were prepared to testify that he was at home the night of the offense, but that trial counsel failed to adequately investigate his alibi defense. This allegation is refuted by the portion of the trial transcript where on cross-examination he testified that he was home that night only with his wife and that no one else was aware of where he was other than his wife. However, this portion of the trial transcript does not refute his allegation that his wife would have testified to his whereabouts.
Where there has been no evidentiary hearing, the allegations in support of the motion for post-conviction relief must be taken as true unless they are conclusively rebutted by the record. Harich v. State, 484 So.2d 1239 (Fla. 1986); Montgomery v. State, 615 So.2d 226, 228 (Fla. 5th DCA 1993). Florida Rule of Appellate Procedure 9.140(g) specifically provides that "unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing." See Davis v. State, 648 So.2d 1249 (Fla. 4th DCA 1995).
While defense counsel is entitled to broad discretion regarding trial strategy, where the trial court is confronted with a claim of ineffective assistance of counsel, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without the benefit of an evidentiary hearing. See Davis; Williams v. State, 642 So.2d 67 (Fla. 1st DCA 1994); Gordon v. State, 608 So.2d 925 (Fla. 3d DCA 1992). The determination that defense counsel's actions not to raise an alibi defense or call alibi witnesses were tactical decisions is best made after an evidentiary hearing unless the record conclusively refutes the allegations. See Davis; Gordon; Dauer v. State, 570 So.2d 314 (Fla. 2d DCA 1990).
The record here does not conclusively refute defendant's allegations of ineffective assistance of counsel. An evidentiary hearing should have been held to resolve the disputed issue as to defense counsel's reasons for not filing a notice of alibi, not listing defendant's wife as a witness and not calling defendant's wife. Especially where the state's identification of defendant as the seller was contradictory and where defendant testified in his own behalf that his wife could verify that he was at home at the time of the crime, we cannot say as a matter of law that trial counsel's decisions constituted reasonable trial strategy.
We affirm the order insofar as it denies relief on the defendant's second issue, the racial composition of the petit jury venire. Even if the motion had stated a legally sufficient claim, this is an issue that should have been raised first at trial or on direct appeal in order to preserve the issue for the purpose of a rule 3.850 motion. Nelms v. State, 596 So.2d 441, 442 (Fla. 1992); Moreland v. State, 582 So.2d 618, 620 n. 3 (Fla. 1991). The trial court properly denied 3.850 relief on this ground without the necessity of an evidentiary hearing.
Accordingly the trial court's order is affirmed in part and reversed in part. We remand for the trial court to conduct an evidentiary hearing limited to the issue of the alibi defense.
GLICKSTEIN and STEVENSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920041/ | 660 So.2d 61 (1995)
SUCCESSION OF Rudolph F. BECKER, III.
No. 94-CA-1491.
Court of Appeal of Louisiana, Fourth Circuit.
June 1, 1995.
Rehearing Denied September 26, 1995.
Vincent T. LoCoco, Henrik A. Pontoppidan, Vincent B. LoCoco, New Orleans, for appellants.
William L. Von Hoene, Jr., New Orleans, for appellee William F. Finegan, Executor.
Phillip A. Wittman, Ellen M. Chapin, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for appellee, Patricia McGee Becker.
Before BARRY, ARMSTRONG and LANDRIEU, JJ.
ARMSTRONG, Judge.
This is an appeal from the dismissal of a petition for possession of a particular legacy. The petitioners-appellants are Diane Catherine Becker and Pamela McGinn Becker-Koch. *62 They are the adult children of the late Judge Rudolph Becker, III. They are the legatees of a particular legacy in Judge Becker's will. Also, of course, they are forced heirs of Judge Becker. The appellees are the executor of Judge Becker's estate, William F. Finegan, and Judge Becker's wife, Patricia McGee Becker, who also is a legatee of Judge Becker's will. The petitioners are not children of Judge Becker's marriage to Patricia McGee Becker but are, instead, children of a previous marriage of Judge Becker.
In his will, Judge Becker left to the petitioners a particular legacy of his interests in a lease and sublease of certain immovable property. Also in his will, Judge Becker left his wife a lifetime usufruct over his interests in the lease and sublease. The interests in the lease and sublease produce income on a regular basis. The lease will expire in about twenty years and the sublease will expire in about eleven years. The petitioners are concerned that, in view of Patricia McGee Becker's life expectancy of about twenty-three years, the lease and sublease will expire prior to the end of the usufruct with the result, the petitioners argue, that the petitioners will receive no economic benefit from their legacy.
It appears to be uncontested that the particular legacy of the interests in the lease and sublease is necessary to provide the forced portion due the petitioners as the forced heirs of Judge Becker. Indeed, apparently, this particular legacy was the petitioner's only legacy in Judge Becker's will.
Of course, it is uncontested that Judge Becker left the naked ownership of the interests in the lease and sublease to the petitioners. However, the petitioners argue that, under the Civil Code, it was impermissible for Judge Becker to grant to his wife a usufruct over the petitioners' particular legacy. Also, the petitioners argue that, if the usufruct at issue is proper under the Civil Code, then the Civil Code article so permitting the usufruct at issue is unconstitutional. For the reasons that follow, we affirm the judgment of the trial court.
Civil Code article 890, as an exception to the general rule that a testator may not burden the forced portion with a usufruct, see La.Civ.Code art. 1710, allows a usufruct in favor of a surviving spouse over the entire estate.
If the deceased spouse is survived by descendants and shall not have disposed by testament of his share in the community property, the surviving spouse shall have a legal usufruct over so much of that share as may be inherited by the descendants. This usufruct terminates when the surviving spouse contracts another marriage, unless confirmed by testament for life or for a shorter period.
The deceased may by testament grant a usufruct for life or for a shorter period to the surviving spouse over all or part of his separate property.
A usufruct authorized by this article is to be treated as a legal usufruct and is not an impingement upon legitime.
If the usufruct authorized by this article affects the rights of heirs other than children of the marriage between the deceased and the surviving spouse or affects separate property, security may be requested by the naked owner.
La.Civ.Code art. 890.
The second paragraph of Civil Code article 890, dealing with separate property, is squarely applicable to the present case, because Judge Becker's particular legacy to the petitioners, his interests in the lease and sub-lease, was separate property. The third paragraph of Civil Code Article 890 is of critical importance because it provides that a usufruct authorized by Civil Code article 890 (i.e., a usufruct in favor of a surviving spouse) is not an "impingement upon legitime." In other words, forced heirs have not been deprived of their forced portion simply because a usufruct in favor of a surviving spouse has been imposed upon the forced portion.
The last paragraph of Civil Code article 890 is of some importance in the present case because, as will be discussed below, the petitioners argue that Civil Code article 890's authorization of a surviving spouse usufruct over a forced portion does not extend to a situation involving a forced portion of children *63 of a prior marriage. The last paragraph of Civil Code article 890 provides that security may be requested by the naked owner when Civil Code article 890 "affects the rights of heirs other than children of the marriage between the deceased and the surviving spouse." Obviously, by providing for security when it affects children of a prior marriage, Civil Code article 890 contemplates that it will apply to the inheritances of children of prior marriages.
When one takes into account Civil Code article 890's provision for the surviving spouse usufruct, its provision that the surviving spouse usufruct may be imposed upon a forced portion, and its provision that heirs who are children of a previous marriage may request security, it is readily apparent that Civil Code article 890 contemplates imposition of a surviving spouse usufruct on the forced portion of heirs who are children of a previous marriage. Our view in this regard is consistent with that of several scholarly commentaries. See La.Civ.Code art. 890, Editor's Note at 212 (Yiannopoulos ed., West 1994); Samuel, Shaw & Spaht, Successions and Donations, 45 La.L.Rev. 575, 581 (1984); Comment, New Hope For The Survivor: The Changes In The Usufruct Of The Surviving Spouse, 28 Loy.L.Rev. 1095, 1097 (1982).
Civil Code article 890 clearly authorizes the surviving spouse usufruct in the present case, but petitioners argue that the usufruct at issue is, nonetheless, prohibited by Civil Code article 1752:
A man or woman who contracts a second or subsequent marriage, having a child or children by a former marriage, can give to his wife, or she to her husband, either by donation inter vivos or by last will and testament, in full property or in usufruct, all of that portion of his estate, or her estate, as the case may be, that he or she could legally give to a stranger.
La.Civ.Code art. 1752.
The petitioners argue that, because of Civil Code article 1752, Judge Becker could not provide the usufruct at issue to his surviving spouse because he had children of a prior marriage (the petitioners) and he could not have provided that usufruct to a "stranger" (someone other than the surviving spouse) because it would constitute an impingement on the legitimate of the petitioners as forced heirs. It is readily apparent that the petitioners read Civil Code article 1752 to provide that, when there are children of a prior marriage, the testator may provide a usufruct to the surviving spouse only over that portion of the estate that could be given to someone other than the surviving spouse. We disagree.
Civil Code article 1752 does not state that "only that portion" that could be left to someone else can be subject to the surviving spouse usufruct. The article instead says that "all that portion" that can be left to someone else can be subject to the surviving spouse usufruct. The word "only," or any synonym thereof, is conspicuously absent from Civil Code article 1752. In other words, Civil Code article 1752 is phrased in entirely permissive, rather than restrictive, terms.
With Civil Code article 890 clearly contemplating a surviving spouse usufruct even when there are children of a prior marriage (particularly the last sentence of that article), and Civil Code article 1752 phrased in purely permissive terms, we do not believe that the latter article can be applied to restrict the former article. That is, we do not believe that Civil Code article 1752 can be applied to eliminate the Civil Code article 890 usufruct in favor of the surviving spouse when there are children of a previous marriage.
In fact, Civil Code article 1752, in its present form, really has no effect. As we have discussed, the article is in no way restrictive. It permits whatever portion of the estate that may be left to anyone (the disposable portion) to be left to the surviving spouse. Of course, as the disposable portion may, as a general matter, be left to anyone, it hardly seems necessary to have an article to say that it may be left to the surviving spouse. The explanation for this seeming anomaly lies in the history of Civil Code article 1752. The Supreme Court discussed that history in Succession of Hyde, 292 So.2d 693 (La.1974).
Until 1882, the disposable portion between married persons coming within the purview of article 1752 and its predecessor *64 articles was the least child's portion in usufruct not to exceed 1/5 of the donor's estate, Act 13 of 1882 increased the disposable portion under article 1752 to 1/3 of the donor's estate, in full property or in usufruct. Article 1752 was again amended in 1916 to increase the disposable portion to all that could legally be given a stranger.
292 So.2d at 695. Thus, prior to its 1916 amendment, Civil Code article 1752 did have a substantial restrictive effect.
The 1916 legislature chose to amend Civil Code article 1752 to remove its restrictive effect, thus leaving it with no practical effect, rather than simply repealing the article. Perhaps this was because of the long history of restriction by Civil Code article 1752 and the legislature's desire to emphasize that the restriction was now abolished. In any event, the decision to amend rather than repeal explains the seeming anomaly of an article which specifically permits what is, as a general proposition, already permitted.
Civil Code article 1752 was repealed by Act 147 of 1990. This was done pursuant to the recommendation of the Louisiana State Law Institute whose Reporter stated that the article "serves no useful purpose and should have been repealed a long time ago." Minutes of Louisiana State Law Institute Council meeting of December 15-16, 1989 at 4.
Act 147 of 1990 made a number of changes to the law in addition to, and quite apart from, repealing Civil Code article 1752. One of the changes made by Act 147 of 1990 was to limit forced heirship to persons under the age of twenty-three. This aspect of Act 147 of 1990 was held to be unconstitutional in Succession of Lauga, 624 So.2d 1156 (La. 1993). The Supreme Court declared the entire Act 147 of 1990 void. Id. However, the Supreme Court made no reference to Civil Code article 1752 and it is readily apparent from the Lauga opinion (discussed in more detail below) that the repeal of Civil Code article 1752 had nothing to do with the unconstitutionality of act 147 of 1990. Thus, it was merely through the happenstance of the repeal of Civil Code article 1752 being done by the unconstitutional Act 147 of 1990 that Civil Code article 1752 remains in the Civil Code. In other words, the Lauga decision does not diminish the explicit view of the Louisiana State Law Institute, and the apparent view of the 1990 legislature, that Civil Code article 1752 "serves no useful purpose." Thus, the Louisiana State Law Institute's recommendation that the article be repealed, and the actual legislative decision to repeal the article, strengthens our conviction that Civil Code article 1752 has no real effect in its current form and certainly cannot be used to restrict the application of Civil Code article 890.
The petitioners rely principally upon the Fifth Circuit's decision in Succession of Suggs, 612 So.2d 297 (La.App. 5th Cir.1992), joint motion to withdraw writ application granted and request to vacate judgments of lower courts denied, 620 So.2d 860 (La.1993). The Suggs court held that Civil Code article 890 had to be interpreted in conjunction with and, in effect, restricted by, Civil Code article 1752. In particular, the Suggs court held that:
[A] decedent may leave a usufruct over the forced portion of his estate to the surviving spouse of his first marriage, but, if there are children of a first marriage, he cannot leave such a usufruct to the surviving spouse of a second or subsequent marriage.
612 So.2d at 298.
After having carefully considered the opinion of the Suggs court, we respectfully disagree. For the reasons set out above, we do not believe that Civil Code article 890 needs to be interpreted in light of Civil Code article 1752 and, in particular, we do not believe Civil Code article 890 is restricted by Civil Code article 1752.
The petitioners also argue that application of Civil Code article 890 to situations such as the present case, in which the forced portion is subject to the surviving spouse usufruct, is unconstitutional. The petitioners invoke Article XII, Section 5 of the Louisiana Constitution of 1974 which states:
No law shall abolish forced heirship. The determination of forced heirs, the amount of the forced portion, and the grounds for disinherison shall be provided *65 by law. Trusts may be authorized by law, and a forced portion may be placed in trust.
Specifically, the petitioners cite the prohibition against any law "abolishing" forced heirship and argue that, in the present case, the application of Civil Code article 890 has "abolished" forced heirship. The petitioners rely exclusively on the Supreme Court's decision Succession of Lauga, 624 So.2d 1156 (La.1993). Because the petitioners' entire argument as to the constitutionality of Civil Code article 890 is based upon Lauga, we will confine the rest of our discussion of the issue to the Lauga decision.
In Lauga, the issue was the constitutionality of an amendment to the Civil Code which amendment provided that only children under twenty-three years of age would be forced heirs. The Supreme Court held this amendment to be unconstitutional. In particular, the Supreme Court held that the amendment violated the above-quoted Article XII, Section 5 of the Louisiana Constitution of 1974 because the amendment amounted to an "abolition" of forced heirship.
However, because of basic differences between the issue in Lauga, and the issue raised by the petitioners in the present case, we do not believe that the Lauga decision supports the petitioners' argument. In Lauga the Civil Code amendment involved made a distinction among children, based upon age, as to whether or not they would be forced heirs. This distinction allowed for extreme inequality in inheritances among children an inequality which forced heirship of equal shares of a forced portion was designed to mitigate. It was this allowance of unmitigated inequality of inheritance which resulted in the Lauga holding that the Civil Code amendment at issue in that case was unconstitutional. (Of course, as no more than one-half of the estate is the forced portion, and at least one-half is the disposable portion, forced heirship only mitigates and does not totally eliminate possible inequality of heirship.)
The Supreme Court stated the Lauga issue thus:
We are called upon to decide whether a law that purports to abrogate forced heirship's principle and right of equality of heirship among children is unconstitutional because it violates Article XII, Section 5 of the 1974 Louisiana Constitution, which declares that "[no] law shall abolish forced heirship."
624 So.2d at 1157 (emphasis added). Thus, the Supreme Court framed the issue of Lauga in terms of "equality of heirship."
The Supreme also summarized its reasoning in Lauga in terms of equality of heirship:
The declaration that "[n]o law shall be passed abolishing forced heirship" originally was placed in the 1921 Louisiana Constitution to preserve the core principle of that legal institutionthe equality of heirship between children as to a forced portion of their decedent's estate. The purpose of the constitutional provision was to further the state interests in the prevention of excessive concentrations of wealth and the promotion of family harmony and solidarity through deterrence of intra-family discord and litigation. Subsequently, our courts, commentators, and the legislature interpreted the constitutional provision as guaranteeing to every child an individual right to an equal share of a forced portion of his or her decedent's estate. According to the weight of scholarly commentary and juristic dictum, the constitutional provision allowed legislative enactment of implemental and regulatory laws subject to the limitation of these basic precepts.
Article XII, § 5 of the 1974 Louisiana Constitution continues in effect the essential meaning of the law established under Article IV, § 16 of the 1921 Louisiana Constitution. Article XII, § 5 models its stipulations on the very similar provisions of the 1921 Constitution and the construction previously placed on those provisions by the jurisprudence. Accordingly, we conclude that Article XII, § 5 guarantees the individual right of a child toan equal share of a forced portion of his or her decedent's estate and maintains the correlative public principle of equality of heirship, which furthers the goals of dispersion of wealth, family solidarity, and reduction of litigation. Subject to and not inconsistent with these basic precepts, the legislature may *66 pass laws implementing and regulating forced heirship.
Civil Code article 1493, as amended in 1989 and 1990, is unconstitutional because it violates Article XII, § 5 in three different but interrelated ways. First, the law violates and deprives each plaintiff of his individual right as a child to an equal share of forced portion of his decedent's estate; furthermore, the law professes to abolish the right of forced heirship as an individual constitutional right and relegate it to the status of a statutory entitlement. Second, the law purports to abrogate completely Article XII, § 5's guarantee of the core principle of equality of heirship among children with respect to a forced portion of their decedents' estates. Third, the law purports to render wholly ineffective the legal institution of forced heirship to further the state purposes for which it was elevated to constitutional status. In fact, the law promotes the very evils that the forced heirship guarantee was designed to combat, that is, the unjust disinheritance of children which leads to family disharmony and litigation among siblings and the concentration of family estates in fewer than all the children, to the economic detriment of society and the resulting impoverishment of the disinherited children. In sum, amended Civil Code article 1493 abolishes the legal institution of forced heirship with respect to all of its ends and purposes as effectively as would a simple repeal of all forced heirship laws.
624 So.2d at 1158 (emphasis added). Thus, the constitutional flaw in the amendment to the Civil Code lay in its allowance of extreme inequality of inheritances.
In contrast, Civil Code article 890 and its application as in the present case presents no danger of extreme inequality of inheritances. The article does not address or affect the issue of the division of the forced portion among children. Consequently, the Lauga decision provides no reason or basis to question the constitutionality of Civil Code article 890.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED
BARRY, J., concurs with reasons.
BARRY, Judge, concurring with reasons.
La.C.C. art. 1752 as amended by Acts 1916, No. 116 increased the disposable portion between persons in a second or subsequent marriage to that which could legally be given to a stranger. The amendment allows the donor to do what is generally already permitted, i.e., dispose of the disposable portion in any manner he sees fit. Succession of Hyde, 292 So.2d 693 (La.1974). Article 1752 was subsumed by La.C.C. art. 1493 (which limits the disposable quantum) and was rendered superfluous. Dykes & Parker, The Usufruct of the Surviving Spouse Under Louisiana Civil Code Article 890 and the Legitime of the Decedent's Children by a Prior Marriage, 55 La.L.Rev. 139, 147 (1994).
The subsequent amendments to La.C.C. art. 890 show clear legislative intent to extend and allow confirmation of Art. 890's usufruct to the surviving spouse over the deceased's community and separate property regardless of whether the descendants were born of a prior marriage. Id. at 150. See La.C.C. art. 890, comment (a). That completed the abrogation of the distinction between first and subsequent spouses and relegated Art. 1752 to antiquity.
When Acts 1990, No. 147 was held unconstitutional in Succession of Lauga, 624 So.2d 1156 (La.1993), Art. 1752 was reinstated in form. However, Lauga did not reverse the relevant statutory history or transform Art. 1752 into a limitation on the Art. 890 usufruct which is unrestricted as to issue of the marriage. The contested disposition is appropriate under the Code.
The Becker heirs argue that the usufruct on the leasehold interest deprives them of their constitutionally protected rights as forced heirs because the leasehold interest is worthless to them. They note that Article 890's requirement for security is meaningless because there is nothing to secure once the lease has expired.
The majority correctly states that Lauga does not support the Becker heirs' argument. *67 However, that does not dispose of the issue. The majority suggests that because the usufruct does not affect the equality of the division of the forced portion, it is constitutional. But the usufruct is not attacked on the basis of unequal division of the forced portion; rather, it is attacked as allowing a divestiture of the forced portion.
Art. 890 does not restrict the type of things over which the legal usufruct extends, and a usufruct on a lease is permitted under La.C.C. art. 544. See La.C.C. art. 544, comment (d). The usufructuary's (Mrs. Becker) life expectancy apparently exceeds the term of the leasehold interest and money derived therefrom goes to the usufructuary for the duration of the usufruct.
The leasehold interest has a net value of $81,543.66. There is no factual basis to conclude that the usufruct deprives the Becker heirs of their legitime. Mindful that the value of the asset decreases with time and its value is intricately tied to payments received by the sublessee, the issues to be decided are classification of the asset over which the usufruct is given and the possible obligation of the usufructuary to account to the Becker heirs.
Whether the usufructuary must post security or account at the termination of the usufruct are matters not before this Court.
I respectfully concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920048/ | 660 So.2d 1061 (1995)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
Linda Sue ORR and Stephen Orr, her husband, Appellees.
Nos. 93-3498 and 93-3541.
District Court of Appeal of Florida, Fourth District.
June 21, 1995.
Rehearing or Clarification and Rehearings Denied October 17, 1995.
*1062 Thomas A. Conrad of Heller & Conrad, P.A., Hollywood, for appellant.
Frank G. Cibula, Jr. of Law Offices of Frank G. Cibula, Jr., West Palm Beach, for appellees.
Rehearing or Clarification and Rehearings En Banc Denied October 17, 1995.
OWEN, WILLIAM C., Jr., Senior Judge.
Linda Sue Orr, alleging permanent injury from an automobile accident, supported her claim of the existence and permanency of injury by expert witness testimony which was based, primarily, on her uncontradicted complaints of pain from soft tissue injury. The question here is whether, in light of our decision in Colvin v. Williams, 564 So.2d 1249 (Fla. 4th DCA 1990), the trial court erred in directing a verdict for Ms. Orr on the issue of permanency of injury. We hold it did not, and affirm.
A directed verdict is proper when the evidence and all inferences therefrom, considered in the light most favorable to the non-moving party, support the movant's case as a matter of law and there is no evidence to rebut it. Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 986 (Fla. 1978). Our task is to first determine whether the evidence supporting Ms. Orr's claim of permanent injury within a reasonable degree of medical probability met that standard. If so, we then need to examine the record to determine if there is any conflicting evidence or inferences on the issue of permanent injury from which the jury could draw a conclusion favorable to the party against whom the directed verdict was entered.
The proof in support of the permanency of Ms. Orr's injury consisted primarily of (1) her own testimony of continuous pain from soft tissue injury,[1] (2) the testimony of several disinterested lay witnesses of her fairly persistent complaints of pain over the five year interval between the date of the accident and the time of trial, and (3) expert medical testimony that, based upon her subjective complaints of pain, she had sustained within a reasonable degree of medical probability a permanent injury from the accident. That proof was adequate, even absent an objective finding. City of Tampa v. Long, 638 So.2d 35 (Fla. 1994). Thus, we need to examine the record for any conflicting evidence or for any basis upon which a jury reasonably could have drawn an inference to support the conclusion that plaintiff had failed to prove this issue.
We know, of course, that under the teaching of Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993), the jury was free to weigh the opinion testimony of the expert witnesses, and either accept, reject or give that testimony such weight as it deserved considering the witnesses' qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. Since each of the two medical experts based his opinion primarily upon plaintiff's subjective complaints of pain, the jury could reject the expert medical opinion if there is in the record a reasonable basis for the jury to disbelieve the plaintiff's testimony.
We perceive that here is where this case materially differs from Easkold and Colvin (and cases cited therein). In this case, there was neither contradictory nor conflicting expert medical evidence and, aside from the plaintiff's obvious interest in the outcome of the case, there was no evidence such as prior injuries, pre-existing conditions, self-contradictory statements, inaccurate medical history, or impeaching surveillance films, which would furnish the jury a reasonable basis[2] upon which to disbelieve plaintiff's complaints of pain or to reject the opinion testimony of the medical experts.
*1063 This was a true adversary proceeding. The defendant had available to it the extensive discovery procedures allowed by the rules, including its right to have the plaintiff examined by a physician of its choice. Nonetheless, at trial it offered nothing which materially discredited the testimony of plaintiff and the witnesses on her behalf. To the contrary, putting on its best case, it offered only expert medical testimony corroborating that offered by plaintiff concerning the permanency of her injury. Thus, at the close of the evidence, both plaintiff and defendant had offered evidence fully supporting plaintiff's claim of permanent injury.
Easkold and Colvin (and the cases cited therein) each involved some fact basis which could justify a jury in disbelieving the claim of permanent injury. In Easkold, there was evidence that the plaintiff had not accurately reported her medical history to the physicians who offered opinion testimony concerning plaintiff's injuries; in Colvin, there was a history of a pre-existing condition and damaging surveillance films; in Tripp v. Killam, 492 So.2d 472 (Fla. 4th DCA 1986), much of the evidence was ambiguous and uncertain as to the lasting effects; in Laberge v. Vancleave, 534 So.2d 1176 (Fla. 5th DCA 1988), rev. denied, 545 So.2d 1369 (Fla. 1989), there was conflicting testimony by the expert witnesses; in Allstate Ins. Co. v. Edenfield, 543 So.2d 874 (Fla. 4th DCA 1989), there was conflicting evidence on the issue of permanence; and in Powell v. Napolitano, 578 So.2d 747 (Fla. 2d DCA 1991), there was medical testimony that could be perceived as being in conflict.
We know no reason why the law as it pertains to a grant or denial of a motion for directed verdict in cases involving personal injury arising out of automobile accidents should be treated differently than other cases, i.e., when there is no evidence in the record upon which a jury could lawfully return a verdict for the non-moving party. Discerning when that standard has been met is, by the very nature of the evidence involved, more difficult in cases involving soft tissue injury. We adhere to the view expressed in Colvin that in such cases the existence of permanent injury, vel non, is generally a jury question. Nonetheless, where the evidence on the issue of permanency of injury and causation is such that no reasonable inference to be drawn from it would support a jury verdict for the defendant, it is not error to direct a verdict for plaintiff on those issues. For reasons stated above, we think this case is clearly within that category, and affirm.
AFFIRMED.
FARMER and STEVENSON, JJ., concur.
NOTES
[1] The primary objective sign of injury was muscle spasm noted by both her treating physician and by her physical therapist.
[2] Easkold cites Shaw v. Puleo, 159 So.2d 641 (Fla. 1964), which recognized, implicitly if not expressly, that the jury's right to reject opinion testimony could not be arbitrarily exercised but had to be based on certain considerations, including the conflicting evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614884/ | 502 So. 2d 786 (1986)
Ex parte Richard M. MADDOX, Vickie Ellen Callahan, and Gary Dean Gillum.
(Re Richard M. Maddox, Vickie Ellen Callahan, and Gary Dean Gillum v. State).
84-1159.
Supreme Court of Alabama.
April 25, 1986.
Rehearing Denied June 13, 1986.
*787 David Cromwell Johnson and Daniel J. Burnick, Birmingham, for petitioners.
Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
The Court granted certiorari in this case in order to determine whether the evidence seized pursuant to a search of a farm where Richard Maddox, Vickie Callahan, and Gary Gillum resided should be suppressed because law enforcement officials allegedly violated their Fourth Amendment rights, and to determine whether Maddox's subsequent sentence violated his Eighth Amendment rights. We affirm in part, and remand with directions.
On December 2, 1982, Maddox was found guilty of trafficking in cannabis by a Coosa County jury and sentenced to a term of 15 years in the penitentiary. On November 18, 1983, Callahan pleaded guilty to felony possession of marijuana and was sentenced to three years' imprisonment. On the same day, Gillum pleaded guilty to trafficking in cannabis and was sentenced to four years' imprisonment. In a supplemental plea agreement, the State, with apparent concurrence of the trial court, agreed that Callahan and Gillum retained the right to appeal the legality of the search which led to the obtaining of evidence against the petitioners. The appeals of the three petitioners were consolidated by the Court of Criminal Appeals.
On June 9, 1982, Officer David Windsor, an investigator with the Coosa County Sheriff's Department, received information that marijuana was being grown on premises subsequently determined to be occupied by Maddox, Callahan, and Gillum. Based upon this information, Officer Windsor and Coosa County Deputy Sheriff Terry Browning proceeded to the property.
Officers Windsor and Browning approached the property from a dirt road south of the property and observed what Officer Windsor described as a "normal farmhouse scene." Officer Windsor testified that he observed a dwelling house, shed, garage, and chicken house, all grouped in the same general area. The chicken house was located 15 to 20 feet from the dwelling. Attached to the east side of the chicken house was a green-house-type *788 structure "covered with corrugated fiberglass." The two officers observed this scene from a wooded area south of the buildings and beyond an "old fence" which encircled the property. Officer Windsor testified that the fence was approximately 200 to 300 feet south of the buildings; however, J.M. Keel, a land surveyor, testified that the fence was 400 to 425 feet from the greenhouse.
After observing the general area, Officers Windsor and Browning then walked along the "edge of the woods" in a westerly direction to a position due south of the greenhouse. In order to get a better view, Officer Windsor then crossed the fence and concealed himself in some bushes along the edge of a pond which was on the property. With the aid of binoculars, Officer Windsor observed a "couple of small plants," which he recognized as marijuana, growing outside the greenhouse doors.
Officer Windsor then moved closer and hid behind a pickup truck parked in front of the greenhouse. He observed two more marijuana plants growing outside the greenhouse. The greenhouse had two large doors, which were open; however, a plastic partition with large slits hung at the opening. Officer Windsor could see into the greenhouse and observed more marijuana plants. The two officers then left and obtained a search warrant based on Officer Windsor's observations.
On June 10, 1982, Officer Windsor and five other law enforcement personnel returned to the property to execute the search warrant. The warrant was directed to Gillum as owner of the property. His ownership was indicated by the county tax assessor's records. Maddox, Callahan, and Gillum were found in the greenhouse.
During a search of the dwelling house, marijuana was found in several rooms, including the three bedrooms. The appellants accompanied the officers during the search, and Officer Windsor testified that Maddox identified one of the bedrooms as being his. The two other bedrooms were identified as belonging to Callahan and Gillum. Maddox also claimed ownership of some "cash money" which was found in the room identified as his.
The petitioners contend that Officer Windsor's intrusion into the curtilage of their residence was a violation of their Fourth Amendment rights, and, therefore, that the search warrant was improperly issued and all evidence resulting from the search should be suppressed.
The Court of Criminal Appeals, 502 So. 2d 779, determined that Officer Windsor intruded upon the curtilage of the residence of the petitioners without a warrant in violation of the Fourth Amendment protection against unreasonable searches. However, that court held that the search warrant itself was not invalidated by the fact that the information was illegally obtained, because the tainted information was not included in the warrant affidavit.
The Fourth Amendment to the United States Constitution and Article I, § 5, of the Alabama Constitution protect people from unreasonable searches and seizures of their persons, houses, papers, and possessions. This protection applies to the area immediately surrounding one's home, often referred to as the curtilage. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Whistenant v. State, 50 Ala.App. 182, 278 So. 2d 183, cert. denied, 291 Ala. 802, 278 So. 2d 198, cert. denied, 414 U.S. 1066, 94 S. Ct. 573, 38 L. Ed. 2d 470 (1973).
Officer Windsor could legitimately search the open fields surrounding the petitioners' property without violating any Fourth Amendment rights. Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047, 1097 (1975); Skipper v. State, 387 So. 2d 261 (Ala.Crim.App.), cert. denied, 387 So. 2d 268 (Ala.1980). When Officer Windsor positioned himself near the pond and spotted two marijuana plants growing outside the greenhouse, he was not violating Fourth Amendment rights, as he was not within the curtilage.
The Fourth Amendment protection applies to buildings within the curtilage. Whistenant v. State, supra. The evidence *789 adduced at trial established that the greenhouse was within the curtilage. We agree with the Court of Criminal Appeals that when Officer Windsor entered the curtilage without a warrant he was violating the petitioners' Fourth Amendment rights. We must now determine whether this violation invalidated the search warrant.
The warrant affidavit states in pertinent part:
"Before me Robert J. Teel, Jr., a district court judge, personally appeared David E. Windsor, a law enforcement officer, who being duly sworn deposes and says that on this the 9th day of June, 1982, he has personally seen in plain view and within the last twenty-four hours and has probable cause to believe and does believe that there is now being cultivated marijuana plants ... upon the premises of, to-wit: Gary Dean Gillum...."
"The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contains allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause." United States v. Giordano, 416 U.S. 505, 555, 94 S. Ct. 1820, 1845, 40 L. Ed. 2d 341 (1974) (Powell, J., concurring in part and dissenting in part). This rule has been upheld by a number of federal courts of appeals. See, e.g., United States v. Romero, 585 F.2d 391 (9th Cir.1978), cert. denied, 440 U.S. 935, 99 S. Ct. 1278, 59 L.Ed.2d (1979); United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749 (1977); United States v. Watts, 176 U.S. App.D.C. 314, 540 F.2d 1093 (D.C.Cir.1976).
Even given the illegality of Officer Windsor's intrusion into the curtilage, the warrant is valid if the underlying affidavit contains enough information independently obtained to establish probable cause. See United States v. Adames, 485 F. Supp. 965 (E.D.N.Y.1980), affirmed, 652 F.2d 55 (2nd Cir.1981).
Applying the above rule to the underlying affidavit in this case, we find that the affidavit contains sufficient information, independent of information related to the search within the curtilage, to enable the magistrate to find probable cause. Officer Windsor testified that he observed, from a position outside the curtilage, two marijuana plants growing outside the greenhouse. This information in itself was sufficient to establish probable cause.
Bearing in mind the limited standard of proof necessary for a showing of probable cause, we affirm the judgment of the Court of Criminal Appeals insofar as it held that the search warrant was not invalidated by the illegally obtained information and thus that the evidence seized was properly admitted into evidence at trial.
Maddox also contends in this Court, as he did below, that the trial court abused its discretion in sentencing him to fifteen years' imprisonment, while sentencing Callahan and Gillum to three and four years' imprisonment, respectively.
The appellate courts of this state are generally prohibited from reviewing the propriety of a sentence which is within the statutorily prescribed limits, as is Maddox's sentence. Brown v. State, 392 So. 2d 1248 (Ala.Crim.App.1980), cert. denied, 392 So. 2d 1266 (Ala.1981); Code of 1975, § 20-2-80. However, the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant's Eighth Amendment rights. Ex parte Harbor, 465 So. 2d 460, 461 (Ala.1985) (Faulkner, J., dissenting).
The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), recognized that reviewing courts should grant substantial deference to the authority of legislatures in determining the kinds and limits of punishment for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. Yet, the sentence should be proportionate to the crime. In making a *790 proportionality determination, a court should be guided by objective criteria, including:
"(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Solem v. Helm, 463 U.S. at 290-91, 103 S.Ct. at 3010.
Maddox received the maximum sentence allowed by law for his first felony conviction, while Gillum and Callahan received a four-year sentence and a three-year sentence, respectively. The potential excessiveness of Maddox's sentence requires a review pursuant to the Eighth Amendment. Because the Court of Criminal Appeals did not address this issue, we must remand this cause to that court with directions to consider this case in light of Solem v. Helm, supra. It is so ordered.
AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614936/ | 23 So. 3d 209 (2009)
Tilakia BEAMON, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-590.
District Court of Appeal of Florida, Fourth District.
December 2, 2009.
Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
*210 Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
FARMER, J.
Defendant stole a debit card from an acquaintance, whom she had assisted by activating the card for use. She then used the card for little more than a month to make purchases and withdraw money from the account in 28 transactions amounting to more than $1,500.[1] When the card was reported missing, she was ultimately identified and arrested. Rather than grand theft, the State charged her with engaging in an organized scheme to defraud. The jury found her guilty. On appeal the issue is whether her month long use of the stolen debit card constitutes an "organized fraud" within the meaning of § 817.034(4)(a), Fla. Stat. (2007).[2]
In Pizzo v. State, 945 So. 2d 1203, 1207 (Fla.2006), the court explained that in order to convict for organized fraud the State must prove the following elements: (1) engaging in or furthering a systematic ongoing course of conduct; (2) with either intent to defraud or to obtain property by false or fraudulent pretenses, representations, or promises, or willful misrepresentations of a future act; (3) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one's own use or to the use of another person not entitled thereto. The court noted that all of the elements of grand theft are included in the offence of organized scheme to defraud and that the only difference between the two is that an "organized scheme" contains the additional element of "a systematic, ongoing course of conduct with the intent to defraud or take property." 945 So.2d at 1207.
We agree with the State that using a stolen debit card over the course of a month in 28 separate transactions can fairly be described as "an ongoing course of conduct." We further agree that her use of the card was necessarily accompanied by an implied representation that she was lawfully entitled to use the card for each transaction to obtain money or goods for herself. Finally, we think it equally apparent that each transaction was undertaken by her to appropriate the proceeds from the account for her own use even though she was not entitled to do so. The evidence thus constitutes a prima facie case of violating § 817.034(3).
Defendant testified at trial and admitted assisting the cardholder with activating the card for use. She further admitted to making the transactions in evidence. Her defense was that the cardholder told her she could keep the card and use it as needed. That testimony was directly contradicted by the cardholder who testified she neither knew of nor authorized defendant's retention and use of the card. The verdict makes clear that the jury believed the cardholder.
The Legislature has the power to criminalize the same acts in different ways, without any impropriety in making conduct involved in one case subject to prosecution either as several instances of grand theft *211 or in sum as an organized scheme to defraud. When charged as an organized scheme to defraud, multiple acts of grand theft become lesser included offenses and must be so recognized. Pizzo, 945 So.2d at 1206 (grand theft is lesser offense of organized fraud which adds an additional element of a systematic, ongoing course of conduct with intent to defraud or take property). Pizzo makes clear that an offender cannot be convicted constitutionally of both organized scheme to defraud and grand theft for the same conduct. Id.; see also Pineda v. State, 3 So. 3d 1289 (Fla. 4th DCA 2009) (dual conviction for both organized scheme to defraud and grand theft for same conduct is double jeopardy violation); Raines v. State, 19 So. 3d 331 (Fla. 2d DCA 2009).
It follows that defendant's conviction must be
Affirmed.
WARNER and LEVINE, JJ., concur.
NOTES
[1] These charges included several purchases at Wal-Mart and other stores, ranging from $6 to $140, as well as cash withdrawals in the amounts of $102, $32, $400, $80, $200, $60, $200.
[2] "Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud." The term "scheme to defraud" is defined as an "ongoing course of conduct with intent to defraud one or more persons. ..." § 817.034(3)(d), Fla. Stat. (2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614935/ | 497 F. Supp. 442 (1980)
UNITED STATES of America ex rel. Richard J. NEWELL, Petitioner,
v.
Larry MIZELL et al., Respondents.
No. 80-3083.
United States District Court, C. D. Illinois, Springfield Division.
September 11, 1980.
Jerold S. Solovy, Carol R. Thigpen, Michael Brohman, Jenner & Block, Chicago, Ill., for petitioner.
Tyrone C. Fahner, Atty. Gen., Michael Vujovich, Asst. Atty. Gen., Springfield, Ill., for respondents.
ORDER
J. WALDO ACKERMAN, District Judge.
Richard J. Newell, currently incarcerated at Vienna Correctional Center, has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks relief from a judgment entered by the Circuit Court of Adams County, Illinois, and affirmed by the Appellate Court of Illinois, Fourth District. 77 Ill.App.3d 577, 33 Ill. Dec. 66, 396 N.E.2d 291 (1979). Leave to appeal to the Illinois Supreme Court was denied January 30, 1980. Petitioner alleges that he is being held in violation of his Constitutional right to due process because the evidence presented at his trial was insufficient to convict him beyond a reasonable *443 doubt. This Court has carefully reviewed the record of the State Court proceedings and finds that the writ must be allowed for the reasons stated below.
Defendant was convicted of unlawful possession of more than 500 grams of cannabis by a jury and sentenced to four years in the Illinois State Penitentiary. For that conviction and his present incarceration to stand, the State must have proven beyond a reasonable doubt that defendant possessed over 500 grams of a substance containing cannabis. The Illinois statute which defines cannabis, Ill.Rev.Stat. ch. 56½ § 703(a), excludes from that definition the mature stalk of the cannabis plant. Therefore, the mature stalk may not be included in the weight determination, and the State must bear the burden of proving that the defendant possessed more than 500 grams of cannabis without the weight of the mature stalks. The State failed in this burden.
On January 8, 1979, Newell was tried in the Circuit Court of the Eighth Judicial Circuit, Adams County, Illinois, for the possession of cannabis. The evidence indicated that on August 8, 1978, two deputy sheriffs for Adams County executed a warrant to search Newell's home. Record of Proceedings (hereinafter R.) at 48. On property adjacent to his backyard, separated from his property by a fence, the officers found a twenty-by-forty foot garden plot (R. 53, 54). They seized approximately 200 plants, characterized at trial by one of the investigating police officers as "marihuana," from the plot (R. 48). The officers then placed the material seized in three plastic bags and took them to a prescription shop to be weighed (R. 49, 50). The total weight of the material in the bags at that time was 609.1 grams (R. 49).
The material was then taken for testing to Michael Cravens, a chemist employed by the Illinois Department of Law Enforcement (R. 64, 79). Cravens removed the root portions of the plants, dried them and weighed the contents (R. 81). After the drying and the removal of roots, the total weight of the plants seized was 87.1 grams (R. 81). Cravens did not know how many plants were in the bags and did not test each plant (R. 82). Rather, he tested a sample from each of the three plastic bags and concluded that the portions tested were cannabis (R. 80). Cravens "really couldn't say" whether the plants not tested by him were cannabis, (R. 82) and admitted that it was possible that there was other plant material in the bags aside from the portion of plants which he determined to be cannabis (R. 83). In addition, Cravens admitted that approximately 20% of the weight of the plants tested could be attributed to the main stalks and branches, and that he had made no determination as to how much of the material tested consisted of stalks and branches (R. 83, 85). Cravens did not know the age of the plants tested, nor did he know whether the plants were mature. (R. 85).
On January 9, 1979, the jury found defendant guilty of the possession and production of cannabis and determined the amount in his possession to have been over 500 grams (R. 175), a Class 3 felony under Illinois law. Ill.Rev.Stat. ch. 56½ § 704(e).[1] The trial court entered a judgment only on the offense of possession of cannabis and, on February 14, 1979, sentenced defendant to four years in the Illinois Department of Corrections (C. 56, 61).
The standard which this court must apply in a federal habeas corpus proceeding *444 when the claim is made that a person has been convicted in a state court upon insufficient evidence is whether any rational trier of fact could have convicted the defendant on the evidence presented. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The court need not ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the court must determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Under this standard, invasion of the province of the jury by the federal district court under the provisions of Title 28 U.S.C. § 2254 is necessary only to guarantee the fundamental protection of due process of law. See Jackson v. Virginia, id.
Defendant was convicted of possession of more than 500 grams of marihuana under the provisions of the Illinois Cannabis Control Act (Ill.Rev.Stat., ch. 56½ § 701 et seq., (hereinafter cited as Cannabis Control Act), which prohibits the possession of cannabis and fixes the penalty by the weight of the substance containing marihuana. These penalties range to a maximum of five (5) years' imprisonment.[2]
In defining cannabis, the Illinois legislature specifically exempted the mature stalk of the cannabis plant. Cannabis is statutorily defined as follows:
(a) `Cannabis' includes marihuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.
Ill.Rev.Stat., ch. 56½ § 703(a). Because "cannabis" does not include the mature stalk, the stalk may not be included in the weight determination under Illinois law.
In its opinion the court in People v. Newell, 77 Ill.App.3d 577, 33 Ill. Dec. 66, 396 N.E.2d 291 (1979), found that the stalks which were included in the weight of over 500 grams were "immature". If that be true, then it follows that a rational trier of fact could have returned a verdict based on the reasonable doubt standard, since the statute only excludes "mature" stalks. The State strenuously argues that this factual determination must be presumed correct in the habeas proceeding before this court by reason of 28 U.S.C. § 2254(d). However, a presumption of correctness would not ordinarily attach to appellate court factual determinations when these determinations are supported neither by specific findings made by the trial court judge nor by the evidence. See White v. Finkbeiner, 7 Cir., 570 F.2d 194, 201 (1978). A federal court, in fact, has a duty to assess the facts, as they appear in the record, when called upon to *445 apply a Constitutional standard to a conviction obtained in a state court. Jackson v. Virginia, 443 U.S. at 315, 99 S.Ct. at 2787.
Ascertaining the standard by which maturity of the plant must be judged is difficult, for neither Illinois statute nor case law defines the phrase found within the Illinois definition of cannabis, "... the mature stalks of such plant." In addition, the sole testimony in the record as to the maturity or immaturity of the plants was, at best, inconclusive. The state's witness, Cravens, a drug analyst for the Illinois Department of Law Enforcement, testified as follows:
Q Now do you know approximately how old these plants were?
A I didn't have any idea.
Q Do you have any idea how old a cannabis plant has to be to be mature?
A Well, if you mean mature to the point where it produces seeds and the seeds are like ready to drop or something, I am not sure what the growing season would be. I guess maybe three or four months old for a plant from seed to flowering mature plant.
Q But you don't know how old these particular plants were?
A I would have to say they were a lot less than a mature plant. I don't know. It's hard to tell from the condition they were in what size they actually were, but I don't think any more than 18 inches to two feet or what would be two feet high.
Q Did you measure any of them?
A No, sir, I didn't.
Q How tall does a mature plant get?
A A mature plant can get 8 to 12 feet tall.
Q How short can a mature plant be?
A I really don't know.
(R. pp. 48-49). In summary, the analyst was unable to say whether the plants were or were not mature, and, notably, the analyst did not measure either the length of the plants or the circumference of the stalks.
Because Cravens estimated that approximately twenty per cent of the weight of the plant would likely be attributed to the stalk, the question of the maturity of the stalks is an important one. If the stalks could not have been included in the aggregate weight, the total weight of the plants in this case would have been lowered to an amount less than 500 grams, and Petitioner's crime and penalty would have been greatly reduced.
The evidence presented by the State does not reasonably support a finding of guilt beyond a reasonable doubt in regard to the weight of the plants seized. Lacking definition of the phrase "mature stalk", the law must be construed in favor of the defendant in a criminal case. The testimony of Cravens, the State's witness, did not affirmatively establish that these were either mature or immature plants.
In the instant cause, burden of proof in regard to the weight of the plants rests with the State. Each of the elements of a crime must be proved beyond a reasonable doubt by the State in a criminal case. See In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The Illinois Appellate Court in People v. Newell, 77 Ill.App.3d 577, 33 Ill. Dec. 66, 396 N.E.2d 291 (1979), acknowledged that the weight of the cannabis is one of the elements of the crime of possession of cannabis in Illinois; therefore, the burden of proof must fall upon the State to show that the cannabis weighed more than 500 grams, excluding the weight of the mature stalk.
The Appellate Courts in Illinois are split as to whether Defendant or the State must bear the burden to prove an exemption under a criminal state statute, such as the exemption of the mature stalk from the definition of cannabis. The uncertainty is the result of conflicting judicial construction of Section 16 of the Cannabis Control Act which provides:
It is not necessary for the State to negate any exemption or exception in this Act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this Act. The burden of proof of any exemption or exception is upon the person claiming it. *446 In applying Section 16 of the Cannabis Control Act, the Illinois Appellate Court, 3rd District, in People v. Biers, 41 Ill.App.3d 576, 353 N.E.2d 389 (1976), and in People v. Holmes, 41 Ill.App.3d 585, 353 N.E.2d 396 (1976), equated the exemption to an affirmative defense. The Defendant, therefore, must raise the issue of the exemption when it might be applicable, and the state then is required to meet the burden of proof beyond a reasonable doubt as to that issue. However, the Illinois Appellate Court, Fifth District, in People v. Jones, 75 Ill.App.3d 214, 30 Ill. Dec. 785, 393 N.E.2d 1132 (1979), cert. denied 100 S. Ct. 1662 (1980), would required the Defendant to prove the existence of any exemption with a preponderance of the evidence.
The Jones court relied upon the holding of People v. Smith, 71 Ill. 2d 95, 15 Ill. Dec. 864, 374 N.E.2d 472 (1978), a case which dealt with exemptions to the unlawful use of weapons offense. The specific statute with which the Smith case dealt (Ill.Rev. Stat. ch. 38, par. 242) was not one, as here, in which the grade of the offense depends on the amount possessed. The court emphasized there that the State is required to prove beyond a reasonable doubt each fact necessary to the crime charged. Under a statutory scheme such as that of Illinois, where the weight of the drug establishes the grade of the offense, the quantity of drug is an essential element going to the substance of the charge. People v. Kadlec, 21 Ill.App.3d 289, 313 N.E.2d 522 (1974).
Because the Illinois Cannabis Control Act provides for penalties based upon the weight of the substance containing cannabis, the interpretation of the Illinois statute in People v. Biers, 41 Ill.App.3d 576, 353 N.E.2d 389 (1976), is mandated by the Constitution and is, in my opinion, correct. The cross-examination of Cravens by Defendant was sufficient to raise the issue of the exemption. The State was then required to meet the burden of proof, for the Illinois statutory scheme makes the element of weight one of the facts which must be proved beyond a reasonable doubt. The circuit court apparently adopted the Jones rationale by refusing a defense tendered instruction which read: "When determining the weight of cannabis, you should not include the weight of stalks of mature plants."[3] The conflicting argument captured in Biers was presented to the trial court by defendant's appointed counsel. However, on appeal, Petitioner was represented by different appointed appellate counsel who did not urge this point as error on appeal to the Illinois Appellate Court for the Fourth District or to the Illinois Supreme Court. Because of the finding that the quantity of cannabis was not proven by the state beyond a reasonable doubt, it is not necessary to reach the legal or constitutional significance of this failure. It is noted parenthetically that this alone may afford Petitioner an independent ground for relief.
In addition, Petitioner's claim that the State has not proved beyond a reasonable doubt that no plants other than cannabis or garden soil were included in the aggregate weight has some merit. The Illinois Appellate Court in People v. Newell, 77 Ill.App.3d 577, 33 Ill. Dec. 66, 396 N.E.2d 291 (1979), agreed with Petitioner that the aggregate weight of growing plants under the Illinois statute should include only Cannabis Sativa and not other plant material or garden soil. The evidence presented at trial leaves doubt that only cannabis plants were weighed.[4] However, the weight of such foreign substances would be slight. The stalks of the plants, on the other hand, comprise at least *447 twenty per cent of their total weight, and the testimony at trial clearly established that the entire plant was included in the weight determination.
For the reasons stated above, no rational trier of fact could have concluded that the evidence presented by the State proved beyond a reasonable doubt that Petitioner possessed more than 500 grams of cannabis. Discussion of the lesser included offense or the probability of ordering a new trial is not required here in view of the length of the sentence already served by Petitioner.
Under the authority granted to this Court by 28 U.S.C. § 2254, and in accordance with Rule 8(a) of the Rules Governing § 2254 Cases in the United States District Courts, I hereby grant the petition for Writ of Habeas Corpus and order that Richard J. Newell be released from custody.
It is, therefore, ordered that a Writ of Habeas Corpus be issued by the Clerk of this Court commanding the Warden, Vienna Correctional Center, Vienna, Illinois, to release the body of Richard J. Newell from custody.
It is further ordered that the United States Marshal for the Central District of Illinois-Springfield Division, forward to the United States Marshal for the Southern District of Illinois, for immediate delivery to Warden Larry Mizell, Vienna Correctional Center, Vienna, Illinois, two (2) certified copies of this Order, together with original and two (2) certified copies of the Writ of Habeas Corpus, and one (1) certified copy of the Petition for Writ of Habeas Corpus.
NOTES
[1] The Illinois Cannabis Act determines the severity of the penalty to which an offender is subject by the weight of the cannabis containing substance possessed by the offender. The Class 3 felony, for possession of a substance containing cannabis in excess of 500 grams, is the harshest penalty for possession in Illinois and subjects the offender to a sentence of no less than two nor more than five years. The statute further provides that one found in possession of not more than 2.5 grams of cannabis substance is guilty of a Class C misdemeanor; one in possession of more than 2.5 grams but not more than 10 grams is guilty of a Class B misdemeanor; one in possession of more than 10 grams but not more than 30 grams is guilty of a Class A misdemeanor; and one in possession of more than 30 grams but not more than 500 grams is guilty of a Class 4 felony. Ill.Rev. Stat. Ch. 56½ § 704(a-e).
[2] The Illinois Supreme Court in Illinois v. Mayberry, 63 Ill. 2d 1, 345 N.E.2d 97, upheld the constitutionality of the statute which fixes punishment in cannabis cases based on the weight of "a substance containing cannabis". The authority relied upon therein was United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974), which was a case dealing with hard drugs. That case states the rationale for gradations in punishment based on the weight of the substance in which the hard drug is found. Such rationale may arguably be distinguished for Cannabis, i. e. the roots, branches, limbs, moisture or soil on a growing plant bears little relationship to the seriousness of the possession vis-a-vis the possessor of a lesser quantity by weight of the dried usable substance. In any event, since the proof in this case failed it is not necessary to address whether the statute, if construed in this fashion, could, on its face, pass muster as a federal constitutional matter.
[3] The record presented herein is less than satisfactory in showing the instructions which were, in fact, read to the jury by Judge Scholz.
[4] No botanical identification was made by Cravens, the drug analyst, and only a sample from each plastic bag was chemically tested and microscopically examined. (R. 83, 80). The drug analyst admitted that there could have been other plant material in the bags besides cannabis. (R. 83). In addition, testimony at trial clearly established that plants freshly plucked from the ground were weighed soon after their seizure. (R. 49, 50). Therefore, it is not unreasonable to conclude that the soil clinging to the roots of the plants was not removed before weighing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614913/ | 604 N.W.2d 445 (2000)
2000 ND 6
STATE of North Dakota, Plaintiff and Appellee,
v.
Larry DVORAK, Defendant and Appellant.
No. 990135.
Supreme Court of North Dakota.
January 19, 2000.
*446 Owen K. Mehrer, Assistant State's Attorney, Dickinson, ND, for plaintiff and appellee.
David F. Senn, Dickinson, ND, for defendant and appellant.
Robert P. Bennett, Assistant Attorney General, Bismarck, ND, for amicus curiae Attorney General's Office. Submitted on brief.
VANDE WALLE, Chief Justice.
[¶ 1] Larry Dvorak appealed a criminal conviction for violating a domestic violence protection order. Dvorak argues he did not knowingly and intelligently waive his right to counsel. We conclude this record demonstrates Dvorak voluntarily, knowingly, and intelligently waived his right to counsel. We affirm.
I
[¶ 2] In April 1998, Dvorak was charged under N.D.C.C. § 14-07.1-06 with violating a domestic violence protection order by contacting his children and his ex-wife's parents in contravention of a protection order issued in May 1997. The complaint alleged the offense was Dvorak's second violation of the protection order and therefore was a class C felony.
[¶ 3] On June 2, 1998, Dvorak appeared at his initial appearance with attorney Robert Keogh. The court advised Dvorak *447 of his rights under N.D.R.Crim.P. 5, including an indigent's right to court-appointed counsel. Keogh informed the court he would not be representing Dvorak in the criminal proceeding, and Dvorak said his attorney would be Tom Slorby. Dvorak subsequently applied for court-appointed counsel, and the court appointed William Heth to represent Dvorak.
[¶ 4] Heth represented Dvorak at a preliminary hearing and arraignment in June 1998. Thereafter, a jury trial was scheduled for September 8, 1998. In August 1998, Dvorak, through Heth, moved for a continuance, alleging Dvorak "was in the midst of harvesting season" and "needed additional time to contact his witnesses." The court denied Dvorak's motion. At a pretrial conference on September 1, 1998, Dvorak appeared with Heth and with attorney T.L. Secrest. Heth advised the court that Dvorak wanted to retain Secrest as counsel. The court allowed Secrest to substitute as counsel for Dvorak and granted a continuance. A jury trial was rescheduled for December 21, 1998.
[¶ 5] Dvorak failed to appear for the rescheduled trial, and the court issued a bench warrant for his arrest. Dvorak was arrested on January 7, 1999, and the trial was rescheduled for February 5, 1999. Meanwhile, on December 21, 1998, Secrest moved to withdraw as Dvorak's attorney, claiming Dvorak failed to pay attorney fees and failed to communicate and provide evidence to enable Secrest to effectively represent Dvorak. The State did not resist Secrest's motion, and the court allowed Secrest to withdraw as counsel on January 8, 1999.
[¶ 6] At a January 28, 1999 status conference, the court noted Dvorak was representing himself, and the following colloquy occurred:
THE COURT: Okay. Well, I want it to be clear that you [Dvorak] were aware of [the February 5, 1999 trial date] and make sure that everyone is ready to proceed. Is that the case Mr. Dvorak?
MR. DVORAK: Well, I've been trying to find an attorney. I've been making phone calls like crazy all week here trying to get something going. It's pretty difficult to find an attorney out of town that would come down here. I think I might have one. I've got to call him back today.
THE COURT: All right. Well, you know we're summoning all of the jurors in and of course, we don't want to do that knowing that you're not prepared or something.
MR. DVORAK: Well, I think if I do get an attorney he's going to want an extension on it too, you know, catch up on everything. I got to know today causeit's such ridiculous charges I can't see where it could even go to court.
THE COURT: Well, if you're going to make a motion I think in fairness to Mr. Mehrer and to the Court and to everyone involved that we need to know this immediately, as soon as possible.
MR. DVORAK: Yeah. Well, I'm going to have to ask for an extension because I mean I can't go into court without an attorney. There's no way. I've talked to about five different attorneys and either the distance and a few other things that has come up and they just kind of put aside or whatever you want to call it.
THE COURT: Well, before I ask I'm going to ask Mr. Mehrer to respond on behalf of the State. I guess the Court's concern is even if the Court sees fit to grant you a continuance or extension because you're having difficulty in getting in an attorney is that going to make a difference or are we going to have the same problem whether it's two weeks from now or a month from now.
The court thereafter granted Dvorak another continuance and scheduled a March 8, 1999 pretrial conference and a March 15, 1999 trial. The court informed Dvorak:
Of course, if you fail to appear you know you have a bond posted and you have to *448 appear or you forfeit your bond. If you get an attorney, of course, immediately have him file a notice of appearance so we know who the attorney is and I wantwe've had this matter pending for quite sometime so you have to know now that it's not going to be continued again. I think we've gone probably a few steps too far already. We're stuck with that date and don't expect to come in at the last minute and ask for another extension or continuance.
[¶ 7] At the March 8 pretrial conference, Dvorak appeared without counsel and informed the court he would waive his right to a jury trial. The court asked Dvorak whether he was voluntarily waiving his right to a jury trial, and Dvorak responded, in part, "I guess. I don't have no attorney so." Dvorak represented himself during the March 15, 1999 bench trial, and the court found him guilty of violating the domestic violence protection order.
II
[¶ 8] On appeal, now represented by court-appointed counsel, Dvorak argues he did not knowingly and intelligently waive his right to counsel in the trial court.
[¶ 9] A criminal defendant's fundamental right to counsel is guaranteed by the Sixth Amendment of the United States Constitution and by N.D. Const. art. I, § 12. City of Fargo v. Rockwell, 1999 ND 125, ¶ 7, 597 N.W.2d 406; State v. Wicks, 1998 ND 76, ¶ 16, 576 N.W.2d 518; State v. Poitra, 1998 ND 88, ¶ 7, 578 N.W.2d 121. The denial of a defendant's right to counsel at trial is not subject to harmless error analysis and requires reversal of the defendant's conviction. Rockwell, at ¶ 7; Wicks, at ¶ 17; Poitra, at ¶ 7; State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635.
[¶ 10] In Faretta v. California, 422 U.S. 806, 818-21, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the United States Supreme Court held criminal defendants have a corollary right under the Sixth Amendment to conduct their own defense. Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406; Poitra, 1998 ND 88, ¶ 8, 578 N.W.2d 121; Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635; State v. Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451. Criminal defendants who proceed pro se necessarily relinquish many of the benefits associated with the right to counsel, and in order to proceed pro se, they must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. Rockwell, at ¶ 8. A defendant need not have the skill and experience of a lawyer to competently and intelligently choose self-representation, but the defendant should be aware of the dangers and disadvantages of self-representation so the record establishes the choice is made with eyes open. Faretta, at 835, 95 S. Ct. 2525.
[¶ 11] An unavoidable tension exists between the right to counsel and the right to self-representation, because asserting one right necessitates a waiver of the other. In recent years, we have become increasingly involved with the tension between those mutually exclusive rights. In Harmon, 1997 ND 233, ¶ 23 n. 1, 575 N.W.2d 635, we acknowledged increasing problems with defendants who proceed pro se, and suggested "[t]rial courts should be careful to make specific on-the-record determinations about whether a defendant unequivocally, knowingly, and intelligently waived either his right to counsel or self-representation. Such a determination should make clear the dangers and disadvantages of self-representation." Although we have not required trial courts to engage in a specific colloquy with a defendant who appears pro se, we prefer that trial courts eliminate any ambiguity about a waiver by making a specific on-the-record decision the defendant voluntarily, knowingly, and intelligently waived the right to counsel. Rockwell, 1999 ND 125, ¶ 15, 597 N.W.2d 406; Poitra, 1998 ND 88, ¶ 8, 578 N.W.2d 121; Harmon, at ¶ 22. Our preference for an on-the-record determination parallels the well-established principle that a waiver of the right *449 to counsel will not be presumed from a silent record and courts will indulge every reasonable presumption against waiver. Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); State v. Gustafson, 278 N.W.2d 358, 362 (N.D.1979). See State v. Wilson, 488 N.W.2d 618, 620 (N.D.1992) (stating similar principle for waiver of right to new trial); State v. Kranz, 353 N.W.2d 748, 752 (N.D.1984) (stating similar principle for waiver of right to jury trial).
[¶ 12] We have applied a two-step inquiry to analyze a criminal defendant's waiver of the right to counsel and decision to proceed pro se: (1) whether the defendant's waiver of the right to counsel was voluntary; and (2) whether the defendant's waiver was knowing and intelligent. Rockwell, 1999 ND 125, ¶ 9, 597 N.W.2d 406; Harmon, 1997 ND 233, ¶ 22, 575 N.W.2d 635. See Patterson v. Illinois, 487 U.S. 285, 292 n. 4, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988) (stating waiver of right to counsel must be voluntary and knowing and intelligent).
A
[¶ 13] In Harmon, 1997 ND 233 at ¶¶ 15, 21, 575 N.W.2d 635, we rejected an argument the record must show an unequivocal statement indicating the defendant's desire to proceed pro se, and we concluded the defendant's conduct may be the functional equivalent of a voluntary waiver of the right to counsel. See also Rockwell, 1999 ND 125, ¶ 14, 597 N.W.2d 406. In Rockwell, at ¶ 14, and Harmon, at ¶ 21, we concluded the defendants' continued requests for a new court-appointed attorney after the trial court clearly denied an initial request was the functional equivalent of a voluntary waiver of the right to counsel.
[¶ 14] Here, Dvorak was represented during different stages of this proceeding by both appointed and retained counsel, and the court ultimately approved the withdrawal of both his appointed and retained counsel. Dvorak received a continuance but failed to appear for the rescheduled trial, requiring a bench warrant for his arrest. At the January 28, 1999 status conference, the trial court noted Dvorak was representing himself and, after granting Dvorak another continuance, unequivocally indicated there would be no further continuances and the case would proceed to trial in March. After receiving the court's admonition that "we're stuck with [the March 1999 trial] date and don't expect to come in at the last minute and ask for another extension or continuance," Dvorak did not seek a second court-appointed counsel and appeared more than five weeks later without counsel at the March pretrial conference and the trial. The record reveals a pattern of conduct by Dvorak that can best be described as an attempt to avoid the trial of the charge against him. Perhaps Dvorak hoped the charge would be dismissed as he expressed at the March 8, 1999 pretrial conference where he indicated he wanted the case tried to the court "or dismissed."
[¶ 15] Although we prefer the waiver of the right to counsel be expressed on the record, where there is a pattern of obstructing the legal process that waiver will seldom be acknowledged by the defendant. See People v. Arguello, 772 P.2d 87, 93 (Colo.1989) (stating implied waiver of right to counsel by misconduct is more accurately described as forfeiture of right). Rather, the right to counsel becomes a means by which a defendant can further obstruct the legal process by rejecting court-appointed counsel or retaining and discharging private counsel, all the while insisting the desire for and right to counsel. Given the trial court's clear admonition, we conclude Dvorak's prior conduct and appearance at trial without counsel and without asking for a second court-appointed counsel constitutes the functional equivalent of a voluntary waiver of his right to counsel.
*450 B
[¶ 16] We nevertheless must consider whether Dvorak's functional waiver was knowing and intelligent. A knowing and intelligent waiver requires a defendant be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open. Faretta, 422 U.S. at 835, 95 S. Ct. 2525; Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406; Poitra, 1998 ND 88, ¶ 8, 578 N.W.2d 121; Wicks, 1998 ND 76, ¶ 18, 576 N.W.2d 518; Harmon, 1997 ND 233, ¶ 22, 575 N.W.2d 635. We have held whether a defendant knowingly and intelligently waives the right to counsel requires an examination of the record and the facts and circumstances of each case; a specific on-the-record warning is not an absolute necessity if the record shows the defendant had the required knowledge from other sources.[1]Rockwell, at ¶ 15; Poitra, at ¶¶ 8, 11; Harmon, at ¶ 22. Under our cases, the test is not limited to what the trial court said or understood, the inquiry focuses on what the defendant understood. See 3 LaFave, Israel, and King, Criminal Procedure § 11.5(c), at 578-79 (2d ed.1999).
[¶ 17] In Rockwell, 1999 ND 125, ¶ 16, 597 N.W.2d 406, the defendant informed the trial court he wanted to represent himself and did not want court-appointed counsel. The trial court advised the defendant if he represented himself, he would be responsible for making his own statements, cross-examining the prosecution's *451 witnesses, and calling his own witnesses for his defense. Id. The trial court also informed the defendant he would be expected to conform to rules and procedure of the court. Id. The defendant responded he would "do whatever the lawyer is supposed to do, [and be] responsible for the aspect of the lawyer." Id. We concluded the record established the defendant knowingly and intelligently waived his right to counsel. Id.
[¶ 18] In Poitra, 1998 ND 88, ¶ 13, 578 N.W.2d 121, the trial court granted court-appointed counsel's motion to withdraw, and the defendant subsequently attended a pretrial conference without counsel and informed the court he had no other alternative than to represent himself because he was unable to secure a loan to hire an attorney. After hearing the defendant's explanation, the trial court made no further inquiry about the defendant's self-representation and did not inform him about the dangers and disadvantages of self-representation. Id. We recognized although the defendant had previous contacts with the criminal justice system, his statement he had no other alternative but self-representation did not establish his awareness of the dangers and disadvantages of self-representation. Id. We said there was no evidence the defendant's actions were intended primarily to delay the trial, and we concluded the record did not establish he knowingly and intelligently waived his right to counsel. Id.
[¶ 19] In Harmon, 1997 ND 233, ¶ 23, 575 N.W.2d 635, the defendant had several previous contacts with the criminal justice system; the trial court had provided the defendant with copies of the court rules and the criminal code; the court explained the defendant would be given no special consideration and the rules would apply equally to him; the defendant was very involved with his case, was literate, and directed correspondence to the court; and the court appointed standby counsel and informed the defendant that standby counsel's assistance may be beneficial. We concluded the record established the defendant knowingly and intelligently waived his right to counsel. Id.
[¶ 20] Dvorak argues there is nothing in this record to indicate the trial court advised him of the dangers and disadvantages of appearing pro se. Although a specific on-the-record colloquy would have aided our review, we conclude this record demonstrates Dvorak's waiver of the right to counsel was knowing and intelligent.
[¶ 21] The criminal complaint alleged this was Dvorak's second violation of the protection order and therefore was a class C felony. The record actually reflects he was convicted in June 1992 and in March 1998 for violating protection orders. Dvorak appeared pro se on the previous 1998 charge. Additionally, this record demonstrates Dvorak had numerous prior contacts with the criminal justice system, including prior convictions for removal of a child from the jurisdiction, criminal trespass, operating a motor vehicle without a license, driving under suspension, and driving under the influence. The record reflects Dvorak was represented by counsel during a probation revocation proceeding in 1994. As a result of that revocation proceeding, the court revoked Dvorak's probation for two counts of driving under suspension, a criminal trespass conviction, and the June 1992 conviction for violating a protection order. The record also reflects Dvorak was represented by counsel when the May 1997 protection order was issued and when his 1993 divorce decree was entered. Dvorak was not a stranger to the criminal justice system. Rather, he was an experienced criminal defendant, and his prior contacts with the legal system were sufficient to make him aware of the benefits of counsel and the dangers and disadvantages of self-representation.
[¶ 22] At Dvorak's initial appearance, he was informed of his rights under N.D.R.Crim.P. 5, including the right to court-appointed counsel and informed that the maximum penalty for a class C felony was five thousand dollars and five years in *452 jail. Dvorak initially indicated he did not want court-appointed counsel and Tom Slorby was his attorney. Dvorak nevertheless subsequently applied for court-appointed counsel, and the court appointed Heth to represent Dvorak. Heth represented Dvorak at a preliminary hearing and arraignment in June 1998, and Dvorak, through Heth, moved for a continuance in August 1998. The court denied the motion for a continuance. At a pretrial conference on September 1, 1998, Dvorak appeared with Heth and attorney Secrest, and Dvorak advised the court he wanted to retain Secrest. The court allowed Secrest to substitute for Heth as counsel and granted Dvorak a continuance. Dvorak then failed to appear for a rescheduled jury trial in December 1998, and he was arrested under a bench warrant on January 7, 1999. Meanwhile, on December 21, 1998, Secrest moved to withdraw as Dvorak's attorney, claiming Dvorak failed to pay attorney fees and failed to communicate and provide evidence to Secrest. The State did not resist Secrest's motion, and the trial court allowed Secrest to withdraw as Dvorak's counsel on January 8, 1999.
[¶ 23] At a January 28, 1999 status conference, the court noted Dvorak was representing himself. Dvorak said he thought he might have an attorney and indicated if he retained an attorney, the attorney would want a continuance. Dvorak recognized he was aware of the benefits of counsel and the dangers and difficulties of self-representation when he asked for another continuance because "I can't go into court without an attorney." The court continued Dvorak's trial to March 1999 and unambiguously informed him there would be no further continuances. Despite Dvorak's acknowledgment he could not go to court without an attorney and the court's warning there would be no further continuances, Dvorak did not request another court-appointed counsel and appeared pro se at the March 1999 pretrial conference and trial. As we observed above, Dvorak's pretrial conduct suggests a manipulative pattern of delay primarily calculated to serve his goal of having the charge dismissed. Compare Poitra, 1998 ND 88, ¶ 13, 578 N.W.2d 121 (stating nothing in the record suggested defendant's actions were intended primarily to delay trial). A defendant's manipulative or obstructive conduct is relevant to whether a decision to proceed pro se is knowing and intelligent. See United States v. Yagow, 953 F.2d 427, 432 (8th Cir.1992); United States v. Willie, 941 F.2d 1384, 1388-91 (10th Cir.1991); Meyer v. Sargent, 854 F.2d 1110, 1115 (8th Cir.1988); United States v. Gallop, 838 F.2d 105, 109-11 (4th Cir.1988).
[¶ 24] At trial, Dvorak indicated he was ready to proceed and offered several exhibits to support his theory the prior protection order was invalid or illegal. Dvorak's presentation of his case at trial indicates an awareness that he was responsible for the functions of counsel. See Rockwell, 1999 ND 125, ¶ 16, 597 N.W.2d 406.
[¶ 25] We conclude Dvorak's pretrial conduct and manipulative pattern of delay, his prior experience with the criminal justice system, and his awareness of the benefits of counsel and the dangers of self-representation indicates he decided to proceed pro se with his eyes open and understood the dangers and disadvantages of self-representation. Dvorak's decision to appear pro se ultimately may have been an error in judgment, but that does not foreclose his decision from being knowingly and intelligently made. Rockwell, 1999 ND 125, ¶ 16, 597 N.W.2d 406; Harmon, 1997 ND 233, ¶ 23, 575 N.W.2d 635. Although we continue to encourage trial courts to conduct a specific on-the-record colloquy regarding self-representation to provide this Court with an objective basis for reviewing the waiver, under these circumstances, we conclude this record is not silent and establishes Dvorak's functional waiver of his right to counsel was knowingly and intelligently made.
*453 III
[¶ 26] Dvorak argues N.D.C.C. § 14-07.1-06 is unconstitutional because it does not include a culpability requirement and could be used to punish innocent and mistaken conduct.
[¶ 27] When Dvorak violated the protection order in 1998, N.D.C.C. § 14-07.1-06 provided[2]:
Penalty for violation of a protection order. Whenever a protection order is granted pursuant to section 14-07.1-02 or 14-07.1-03 and the respondent or person to be restrained has been served a copy of the order, a violation of the order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of a protection order is a class C felony subject to the penalties therefor.
[¶ 28] Generally, a party may only challenge the constitutionality of a statute as applied to that party. State v. Morris, 331 N.W.2d 48, 58 (N.D.1983); State v. Rippley, 319 N.W.2d 129, 134 (N.D.1982).
[¶ 29] Here, Dvorak's divorce decree had been amended in April 1997 to limit him to supervised visitation with his children and to restrain him from harassing any member of his ex-wife's family. Dvorak appeared and was represented by counsel in proceedings leading up to the May 1997 protection order. Dvorak was served with the protection order, and this conviction was his second for violating that order. He admitted he understood the protection order, and offered evidence the order was "illegal" and "false." Dvorak does not claim his contact with his children and his ex-wife's parents was innocent or a mistake. Because Dvorak has not claimed his acts which brought him within the prohibitions of N.D.C.C. § 14-07.1-06 were innocent or mistaken, he may not challenge the constitutionality of the statute as applied to his conduct.
IV
[¶ 30] Dvorak argues the May 1997 protection order was invalid, because his ex-wife's request for the order did not seek protection for her parents and did not seek to preclude contact with her parents and his children although the order provided for their protection.
[¶ 31] Dvorak had notice of the protection order, and his argument represents an impermissible collateral attack on the order. See Interest of R.A., 551 N.W.2d 800, 802 (N.D.1996); State v. Stuart, 544 N.W.2d 158, 163 (N.D.1996); State v. Mertz, 514 N.W.2d 662, 666-67 (N.D.1994). If Dvorak believes the protection order was invalid, his remedy was to have timely appealed that order.
V
[¶ 32] We affirm Dvorak's conviction.
[¶ 33] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.
NOTES
[1] Other courts have also considered the record necessary to establish that a defendant's waiver of counsel is knowing and intelligent. See 3 LaFave, Israel, and King, Criminal Procedure § 11.5(c) (2d ed.1999). Generally, trial courts should ascertain the defendant is aware of the nature of the charges, the statutory offenses included within the charges, the range of punishment, possible defenses or mitigation to the charges, and all other facts necessary to a broad understanding of the matter. 3 id. § 11.5(c), at 574, citing Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 92 L. Ed. 309 (1948) (plurality opinion of Black, J.).
The preferred procedure for deciding a defendant has made a knowing and intelligent waiver of the right to counsel is a specific on-the-record colloquy about the dangers and disadvantages of self-representation, including that (1) presenting a defense is more than simply telling a story and requires adherence to technical rules governing the conduct of a trial; (2) a lawyer has substantial experience and training in trial procedure and the prosecution will be represented by an experienced attorney; (3) a person unfamiliar with legal procedures may allow the prosecution an advantage by failing to object to inadmissible evidence and making tactical decisions that produce unintended consequences; (4) a defendant's possible defenses and other rights may be permanently lost if not timely asserted; (5) pro se defendants cannot complain on appeal about the competency of their representation; and (6) the effectiveness of defendant's defenses may be diminished by the dual roles as attorney and accused. 3 La-Fave, Israel, and King, Criminal Procedure § 11.5(c), at 574-75. If the defendant persists in self-representation after a warning about those dangers, trial courts should ascertain the defendant understands and appreciates the disadvantages and possible consequences of self-representation with an inquiry about factors that have a bearing on the defendant's ability to comprehend, including age, education, social background, mental health history, prior experience or familiarity with criminal trials, and prior consultation with counsel in deciding to proceed pro se. 3 id. § 11.5(c), at 575. A formal inquiry not only assists trial courts in deciding issues about a defendant's waiver, but provides an appellate court with an objective basis for reviewing the waiver. 3 id. § 11.5(c), at 575-76.
Some courts have elevated the preferred procedure to mandate a specific on-the-record colloquy about the dangers and disadvantages of self-representation. See 3 LaFave, Israel, and King, Criminal Procedure § 11.5(c), at 576. Some federal appellate courts have prospectively required trial courts to follow the inquiry set forth in the Benchbook for U.S. District Court Judges § 1.02 (4th ed.1996). See United States v. Yagow, 953 F.2d 427, 432 (8th Cir.1992); United States v. McDowell, 814 F.2d 245, 250 (6th Cir.1987). A majority of courts, however, do not require trial courts to perform a specific on-the-record colloquy, and instead, review the record as a whole to decide the sufficiency of a waiver. E.g., United States v. Gallop, 838 F.2d 105, 110 (4th Cir.1988); McDowell, at 249. See 3 LaFave, Israel, and King, Criminal Procedure § 11.5(c), at 576.
[2] Section 14-07.1-06, N.D.C.C., was amended in 1999 to include language proscribing violation of a foreign protection order. 1999 N.D. Sess. Laws ch. 138, § 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614902/ | 23 So. 3d 163 (2009)
Miguel HERNANDEZ, Luis Baez, Frank Smith, and Indra Alam, Appellants,
v.
CITY OF MIAMI BEACH, Appellee.
No. 3D08-669.
District Court of Appeal of Florida, Third District.
October 14, 2009.
Rehearing and Rehearing En Banc Denied December 17, 2009.
*164 John H. Lipinski, for appellants.
Jose Smith, City Attorney, and Steven H. Rothstein and Debora J. Turner, First Assistant City Attorneys, for appellee.
Before COPE, SHEPHERD and SUAREZ, JJ.
COPE, J.
This is an appeal of an order finding probable cause in a forfeiture proceeding. See Fla. R.App. P. 9.130(a)(3)(C)(ii). We conclude that the order must be reversed on account of the City's delay in requesting an adversary probable cause hearing.
Miami Beach police officers seized a 2005 Land Rover, cash, and jewelry pursuant to the Florida Contraband Forfeiture Act, sections 932.701-.706, Florida Statutes (2008). As required by the Act, the City of Miami Beach sent a notice to the appellants-claimants which advised them that they may request an adversarial preliminary hearing. See id. § 932.703(2)(a).
Counsel for the claimants sent a written request to the City for an adversarial preliminary hearing. This request was received by the City on Tuesday, January 22, 2008.
Under the Act, it is the responsibility of the seizing agency (in this case, the City) to "set and notice the hearing, which must held within 10 days after the request is received or as soon as practicable thereafter." Id. The tenth day the deadline for the hearing was Friday, February 1, 2008.
In this case, the City waited until January 30 the eighth day to file its request for adversarial preliminary hearing with the circuit court clerk. On the ninth day the City hand delivered a request for emergency hearing to the chambers of the judge. The City requested a thirty-minute specially set hearing, and requested that the hearing be held on or before Monday, February 4. Through a calendaring error, the City had calculated that Monday, February 4 was the tenth day.
The trial judge's chambers responded immediately and scheduled the hearing for Wednesday, February 6. The City explained at oral argument that the trial judge reserves time on each Wednesday's calendar for forfeiture matters. Having received the request on Thursday, January 31, the judge set the hearing for the next available calendar, which was February 6. This was sixteen days after the claimants requested the hearing.
The claimants' counsel filed a motion to dismiss the forfeiture proceeding and requested return of the seized property. At *165 the adversarial preliminary hearing, the claimants argued that the adversarial preliminary hearing was scheduled beyond the ten-day deadline because the City did not promptly request a hearing date. The City responded in substance that it had made the written request for hearing within ten days, and the trial court had set the matter on its next available calendar. The City contended that the scheduling in this case satisfied the "as soon as practicable thereafter" provision of the statute.
The trial court denied the motion to dismiss but observed that appellate guidance regarding the required time frames would be helpful. The court took evidence and found probable cause to exist for the seizure. The claimants have appealed.
"Forfeiture actions are harsh exactions and are generally not favored in either law or equity." Byrom v. Gallagher, 609 So. 2d 24, 26 (Fla.1992). For that reason the Florida Supreme Court "has strictly construed the forfeiture statutes." Id.
Under the Act, a property owner is entitled to an adversarial preliminary hearing. If there is no probable cause for the seizure, then the owner is entitled to receive the property back.
The hearing is to be held "within 10 days after the request is received [by the seizing agency] or as soon as practicable thereafter." § 932.703(2)(a), Fla. Stat. (2008). We interpret this language to mean that the hearing must be held by the tenth day, unless there is good cause to go beyond the ten-day deadline. Our court has said, "These types of hearings, with legislatively mandated time periods, should be considered emergencies." Chuck v. City of Homestead Police Dep't, 888 So. 2d 736, 754 (Fla. 3d DCA 2004). We have, however, said that where the seizing agency makes a prompt request for an adversarial preliminary hearing, but the delay in scheduling is attributable to the court (rather than the seizing agency), then the forfeiture action should not be dismissed for violation of the ten-day rule. Id.
The Fourth District has explained:
We do not construe the "as soon as practicable" wording in the statute as carte blanche authority for a seizing agency to cause a hearing to be set beyond the ten-day limit because the agency or its attorneys did not find it convenient to act sooner. Rather, that exception simply authorizes a setting court to schedule a hearing beyond the ten-day period in the event it is not practicable to set the hearing within the ten-day limit. We do not, however, construe the statute as authorizing the government entity to delay acting for reasons such as internal scheduling, agency, attorney, or officer workload, agency or police procedures, etc., which result in the court's inability to schedule a timely hearing. We need not address whether there may be reasonable justifications for agency delay, because here there is no proffer that would excuse the agency's failing to act in a timely manner.
Clearly, if the statute is to be effective, the seizing entity must act within sufficient time to permit the court to schedule the requested hearing within the statutorily allotted ten-day period....
....
We recognize that the five-day delay in this case might, under other circumstances, be deemed insignificant. However, a forfeiture statute must be strictly construed.
State Dept. of Highway Safety & Motor Vehicles v. Metiver, 684 So. 2d 204, 205-06 (Fla. 4th DCA 1996) (footnote and citation *166 omitted); see also Cochran v. Harris, 654 So. 2d 969, 971 (Fla. 4th DCA 1995).
The problem in this case is that the City waited until the eighth day to file its request for adversarial preliminary hearing with the circuit court clerk, and waited until the ninth day to hand deliver the request for emergency hearing to the trial judge's chambers. The trial court responded immediately by setting the case on its next forfeiture calendar, which was February 6.
It is impermissible for the seizing agency to consume all or most of the ten-day period before making the request for a hearing. The magnitude of the delay made it a practical impossibility for the hearing to be held before the tenth day expired.
The Chuck case provides a useful contrast. In that consolidated case, a claimant sent a request for an adversarial preliminary hearing which the City of Homestead received on November 27. The next day, the City filed its emergency request for an adversarial preliminary hearing. Chuck, 888 So.2d at 740. In the companion case, a claimant provided a request for adversarial preliminary hearing to the Village of Pinecrest on June 25. The next day, the Village filed its forfeiture complaint and on June 28, its motion for emergency adversarial preliminary hearing. Id. at 741-42. The best practice is represented by the City of Homestead, which made its emergency hearing request within twenty-four hours.[1]
In each forfeiture case, this phase of the litigation process is initiated when the seizing agency sends the potential claimants a notice of their right to request an adversarial preliminary hearing. The seizing agency should, therefore, be prepared to act quickly if a claimant responds by requesting a hearing.
Under the facts of this case, the trial court has a calendar available each Wednesday for forfeiture hearings. Had the City made an emergency request for hearing within a day, or even two or three days, then the case could have been placed on the following Wednesday's calendar (January 30), and the hearing would have been completed within the ten-day deadline.
In summary, the seizing agency must promptly make its emergency request for hearing after receiving a claimant's hearing request, so as to allow the court to schedule the hearing before the ten-day deadline. The ten-day deadline is to be exceeded only if there is good cause or if there is a showing of excusable neglect on the part of the seizing agency. However, neither good cause nor excusable neglect have been argued in this case.[2]
In this case the City submitted its request so late that there was no practical prospect of holding the hearing before the ten-day deadline expired. That is true even if we accept the City's calculation that the ten-day period started on January 23 instead of January 22.
For the stated reasons, the order before us is reversed and the cause remanded *167 with directions to dismiss the forfeiture action.
NOTES
[1] It may be that in the Pinecrest case, the Village assumed that it needed to file the forfeiture complaint prior to making its motion for emergency adversarial hearing. However, as was apparently true in the City of Homestead case, and is true in the present case, the circuit court clerk accepted the request for adversarial preliminary hearing as the initial pleading in the forfeiture case.
[2] As stated previously, if the emergency request for hearing is made promptly, the fact that the court schedules the hearing after the ten-day deadline will not be held against the seizing agency. Chuck, 888 So.2d at 754. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614919/ | 502 So. 2d 609 (1987)
Joseph P. CONSTANCE, Plaintiff-Appellee,
v.
Herbert Thomas SUDWISCHER, Defendant-Appellant.
No. 85-1105.
Court of Appeal of Louisiana, Third Circuit.
February 13, 1987.
Writ Denied April 3, 1987.
*610 Cecil R. Sanner, Lake Charles, for defendant-appellant.
Jones, Jones and Alexander, Glenn Alexander, Cameron, for plaintiff-appellee.
Before FORET, STOKER, DOUCET, LABORDE, and KING, JJ.
KING, Judge.
The sole issue presented by this appeal is whether the trial court was correct in finding that the Sheriff and Ex Officio Tax Collector of Cameron Parish, Louisiana made a reasonable effort to notify a tax debtor of his tax delinquency prior to the sale of the tax debtor's property for unpaid taxes.
Joseph P. Constance (hereinafter sometimes referred to as Constance) filed suit against Herbert Thomas Sudwischer (hereinafter sometimes referred to as Sudwischer) to quiet title to property formerly owned by Sudwischer and conveyed to Constance by tax sale. After a trial on the merits, the trial court rendered judgment in favor of Constance, quieting and confirming the title to the property in favor of Constance and assessing all costs of the *611 proceedings against Sudwischer. From this judgment, Sudwischer devolutively appealed. We reverse.
FACTS
Herbert Thomas Sudwischer acquired full ownership of a certain parcel of beach front property located in Cameron Parish, Louisiana (hereinafter sometimes referred to as Lot 4) by an Act of Partition dated January 18, 1979 between Sudwischer and Clarco Leisure, Inc. (hereinafter sometimes referred to as Clarco). Sudwischer and Clarco previously had acquired a 1/16ths and a 15/16ths interest, respectively, in ownership in indivision of a larger tract of land which included Lot 4.[1] Sudwischer acquired his interest in the original tract of land by inheritance, as evidenced by a Supplemental and Amended Judgment of Possession filed in the records of Cameron Parish, Louisiana on February 13, 1978. Clarco acquired the other heirs' interests in the larger tract of land. Sudwischer and Clarco then subdivided the tract and entered into an Act of Partition.
The effect of the Act of Partition was to convey full ownership of Lot 4 to Sudwischer while conveying full ownership of the remainder of the subdivision to Clarco. The Act of Partition was filed in the conveyance records of Cameron Parish, Louisiana on February 6, 1979.
The Office of the Tax Assessor for Cameron Parish, Louisiana (hereinafter sometimes referred to as the Tax Assessor) examined the conveyance records and discovered the Act of Partition conveying full ownership of Lot 4 to Sudwischer. For the tax year 1980 the ad valorem tax rolls were changed to reflect Sudwischer's ownership, showing his acquisition as resulting from the Act of Partition. The Tax Assessor, in changing the tax roll to reflect the change in ownership, failed to show an address for Sudwischer, although the Act of Partition showed on its face that Sudwischer was a resident of Jefferson Parish, Louisiana. As a result the 1980 tax roll was turned over to the Sheriff and Ex Officio Tax Collector for Cameron Parish, Louisiana (hereinafter sometimes referred to as the Sheriff) for tax collection with Sudwischer listed as the owner of Lot 4, but without an address for mailing to him a notice of taxes due.
In an attempt to notify Sudwischer of his 1980 taxes due, the Sheriff mailed a tax notice to Sudwischer, c/o Clarco, at Clarco's Lake Charles, Louisiana address. At the time the tax notice was sent to Clarco, Clarco no longer owned any interest in Lot 4 as a result of the Act of Partition. The notice was not accepted and returned marked "Return to Writer." On February 8, 1981, a 1980 tax delinquency notice, or "Last Notice," was attempted to be sent by the Sheriff to Sudwischer via certified mail, again c/o Clarco at Clarco's Lake Charles address which was also not accepted and returned marked "Unclaimed." The Sheriff recorded in the mortgage records of Cameron Parish, Louisiana a proces verbal showing Sudwischer as a delinquent tax debtor for 1980 taxes and then twice published a general notice to tax debtors in the Cameron Parish Pilot, the official Cameron Parish newspaper. The proces verbal did not describe how service of notice on Sudwischer was made by the Sheriff, since notice to Sudwischer had been attempted but was unsuccessful.
Subsequently, on April 22, 1981, Constance purchased Lot 4 at a tax sale held *612 by the Cameron Parish Sheriff for 1980 taxes and Constance was issued a tax deed by the Sheriff which was recorded in the Conveyance Records of Cameron Parish, Louisiana on April 23, 1981.
In May, 1984, more than three but less than five years after recordation of the tax deed, Constance filed this suit to quiet title to the property purchased at tax sale.[2] On or about October 23, 1984, Sudwischer filed a separate suit to annul the tax sale of the same property in the suit entitled Herbert Thomas Sudwischer v. Joseph P. Constance, bearing Number 100-9812 on the Docket of the Thirty-eighth Judicial District Court. This suit to quiet title was consolidated for trial with the suit to annul the tax sale. A judgment was rendered in the consolidated cases in favor of Constance, quieting and confirming his title to the property and dismissing the demands of Sudwischer to annul the tax sale. These suits remain consolidated on appeal and, since the law and relevant facts are common to both, our opinion here is equally applicable. However, we render a separate judgment in the consolidated case of Sudwischer v. Constance, 502 So. 2d 616 (La. App. 3rd Cir.1987).
During the trial, testimony was introduced to establish the usual practice employed by the Sheriff in attempting to give notice to delinquent tax debtors whose addresses are unknown. Testimony indicated that the Sheriff generally took steps to locate addresses for delinquent taxpayers, including checking the Cameron Parish conveyance records, looking in the Cameron and Lake Charles telephone directories and the Lake Charles City Directory, calling directory assistance and, on occasion, checking the obituary column in the local newspaper. The trial judge concluded that several of these steps were taken by the Sheriff to locate Sudwischer, but to no avail. The trial court therefore concluded that the Sheriff made a reasonable effort to notify Sudwischer of his 1980 delinquent taxes; that the Sheriff's proces verbal, as filed, was sufficient; and that "The publication in the parish newspaper was the proper notification to Mr. Sudwischer since he was a nonresident whose address was unknown." For these reasons the trial court rendered judgment in this suit, which was signed on August 5, 1985, in favor of Constance, quieting his tax title and taxing all costs of this suit against Sudwischer.
Sudwischer devolutively appealed the trial court judgment and contends:
(1) The trial court was in error in finding that Sudwischer was properly notified by the Cameron Parish Sheriff and Tax Collector of his tax 1980 delinquency;
(2) The trial court was in error in finding that the Cameron Parish Sheriff and Tax Collector took additional reasonable steps to notify Sudwischer of his 1980 tax delinquency.
Constance answers this appeal, contending that Sudwischer was properly notified of his 1980 tax delinquency and that the Cameron Parish Sheriff and Tax Collector took additional reasonable steps to notify Sudwischer of his 1980 tax delinquency.
NOTICE OF TAX DELINQUENCY AND TAX SALES
Article 7, § 25 of the Louisiana Constitution of 1974 provides, in pertinent part:
"[a]t the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due." (Emphasis added.)
This article further requires the advertisement to be published in the official journal of the parish or municipality, if such an official journal exists, and provides that a tax deed shall be prima facie evidence of the validity of the tax sale. LSA-1974 Const. Art. 7, § 25(A). Tax sales are presumed valid and the party attacking the *613 validity of a tax sale bears the burden of proving an alleged invalidity. Meares v. Pioneer Production Corp., 382 So. 2d 1009, (La.App. 3rd Cir.1980), writ den., 392 So. 2d 667 (La.1980).
The statutory procedure to be followed by the tax collector for providing notice of delinquency of taxes due by property taxpayers is set forth in LSA-R.S. 47:2180.[3] This article was amended in 1985 to include the second sentence in Subsection B and a fourth paragraph "D". The additions by amendment resulting from the 1985 Act are therefore not applicable to the present case. Subsection A of this statute, in effect in 1980 and 1981, requires the Sheriff and Tax Collector to notify the record owner of property concerning delinquent taxes by written or printed notice. Subsection B of the article, in pertinent part, provides that written notice of delinquency shall be sent by certified mail, return receipt requested and that after the Sheriff and Tax Collector has completed service of notice, he is to make out a proces verbal stating the names of each delinquent notified, his post office address, a brief description of the property, taxes due thereon and how service of notice was made. This proces verbal is to be signed by the Sheriff and Tax Collector in the presence of two witnesses and filed with the Clerk of Court. Subsection C of the article provides that notice to all unknown property owners and all nonresident owners of such property, whose post office addresses are unknown, shall be published in an official parish newspaper, if available.
REASONABLE STEPS TO NOTIFY TAXPAYER WHOSE ADDRESS IS UNKNOWN
In addition to the mandatory requirement that notice of delinquency be *614 given a taxpayer before his property may be validly sold for nonpayment of taxes, as specifically provided for in LSA-Const. Art. 7 § 25 and LSA-R.S. 47:2180, the jurisprudence requires that where mailing of a tax notice is required, and a mailed notice is returned to the tax collector as undelivered or unclaimed, the tax collector must take additional reasonable steps to notify the tax debtor of a delinquency, and failure of the tax collector to perform this obligation renders a tax sale null and void. Landry v. Beaugh, 452 So. 2d 400 (La.App. 3rd Cir. 1984), writ den., 458 So. 2d 121 (La.1984); Childress v. Johnson, 387 So. 2d 1217 (La. App. 1st Cir.1980), writ den., 393 So. 2d 744 (La.1980); Mason v. Nattin, 355 So. 2d 44 (La.App. 2nd Cir. 1978); Succession of Windes v. Yerger, 234 So. 2d 224 (La.App. 2nd Cir.1970).
The testimony adduced at trial indicates that in 1980 the usual procedures employed by the Sheriff and Tax Collector in Cameron Parish, Louisiana to locate taxpayers whose addresses were unknown included checking the conveyance records, checking telephone directories in Cameron, Louisiana and in Lake Charles, Louisiana, the area of the nearest urban concentration, checking the Lake Charles City Directory, calling directory assistance, and, on occasion, checking the obituary column in the local newspaper. Although the Sheriff and Tax Collector now employs a driver's license check to attempt to locate taxpayers whose addresses are unknown, such procedure was not used to locate delinquent taxpayers for the tax year 1980.
When the tax roll of the Tax Assessor was turned over to the Sheriff and Tax Collector, there was no mailing address shown for Sudwischer, the then owner of Lot 4. The Sheriff and Tax Collector then attempted to send notice to Sudwischer, c/o Clarco, a former owner in indivision. Notice of delinquency to a person designated as owner on the tax rolls is insufficient if the conveyance records show that another person is the owner. Hines v. Dance, 460 So. 2d 1152 (La.App. 2nd Cir. 1984). We find that notice of tax delinquency sent in care of a former owner in indivision, when the conveyance records show another person to be the owner, is insufficient to notify the tax debtor. Although there is no absolute requirement that the owner or any other specific person receive actual notice of delinquency, formal statutory requirements must be complied with in a manner sufficient so that the owner can reasonably be expected to receive notice so that he may obviate the tax sale by paying his back taxes. U.S. v. Blair, 331 F. Supp. 1277 (E.D.La.1971). We find the attempted written notices to Sudwischer insufficient to constitute reasonable notice of taxes due, as Clarco's address was not one where Sudwischer could reasonably have been expected to receive notice particularly in view of the fact that the conveyance records showed that Sudwischer was a resident of Jefferson Parish, Louisiana.
Further, the fact that the Sheriff and Tax Collector published notice in the local newspaper does not constitute reasonable notice to a taxpayer where the tax collector makes no further effort to locate the taxpayer. Richards v. Martin, 411 So. 2d 1153 (La.App. 1st Cir.1982), writ den., 413 So. 2d 507 (La.1982).
The trial court record does not support a finding that the Sheriff made additional reasonable effort to locate Sudwischer, once the notices were returned and marked "Return to Writer" and "Unclaimed", as the evidence shows that the Sheriff did not check the conveyance records, which was a part of his usual procedure for locating taxpayers whose addresses were unknown. Had the Sheriff checked the conveyance records, he would have found the Act of Partition recorded on February 6, 1979, showing Sudwischer as being the owner of Lot 4 and a resident of Jefferson Parish, Louisiana. The evidence shows that Sudwischer was listed in the Greater New Orleans telephone directories for the years 1979-1981. Had the Sheriff's office called directory assistance for the New Orleans area, it could easily have located Sudwischer. Such calls to directory *615 assistance was something that the Sheriff normally did as part of his usual procedure to locate tax debtors. While the Sheriff might have checked the Cameron and Lake Charles telephone directories, there is no evidence in the trial court record to reflect that such effort to locate Sudwischer was in fact made in Jefferson Parish, although this was the Sheriff's usual procedure.
The trial court in its reasons for judgment mentions the fact that Sudwischer was a licensed real estate agent, apparently attempting to impose a standard of constructive notice that his taxes were due. We are not prepared to impose a greater standard of duty on a delinquent taxpayer based on the taxpayer's profession. Informal knowledge that taxes are due does not take the place of legally required notice. Recker v. Dupuy, 161 La. 392, 108 So. 782 (1926). In this instant case, we find that sending notices to Sudwischer in care of a former owner in indivision was not reasonably calculated to give notice as required under LSA-R.S. 47:2180 and LSA-Const. Art. 7 § 25. We do not find, as Constance contends and as the trial court found, that the Sheriff took additional reasonable steps to notify Sudwischer of his 1980 tax delinquency, particularly where the usual investigation of the Sheriff involved checking the conveyance records and calling telephone directory assistance, and where the Sheriff, had he followed his usual procedure, could have found that Sudwischer was a resident of Jefferson Parish, Louisiana and could have obtained his mailing address. Under these circumstances, we find that the Sheriff did not take reasonable steps, by utilizing his usual procedure to determine the mailing address of the delinquent tax debtor, before exposing the tax debtor's property for sale, and for this reason the tax sale is null and void. Cf. Salsman v. Bloom, 172 La. 238, 133 So. 760 (1931), citing In re La Salle Realty Co., 171 La. 965, 132 So. 516 (1931); Recker v. Dupuy, supra; Jones v. Curran, 156 La. 1055, 101 So. 415 (1924). Had the Sheriff mailed notice to Sudwischer at his Jefferson Parish, Louisiana, address, such would have been sufficient notice and Sudwischer would have been in a position to prevent the sale of his property by paying his 1980 delinquent taxes.
Sudwischer also raises issue as to the sufficiency of the proces verbal as meeting the requirements of LSA-R.S. 47:2180. Since, we reverse the trial court judge's finding that Sudwischer was given notice of his 1980 taxes due and notice of delinquency, as required by LSA-R.S. 47:2180 and LSA-Const. Art. 7 § 25, we do not reach the issue of whether or not the Sheriff's proces verbal complied with the requirements of R.S. 47:2180.
For the foregoing reasons, the judgment rendered in this suit confirming and quieting tax title in favor of Joseph P. Constance and against Herbert Thomas Sudwischer is reversed and set aside.
All costs of these proceedings are taxed to plaintiff-appellee.
REVERSED AND RENDERED.
FORET, J., dissents for written reasons assigned.
LABORDE, J., dissents for the reasons assigned by Judge FORET.
FORET, Judge, dissenting.
I feel obliged to dissent from the majority's reversal of the trial court judgment.
At the time of the tax sale herein involved, by jurisprudential rule, where the mailing of a tax notice was required and the notice was returned to the tax collector undelivered or unclaimed, the tax collector was required to take additional reasonable steps to notify the tax debtor. The magic word then is what steps will be considered to be "reasonable."
In this case, it seemed to the trial court and to me that the tax collector had made reasonable efforts to notify Sudwischer of taxes owed on the said property. The testimony of four employees of the Cameron Parish Tax Collector's office indicates that they do make an effort to locate addresses for delinquent taxpayers. They testified that they check the conveyance records; *616 they look in the telephone directories; they call directory assistance; and they even go so far as to check the obituaries in the local newspapers to determine heirs of delinquent taxpayers and to notify them of taxes being due. One of the employees, Mrs. Ratcliff, who had been in charge of the tax collector's office for approximately twenty years, testified that by using all of the available resources which they had in the past, they are usually quite successful in locating delinquent taxpayers, and that they have generally found approximately 75 to 85% of them after using these methods.
Having mentioned above some of the efforts made by the tax collector's office to find delinquent taxpayers and notify them of the impending tax sale, we should look to the efforts made by the present delinquent taxpayer to pay the taxes which he owes. Not only did Sudwischer not see to it that his mailing address was placed in the deed by which he acquired the property, he never did, in a five or six-year period, contact the tax collector's office although this was the only parcel of property which he owned in Cameron Parish. The record shows that Sudwischer, a licensed real estate broker in Louisiana, had passed through Cameron Parish six to eight times during the five or six-year period, and had even stopped by to see the property but had never, during all that time, come by the tax assessor's office or the tax collector's office to see about the property taxes. He testified that he was quite familiar with the payment of taxes and that he had paid property taxes many times; and he positively testified that he knew taxes were due on his property in Cameron Parish.
The majority opinion makes much of the fact that the Cameron Parish Tax Collector had reason to believe that Sudwischer was in Jefferson Parish because the acquisition deed stated that he was a resident of Jefferson Parish. Countering the majority's basis for reversing the trial court, I would like to point out that Jefferson Parish is a sprawling parish of 500,000 population and is one of the largest parishes, in land area, of this State. In Jefferson Parish are located the communities of Grand Isle, Gretna, Harahan, Harvey, Jefferson, Kenner, Marerro, Metairie, River Ridge, Waggaman, and Westwego. It seems to me that to impose the burden upon the tax collector to track down the taxpayer by telephone, or otherwise, in these circumstances would be going beyond what is reasonably expected of him. If anybody was unreasonable in this situation, it was the delinquent taxpayer, Sudwischer, and I believe that our learned brother in the trial court properly determined what was reasonable and what was not.
Accordingly, I respectfully dissent.
NOTES
[1] The tract of land inherited by Sudwischer and previously owned in indivision with Clarco was described as:
"Commencing at a point 834.8 feet South 85 degrees West and 60 feet North of the Southeast corner of Section 36, Township 15 South, Range 13 West: thence North 626 feet; thence South 85 degrees West 347.8 feet; thence South 626 feet; thence North 85 degrees East 347.8 feet to point of commencement, containing 5 acres."
The property was subdivided and a plat was filed bearing File No. 156570 in the records of Cameron Parish, Louisiana. Lot 4 of the subdivision, known as Little Florida subdivision, is described as follows:
"Lot 4 of Little Florida, a subdivision in Irregular Sections 35 and 36, Township 15 South, Range 13 West, as per plat bearing File No. 156570, records of Cameron Parish, Louisiana."
[2] LSA-Const. Art. 7, § 25 establishes a three year redemption period for property sold at a tax sale. Section 25(C) of the Article provides for annulment of a tax sale within five years of date of recordation of a tax deed, if no service of notice of the tax sale is given.
[3] LSA-R.S. 47:2180, as amended, reads, in pertinent part, as follows:
"A. On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. [In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor's property in the advertising required for unknown owners in Subsection C of this Section.] After the tax collector shall have completed the service by the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of this notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.
C. The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all unknown owners of assessed immovable property situated in his parish, and to nonresident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish, then such notice shall be given in the manner provided by law for judicial sales. He shall pay for the publication, and shall be entitled to collect as costs therefor the pro rata share of the publication costs from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published the notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding." (Brackets denote sentence added by Acts 1985, No. 636, § 1.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614944/ | 502 So. 2d 1083 (1987)
In re Judge W. Glenn SOILEAU.
No. 86-0-2111.
Supreme Court of Louisiana.
February 23, 1987.
Eugene J. Murrett, Chief Executive Officer, Ralph Capitelli, for applicant.
W. Glenn Soileau, Judge, Bob F. Wright, Domengeaux & Wright, J. Burton Willis, for respondent.
LEMMON, Justice.
This is a disciplinary proceeding against a Louisiana judge. The proceeding was conducted before the Judiciary Commission, a constitutional commission which is composed of three judges, three attorneys and three citizens who are not attorneys or public officials. The Commission is authorized to recommend a judge's censure, suspension or removal from office for, among other things, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. La.Const. art. V, § 25(C); see also Professional Discipline for Lawyers and Judges, Standards Relating to Judicial Discipline and Disability Retirement, § 3.3 (1979).
Pursuant to Rule XXIII, § 3 of the Rules of the Supreme Court of Louisiana, the Commission, upon receiving complaints about respondent's conduct, made a preliminary investigation to determine whether a hearing should be held on the question of disciplining respondent. After notifying respondent of the investigation and the nature of the charges, the Commission conducted an investigatory hearing on July 12, 1986, at which respondent appeared in proper person and presented evidence.
The Commission decided to institute a formal hearing concerning the following charges:
"CHARGE I
"A. That on or about May 3, 1986 at the 1986 Crawfish Festival in Breaux Bridge, Louisiana, you were involved in a series of incidents which involved:
"(1) committing a battery upon a law enforcement official;
"(2) disturbing the peace by directing verbal abuse and the use of obscenities towards numerous individuals at the Crawfish Festival Headquarters and grounds, including stating that you `owned the goddamn town'; and
"(3) all of the above incidents took place in the presence of your constituents, which is clearly prejudicial to the administration of justice and brought the judicial office into disrepute.
"That subsequent to these incidents, on May 23, 1986, you entered a plea of *1084 nolo contendre (sic) to La.R.S. 14:35 (simple battery) and La.R.S. 14:103(A) (2) (disturbing the peace). You were sentenced to pay a fine of $200 plus costs, serve five days in jail; however, the jail term was suspended and you were ordered to perform five eight hour days of community service for the charge of simple battery. You were also sentenced to pay a fine of $100 plus costs for the charge of disturbing the peace. A copy of this proceeding is attached hereto and incorporated as Exhibit `A'.
"Furthermore, while under oath at the preliminary hearing of this matter, held before the Judiciary Commission on July 12, 1986, you clearly and unequivocably admitted your guilt in the above-mentioned incidents. Preliminary Hearing of the Louisiana Judiciary Commission, No. 86-210, p. 25, lines 1-6; p. 26, lines 27-29; p. 27, lines 1-4 (07/12/86). A copy of the Commission Hearing transcript is attached hereto and incorporated as Exhibit `B'.
"B. By reason of the foregoing Paragraph A, you have:
"(1) violated Canon 1 and 2(A) of the Code of Judicial Conduct, adopted by the Supreme Court of Louisiana, effective January 1, 1976; and
"(2) you have engaged in willful misconduct relating to your official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
"CHARGE II
"A. That on or about January 26, 1979, you were engaged in a game of pool at a bar in Breaux Bridge, Louisiana with Mr. Daly, on which game there was a $100 wager. That as a result of the game, an altercation occurred between you and Mr. Daly that necessitated the response of a Breaux Bridge town policeman. You then informed the police officer that he had no authority to intervene because you `ran the town.' Subsequent to the incident, Mr. Daly preferred a charge of simple battery against you before a St. Martinville Justice of the Peace which resulted in your arrest. After being released on a $250 personal recognizance bond, you then preferred a charge of simple battery against Mr. Daly in your own court and you, as judge of that Court, fixed bond for Daly at $1,000.
"That subsequent to the incident, you were brought before this Commission and were warned not to engage in similar activities as occurred at the pool hall in 1979. You were also notified by letter from the Commission on April 12, 1979 that the decision of the Commission not to proceed with further action was made in view of your own admissions and expressions of future intent to refrain from such activities. (See Exhibit `B', pp. 35-37.)
"At the Preliminary Hearing held before the Judiciary Commission on July 12, 1986, you admitted, while under oath, the incident described above and acknowledged that your conduct was improper in filing the charges and setting the bond in your court. (See Exhibit `B', p. 17.)
"B. By reason of the foregoing Section A, you have (1) violated Canons 1, 2(A) and (B) and 3 of the Code of Judicial Conduct, adopted by the Supreme Court of the State of Louisiana, effective January 1, 1976; and (2) you have engaged in willful misconduct relating to your official duty and persistent and public conduct prejudicial to the administration of justice that bring (sic) the Judicial Office into disrepute.
"CHARGE III
"A. That while you were performing your duties as Judge of the Breaux Bridge City Court, you issued an arrest warrant signed by you as Judge for the arrest of Anthony James Walters on criminal non-support charges while you were at the same time the attorney of record for Helen Jane Theriot Walters in the case entitled Helen Jane Theriot Walters v. Anthony James Walters, *1085 Docket No. 40179 of the 16th Judicial District Court for the Parish of St. Martin, State of Louisiana.
"Additionally, you have stated under oath (see Exhibit `B' p. 37-40) that you believe that there were other cases in which you had issued an arrest warrant for an individual who you were opposing in civil litigation for criminal charges instituted by your client in the civil litigation.
"Furthermore, in previous discussions with the Judiciary Commission, specifically referring to your letter to Mr. Eugene Murret, Chief Executive Officer, dated March 19, 1981, (see Exhibit `C'), you acknowledged that you felt when dealing with criminal matters involving your clients as complainants, you should recuse yourself as judge. These incidents represent a persistent failure on your part to uphold the integrity and independence of the Judiciary and are clear examples of impropriety.
"B. By reason of the foregoing Paragraph A, you have (1) violated Canons 1, 2(A) and (B) and 3(B)(2) of the Code of Judicial Conduct, adopted by the Supreme Court of the State of Louisiana, effective January 1, 1976; and (2) you have engaged in willful misconduct relating to your official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
"CHARGE IV
"A. That while you were presiding as Judge in the Breaux Bridge City Court, you filed a suit on open account in the Breaux Bridge City Court entitled W. Glenn Soileau v. Mark Edward Mouton, Docket No. 14480, (see Exhibit `D'), in an attempt to collect attorney's fees allegedly due you for legal services in a divorce proceeding.
"Furthermore, at the Preliminary Hearing held before the Judiciary Commission on 07/12/86, you acknowledged filing this suit in your own court as well as several similar lawsuits.
"B. By reason of the foregoing Section A, you have violated Canons 1, 2 and 3 of the Code of Judicial Conduct, adopted by the Supreme Court of the State of Louisiana, effective January 1, 1976; and (2) you have engaged in willful misconduct relating to your official duty and persistent and public conduct prejudicial to the administration of justice that brings the Judicial Office into disrepute."
After the hearing, in which respondent essentially admitted most of the allegations, the Commission found that the charges had been proved by clear and convincing evidence and concluded that respondent's conduct violated Canons 1, 2 A, 2 B and 3 of the Code of Judicial Conduct.[1] Further concluding that respondent
"has engaged in a series of acts of willful misconduct related to his official duty and in persistent and public conduct prejudicial *1086 to the administration of justice that brings the judicial office into disrepute, all over a period of several years and despite repeated admonitions by the Commission followed by expressions of intent on his part to conform to the appropriate standards of judicial conduct, followed by subsequent violations of the Code of Judicial Conduct",
the Commission recommended that respondent be suspended from office, without salary, for a period of one year. The case was then placed on the docket of this court, argued and submitted for decision.
CHARGE II[2]
On January 26, 1979, respondent was involved in a confrontation with Larry Daly in a barroom where the two were playing pool for a $100 wager. The incident, which occurred shortly after respondent assumed the office of Judge of the Breaux Bridge City Court, required the calling of a town policeman. Respondent informed the officer that he "ran the town" and that the officer had no authority to intervene. In retaliation to charges of simple battery filed by Daly before a justice of the peace, respondent filed a charge of simple battery against Daly in the Breaux Bridge City Court. As judge of that court, respondent set Daly's bail at $1,000.[3]
Respondent was called before the Judiciary Commission because of this incident. When respondent apologized for his conduct and expressed his resolve to refrain from further similar activities, the Commission decided not to file formal charges and simply reprimanded respondent for his conduct in a letter notifying him of that decision.
In the present proceeding, respondent admitted the incident and acknowledged that his conduct was improper. However, he objected to consideration of the incident in this proceeding on the grounds of double jeopardy, a stale and/or prescribed complaint, and his reelection in 1984 after the widely publicized 1979 incident. He also opposed consideration of the incident for the enhancement of the penalty for other conduct.
The constitutional guarantee against being twice put in jeopardy of life or limb for the same offense does not apply to a disciplinary proceeding against a judge. Moreover, the statutory protection of res judicata does not apply in this case. Respondent was never formally charged for the 1979 conduct, and the Commission was not precluded by law or by fundamental principles of fairness from considering the incident in this proceeding. Furthermore, the Commission is expressly authorized by Rule XXIII, § 3(d) of the Rules of the Supreme Court of Louisiana to refer to closed files of prior proceedings. Finally, Professional Discipline for Lawyers and Judges, Standards Relating to Judicial Discipline and Disability Retirement, § 4.13 (1979) permits use of closed files (1) to show that the problem is a continuing one and not just a rare occurrence if a new complaint is based on a similar occurrence, and (2) to determine the recommended sanction, whether the subsequent complaint is related or unrelated.
The subsequent misconduct in Charge I was similar in many respects to the misconduct in the 1979 incident, and the 1979 incident was highly relevant to show a continuing pattern of misconduct. Since the principal issue in the present proceeding is the sanction to be imposed, the Commission properly considered the 1979 incident in determining the sanction to be recommended. That the incidents were seven years apart and that respondent was reelected after the 1979 incident are simply *1087 factors to be considered by this court in possible mitigation.
In the 1979 incident, respondent violated Canons 1, 2 A, 2 B and 3 by failing to observe high standards of conduct necessary for the preservation of the integrity and independence of the judiciary, by failing to respect the law, by failing to conduct himself in a manner which promotes public confidence in the integrity and impartiality of the judiciary, by allowing his social relationships to influence his judicial conduct, and by failing to perform his judicial duties impartially. Respondent's conduct was particularly reprehensible because he used the power of his office to punish or frighten a private citizen with whom he was involved in a personal dispute. This "throwing one's weight around", especially when used "to show" the person who dared to cross the judge, simply cannot be condoned in a system whose objective is an independent and impartial judiciary. The conduct in Charge II alone would have warranted a significant sanction, but is particularly important in this proceeding to show that the subsequent Crawfish Festival incident was recidivist conduct.
CHARGE IV
On June 23, 1982, respondent filed a suit in the Breaux Bridge City Court to collect a professional fee owed to him. Respondent admitted this occurrence, but asserted that his office staff should have prepared the suit for filing in district court and that he signed the petition without noticing the name of the court. When he realized the problem in this suit and in two other similar suits, he instructed his staff (who had apparently sought to take advantage of the lower filing fees in City Court) that his personal suits were not to be filed in city court. He testified that the three suits had not been served and that no more personal suits have been filed in the court in which he presides.
Respondent presides as the only judge of the Breaux Bridge City Court. His filing a personal suit in that Court created an appearance of impropriety, inasmuch as the defendant would reasonably expect that he may not be treated impartially in the litigation. Of course, a judge has the right to use the judicial system for redress of his complaints, but the district court with concurrent jurisdiction in the matter was available for respondent to seek relief, without creating any appearance of impropriety.
Respondent's conduct in this charge violated Canons 1, 2 and 3 of the Code of Judicial Conduct. Nevertheless, the conduct appears to have been inadvertent, although careless, and the practice was discontinued as soon as it was discovered. Because the defendant was never served, no harm resulted from the incident, and respondent has never filed another personal suit in the City Court, according to his undisputed testimony. We therefore conclude that respondent's conduct in Charge IV, standing alone, does not warrant any sanction beyond a warning that such conduct is a violation of the Canons of Judicial Conduct and should be avoided in the future.
CHARGE III
At some unspecified date in 1986, respondent issued a warrant as judge of City Court for the arrest on criminal non-support charges of the husband of a client whom respondent was then representing in a civil action for separation.[4] Respondent admitted the conduct, but argued that signing *1088 a warrant is his ministerial duty, once probable cause is established, irrespective of his relationship with the person who is the subject of the warrant. He introduced numerous documents to show that he had issued warrants against his own clients, against persons who rented property from him, against the wife of his close friend, and against the daughter of his maid. He added that he always recused himself when such matters came to trial if there was a problem which he realized or which was called to his attention.
The problem here is one inherent in the often criticized practice of having limited jurisdiction judges who are permitted to practice law, a practice which was retained with limitations in the 1974 Constitution. Nevertheless, a judge who is permitted to practice law must be especially careful to refrain from conduct prejudicial to the administration of justice and to avoid even the appearance of impropriety. Code of Judicial Conduct, Canon 2 (1976).
Signing an arrest warrant is clearly not a purely ministerial duty. The exercise of considerable discretion is involved in determining, on the basis of a citizen's affidavit, whether to sign a document which results in another citizen's arrest. Additional discretion is involved in the attendant setting of bail. The judge exercising such discretion must carefully avoid the appearance that this exercise of discretion is influenced by the judge's professional alignment with the affiant or by the judge's adversary position with the person charged.
Furthermore, a judge's duty to refrain from judicial action which creates the appearance of impropriety does not apply only to action at formal hearing. When a judge takes action in his official capacity against a person who is then his opponent in other pending litigation and there is a close relationship between the pending litigation and the matter in which the judge takes the official action, such action is improper, whether the action is signing a warrant or hearing the case. The misuse or appearance of misuse of judicial power must be avoided at every stage of the proceeding.
Here, respondent's signing, in his judicial capacity, the document which directly caused the arrest of his opponent in pending marital litigation, especially when the criminal charges arose out the marital relationship, gave a significant appearance of impropriety.[5] No such appearance of impropriety flows from a judge's signing a warrant for the arrest of a client, friend or business associate.
Respondent's conduct violated the Code of Judicial Conduct, as set forth in the Commission's conclusions. However, since only the appearance of impropriety was established and since there was no evidence that the charged incident was other than a single occurrence, we conclude that respondent's conduct in Charge III, standing alone, does not warrant any sanction beyond a warning that such conduct is a violation of the Code of Judicial Conduct and should be avoided in the future.
CHARGE I
On May 3, 1986, respondent hit a law enforcement officer at the Crawfish Festival, reviled him and other persons on the festival grounds with obscene language, and proclaimed that he (respondent) "owned this goddamn town".[6] In a subsequent *1089 criminal proceeding in district court, respondent entered a plea of nolo contendere to charges of disturbing the peace and simple battery, being sentenced on the first charge to a fine of $100 and on the second charge to a fine of $200 and a suspended jail term of five days. He performed the community service which was ordered as a condition of probation and did additional community service on a voluntary basis.
This incident involved conduct similar to that in the 1979 pool hall incident, but in several respects was more serious. In addition to the recidivist nature of the conduct, this incident occurred at a popular public festival. Further, the misdemeanor was committed upon a uniformed law enforcement officer by a person well known in the small town as a member of the judiciary. Finally, respondent's assertion that he controlled the town was another indication (very similar to the 1979 incident) of his attitude that he owned, rather than served in, the office to which he has been elected and that he was above the law he had sworn in his oath of office to uphold. This public repetition of "throwing his weight around" is particularly disturbing.
We conclude that respondent's conduct in Charge I violated the Code of Judicial Conduct. We further conclude from the overall record that respondent's persistent and public conduct prejudicial to the administration of justice brought his judicial office into disrepute so as to warrant his suspension without salary. La.Const. art. V, § 25(C). In order for the public to maintain its confidence in the integrity and impartiality of the judiciary, a judge's conduct which undermines that confidence must be punished.
PENALTY
As to the length of the suspension, respondent himself conceded at the formal hearing that a suspension of three months was justified. The Commission, noting that the conduct was persistent over a period of several years despite repeated admonitions followed by expressions of intent to conform to acceptable standards, recommended a suspension of one year without salary.
There was substantial evidence in mitigation which was not mentioned in the Commission's findings and conclusions. Respondent himself reported the Crawfish Festival incident six days after its occurrence (and followed up the next month by reporting his "guilty" plea). In the preliminary investigation, he acknowledged that the pool hall incident and the Crawfish Festival incident were serious mistakes which occurred after he had been drinking alcoholic beverages for a long period of time without eating.[7] He testified that his embarrassment after the latest incident prompted him to consult a psychiatrist, who advised him to abstain totally from alcohol, and that he had not used alcohol since the date of the incident. He tendered *1090 the doctor's name and address and offered to furnish an authorization to release medical information.
At the formal hearing, respondent reiterated that the incidents were alcohol-related and that he had taken steps to prevent recurrance by seeking professional help and by quitting the use of alcohol. There was no evidence of any drinking by respondent in the five months between the Crawfish Festival incident and the formal hearing, or of any misconduct during the period. Respondent also points to, and the record supports, his total cooperation with the Commission throughout the investigation and hearing.
Considering the overall record, including the evidence in mitigation, we conclude that a suspension of six months without salary is appropriate in this case.
Accordingly, Judge W. Glenn Soileau, Judge of the City Court of Breaux Bridge, is hereby suspended from office, without salary, for a period of six months, effective upon the date of finality of this decision.
NOTES
[1] Canons 1, 2 and 3 provide in part:
"CANON 1
"A Judge Should Uphold the Integrity and Independence of the Judiciary
"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of his judicial independence.
"CANON 2
"A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
"A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
"B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.
"CANON 3
"A Judge Should Perform the Duties of His Office Impartially and Diligently" (emphasis added)
[2] The charges, although not numbered in chronological order, will be discussed in the order of occurrence.
[3] The record is not clear whether respondent also signed the arrest warrant on the charge. However, Daly was apparently arrested on the charge since respondent set his bail. The record does establish that the amount of bail is preset for most offenses and that respondent was released on $250 bail after arrest on Daly's charges.
[4] Charge III additionally notified respondent that he had persisted in this type of conduct, referring to a previous discussion with the Commission that resulted in respondent's March 19, 1981 letter to the Commission. That letter dealt with a complaint by an attorney that respondent had threatened to use his power as City Judge to issue a warrant against the attorney's client, while at the same time representing the client's spouse in a community property settlement. At the formal hearing, respondent denied threatening the client (although he conceded he may have said he would obtain a restraining order). No further evidence was introduced, and there was no indication of any relationship between the pending civil action and the alleged threat to use judicial power. We therefore do not consider any conduct relating to this portion of Charge III.
[5] Such conduct could lead a reasonable person to believe that the judge's client filed the non-support charge on the judge's advice relating to the civil litigation and that the judge acted in furtherance of his client's interest by causing the arrest of the judge's adversary in the related litigation. A lay person also might reasonably infer that the lesson to be learned was that it is better to have the judge as your advocate (rather than your opponent) in marital litigation if there is a possibility of criminal prosecution for failure to perform marital obligations.
[6] The officer a deputy sheriff from another parish assigned to assist St. Martin Parish authorities at the Festival, wrote the following letter which was conceded as accurate by respondent:
"On the night of May 3rd, 1986 I was working the Crawfish Festival in Breaux Bridge. While inside the sub-station on the grounds, someone advised that a subject was on the grounds with a three wheeler. At this time Deputy Mike Martin and myself went outside and observed a white male and a black male by a three wheeler. The white male was on the bike.
"Deputy Mike Martin told the white male, that three wheelers where (sic) not allowed on the grounds, and to please park it behind the barricade. At this time the white male got off the bike and the black male got on it. The white male told us that he owned this `god damn town' and that we were `so and so mother fuckers'. I told him that his language was not needed, to just move the three wheeler. At this time the white male swung with his fist and hit me in the chest, then started running. Deputy Martin chased him and had to take him down. The subject was struggling so much that cuffs were used. I caught the black male. We then took both subjects into sub-station and turned them over to a local deputy. After advising the local deputy of what had happened, he asked if I was going to file charges. I told him that I wouldn't file charges, since this was an apparent conflict of local people. The subject being the city judge had no bearing on my decision not to file charges. I was not hurt and under normal circumstance (sic) I do not believe this would have not happened...."
[7] Special counsel for the Commission argued in this court that the excessive drinking worsened, rather than mitigated, the misconduct. We do not excuse excessive drinking by a judge. Rather, we recognize that excessive drinking can underlie other misconduct and that intoxication which impairs a person's capacity to conform his conduct to the requirements of law may under certain circumstances be a mitigating factor. Compare La. C.Cr.P. art. 905.5(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614937/ | 502 So. 2d 176 (1987)
Calvin D. SAVANT, Plaintiff-Appellee,
v.
EMPLOYERS NATIONAL INSURANCE COMPANY, Defendant-Appellant.
No. 86-131.
Court of Appeal of Louisiana, Third Circuit.
February 4, 1987.
*177 Stockwell, Sievert (Jeanne M. Sievert and John S. Bradford), Lake Charles, for defendant-appellant.
Russell T. Tritico, Lake Charles, for plaintiff-appellee.
Before FORET, STOKER and YELVERTON, JJ.
STOKER, Judge.
Employers National Insurance Company appeals a finding that an employee of its insured was permanently and totally disabled in an on-the-job accident, and is therefore entitled to worker's compensation benefits.
FACTS
Calvin Savant was employed as a laborer by the Bechtel Power Company. On April 14, 1981 he was injured when some scaffolding fell and caused him to fall against an anchor bolt. Savant received emergency treatment for a back injury, and sought treatment from an orthopedist a week later. Employers National, Bechtel's insurer, paid compensation benefits until February 1985, at which time they were terminated based on a report from an orthopedic surgeon who examined Savant at the defendant's request, and based also on the failure of Savant to cooperate with his treating physician.
Savant filed suit on February 8, 1985, seeking benefits for permanent and total disability, and penalties and attorney's fees as authorized under LSA-R.S. 23:1201.2. After trial, the judge found that Savant was totally and permanently disabled as a result of a job-related accident. However, he stated that the defendant's failure to pay timely was not arbitrary and capricious, and therefore no penalties or attorney's fees were awarded. The defendant appeals the finding of total and permanent disability, and the finding of a causal connection between the accident and Savant's complaints. The plaintiff appeals the denial of penalties and attorney's fees.
DISABILITY
A worker's compensation claimant must prove that the employment caused his accident, the accident caused injury and the injury caused disability. Harris v. Board of Sup'rs, La. State Univ., 451 So. 2d 1293 (La.App. 1st Cir.1984), writ denied, 458 So. 2d 124 (La.1984). In this case, the occurrence *178 of an accident was not disputed. Employers National argues that the evidence showed that any injuries suffered in the accident resolved within a short period of time, and if Savant is disabled, the disability was not a result of the accident. We cannot disturb the trial court's findings of fact that Savant is disabled and that the accident caused the disability, unless its conclusions are clearly wrong. Washington v. Ameron Automotive Centers, 432 So. 2d 1193 (La.App. 3d Cir.1983).
Five doctors examined the plaintiff. A week after the accident, Savant saw Dr. Campbell. While the doctor found inconsistencies between Savant's complaints and the test results, he found objective symptoms which caused him to state that he could not recommend that Savant return to work. Savant was discharged in August 1981.
Savant was sent to Dr. Schneider by his attorney. Dr. Schneider's diagnosis after Savant's initial visit on May 11, 1985 was an acute contusion spraining injury to the lower lumbar spine, from which he estimated Savant would recover within four to six months. Dr. Schneider threatened to discontinue Savant's treatment at one point due to Savant's failure to lose excess weight that aggravated his back trouble. However, Savant responded to the ultimatum by going on a strict diet and losing a substantial quantity of weight by the date of trial. Dr. Schneider was still treating Savant as of that time. He stated that Savant is disabled, and his current diagnosis is chronic entrapment syndrome of sciatic roots in the lower back. Although the injury could not have caused the amount of narrowing of vertebrae present in the x-rays, he said that, assuming that Savant had no history of back pain, the injury was the factor that precipitated the problem.
Dr. Campbell called in Dr. Shamieh and Dr. Litel. The former did not testify, but apparently he did find objective symptoms to support Savant's complaints. Dr. Litel saw Savant twice, but found no evidence of neurological damage.
Employers National arranged for Savant to see Dr. Morin on January 9, 1985. The doctor found long-standing disc degeneration, which was not related to the accident. He agreed that if Savant had no back complaints before the accident, it would be reasonable to assume that the accident either "created or aggravated a prior non-active condition to flare up."
Though the medical testimony is contradictory, there is sufficient evidence to support the trial judge's conclusion that Savant's accident caused his disability. Savant and his mother testified that he was not experiencing back pain before the accident. Dr. Morin, who examined Savant for evaluation purposes only, was the only doctor who stated that Savant was able to return to work. Both Dr. Campbell and Dr. Schneider found Savant unfit for work. While Dr. Morin was quite adamant about Savant's lack of disability, we cannot say that the trial judge erred in discounting his testimony and favoring that of the treating physicians. We affirm the findings of the trial court.
PENALTIES AND ATTORNEY'S FEES
The trial judge concluded that "the failure to pay timely was not arbitrary and capricious and that penalties and attorney's fees should not be awarded." We agree.
Under LSA-R.S. 23:1201 (E.), a penalty of twelve percent shall be imposed for the failure to pay compensation benefits, except where the employee's right to benefits has been "reasonably controverted" by the employer or his insurer. LSA-R.S. 23:1201.2 provides that an employer or insurer who is found to be arbitrary, capricious or without probable cause in discontinuing payments shall also be taxed with reasonable attorney's fees. The lower court's decision on penalties and attorney's fees is essentially a question of fact, and should not be reversed unless clearly *179 wrong. Johnson v. Distribution & Transp. Co., 485 So. 2d 589 (La.App. 4th Cir.1986); Lucito v. Louisiana Hospital Service, Inc., 392 So. 2d 700 (La.App. 3d Cir.1980).
An injured employee may not be cut off of compensation benefits on the basis of inconclusive medical reports; it is incumbent upon the insurer to make reasonable efforts to ascertain the employee's exact medical condition at the time benefits are terminated. Salvador v. Slidell Industries, Inc., 415 So. 2d 511 (La.App. 1st Cir. 1982). However, when an insurer's termination of compensation is based upon competent medical evidence, the action is not arbitrary and capricious. Wall v. Sisters of Charity of Incarnate Word, 488 So. 2d 1032 (La.App. 2d Cir.1986); Donald v. Big Three Industries, Inc., 426 So. 2d 257 (La. App. 1st Cir.1983), writ denied, 429 So. 2d 157 (La.1983).
In this case, Dr. Norman Morin performed an examination of Savant at the defendant's request. Dr. Morin reported that a "physical examination and x-rays fail to reveal evidence of any residual low back disability which could have resulted from the injury sustained April 14, 1981. Return to his previous occupation as a laborer is no [sic] presently contraindicated than it was prior to this injury." The report was sufficient to controvert Savant's claim of disability, and it was not arbitrary or capricious of Employers National to terminate benefits in light of this evidence, regardless of the judge's disposition of the case. We cannot say that the trial court's denial of penalties and attorney's fees was clearly wrong. Therefore, we affirm that portion of the judgment.
CONCLUSION
The judgment of the trial court, awarding Savant worker's compensation benefits for total and permanent disability, is affirmed. The denial of attorney's fees and penalties is also affirmed. Costs of this appeal are assessed equally between the parties in this appeal.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614905/ | 604 N.W.2d 686 (1999)
237 Mich. App. 629
Tyrrell HOPKINS, Petitioner-Appellee,
v.
MICHIGAN PAROLE BOARD, Respondent-Appellant, and
Oakland County Prosecutor, Intervening Appellant.
Docket No. 213927.
Court of Appeals of Michigan.
Submitted July 13, 1999, at Detroit.
Decided September 24, 1999, at 9:00 a.m.
Released for Publication January 18, 2000.
*688 Stuart G. Friedman, Ann Arbor, for the petitioner.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Bethany L. Scheib, Assistant Attorney General, for the Parole Board
David G. Gorcyca, Prosecuting Attorney, and Diane Dickow D'Agostini, Assistant Prosecuting Attorney, Pontiac, for the Oakland County Prosecutor.
Before GRIBBS, P.J., and SMOLENSKI and GAGE, JJ.
*687 GAGE, J.
Respondent Parole Board appeals by leave granted[1] a circuit court order reversing its decision to deny petitioner Tyrrell Hopkins parole. We reverse.
On April 21, 1988, petitioner pleaded guilty to charges of armed robbery, M.C.L. § 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). He received a sentence of two to twenty years' imprisonment for the armed robbery conviction, to be served consecutively to a two-year sentence for the felony-firearm conviction. After becoming eligible for parole, petitioner was denied parole several times.
Petitioner's most recent parole eligibility determination occurred on January 29, 1998, when respondent again denied petitioner parole. In a Notice of Action, respondent explained that, "having considered the facts and circumstances including the prisoner's mental and social attitude," it lacked reasonable assurance that petitioner did not represent a menace to society or the public safety. Respondent further listed the following reasons supporting its decision: (1) petitioner's crime was assaultive in nature, arose in a multiple-offender situation, and involved a dangerous weapon, (2) petitioner failed in prior postconviction court-ordered juvenile programs, (3) petitioner had a history of substance abuse, and (4) petitioner's social history indicated an unstable domestic history. Respondent recommended that to facilitate parole in the future, petitioner should "[d]emonstrate positive change by working towards reduction in security classification," and "[p]rovide additional demonstration of positive prison behavior during the [twelve-month] period of the continuance."
On February 25, 1998, petitioner sought leave to appeal to the Oakland Circuit Court, which granted leave. On August 5, 1998, the circuit court found that respondent had abused its discretion in denying petitioner parole. The court reasoned that the four factors stated in the Notice of Action were insufficient to support the parole denial because they were based on facts that were ten years old and therefore had little or no bearing on whether petitioner would pose a danger to society if released on parole. The court additionally noted that "in every instance Petitioner was considered for parole, the Parole Board member who conducted the [predecision] interview voted to grant parole." Thus, the court reversed respondent's decision and remanded to respondent with instructions that it parole petitioner within twenty-eight days. On August 31, 1998, the circuit court denied respondent's motion for a stay of the court's order that it grant petitioner parole. On the same day, however, this Court granted respondent's motions for immediate consideration and leave to appeal, and also granted a stay of the circuit court's order reversing respondent's parole denial.
I
Respondent and the prosecutor now argue that the circuit court erred in finding that respondent abused its discretion in denying petitioner parole. Respondent and the prosecutor contend that the circuit court failed to consider petitioner's *689 entire record, which they argue supports respondent's conclusion that it lacked reasonable assurance that petitioner, if released, would not become a menace to society or to the public safety.
The Legislature has entrusted to the Parole Board the decision whether to grant or deny parole. MCL 791.234(8); MSA 28.2304(8). The Parole Board's decision whether to parole a prisoner is reviewed for a "clear abuse of discretion." MCR 7.104(D)(5)(b); In re Parole of Roberts, 232 Mich.App. 253, 257, 591 N.W.2d 259 (1998). Generally, an abuse of discretion is found where an unprejudiced person, considering the facts on which the decisionmaker acted, would say there is no justification or excuse for the ruling. People v. Ullah, 216 Mich.App. 669, 673, 550 N.W.2d 568 (1996). The board's discretion is limited, however, by statutory guidelines, and whether it abused its discretion must be determined in light of the record and these statutory requirements. In re Parole of Johnson, 219 Mich.App. 595, 598, 556 N.W.2d 899 (1996). First and foremost, the board may not grant a prisoner liberty on parole until it "has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety." MCL 791.233(1)(a); MSA 28.2303(1)(a). An aggrieved party bears the burden of demonstrating an abuse of discretion, and the reviewing court may not substitute its judgment for that of the Parole Board. MCR 7.104(D)(5); Wayne Co. Prosecutor v. Parole Bd., 210 Mich.App. 148, 153-154, 532 N.W.2d 899 (1995).
While the circuit court found that the four reasons stated by respondent were insufficient to support respondent's decision, it failed to consider the portions of petitioner's prison record that respondent submitted for consideration pursuant to MCR 7.104(D)(4)(c). In the event of an appeal of a Parole Board decision, MCR 7.104(D)(4)(c) specifically requires that respondent forward to the circuit court "the prisoner's central office file at the Department of Corrections, and any other documents considered by the parole board in reaching its decision." Our review of petitioner's prison record reveals that since his incarceration in 1988, he has received at least sixty-eight misconduct citations. Ten of these citations were issued within the last five years for "major misconducts" including insolence, threatening behavior, disobeying a direct order, assault and battery, and interference with administration of rules. His prison record further indicates that during the last five years he received two security classification increases and that petitioner has a "Very High" assaultive risk classification and a "High" property risk classification. Respondent clearly contemplated this information in determining whether to grant petitioner parole; this information appears within a parole guideline scoresheet prepared within two weeks before respondent's decision. Furthermore, respondent's concern regarding petitioner's prison record is reflected in respondent's Notice of Action recommendations that petitioner reduce his security classification and demonstrate additional positive prison behavior. Considering petitioner's significant prison misconduct together with the violent and assaultive nature of his underlying convictions, we cannot conclude that respondent abused its discretion in finding that no reasonable assurance existed that petitioner would not become a menace to society or to the public safety if released on parole. While petitioner's prison behavior may have begun to improve since his previous parole denial, we do not find that respondent unjustifiedly required that petitioner evidence a longer period of satisfactory prison behavior before respondent releases him on parole. Because the circuit court improperly substituted its judgment for that of respondent, Wayne County Prosecutor, supra, we reverse the circuit court order reversing respondent's denial of petitioner's parole.
*690 II
Respondent and the prosecutor also assert that, even assuming respondent abused its discretion in denying petitioner parole, the circuit court lacked authority to order respondent to release petitioner on parole because such an order violates the constitutional separation of powers doctrine.[2] Whether a violation of the separation of powers doctrine has occurred is a question of law that we review de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). Given our decision to reverse the circuit court's order, it is unnecessary that we decide this issue. We will address the issue, however, because it is of public significance and is likely to recur in the future.[3]Meyers v. Patchkowski, 216 Mich.App. 513, 519, 549 N.W.2d 602 (1996); People v. Briseno, 211 Mich.App. 11,17, 535 N.W.2d 559 (1995). Moreover, although the trial court did not explicitly rule on this issue, we may nonetheless consider it for the first time on appeal because it is a question of law and the parties have presented all the necessary facts. D'Avanzo v. Wise & Marsac, PC, 223 Mich.App. 314, 326, 565 N.W.2d 915 (1997).
The Michigan Constitution provides for the separation of the three branches of government as follows:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const. 1963, art. 3, § 2.]
This separation of powers intends to preserve the independence of the three branches of government. In re 1976 PA 267, 400 Mich. 660, 662, 255 N.W.2d 635 (1977). "`[W]here the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.' " Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 752, 330 N.W.2d 346 (1982) (emphasis in original), quoting The Federalist No. 47 (J. Madison). The separation of powers doctrine does not, however, require so strict a separation as to provide no overlap of responsibilities and powers. Judicial Attorneys Ass'n v. Michigan, 459 Mich. 291, 296, 586 N.W.2d 894 (1998). If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible. Id. at 296-297, 586 N.W.2d 894; Mayor of City of Detroit v. Michigan, 228 Mich.App. 386, 410-411, 579 N.W.2d 378 (1998), vacated in part on other grounds Judicial Attorneys Ass'n v. Michigan, 460 Mich. 590, 597 N.W.2d 113 (1999).
The Department of Corrections originated within chapter 12 of the Executive Organization Act, M.C.L. § 16.375; MSA 3.29(275), and represents an administrative agency within the executive branch of Michigan's government. Const. 1963, art. 5, § 2; People v. Young, 206 Mich.App. 144,149, 521 N.W.2d 340 (1994), rev'd on other grounds sub nom Wayne Co. Prosecutor v. Dep't of Corrections, 451 Mich. 569, 548 N.W.2d 900 (1996); Collins v. Director, Dep't of Corrections, 153 Mich.App. 477, 481, 395 N.W.2d 77 (1986); Penn v. Dep't of Corrections, 100 Mich.App. 532, 298 N.W.2d 756 (1980). The Parole Board was established as an entity within the Department of Corrections. MCL *691 791.231a; MSA 28.2301(1). Pursuant to a legislative grant of authority, the Department of Corrections possesses sole jurisdiction over questions of parole.
Subject to constitutional powers vested in the executive and judicial departments of the state, the department shall have exclusive jurisdiction over the following: (a) Probation officers of this state, and the administration of all orders of probation, (b) pardons, reprieves, commutations and paroles, and (c) penal institutions, correctional farms, probation recovery camps, prison labor and industry, wayward minor programs and youthful trainee institutions and programs for the care and supervision of youthful trainees. [MCL 791.204; MSA 28.2274 (emphasis added).]
"The release of a prisoner on parole shall be granted solely upon the initiative of the parole board." MCL 791.235(1); MSA 28.2305(1). Furthermore, specific determinations whether to release prisoners on parole rest within the Parole Board's discretion. MCL 791.234(8); MSA 28.2304(8). Accordingly, pursuant to these provisions, the executive branch, specifically the Parole Board, possesses exclusive discretion to grant or deny parole.
Generally, three potential avenues of review exist by which an aggrieved party may challenge an administrative body's decision: (1) review pursuant to a procedure specified in a statute applicable to the particular agency, (2) the method of review for contested cases under the Administrative Procedures Act (APA), M.C.L. § 24.201 et seq.; MSA 3.560(101) et seq., or (3) an appeal pursuant to § 631 of the Revised Judicature Act, M.C.L. § 600.631; MSA 27A.631, and Const. 1963, art. 6, § 28,[4] in conjunction with MCR 7.104(A). Attorney General v. Public Service Comm., 237 Mich.App. 82, 602 N.W.2d 225 (1999). We note that the APA does not apply to the review of the instant Parole Board decision whether to grant parole because the APA prescribes a standard of review applicable to "contested cases," M.C.L. § 24.301; MSA 3.560(201), which are defined as proceedings "in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing." MCL 24.203(3); MSA 3.560(103)(3). In this case, no hearing was required before the Parole Board reached its decision whether to parole petitioner. Pursuant to the statutes governing the Parole Board, only a predecision interview may be required, M.C.L. § 791.235; MSA 28.2305, unless the parole determination involves "[a] prisoner under sentence for life or for a term of years ... who has served 10 calendar years of the sentence...." MCL 791.234(6)(b); MSA 28.2304(6)(b); Wayne Co Prosecutor v. Parole Bd, supra at 153, 532 N.W.2d 899. Furthermore, the constitutional standard of review does not apply to this case, which involves neither a decision affecting a private right or license nor an evidentiary hearing. Id. at 152-153, 532 N.W.2d 899.
The Parole Board's discretionary determinations whether to grant parole are not, however, insulated from any judicial involvement or oversight. MCL 791.234(8); MSA 28.2304(8) provides that a prisoner, prosecutor, or crime victim may seek leave to appeal the Parole Board's decision in the circuit court. The circuit court's review is limited to ascertaining whether *692 the decision of the parole board was
(a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to M.C.L. § 24.207; MSA 3.560(107), or
(b) a clear abuse of discretion. [MCR 7.104(D)(5).]
MCR 7.104(D)(7) and (8) further explain that the circuit court may return a matter to the Parole Board and require that it undertake certain actions:
(7) Motion to Remand. On timely motion by a party, or on the court's own motion, the court may remand the matter to the parole board for an explanation of its decision. The parole board shall hear and decide the matter within 28 days of the date of the order, unless the board determines that an adjournment is necessary to obtain evidence or that there is other good cause for an adjournment. The time to file briefs on appeal under MCR 7.104(D)(4)(d) is tolled while the matter is pending on remand.
(8) Parole Board Responsibility After Reversal or Remand. If a decision of the parole board is reversed or remanded, the board shall review the matter and take action consistent with the circuit court's decision within 28 days. If the circuit court order requires the board to undertake further review of the file or to reevaluate its prior decision, the board shall provide the parties with an opportunity to be heard. An appeal to the Court of Appeals does not affect the board's jurisdiction to act under this subsection. [Emphasis added.]
These provisions clearly contemplate some judicial review of Parole Board decisions.
Respondent and the prosecutor contend that the circuit court in this instance exceeded the scope of permissible judicial review and infringed on the Parole Board's exclusive authority to parole prisoners when it specifically ordered that on remand the Parole Board release petitioner. Our resolution of this issue requires that we apply the rules of statutory construction, which also apply to court rules. McAuley v. General Motors Corp., 457 Mich. 513, 518, 578 N.W.2d 282 (1998). The primary rule of statutory construction is to determine and effectuate the intent of the Legislature through reasonable construction in consideration of the purpose of the statute and the object sought to be accomplished. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). Discerning the drafters' intent begins with an examination of the language employed. People v. Borchard-Ruhland, 460 Mich. 278, 284, 597 N.W.2d 1 (1999). If the plain and ordinary meaning of the language is clear, the statute or rule must be enforced as written; no further judicial construction is required or permitted. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999).
Our consideration and analysis of the language within various provisions of chapter III of the Department of Corrections act, M.C.L. § 791.231 et seq.; MSA 28.2301 et seq., and within MCR 7.104(D) compels us to conclude that the circuit court acted beyond its authority in specifically ordering petitioner's parole, thus violating the constitutional separation of powers doctrine. We first note that the Legislature conferred on the Department of Corrections "exclusive jurisdiction" over paroles. MCL 791.204(b); MSA 28.2274(b) (emphasis added). "Exclusive" is defined within Black's Law Dictionary (6th ed.)[5] as
[a]ppertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone. Apart from all others, without the admission of others to participation.
*693 Similarly, M.C.L. § 791.235(1); MSA 28.2305(1) provides for a grant of parole "solely upon the initiative of the parole board." (Emphasis added.) "Sole" signifies "[s]ingle; individual; separate; the opposite of joint.... Comprising only one person; the opposite of aggregate.... Without another or others." Black's Law Dictionary, supra. This statutory language clearly and unambiguously vests the Department of Corrections and the Parole Board, executive branch entities, with the right "apart from all others" to grant prisoners parole.
Petitioner appears to argue that the legislative provision for circuit court review, M.C.L. § 791.234(8); MSA 28.2304(8), would be inconsequential unless the term "reverse" within MCR 7.104(D)(8) were construed as giving the circuit court the right to order the Parole Board to release a prisoner on finding that the board abused its discretion in denying parole. According to petitioner, a conclusion that the circuit court cannot order respondent to parole a prisoner would render judicial review meaningless and create the absurd result of permitting the Parole Board to maintain a position even after that position has been deemed an abuse of discretion. MCR 7.104(D)(8) contemplates that a Parole Board decision whether to grant parole may be reversed or the matter may be remanded. In reversing a Parole Board decision, the circuit court simply undoes it; to "reverse" means
[t]o overthrow, vacate, set aside, make void, annul, repeal, or revoke; as, to reverse a judgment, sentence or decree of a lower court by an appellate court, or to change to the contrary or to a former condition. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error. [Black's Law Dictionary, supra (citations omitted).][6]
In remanding a decision to the Parole Board, the circuit court does not specifically overrule it, but simply returns it to the Parole Board for some further consideration or activity. To "remand" is
[t]o send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some other further action. Id.
Thus, while petitioner suggests the court rule's language anticipating reversal and requiring the Parole Board to "take action consistent with the circuit court's decision" must imply that circuit courts are able to order prisoners' releases, no language within the rule contemplates that courts have this power.
Furthermore, petitioner's contention that, without the power to grant parole, the circuit court's judicial review is meaningless lacks merit. That circuit court review of Parole Board decisions is limited does not render it meaningless. While the Parole Board has broad discretion in determining whether to grant a prisoner parole, this discretion remains subject to legislative restraints.[7]In re *694
*695 Parole of Johnson, supra at 597-599, 556 N.W.2d 899. Pursuant to MCR 7.104(D)(5), the circuit court may review the Parole Board's decision to ensure that the board complied with the constitution, the statutory provisions, and applicable administrative rules, and, if so, that the board did not otherwise commit a clear abuse of discretion. As MCR 7.104(D)(8) contemplates, the court may reverse the Parole Board's decision or order further action consistent with the applicable constitutional, statutory, and administrative provisions. While the court may order that the Parole Board conform its conduct to the applicable provisions, no applicable provision authorizes the court to order that the Parole Board release a prisoner on parole.
Because the Parole Board possesses the Department of Corrections' exclusive jurisdiction over parole matters and because the judiciary may exercise only limited review of Parole Board decisions, which review does not encompass the authority to order prisoners' parole, the circuit court's order that respondent release petitioner violated the constitution. Const. 1963, art. 3, § 2. The court improperly exceeded the limited scope of its review and assumed the executive's prerogative with respect to whether petitioner should be granted parole.[8] Petitioner maintains that our decision creates the absurd situation in which, "if the court's only recourse is to remand the matter back to the Parole Board without also having the authority to order the Board to take action consistent with the order of the court .... the `ping pong'[[9]] game could continue indefinitely *696 without a resolution." Petitioner's imagined situation seems to presume an antagonistic relationship between the circuit court and the Parole Board and a blind, stubborn adherence by both the circuit court and the Parole Board to a particular position; we will not assume the existence of such a relationship or such behavior. In re Casella, 313 Mich. 393, 401, 21 N.W.2d 175 (1946) (Courts may not assume that clearly defined powers and duties of administrative officers will be abused, or that the duties as prescribed by law will not be observed.). More importantly, to the extent that our decision does result in the repeated travel of a prisoner seeking parole from the Parole Board to the circuit court and back again, this result is required because the Legislature has empowered respondent with the exclusive authority to grant parole. The circuit court may not constitutionally compel the Parole Board to exercise its executive authority by releasing a prisoner on parole. Our sanction of the circuit court's behavior in this manner would require that we ignore the "`indispensable ingredient of the concept of coequal branches of government... that "each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches."'" Judicial Attorneys Ass'n, supra, 459 Mich. at 304-305, 586 N.W.2d 894 quoting Employees & Judge of the Second Judicial Dist. Court v. Hillsdale Co., 423 Mich. 705, 717, 378 N.W.2d 744 (1985), quoting United States v. Will, 449 U.S. 200, 228, 101 S. Ct. 471, 66 L. Ed. 2d 392 (1980).
Reversed.
NOTES
[1] This Court also granted the Oakland County Prosecutor's motion to intervene.
[2] Respondent additionally states that "a Circuit Court may not order the Michigan Parole Board to release an inmate on parole because such an order would constitute a ... violation of the indeterminate sentencing rule." Because respondent has failed to argue the merits of this issue in its brief, however, we will not consider this assertion. Meagher v. Wayne State Univ., 222 Mich.App. 700, 718, 565 N.W.2d 401 (1997).
[3] Indeed, this identical issue has arisen in another appeal assigned to this same panel's case call.
[4] This constitutional section, titled "Administrative action, review," states in relevant part as follows:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. [Const. 1963, art. 6, § 28.]
[5] Reference to a dictionary is appropriate to ascertain the ordinary meaning of a word. Popma v. Auto Club Ins. Ass'n, 446 Mich. 460, 470, 521 N.W.2d 831 (1994).
[6] See also "Reversal": "The annulling or setting aside by an appellate court of a decision of a lower court." Black's Law Dictionary,supra.
[7] Statutory provisions limiting the Parole Board's discretion include M.C.L. § 791.233(1); MSA 28.2303(1), which conditions the board's grant of parole as follows:
(a) A prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety.
(b) Except as provided in section 34a [involving special alternative incarceration units], a parole shall not be granted to a prisoner other than a prisoner subject to disciplinary time until the prisoner has served the minimum term imposed by the court less allowances for good time or special good time to which the prisoner may be entitled by statute, except that a prisoner other than a prisoner subject to disciplinary time is eligible for parole before the expiration of his or her minimum term of imprisonment whenever the sentencing judge ... gives written approval of the parole of the prisoner before the expiration of the minimum term of imprisonment.
(c) Except as provided in section 34a, and notwithstanding the provisions of subdivision (b), a parole shall not be granted to a prisoner other than a prisoner subject to disciplinary time sentenced for the commission of a crime described in section 33b(a) to (cc) until the prisoner has served the minimum term imposed by the court less an allowance for disciplinary credits as provided in section 33(5) of 1893 PA 118, M.C.L. § 800.33 [MSA 28.1403]. A prisoner described in this subdivision is not eligible for special parole.
(d) Except as provided in section 34a, a parole shall not be granted to a prisoner subject to disciplinary time until the prisoner has served the minimum term imposed by the court.
(e) A prisoner shall not be released on parole until the parole board has satisfactory evidence that arrangements have been made for such honorable and useful employment as the prisoner is capable of performing, for the prisoner's education, or for the prisoner's care if the prisoner is mentally or physically ill or incapacitated.
(f) A prisoner whose minimum term of imprisonment is 2 years or more shall not be released on parole unless he or she has either earned a high school diploma or earned its equivalent in the form of a general education development (GED) certificate....
Pursuant to MCR 791.233e; MSA 28.2303(6), the Parole Board's discretionary decisions are governed by parole guidelines located at 1996 AACS, R 791.7715, R 791.7716. MCL 791.235; MSA 28.2305 also places limitations on the Parole Board:
(1) The release of a prisoner on parole shall be granted solely upon the initiative of the parole board. The parole board may grant a parole without interviewing the prisoner. However, beginning on the date on which the administrative rules prescribing parole guidelines pursuant to section 33e(5) take effect, the parole board may grant a parole without interviewing the prisoner only if, after evaluating the prisoner according to the parole guidelines, the parole board determines that the prisoner has a high probability of being paroled and the parole board therefore intends to parole the prisoner. Except as provided in subsection (2), a prisoner shall not be denied parole without an interview before 1 member of the parole board.... The parole board shall consider any statement made to the parole board by a crime victim.... The parole board shall not consider any of the following factors in making a parole determination:
(a) A juvenile record that a court has ordered the department to expunge.
(b) Information that is determined by the parole board to be inaccurate or irrelevant after a challenge and presentation of relevant evidence by a prisoner who has received a notice of intent to conduct an interview....
(2) ... [I]f, after evaluating a prisoner according to the parole guidelines, the parole board determines that the prisoner has a low probability of being paroled and the parole board therefore does not intend to parole the prisoner, the parole board shall not be required to interview the prisoner before denying parole to the prisoner.
(3) The parole board may consider but shall not base a determination to deny parole solely on either of the following:
(a) A prisoner's marital history.
(b) Prior arrests not resulting in conviction or adjudication of delinquency.
(4) If an interview is to be conducted, the prisoner shall be sent a notice of intent to conduct an interview at least 1 month before the date of the interview. The notice shall state the specific issues and concerns that shall be discussed at the interview and that may be a basis for a denial of parole. A denial of parole shall not be based on reasons other than those stated in the notice of intent to conduct an interview except for good cause stated to the prisoner at or before the interview and in the written explanation required by subsection (12)....
(5) Except for good cause, the parole board member conducting the interview shall not have cast a vote for or against the prisoner's release before conducting the current interview. Before the interview, the parole board member who is to conduct the interview shall review pertinent information relative to the notice of intent to conduct an interview.
* * * * * *
(7) ... [A] parole eligibility report shall be prepared by appropriate institutional staff. The parole eligibility report shall be considered pertinent information for purposes of subsection (5)....
* * * * * *
(10) The parole board may grant a medical parole for a prisoner determined to be physically or mentally incapacitated. A decision to grant a medical parole ... shall be reached only after a review of the medical, institutional, and criminal records of the prisoner.
* * * * * *
(12) When the parole board makes a final determination not to release a prisoner, the prisoner shall be provided with a written explanation of the reason for denial and, if appropriate, specific recommendations for corrective action the prisoner may take to facilitate release.
[8] For an example of a more limited, constitutional judicial involvement in the primarily executive parole determination, see Collins, supra. The plaintiff in Collins argued that M.C.L. § 791.234(4)(b) (now [6][b]); MSA 28.2304(4)(b) (now [6][b]), which permitted the sentencing judge in certain circumstances to block a prisoner's parole by objecting in writing, improperly vested the judiciary with executive powers. Collins, supra at 481, 395 N.W.2d 77. This Court rejected the plaintiff's argument, concluding that the Legislature may create a parole system primarily within the executive branch of government which, in specific limited categories of cases, is subject to a judicial veto, without being in violation of the constitutional separation of powers doctrine:
In the case before us, the statute in question vests a limited, intermediate function in a judge to temporarily veto the granting of parole in a limited category of cases, subject to the final power of the Governor as the chief executive officer to release by pardon or commutation of sentence. Thus, in each case the chief executive officer, in his discretion, may release the prisoner. The Governor makes the final decision as to release pursuant to the constitutional mandate of Const. 1963, art. 5, § 14. The statute in question does not permit a judge to order the release of a prisoner on parole. The statute merely vests in a judge the power to veto the release of a prisoner on parole, or in other words, to continue the execution of the life sentence previously imposed by such judge or his predecessor. Objection to release on parole is not the amendment of a valid sentence without constitutional or statutory authority. It is the exercise of a specific, limited statutory function. [Collins, supra at 482, 395 N.W.2d 77 (emphasis added).]
The Collins Court's decision was reaffirmed in People v. Raihala, 199 Mich.App. 577, 580-581, 502 N.W.2d 755 (1993). The limited, temporary judicial parole veto power involved in Collins is distinguishable from the instant circuit court's usurpation of the Parole Board's ultimate authority to either grant or deny parole.
[9] Petitioner quotes the circuit court, which apparently imagined an endless, unbreakable series of disagreements between the court and the Parole Board:
The Court: Suppose I had not ordered the Parole Board to release [petitioner] ...
Respondent's counsel: Yes, your Honor.
The Court:... but I had found that the Parole Board abused it's [sic] discretion and he should be released, what's the next step?
Respondent's counsel: That's one in the same thing. If you had foundour argument
The Court: How does the guy get out?
* * * * * *
Wait. How does he get out?
Respondent's counsel: He gets out upon reconsideration of the Michigan Parole Board.
If you had found an abuse of discretion, remanded it back to the Parole Board for reconsideration, they could at that time review him and make another decision on whether to release him on parole. By you usurping the
The Court: What happens
Petitioner's counsel: Within 28 days.
The Court: What happens if they decide in their reconsideration that they were justified and they want to keep him; then what happens?
Respondent's counsel: Then he does not get released on parole.
The Court: Then he comes back to me.
Respondent's counsel: Yes, he does, your Honor.
The Court: And I make the same ruling and he goes back to you.
Respondent's counsel: That's exactly what happens, your Honor.
The Court: You're playing ping pong.
Respondent's counsel: Pardon?
The Court: You're playing ping pong with this guy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614974/ | 23 So. 3d 717 (2009)
BATES
v.
STATE.
No. 2D08-5892.
District Court of Appeal of Florida, Second District.
December 11, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614963/ | 502 So. 2d 422 (1987)
Phillip BLOOM, Judge, Etc., Petitioner,
v.
Charles McKNIGHT, Respondent.
No. 68401.
Supreme Court of Florida.
January 5, 1987.
Rehearing Denied March 9, 1987.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for petitioner.
Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, Miami, for respondent.
PER CURIAM.
We have for review McKnight v. Bloom, 490 So. 2d 92 (3rd DCA 1986), in which the Third District Court of Appeal granted McKnight's petition for writ of prohibition, finding that he had been denied his right to a speedy trial and was entitled to automatic discharge under Florida Rule of Criminal Procedure 3.191(a)(1). Florida's speedy trial rule, as amended effective January 1, 1985, no longer provides for automatic discharge. Rule 3.191(i)(4) now gives the state fifteen days in which to bring a defendant to trial after the filing of his motion for discharge. The court found this amended version of the rule inapplicable and certified the following question as one of great public importance:
Whether Fla.R.Crim.P. 3.191(i)(4) is applicable to a criminal case wherein the defendant *423 is taken into custody prior to January 1, 1985, 12:01 A.M., the effective date of the above-stated rule?
490 So.2d at 93. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
The Third District Court of Appeal sitting en banc in Zabrani v. Cowart, 502 So. 2d 1257 (Fla. 3rd DCA 1986), recently overruled its decision in the instant case. Relying on State ex rel. Maines v. Baker, 254 So. 2d 207 (Fla. 1971), the court recognized that the speedy trial rule is procedural in nature, and that, in accordance with State v. Jackson, 478 So. 2d 1054 (Fla. 1985), and Lowe v. Price, 437 So. 2d 142 (Fla. 1983), the rule in effect at the time of the proceeding dictates the result. The court then turned to the "determination of the relevant `proceeding' or, otherwise stated, the `operative event' to which the rule is to be applied," Zabrani, 502 So.2d at 1258, noting that
[w]hile the event which triggers the speedy trial time should be decisive in computing the length of that period ...[,] the ultimate question in this case is far different. It is the effect to be given a motion for discharge made after the period has already run: whether, as under the old rule, the defendant is to be released forthwith, or, as under the new one which was specifically enacted expressly to obviate the perceived abuse of immediate discharge, see Fla.R.Crim.P. 3.191 committee note (1984), reprinted in 33 F.S.A. Rule 3.191, at 191 (West Supp. 1986) the state is given an opportunity then to try him.
Id. at 1258-1259 (footnote omitted). Reasoning that a defendant who has been denied a speedy trial is not entitled to a discharge until he files a timely motion therefor, the court concluded that the motion itself is the "operative event" which determines which version of the speedy trial rule applies. We agree with this reasoning and adopt it as our own. Accordingly, we answer the certified question in the affirmative to the extent expressed herein and quash the decision below.
It is so ordered.
McDONALD, C.J., and ADKINS, BOYD, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614953/ | 502 So. 2d 314 (1986)
David Warren BONDERER
v.
Helen Dian ROBINSON.
No. 56541.
Supreme Court of Mississippi.
October 15, 1986.
Rehearing Denied February 25, 1987.
*315 Margaret P. Ellis, C.R. McRae, Pascagoula, for appellant.
Karl Wiesenburg, Pascagoula, for appellee.
Before HAWKINS, P.J., and DAN M. LEE and SULLIVAN, JJ.
DAN M. LEE, Justice, for the Court:
This case presents the familiar question of whether the chancellor below erred in denying modification of the ex-husband's alimony obligations.
David Warren Bonderer and Helen Dian Robinson were divorced in the Chancery Court of Jackson County by decree dated March 21, 1980 on the grounds of habitual cruel and inhuman treatment. This decree provided for custody of the two children and use and possession of the family residence as well as child support and alimony. The decree was affirmed by this Court on appeal without an opinion. Bonderer v. Bonderer, 395 So. 2d 969 (Miss. 1981).
Upon petition and cross-petition the chancellor on January 5, 1983 modified visitation and use and possession provisions of the original decree, also requiring Ms. Robinson to begin paying one-half of the mortgage payments and property taxes and insurance. On April 18, 1983, David Warren Bonderer petitioned for relief from his alimony obligations alleging that Ms. Robinson's involvement in illicit relationships amounted to a material and substantial change in circumstances. Bonderer amended his petition March 30, 1984, again seeking termination of alimony and also seeking to be free of all responsibility for mortgage payments, property taxes and insurance if the court would not order the residence to be put on the market for sale. Helen Dian Robinson answered and counterclaimed seeking modification of child support and exclusive use and possession of the former family residence. After a hearing, the court, by order dated November 2, 1984, denied Bonderer's requested relief from alimony obligations. The court terminated Ms. Robinson's exclusive use of the residence, and increased child support on a temporary basis until reconsideration in the April, 1985 term of court. Finally, the court required the parties to submit a proposal for a rehabilitative program to correct the deteriorated nature of the relationship between the parties and its effect on the children. The court decreed that a guardian ad litem would be appointed if the parties failed to submit the plan. From this decree, Bonderer appeals assigning the following errors:
I.
ALTHOUGH THE COURT FOUND THAT THE APPELLEE'S CONDUCT CONSTITUTED A MATERIAL CHANGE IN CIRCUMSTANCES, THE COURT ERRED IN FINDING THAT THE ALIMONY WAS LUMP SUM AND COULD NOT BE TERMINATED.
II.
THE COURT ERRED IN NOT GRANTING APPELLANT'S ATTORNEY'S FEES AND COSTS.
We hold that the chancellor erred in finding that the alimony was lump sum. However, since we find that the chancellor reached the correct result in attempting to end the seemingly perpetual litigation between these parties, we affirm.
FACTS
The facts weighing on this appeal are relatively simple. The decree granting the couple's divorce provided in part:
ORDERED, ADJUDGED AND DECREED that the defendant pay to the complainant the sum of $600.00 per month for three years; that the defendant pay to the complainant for the next succeeding three years thereafter the sum of $400.00 per month; that the defendant pay to the complainant for the next succeeding three years thereafter the sum of $300.00 per month; and for *316 the final three year period next succeeding the sum of $100.00 per month.
Much of the testimony at the two-day hearing related to Ms. Robinson's sexual conduct. Suffice it to say there was ample uncontradicted testimony to support the chancellor's finding that
Mrs. Robinson has engaged in sexual relations with two or three men since the last hearing and such has occurred with regularity for an extended period of time with one of the men.
However, the chancellor was of the opinion that the alimony awarded in the original decree was lump sum, rather than periodic, and therefore not subject to modification. There was additional testimony concerning child support and testimony bearing on Ms. Robinson's continued exclusive use of the former family residence. Bonderer here does not question that part of the chancellor's decree increasing, at least temporarily, monthly child support payments. The chancellor noted that the purpose of awarding Ms. Robinson exclusive use and possession of the family residence had been accomplished. Ms. Robinson had completed training as contemplated by the original decree and at the time of the hearing she was employed as a school teacher. In terminating her exclusive use and possession, the chancellor ordered that either party could seek partition of the property after November 1, 1984 if the parties could not agree on disposal of the property. The chancellor relieved Bonderer from any responsibility for mortgage and insurance payments and taxes.
There was evidence introduced to attempt to show that the parties were using the children to get at each other, and this perhaps led the chancellor to order remedial measures to correct what the chancellor saw as a deteriorated relationship.
LAW
The chancellor erred by holding that the alimony was lump sum or in gross. In Sharplin v. Sharplin, 465 So. 2d 1072, 1073 (Miss. 1985), we stated that "unless the decree by clear and express language imports lump sum alimony, or alimony in gross" the award should be construed as periodic. (citing Wray v. Wray, 394 So. 2d 1341, 1345 (Miss. 1981)). The alimony provision here was not clear and did not expressly import lump sum alimony although the parties seemingly treated it as such.
This does not end the discussion, however. We stated in Owen v. Gerity, 422 So. 2d 284 (Miss. 1982) that merely proving that an alimony recipient engaged in sexual relations does not automatically require termination.
In such a case, the chancellor, as the trier of fact, has the duty to find whether or not the alleged misconduct of the former wife is of such a nature as to forfeit her right to future alimony. This question must be faced on a case-by-case basis.
422 So.2d at 287. The chancellor's finding did not make clear whether he thought the misconduct was "of such a nature as to forfeit her right to future alimony."
However, we do not think it necessary to remand this case to obtain the chancellor's opinion as we said in Tutor v. Tutor, 494 So. 2d 362 (Miss. 1986) (citing Gresham v. Gresham, 198 Miss. 43, 48, 21 So. 2d 414, 416 (1945)):
This Court has the power to affirm, reverse, or modify the decree appealed from, or it may reverse in part and affirm in part or remand for a new hearing, and where all the facts necessary to enable it to do justice are contained in the record, it may make such order with respect to alimony or allowances as the trial court should have made. The essential facts are in the record. There would seem no need to remand the cause.
Taking the record and the chancellor's findings and conclusions as a whole, it is clear that the chancellor tried to put an end to the seemingly unending litigation between these parties. We are of a like mind.
Both sides got part of what they wanted. Ms. Robinson obtained an increase in child support, at least temporarily. Bonderer *317 was released from all financial responsibility for the residence and he may partite the property if he has not already done so. The chancellor might have taken into consideration that the monthly payments and exclusive possession by Ms. Robinson of the marital residence may be construed as continuing alimony. See e.g. Boykin v. Boykin, 445 So. 2d 538 (Miss. 1984); McIlwain v. McIlwain, 441 So. 2d 517 (Miss. 1983); Rhodes v. Rhodes, 336 So. 2d 1315 (Miss. 1976); Savell v. Savell, 290 So. 2d 621 (Miss. 1974). On balance, this seems to be an equitable solution. Certainly we are not required to leave our common sense at home. Kavanaugh v. Carraway, 435 So. 2d 697, 700 (Miss. 1983). The chancellor's solution makes sense.
We cannot say that the chancellor was manifestly wrong in denying Bonderer's request for modification payments. The chancellor might have assigned the wrong reason, but that does not prevent us from affirming on appeal. Allgood v. Bradford, 473 So. 2d 402, 411 (Miss. 1985); Tedford v. Dempsey 437 So. 2d 410, 418 (Miss. 1983); Huffman v. Griffin, 337 So. 2d 715, 723 (Miss. 1976).
The chancellor no doubt by this time has made appropriate orders regarding child support and the plan to rehabilitate the parties' relationship. The fact that these two items had not been resolved demonstrates the untimeliness of the appeal taken to this Court. If these matters have not been finally resolved we assume the chancellor would deal with them as soon as possible.
Bonderer also assigns as error that the chancellor denied his request for attorney's fees and costs. However, Bonderer does not argue the point or cite any authority to support his contention. We do not consider this assignment. Ramseur v. State, 368 So. 2d 842, 844 (Miss. 1979).
Finding that the chancellor reached the right result, though possibly assigning the wrong reason, we affirm.
AFFIRMED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614997/ | 502 So. 2d 790 (1986)
Richard M. MADDOX
v.
STATE.
5 Div. 761.
Court of Criminal Appeals of Alabama.
September 9, 1986.
Rehearing Denied October 14, 1986.
David Cromwell Johnson and Daniel J. Burnick of Johnson & Cory, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
PATTERSON, Judge.
On remand from our supreme court, we are ordered to consider the following issue *791 in light of Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983): Whether the trial court abused its discretion in sentencing Maddox to fifteen years' imprisonment[1] while sentencing Callahan and Gillum to three and four years' imprisonment, respectively.
In Solem, the Supreme Court declared unconstitutional an enhanced sentence of life imprisonment without possibility of parole imposed on a defendant who pleaded guilty to passing a bad $100 check after having been convicted for six nonviolent felonies. The Court held "as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Id. at 290, 103 S.Ct. at 3009. The Court, as guidance in reviewing the proportionality of sentences under the Eighth Amendment, set forth the following "objective factors" to be considered: (i) an assessment of the gravity of the offense and the harshness of the penalty; (ii) a comparison of the punishment with the sentences imposed on other convicted defendants in the same jurisdiction; and (iii) a comparison of the punishment with the sentences imposed for the commission of the same crime in other jurisdictions. Id. at 290-92, 103 S.Ct. at 3009-10. The Court considers this "abstract evaluation of the appropriateness of a sentence for a particular crime" to be review of proportionality in the traditional sense. Pulley v. Harris, 465 U.S. 37, 42-43, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984). Such review determines whether "punishments [are] inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime." Id. at 43, 104 S.Ct. at 875.
We use this opportunity to, once again, apply the principles expounded in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), rather than the extended analysis of traditional proportionality, as set forth in Solem. See, e.g., McGee v. State, 467 So. 2d 685, 690-91 (Ala.Cr.App. 1985); McLester v. State, 460 So. 2d 870 (Ala.Cr.App.1984). See also Hester v. State, 473 So. 2d 1054, 1055 (Ala.1985) (Jones, J., dissenting); Harbor v. State, 465 So. 2d 460 (Ala.1985). The petitioner in Rummel had been sentenced to life imprisonment (with possibility of parole) under the Texas recidivist statute for his third conviction, which was for obtaining $120.75 by false pretenses. His two prior convictions were for nonviolent offenses. The Rummel Court, in holding that the petitioner's sentence was not violative of the Eighth Amendment, recognized that the severity of punishment to be accorded different crimes was a matter of legislative policy. Id. 445 U.S. at 282-83, 100 S.Ct. at 1143-44. This deference to legislative prerogative was reinforced in Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982), wherein the Court reversed the Fourth Circuit's finding that a forty-year sentence for the possession of nine ounces of marihuana violated the Eighth Amendment. In so holding, the Court held that the Rummel Court had disapproved each of the "objective factors" on which the lower court relied, id. at 373, 102 S.Ct. at 705, and reiterated its mandate from Rummel, as follows:
"In short, Rummel stands for the proposition that federal courts should be `reluctan[t] to review legislatively mandated terms of imprisonment,' id. at 274 [100 S.Ct. at 1139], and that `successful challenges to the proportionality of particular sentences' should be `exceedingly rare,' id. at 272 [100 S.Ct. at 1138]. By affirming the District Court decision after our decision in Rummel, the Court of Appeals sanctioned an intrusion into the basic linedrawing process that is `properly within the province of legislatures, not courts.' Id., at 275-276 [100 S.Ct. at 1139-40]."
Id. at 374, 102 S.Ct. at 705-706 (footnote omitted).
Even the Court in Solem reemphasized that the scope of appellate review of a *792 sentence authorized by the legislature is greatly restricted, for it gave the following warning:
"Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals."
463 U.S. at 290, 103 S.Ct. at 3009 (footnote omitted). And further:
"[W]e do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate."
Id. at 290, n. 16, 103 S.Ct. at 3009, n. 16. See also Harbor v. State, 465 So. 2d 460, 460 (Ala.1985) (wherein the court, in a five-to-four decision, in refusing to address the issue of whether the petitioner's punishment of fifteen years was disproportionate to the crime of possession of a controlled substance, noted, "We cannot agree with the petitioner's argument that the Supreme Court of the United States in Solem v. Helm, 463 U.S. 277 [103 S. Ct. 3001, 77 L. Ed. 2d 637] ... (1983), required appellate courts to test all sentences against the proscriptions of the cruel and unusual punishment clause of the Eighth Amendment to the Constitution").
We find that the principles of Rummel control those cases with fact situations not clearly distinguishable from those in Rummel. See Moreno v. Estelle, 717 F.2d 171, 180 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S. Ct. 2353, 80 L. Ed. 2d 826 (1984). As clarified by the Solem majority, the Court's application of the traditional proportionality analysis to a sentence of life imprisonment without possibility of parole for the conviction of a nonviolent felony did not overrule Rummel v. Estelle:
"Contrary to the suggestion in the dissent, post, at 305-312, our conclusion today is not inconsistent with Rummel v. Estelle. The Rummel Court recognized... that some sentences of imprisonment are so disproportionate that they violate the Eighth Amendment. 445 U.S., at 274, n. 11 [100 S.Ct., at 1139, n. 11]. Indeed, Hutto v. Davis, 454 U.S., at 374, and n. 3 [102 S.Ct., at 705 n. 3], makes clear that Rummel should not be read to foreclose proportionality review of sentences of imprisonment. Rummel did reject a proportionality challenge to a particular sentence. But since the Rummel Courtlike the dissent todayoffered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation. Here the facts are clearly distinguishable. Whereas Rummel was eligible for a reasonably early parole, Helm, at age 36, was sentenced to life with no possibility of parole. See supra, at 297, and 300-303."
463 U.S. at 303-04, n. 32, 103 S.Ct. at 3017, n. 32 (emphasis added).
In McLester v. State, 460 So. 2d 870, 873-75 and n. 2 (Ala.Cr.App.1984), the court, in accordance with a joint reading of Rummel and Solem, construed Solem's application of traditional proportionality to be narrowly confined to the circumstances where the defendant was sentenced to life imprisonment without possibility of parole for the conviction of a nonviolent crime. The court further noted that, under our penal code, the combination of these two circumstances is "virtually inconceivable". Id. at n. 3.
In reasserting this construction, we adopt the following:
"[T]o the extent that Solem does not overrule the reasoning of Rummel and Davis but, rather, explicitly accepts the position asserted in those cases, that in noncapital cases successful proportionality *793 challenges will be extremely rare, 463 U.S. at 289-90 [103 S.Ct. at 3009], ... it seems to us that Solem requires an extensive proportionality analysis only in those cases involving life sentences without parole. We are inclined to interpret Solem in this light, especially given the Solem Court's refusal to overrule Rummel and Davis, and accordingly uphold the terms of years' sentences herein as appropriate sentences within the limits set by Congress."
United States v. Rhodes, 779 F.2d 1019, 1027-28 (4th Cir.1985), cert. denied, U.S. , 106 S. Ct. 2916, 91 L. Ed. 2d 545 (1986).
Thus, we find ourselves confronted with a sentence which is outside the narrow confines of Solem and within the scope of Rummel. Accordingly, in reviewing Maddox's sentence, we initially grant "substantial deference" to the authority of the legislature and to the discretion of the trial court. Solem, 463 U.S. at 290, 103 S.Ct. at 3009. Then, rather than engaging in the extended analysis of Solem, we need decide only whether Maddox's sentence is within constitutional limits.[2]Id. at 290, n. 16, 103 S.Ct. at 3009, n. 16. Giving the required deference to the legislature and to the sentencing court, we find that Maddox's sentence is constitutionally permissible; it is not disproportionate in the traditional sense to the crime of trafficking. "A life sentence has been held not to constitute cruel or unusual punishment for drug trafficking offenses." Robinson v. State, 474 So. 2d 685, 686 (Ala.1985) (citing Dickerson v. State, 414 So. 2d 998, 1005 (Ala.Cr. App.1982), and cases cited therein). Here, Maddox received only fifteen years. Moreover, variation in sentence between co-actors in a criminal transaction alone does not make the harsher sentence cruel and unusual. United States v. Garcia, 785 F.2d 214, 227-28 (8th Cir.), cert. denied, U.S. , 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); United States v. Collins, 690 F.2d 670, 674 (8th Cir.1982); Gregory v. United States, 585 F.2d 548, 550 (1st Cir.1978). See also United States v. Bonnet, 769 F.2d 68, 71 (2d Cir.1985).
"Sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear. The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentence."
Williams v. Illinois, 399 U.S. 235, 243, 90 S. Ct. 2018, 2023, 26 L. Ed. 2d 586 (1970) (quoted in Gregory v. United States, 585 F.2d at 550).
The Alabama legislature's intent for the sentencing court to have very broad discretion in specifically sentencing the trafficker according to the circumstances involved in each case is manifested by the fact that the legislature fashioned the penalty provision of the trafficking statute to have the undesignated maximum penalty of life imprisonment. Considering this implicit intention to curb the drug traffic, the large amount of drugs found on the premises, the extent of the operation of cultivating the marijuana, and Maddox's known reputation of dealing in drugs, we hold that the trial court did not subject Maddox to punishment outside constitutional limitations.
As a final note, we observe that, in the event we were to apply the Solem analysis, we would consider the particular sentences received by Gillum and Callahan to be irrelevant. McLester v. State, 460 *794 So.2d at 876. Analysis of a particular sentence by traditional proportionality principles entails an "abstract evaluation." Pulley v. Harris, 465 U.S. at 42, 104 S.Ct. at 875. In addition to holding that Maddox's sentence is not violative of the Eighth Amendment, we find that Maddox has failed to show that his sentence "was obviously in punishment for Maddox's insistence upon a jury trial." The evidence establishes that Gillum[3] entered into a plea bargain agreement and changed his plea of not guilty to guilty over nine months after Maddox's sentencing. Upon sentencing approximately seven months later, Gillum received a substantially lesser sentence than Maddox.
These facts do not establish that Maddox's sentence was in retaliation of his exercise of his right to a trial by jury. Rather, it is apparent from the sequence of events that Gillum, after realizing the severity of Maddox's sentence, decided to reap the benefits of a plea bargain agreement. Moreover, it is the sentencing court's prerogative to accept such an agreement. We agree with the following observations made in Hitchcock v. Wainwright, 770 F.2d 1514, 1518-19 (11th Cir. 1985), cert. granted in part, ___ U.S. ___, 106 S. Ct. 2888, 90 L. Ed. 2d 976 (1986):
"In the `give-and-take' of plea bargaining, the state may extend leniency to a defendant who pleads guilty foregoing his right to jury trial. Brady v. United States, 397 U.S. 742, 753 [90 S. Ct. 1463, 1471, 25 L. Ed. 2d 747], ... (1970). Legislative schemes which extend the possibility of leniency to defendants who plead guilty are permissible so long as the statute does not unnecessarily burden the assertion of constitutional rights or act to coerce inaccurate guilty pleas.... A judge, as much as the prosecutor and the legislature, should not be precluded from approving leniency in sentencing upon an admission of guilt. Cf. Corbitt, 439 U.S. [212,] 224 n. 14 [99 S. Ct. 492, 500, 58 L. Ed. 2d 466]... (cannot permit prosecutor to offer leniency but not legislature).
"....
"Moreover, by pleading guilty a defendant confers a substantial benefit to the objectives of the criminal justice system:
"the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.
"Brady v. United States, 397 U.S. at 752 [90 S.Ct. at 1471].... The state is entitled to extend a sentence of less than that which might otherwise be appropriate to a defendant that confers such a benefit on it. 397 U.S. at 753 [90 S.Ct. at 1471].... The heart of a plea bargain, from a defendant's point of view, is the option of avoiding a possibly harsher sentence after conviction at trial."
In conclusion, we note that since an effect cannot precede its cause, Maddox's sentence could not have been based on vindictiveness.
Accordingly, we once again affirm the judgment of the circuit court.
AFFIRMED.
NOTES
[1] In its opinion, our supreme court noted that "Maddox received the maximum sentence allowed by law for his first felony conviction...." 502 So. 2d 790 (emphasis added). This finding is in conflict with Robinson v. State, 474 So. 2d 685, 686 (Ala.1985), wherein the court stated, "While § 20-2-80 provides for only a minimum term of imprisonment, the statute may reasonably be construed to validly authorize a maximum sentence of life imprisonment."
[2] One court has stated, "Of course, a determination of whether a sentence is `within constitutional limits' will often require at least a perfunctory Solem analysis." Moreno v. Estelle, 717 F.2d 171, 180, n. 10 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S. Ct. 2353, 80 L. Ed. 2d 826 (1984). Another court has noted that "where an Eighth Amendment claim is made concerning the length of a sentence which may not be disposed of as so obviously within the prerogative of Congress and the district court to require no comment, ... a simple matching of the facts of a particular case against the Solem principles will suffice without extended discussion." United States v. Rhodes, 779 F.2d 1019, 1028-29 (4th Cir.1985), cert. denied, ___ U.S. ___, 106 S. Ct. 2916, 91 L. Ed. 2d 545 (1986). As is apparent, we find the instant sentence to be so obviously within the prerogative of the legislature and the circuit court as to require no comment.
[3] We do not consider Callahan's sentence to be relevant to this issue, for Callahan was convicted of the lesser offense of felony possession of marijuana. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1614964/ | 604 N.W.2d 587 (1999)
CONDON AUTO SALES & SERVICE, INC., Condon Ford, Inc., and Condon Leasing Co., Appellees,
v.
William CRICK a/k/a Bill Crick, Appellant,
Wisner's Auto World, Defendant/Cross-Appellee.
William Crick a/k/a Bill Crick, Counterclaimant/Third-Party Plaintiff,
v.
Condon Auto Sales & Service, Inc., Condon Ford, Inc., and Condon Leasing Co., Third-Party Defendants.
No. 97-2229.
Supreme Court of Iowa.
December 22, 1999.
As Amended on Denial of Rehearing February 4, 2000.
Rehearing Denied March 13, 2000.[]
*591 Steven R. Jensen of Crary, Huff, Inkster, Hecht & Sheehan, P.C., Sioux City, for appellant and cross-appellee.
David L. Reinschmidt of Munger & Reinschmidt, Sioux City, for appellees.
Considered by CARTER, P.J., and LAVORATO, SNELL, CADY, and SCHULTZ,[*] JJ.
CADY, Justice.
This is an appeal and cross-appeal from a judgment entered by the district court following jury trial in a dispute between an employer and employee involving multiple claims, counterclaims, and a cross-claim. On our review, we affirm in part, reverse in part, and remand.
I. Background Facts and Proceedings.
Condon Leasing Company is a closely-held family corporation in Sioux City. It is owned by seven members of the Condon family, and is the parent corporation of two other corporations, Condon Auto Sales & Service, Inc. and Condon Ford, Inc.[1]
Condon Auto is an automobile dealership in Sioux City which sells Buick, Honda, and Isuzu vehicles. Condon Ford is an automobile dealership in Moville which sells Ford vehicles. Steve Condon is the president of Condon Ford, general manager of Condon Auto, and president of Condon Leasing. Mark Condon is the vice president of Condon Ford, president of Condon Auto, and general sales manager of both Condon Auto and Condon Ford.
Bill Crick was hired as the used car sales manager for Condon Auto in March 1995. Crick had previously worked for other car dealerships in Sioux City, including Wisner's Auto World, Inc., and was employed by a dealership in Kentucky just prior to his employment with Condon Auto.
Crick was paid a salary based upon a percentage of the total profit of the dealership, but received a monthly draw of $8500. Profits were then calculated quarterly and compared with his monthly draws. The written employment contract provided:
On April 15, July 15, Oct. 15, and Jan. 15 the quarterly earnings less draw will be paid. In the unlikely event that the draws for a given quarter exceed earnings, then the deficit will be rolled to the following quarter.
The "unlikely event" described in the employment contract was the norm while Crick was employed at Condon Auto. The business profits were insufficient to support the $8500 monthly draws. On four occasions, Steve Condon mentioned the deficit to Crick and suggested a portion of his monthly draw be applied to pay the deficit. Crick was also made aware of the growing deficit from Kevin Welte, the Chief Financial Officer of the Condon companies, following three separate quarterly financial reports. Crick assured Steve Condon that profits would increase and there was no need to reduce his draw.
In September 1995, Crick transferred to Condon Ford in Moville. Crick became the sales manager at the dealership. This was done at the request of Steve Condon. At the time Crick left Condon Auto, he had accumulated a deficit of $14,869.64 in unearned draws.
At Condon Ford, Crick was paid a straight salary of $8500 per month, which was to be replaced with a commission plan *592 at some point in the future. Like the prior agreement, there is no specified length of employment.
On March 20, 1996, Crick abruptly left Condon Ford and began working for Wisner's as the general sales manager. At the time, Crick was owed salary in the amount of $5525, constituting pay for one full pay period and a portion of a second pay period. Condon Ford withheld this money to offset the profit-draw deficit Crick accumulated while he was employed at Condon Auto.
While working for Condon Ford, Crick was in charge of purchasing used cars at dealer auctions for resale. He attended numerous auctions. It was common for sellers at the auctions to offer incentives to induce buyers to purchase certain vehicles. One seller, Alamo Rental Cars, offered buyers either $100 cash or forty-five days free financing for each car purchased from them. On two separate occasions, Crick accepted cash for purchasing cars from Alamo. On the first occasion, he received $600 for purchasing six cars. On the second occasion, he accepted $100 for purchasing one car. Crick did not turn this money over to Condon Ford.
In the final months before Crick left Condon Ford for Wisner's he began working on several outside businesses. He was involved in selling long distance service through Excel Telecommunications, selling radio advertisements to other car dealerships around the country, and was preparing to start a management company for local car dealerships. Additionally, Crick had frequent conversations during working hours with Nick Stamoulis, a friend and former assistant manager at Condon Ford. Stamoulis was the general sales manager at Wisner's. There was evidence suggesting Crick assisted Stamoulis in selling cars during these conversations by giving him advice on financing and closing car deals. Condon Ford believed Crick neglected his duties as sales manager by pursuing these activities.
Condon Ford made a profit for each month Crick was employed as the sales manager. The dealership sold 127 cars during the last quarter of 1995, and seventy-four cars during the first quarter of 1996. It was not unusual for car sales to be slow during the first quarter of each year. However, the average profit on the sale of used cars dropped from $1359.62 during the last quarter of 1995 to $1023.92 during the first quarter of 1996. Additionally, the average loss incurred by the dealership on wholesale transfers (selling cars at the auction) rose from a loss of $57.82 per car during the last quarter of 1995 to a $251.34 per car loss in the first quarter of 1996.
Condon instituted this action against Crick. It claimed Crick's conduct in the last months of his employment not only constituted a breach of a duty of loyalty implied in his employment contract with Condon Ford, but also a breach of his duty of good faith and fair dealing, and a breach of a duty of loyalty independent of the contract. Condon further claimed Crick breached his employment contract with Condon Auto by failing to reimburse Condon Auto for the overpaid draws in the amount of $14,869.64. Condon additionally claimed Crick converted $700. Condon also initiated an action against Wisner's, claiming Wisner's intentionally interfered with its contract with Crick.
Crick filed a counterclaim against Condon Leasing and Condon Ford, claiming it withheld wages owed to him in the amount of $5525 in violation of Iowa Code chapter 91A. He also claimed he was owed an additional two percent of the profits.
Prior to trial, the district court granted summary judgment for Crick on the breach of loyalty contract claim and breach of good faith and fair dealing claim. This left Condon with the tort claims of breach of loyalty and conversion as well as the reimbursement and interference contract claims. At trial, the district court granted a directed verdict for Wisner's on the intentional interference with contract claim. *593 It also directed a verdict for Crick on the breach of duty of loyalty claim. However, the court allowed Condon to amend its petition to reinstate the breach of contract claim based upon a breach of implied duty of loyalty.
The jury returned a verdict against Crick on the breach of loyalty contract claim in the sum of $25,000. It also awarded Condon Auto $9344.64 for overpaid draws ($14,869.64-$5525 withheld by Condon Ford). Additionally, it awarded Condon $700 for conversion, and $30,000 in punitive damages based upon the conversion. The jury found Crick's conduct was directed at Condon. The jury also found for Condon on Crick's claim for unpaid wages. The trial judge subsequently granted Crick's motion for judgment notwithstanding the verdict on the breach of loyalty contract claim. It reconsidered its prior ruling and concluded breach of loyalty was not recognized as a cause of action. It also concluded the evidence was insufficient to support any such claim and damages were too speculative. Crick appealed and Condon cross-appealed.
Crick claims the evidence was insufficient to support the verdict for conversion, breach of contract, and punitive damages. He also asserts he was entitled to judgment as a matter of law on his wage claim, and the trial court erred in instructing the jury on the wage claim.
Condon claims the trial court erred by directing a verdict on the claim for breach of loyalty and cross-claim for intentional interference with a contractual relationship. It also claims the court erred in granting a judgment notwithstanding the verdict on the contract claim for a breach of loyalty, and dismissing the tort claim of breach of loyalty.
II. Scope of Review.
Our scope of review in an action at law is for correction of errors at law. Chariton Feed & Grain, Inc. v. Harder, 369 N.W.2d 777, 782 (Iowa 1985). In reviewing rulings on a motion for judgment notwithstanding the verdict, we determine whether there was substantial evidence to generate a jury question. Lara v. Thomas, 512 N.W.2d 777, 781 (Iowa 1994). Similarly, in reviewing a directed verdict, we determine whether a jury question was generated. Fiala v. Rains, 519 N.W.2d 386, 387 (Iowa 1994). Error in jury instructions is reversible only if the error is prejudicial. Olson v. Prosoco, Inc., 522 N.W.2d 284, 287 (Iowa 1994).
Evidence is substantial to support a jury verdict if reasonable minds would find it adequate to reach the same conclusion. Shams v. Carney, 518 N.W.2d 366, 369 (Iowa 1994). In considering the sufficiency of evidence, we view the evidence in the light most favorable to the party in whose favor the verdict was rendered. Id.
III. Crick's Claimed Errors.
A. Conversion.
Crick first claims there was insufficient evidence as a matter of law to support the jury verdict against him for conversion of $700 from Condon Ford. He claims no conversion occurred because both parties had a good faith claim to the money offered by Alamo as an incentive to buyers.
Conversion is the wrongful control or dominion over another's property contrary to that person's possessory right to the property. Ezzone v. Riccardi, 525 N.W.2d 388, 396 (Iowa 1994). The wrongful control must amount to a serious interference with the other person's right to control the property. Kendall/Hunt Publ'g Co. v. Rowe, 424 N.W.2d 235, 247 (Iowa 1988) (citing Restatement (Second) of Torts § 222A(1) (1965)). Good faith by the defendant is a factor to consider in determining whether the interference amounts to conversion. Id. (quoting Restatement (Second) of Torts § 222A(2) (1965)).
*594 Crick was employed by Condon Ford at the auctions and purchased vehicles on its behalf in the course of his employment. Moreover, a review of the incentive options offered by the sellers, cash or free financing, clearly indicated the incentives were for the dealership who ultimately purchased the car.
This evidence supports a finding by the jury that the retention of the money was in contravention to the possessory interest of Condon Ford. Thus, we affirm the district court's entry of judgment in the amount of $700 against Crick on the claim of conversion.
B. Punitive Damages.
1. Insufficient Evidence to Support Verdict.
Crick also claims there was insufficient evidence to support the jury's punitive damage award of $30,000 for the act of conversion. The evidence to support a punitive damage award must be clear, convincing, and satisfactory. See Iowa Code § 668A.1(1)(a). There must also be evidence of willful and wanton disregard for the rights of another. Wilson v. IBP, Inc., 558 N.W.2d 132, 142 (Iowa 1996), cert. denied, 522 U.S. 810, 118 S. Ct. 52, 139 L. Ed. 2d 17 (1997).
Punitive damages are justified when the acts of the defendant are malicious. Beeck v. Aquaslide `N' Dive Corp., 350 N.W.2d 149, 167 (Iowa 1984). The malice may be "actual (expressed) ... or it may be legal (implied), as where the defendant acts illegally or improperly with reckless disregard for another's rights." Id. (quoting Freeman v. Bonnes Trucking, Inc., 337 N.W.2d 871, 879-80 (Iowa 1983)).
There was evidence in the case indicating that Crick had a duty to give the buyer incentive to Condon. There is also evidence he intentionally retained the money for his own benefit. This evidence would support a finding by a preponderance of clear, convincing, and satisfactory proof that Crick retained the money given to him by Alamo with a willful and wanton disregard for his employer's rights.
2. Failure to Grant New Trial or Enter Remittitur.
Crick further claims the district court erred in failing to grant a new trial or enter a remittitur based upon the excessiveness of the award. We address each separately.
a. New Trial.
We review the denial of a motion for new trial for correction of errors at law. Iowa R.App.P. 4; Johnson v. Knoxville Community Sch. Dist., 570 N.W.2d 633, 635 (Iowa 1997). However, if the motion is based on a discretionary ground, we review for abuse of discretion. Johnson, 570 N.W.2d at 635. A ruling on a motion for new trial following a jury verdict is a matter for the trial court's discretion. Id. In ruling upon such motions for new trial the trial court has a broad, but not unlimited, discretion in determining whether the verdict effectuates substantial justice between the parties. See Iowa R.App.P. 14(f)(3). The discretion must not be exercised arbitrarily and it must have some support in the record. Wilson, 558 N.W.2d at 144; Riley v. Wilson Concrete Co., 184 N.W.2d 689, 690 (Iowa 1971). Generally, we are reluctant to interfere with a jury verdict and give considerable deference to a trial court's decision not to grant a new trial. Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 869 (Iowa 1994).
After a review of the record in this case, we find substantial evidence to support the jury's punitive damage award, and that substantial justice was served by the award. The district court did not abuse its discretion in denying Crick's motion and we affirm the punitive damage award against Crick in the amount of $30,000.
b. Remittitur.
Crick also claims the district court erred in failing to enter a remittitur *595 on the jury's punitive damage award. Crick maintains the ratio between compensatory and punitive damage was excessive. We apply the following standard in considering remittitur:
We will reduce or set aside a jury award only if it (1) is flagrantly excessive or inadequate; or (2) is so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is a result of passion, prejudice or other ulterior motive; or (4) is lacking in evidentiary support.
The most important of the above enumerated tests is support in the evidence. If the verdict has support in the evidence the others will hardly arise, if it lacks support they all may arise.
Tullis v. Merrill, 584 N.W.2d 236, 241 (Iowa 1998) (quoting Rees v. O'Malley, 461 N.W.2d 833, 839 (Iowa 1990)). If a verdict meets this standard or fails to do substantial justice between the parties, we must either grant a new trial or enter a remittitur. Spaur, 510 N.W.2d at 869.
We have already found sufficient evidence supported the jury's punitive damage award, and that the district court's denial of Crick's motion for new trial was not an abuse of its discretion. The decision to deny remittitur was similarly within the discretion of the trial court. See Burkis v. Contemporary Indus. Midwest Inc., 435 N.W.2d 397, 400 (Iowa App.1988).
In BMW of North America, Inc. v. Gore, the Supreme Court refused to establish a mathematical formula, or a bright line test, to determine the constitutionality of a punitive damage award. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585, 116 S. Ct. 1589, 1604, 134 L. Ed. 2d 809, 833 (1996). Instead, the decision is made by considering factors such as 1) the reprehensibility of the conduct, 2) the profitability for the company in the conduct, 3) the impact of the judgment on the financial position of the party, 4) the expense of the litigation, 5) the lack of criminal charges filed against the party, and 6) the award bore a "reasonable relationship" to "the harm that was likely to occur from [BMW's] conduct as well as ... the harm that actually occurred." BMW, 517 U.S. at 566-67, 116 S.Ct. at 1594-95, 134 L.Ed.2d at 821 (quoting Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala. 1989)). These factors were previously approved of in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 21-22, 111 S. Ct. 1032, 1045-46, 113 L. Ed. 2d 1, 22 (1991). The Court adopted a "grossly excessive" standard, and found "[i]n most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis ... [but that a ratio of 500 to 1] must surely `raise a suspicious judicial eyebrow.'" Id. at 583, 116 S.Ct. at 1603, 134 L.Ed.2d at 831 (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 481, 113 S. Ct. 2711, 2732, 125 L. Ed. 2d 366, 394 (1993)).
We find that the ratio of actual damages to punitive damages in this case, nearly 43 to 1, falls within a constitutionally acceptable range based upon the reprehensibility of the act of converting money belonging to an employer, as well as the other relevant factors. As in the Haslip and BMW cases, we similarly refuse to draw concrete limits on the amount of punitive damage other than to emphasize that the punitive damage award in this case was not "grossly excessive."
We conclude the district court did not abuse its discretion in refusing to grant a remittitur. We affirm the district court's denial of Crick's motion for remittitur.
C. Wage Payment Claim.
The wage claim by Crick is based in two parts. Crick claims Condon Ford withheld his final two paychecks totalling $5525. Additionally, he claims Condon failed to pay him a two percent bonus. Crick asserts he established both wage claims as a matter of law, and the trial court erred by instructing the jury he was required to prove Condon intentionally withheld the wages as a predicate to recovery. We *596 consider the wage claim involving the final two paychecks first.
Condon responds that the jury properly rejected the wage claim because Condon Leasing actually employed Crick and it had a valid wage dispute with Crick which allowed it to withhold Crick's wages at Condon Ford to offset the excessive draw he received while employed at Condon Auto. Furthermore, Condon argues any error in the jury instructions was harmless because the jury necessarily found it properly withheld the wages when it found in its favor on the separate breach of contract claim for nonpayment of the excessive draws.
1. Iowa's Wage Payment Collection Law.
The Iowa Wage Payment Collection Law requires employers to "pay all wages due its employees, less any lawful deduction" on designated regular intervals of time. Iowa Code § 91A.3(1) (1997). Additionally, when an employee is terminated, the employer is required to "pay all wages earned" less any lawful deductions within a specific period of time following the termination. Id. § 91A.4. Employers are permitted to make deductions from wages under two circumstances. The first pertains to deductions "required or permitted" to be deducted by state or federal law, or by a court order. Id. § 91A.5(1)(a). The second involves deductions pursuant to a written authorization from the employee. Id. § 91A.5(1)(b). In the event a dispute arises between an employer and employee over the amount of wages due, the employer is permitted to limit payment to "wages conceded to be due" less any authorized deduction. Id. § 91A.7.
An employer who fails to pay wages to an employee as required under the law is liable to the employee for the unpaid wages, court costs, and attorney fees incurred in the recovery of the unpaid wages. Id. § 91A.8. Additionally, an employer who intentionally fails to pay wages is liable for statutorily defined liquidated damages. Id.; see Audus v. Sabre Communications Corp., 554 N.W.2d 868, 874-75 (Iowa 1996) (attorney fees recoverable); Jackson v. City of Ottumwa, 396 N.W.2d 794, 796 (Iowa App.1986) (liquidated damage award). Liquidated damages are recoverable in an action for wages even if the intentional failure to pay wages resulted from a wage dispute. Iowa Code § 91A.8. Notwithstanding, an employer incurs no liability for withholding wages if the employer withholds the correct amount of wages. See id. The statute imposes liability only when the employer fails to pay the amount of wages actually due to the employee. Id.
It was undisputed in this case that Crick was not paid all his wages following his termination from employment at Condon Ford. The wages were withheld and applied to Crick's excessive draw. We therefore must first consider whether Condon's actions were permissible under the statute.
2. Nonpayment Due to Wage Dispute.
Condon argues it cannot be liable for damages for failing to pay wages to Crick because it had a legitimate dispute over the amount of wages due under section 91A.7. It claimed the dispute meant it was not required to pay any wages because it did not concede Crick was owed any wages. Moreover, Condon asserted it properly withheld the wages as confirmed by the jury verdict in its favor on the breach of contract claim against Crick for nonpayment of the excessive draw.
We acknowledge the jury found Crick was liable for the excessive draw. However, Condon's breach of contract claim for excessive draws did not constitute a "dispute ... concerning the amount of wages ... due" under section 91A.7. The purpose of the Wage Payment Collection Law is to facilitate collection of wages by employees. Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 201 (Iowa 1997). Conversely, it does not exist to *597 assist in the collection of claims by the employer. See Iowa Code § 91A.5. The Act requires an employer to pay wages at regular intervals, and the amount of wages owed Crick for the last two pay periods was not disputed. Instead, the dispute in this case was over the excessive draws Crick owed Condon.
The purpose of the Act would be seriously undermined if an employer could generate a wage dispute under section 91A.7 and withhold an employee's undisputed wages by asserting a claim separate from its obligation to pay wages. Although Crick may have been responsible to Condon for the excessive draw, there was no evidence Crick was contractually bound to pay Condon for the excessive draw from his wages. In fact, Condon repeatedly requested Crick to allow a portion of the excessive draw to be deducted from his wages, but Crick refused. See Halverson v. Lincoln Commodities, Inc., 297 N.W.2d 518, 521 (Iowa 1980) (evidence that employee admitted responsibility for the bad debt). Thus, there was no wage dispute which authorized Condon to hold back the wages.[2]
3. Deduction From Wages.
Condon further claims it could not be liable for damages because it was legally permitted to withhold the wages under section 91A.5(1) as a setoff against its claim for the excessive draw. The Act clearly allows the employer to deduct wages only when permitted by law, court order, or authorized by the employee. Iowa Code § 91A .5(1). Condon claims the law recognizes setoff as a mechanism to resolve competing disputes.
There is no state or federal law which permits an employer to set off its claims against employees' wages. Moreover, the doctrine of setoff is an incident of a judicial proceeding, and is generally accomplished only by court action. See 20 Am.Jur.2d Counterclaim, Recoupment, Etc. § 6, at 233 (1995); Iowa R.Civ.P. 225. It is not a unilateral procedure legally employed by a party to a dispute. See Cameron v. Neon Sky, Inc., 41 Wash.App. 219, 703 P.2d 315, 317 (1985); see also National Med. Care, Inc. v. Zigelbaum, 18 Mass.App.Ct. 570, 468 N.E.2d 868, 874 (1984) (employer has no right to unilateral setoff); P & L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 541 N.Y.S.2d 535, 537 (1989) (employer not entitled to self-help remedy of withholding money owed by employee). Furthermore, the restrictions on the deductions under section 91A.5 clearly illustrate an employer may not use wages as a basis for any self-help remedies in collecting an indebtedness. Section 91A.5(1) makes it unlawful to withhold any portion of the wages of an employee except under the two statutorily-described circumstances. See Cameron, 703 P.2d at 317 (interpreting wage payment collection statute similar to Iowa statute). None of the circumstances under the statute apply to the facts of this case, and Condon had no right to withhold the wages.
We conclude Condon violated the Wage Payment Collection Act by withholding Crick's wages at Condon Ford. Thus, Condon was liable as a matter of law to Crick for the unpaid wages, court costs, and attorney fees. The question turns to whether Condon was also liable as a matter of law for liquidated damages.
4. Liquidated Damages.
The Wage Payment Collection Act distinguishes between the intentional and unintentional failure to pay wages for the purpose of an award of liquidated damages. Iowa Code § 91A.8. Under the statute the intentional failure to pay wages, even if the result of a wage dispute, gives rise to liquidated damages. Id.
*598 We have not previously defined the type of intent to support liquidated damages, but have indicated liquidated damages are directed at employers who fail to pay wages knowing the wages are due. Halverson, 297 N.W.2d at 523. Conversely, liquidated damages are not available if an employer maintains a good faith dispute over the amount of wages. Id. Similarly, the intentional failure to pay wages excludes the inadvertent failure to pay. Miller, 356 N.W.2d at 216.
In this case Condon had no dispute with Crick over any portion of the wages due from the last two pay periods. It acknowledged the amount of these wages was $5525. Condon knew the wages were due and failed to pay them. Moreover, Condon cannot maintain or claim good faith. The dispute by Condon involved a separate claim for the excessive draw, but there was no dispute over the amount Condon owed. This constitutes the intentional failure to pay under the statute.
We find the trial court erred in failing to enter judgment for Crick on this portion of his wage claim. We therefore reverse that portion of the judgment and remand the case for entry of judgment for Crick for reasonable attorney fees attributable to his collection of wages owed, liquidated damages as defined by section 91A.2(6), and court costs. The amount of unpaid wages of $5525 were set off against Condon's judgment for the excessive draw, and must be excluded from the judgment for unpaid wages to avoid a duplication of damages.
5. Wage Claim Based on Failure to Pay Bonus.
The second wage claim by Crick was based upon the failure to pay a bonus of two percent. Condon maintained the bonus was only payable after Crick was employed for one year.
Unlike the first wage count claim, this claim involved a factual dispute. The jury found in favor of Condon. Normally, this would exonerate an employer from liability. However, the instructions submitted by the district court to the jury required Crick to prove Condon intentionally failed to pay the compensation. We have already indicated intent is only necessary to support the liquidated damage portion of the wage claim. Thus, the trial court erred by failing to distinguish between intentional and unintentional conduct. Moreover, based upon the instructions, we are unable to discern whether the jury found no bonus was due, or Condon did not intentionally fail to pay the bonus. Accordingly, we are required to reverse that portion of the judgment and remand the claim for a new trial on this issue.
D. Verdict for Excessive Draw.
Crick asserts the verdict in the amount of $9344.64 for Condon based upon his breach of contract in failing to pay the excessive draw to Condon was not supported by substantial evidence. He argues the monthly draw should not have been deducted as an expense in determining the net profit. He further argues the draw was actually a salary and there was no agreement between the parties which required any repayment.
We find substantial evidence in the record to support the verdict. Although Crick presented evidence to support his argument, Condon also presented evidence to support the verdict.
IV. Condon's Claimed Errors.
A. Duty of Loyalty.
The trial court submitted Condon's claim for breach of loyalty under a contract theory. The jury returned a verdict in favor of Condon, but the trial court granted Crick's motion for judgment notwithstanding the verdict. It concluded there was no independent claim for breach of loyalty against an employee, and notwithstanding, it was not supported by sufficient evidence.
We recognize the existence of a common law duty of loyalty which is implied in employment relationships. *599 Porth v. Iowa Dep't of Job Serv., 372 N.W.2d 269, 273-74 (Iowa 1985); Gossard Co. v. Crosby, 132 Iowa 155, 165, 109 N.W. 483, 487 (1906). This duty exists in at-will employment relationships, as well as contracts for a specific term. See Vigoro Indus., Inc. v. Crisp, 82 F.3d 785, 788 (8th Cir.1996). Although at-will employment does not bind the parties to performance, the duty of loyalty attaches once performance commences and continues until it is terminated. See Hunter v. Board of Trustees, 481 N.W.2d 510, 513 (Iowa 1992) (at-will employment relationship does not bind parties to performance).
The duty of loyalty is not precisely defined, but has been applied on several occasions in the context of employee competition and self-dealing. See Nelson v. Agro Globe Eng'g, Inc., 578 N.W.2d 659, 662 (Iowa 1998) (covenant not to compete is implied in every employment relationship); Porth, 372 N.W.2d at 273-74 (employee who solicits fellow employee to leave employer for competitor breaches duty of loyalty); Gossard, 132 Iowa at 165, 109 N.W. at 487 (as long as employee remains in employer's service, an implied undertaking ordinarily exists that the employee will not engage in any other service or business to the detriment of the employer's interest); see also LaFontaine v. Developers & Builders, Inc., 261 Iowa 1177, 1187, 156 N.W.2d 651, 658 (1968) (servant must do nothing hostile to the master's interest). However, we have not previously considered whether the implied duty of loyalty gives rise to a separate cause of action for damages by an employer for breach of the duty by an employee.
Ordinarily, breach of loyalty by an employee prompts the employer to discharge the employee from employment. Consequently, the issue is typically raised in response to claims by the employee based upon the discharge. Porth, 372 N.W.2d at 271-72 (raised in response to claim for unemployment benefits); LaFontaine, 261 Iowa at 1187, 156 N.W.2d at 658-59 (breach of employment contract without cause); see also Stokes v. Dole Nut Co., 41 Cal. App. 4th 285, 48 Cal. Rptr. 2d 673, 681 (1995). On the other hand, claims by employers against employees for damages resulting from unfair competition and self-dealing are often brought as claims for breach of fiduciary duty. See Kendall/Hunt Publ'g Co., 424 N.W.2d at 242-43; Restatement (Second) of Agency §§ 387-398 (1958). This is because a principal-agent relationship gives rise to a fiduciary duty of loyalty, and an employer-employee relationship can be closely associated with a principal-agent relationship. See Kurth v. VanHorn, 380 N.W.2d 693, 696 (Iowa 1986) (principal-agent relationship necessarily gives rise to a fiduciary duty); Iowa Power & Light Co. v. Abild Constr. Co., 259 Iowa 314, 335, 144 N.W.2d 303, 315 (1966) (Iowa law recognizes a very fine line between agent and employee); see also Kendall/Hunt Publ'g Co., 424 N.W.2d at 242-43 (employee found to have fiduciary duty); Restatement (Second) of Agency § 429 (1958) (agency's fiduciary duty of loyalty to principal is applicable to employment relationship). Thus, an employee can be held to the same fiduciary duties as an agent, subject to liability for breach of a fiduciary duty.
On the other hand, an employee is not always an agent for the employer. Hass v. Kaster, 246 Iowa 48, 51, 66 N.W.2d 878, 880 (1954). A distinction is recognized between an agent and an employee, based largely on the degree and nature of service and control. Abild, 259 Iowa at 335, 144 N.W.2d at 315. An agent usually has greater authority to act for the principal, such as negotiating contracts, while an employee typically renders services at the direction of the employer. 27 Am.Jur.2d Employment Relationship § 3, at 555-56 (1996); see also Merritt v. Huber, 137 Iowa 135, 137, 114 N.W. 627, 627 (1908) (distinction between principal-agent and employer-employee is one of degree only). This heightened responsibility of an agent justifies the imposition of a fiduciary relationship. Likewise, employees who assume *600 the same type of responsibility can become bound by a fiduciary duty. See Kurth, 380 N.W.2d at 696 (circumstances giving rise to fiduciary duty are diverse). Depending on the particular facts, some employees may be fiduciaries, while some may not.
In this case, Condon did not attempt to establish Crick as a fiduciary and assert a separate claim against Crick for a breach of fiduciary duty. Instead, the claim was based upon a breach of loyalty.
Some jurisdictions have refused to recognize a separate cause of action by an employer against an employee for breach of loyalty without an underlying fiduciary relationship between the employer and employee. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, 247 Conn. 48, 717 A.2d 724, 729 (1998) (a breach of fiduciary duty implicates a duty of loyalty); Physician Specialists v. Wildmon, 238 Ga.App. 730, 521 S.E.2d 358 (1999) (cause of action against employee for breach of loyalty must be based upon a fiduciary duty). In these jurisdictions, a cause of action for breach of loyalty must be brought as a claim for breach of fiduciary duty. See Eaton Corp. v. Giere, 971 F.2d 136, 141 (8th Cir.1992); Schatz, 717 A.2d at 729; Physician Specialists, 521 S.E.2d at 362; Maryland Metals, Inc. v. Metzner, 282 Md. 31, 382 A.2d 564, 569-70 (1978); Chelsea Indus., Inc. v. Gaffney, 389 Mass. 1, 449 N.E.2d 320, 326 (1983).
Other jurisdictions permit a separate claim for breach of loyalty, but recognize its close relationship to a breach of fiduciary duty. Food Lion, Inc. v. Capital Cities, 194 F.3d 505, 515-16 (4th Cir. 1999); Vigoro, 82 F.3d at 788; Universal Elec. Corp. v. Golden Shield Corp., 316 F.2d 568, 573 (1st Cir.1963); Stokes, 48 Cal.Rptr.2d at 681; Tech Plus, Inc. v. Ansel, Civ. A. 96-01668-B, 1999 WL 482329 (Mass. March 22, 1999); Dalton v. Camp, 519 S.E.2d 82, 89 (N.C.Ct.App.1999); Cameco, Inc. v. Gedicke, 157 N.J. 504, 724 A.2d 783, 789 (1999). Thus, the scope of the duty of loyalty will vary with the nature of the relationship. Cameco, 724 A.2d at 789. A higher duty of loyalty exists for employees who occupy a position of trust and confidence than those who occupy a low level task. Id.; see also Tech Plus, 1999 WL 482329 at *6; Chelsea, 449 N.E.2d at 326. Moreover, the duty of loyalty is generally confined to instances of direct competition, misappropriation of profits, property, or business opportunities, trade secrets and other confidences, and deliberately performing acts for the benefit of one employer which are adverse to another employer. Food Lion, 194 F.3d at 516. Inconsequential or indirect assistance or competition that is indirect or minimal is actionable only if the employee renders substantial assistance to the competitor. Cameco, 724 A.2d at 789.
Thus, even in those jurisdictions which recognize a cause of action for breach of loyalty, the action is limited in scope. A broad cause of action would give employers more protection than needed and could create an unfair advantage. It could also threaten an employee's bargaining power in the market. See Terry O'Neal, Employees Duty of Loyalty & Corporate Constituency Debate, 25 Conn.L.Rev. 681, 703 (1993).
Nevertheless, it is unnecessary for us to determine in this case whether a separate cause of action exists for breach of loyalty, either in tort or contract. Although Condon submitted substantial evidence to support unfair competition, self-dealing, and the enticement of employees to leave Condon, the evidence failed to show Condon was damaged by these activities.
Instead, Condon's claim for damages was supported by evidence that the profit margin at the dealership decreased during the last few months of Crick's employment and for a period of time after his termination because Crick had paid too much for cars purchased at auctions and accepted as trade-ins, and did not diligently perform his other responsibilities as sales manager. The damage was not *601 based on Crick's competition with Condon, but his services performed for Condon. This activity falls outside the scope of any action for breach of loyalty. Therefore, the trial court properly concluded there was insufficient evidence to show the damages were a proximate cause of any breach of duty.
B. Intentional Interference with Existing Contract.
Our law imposes tort liability on a person who intentionally and improperly interferes with the performance of a contract between another and a third person. Financial Mktg. Serv., Inc. v. Hawkeye Bank & Trust, 588 N.W.2d 450, 458 (Iowa 1999); see also Restatement (Second) of Torts § 766 (1979). An essential element of the tort is that the interference be intentional and improper. Compiano v. Hawkeye Bank & Trust, 588 N.W.2d 462, 464 (Iowa 1999). However, when the contract at issue in a claim for intentional interference is terminable at will, we require substantial evidence that the defendant's predominate or sole motive of the interference was to damage the plaintiff. Id.
We agree with the district court that there was insufficient evidence to establish any predominate or sole motive by Wisner's to damage Condon. Crick had a track record of moving from dealership to dealership, and even Condon hired Crick from a dealership in Kentucky. There was no substantial evidence to suggest a plan or motive by Wisner's at any level to cause financial harm to Condon, or undermine its business, by hiring Crick. The contact between Crick and Stamoulis may have been improper, but this evidence was insufficient to establish the necessary higher standard of proof for contracts terminable at will.
V. Conclusion.
We affirm the district court in part and reverse in part. We remand the case to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
NOTES
[] LARSON, J., taking no part.
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).
[1] We refer to Condon Leasing Company as "Condon Leasing," Condon Auto Sales & Service, Inc. as "Condon Auto," and Condon Ford, Inc., as "Condon Ford." We will collectively refer to the entities as "Condon" when the claims or issues presented apply to more than one.
[2] This conclusion makes it unnecessary to decide whether Crick was employed by Condon Leasing or Condon Ford for purposes of the wage claim. There was no wage dispute which would have permitted either entity to withhold wages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615227/ | 604 N.W.2d 128 (2000)
Lance RAYGOR, et al., Appellants,
v.
UNIVERSITY OF MINNESOTA, a Minnesota State University, Respondent.
No. C1-99-1140.
Court of Appeals of Minnesota.
January 11, 2000.
*130 Howard Bolter, Borkon, Ramstead, Mariani & Letourneau, Ltd., Minneapolis, MN (for appellants).
Andrew D. Parker, Matthew E. Johnson, Smith Parker, P.L.L.P., Minneapolis, MN (for respondent).
Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and HOLTAN,[*] Judge.
OPINION
KLAPHAKE, Judge.
Appellants Lance Raygor and James Goodchild brought this action against their employer, respondent University of Minnesota (University), alleging age discrimination in violation of the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363.01-.20 (1996). The University moved to dismiss, arguing that the MHRA's 45-day statute of limitations had lapsed and was not tolled by 28 U.S.C. § 1367(d) (1994). The district court agreed and granted the University's motion. We reverse.
FACTS
In August 1995, appellants filed separate charges with the Minnesota Department of Human Rights (MDHR) alleging age discrimination against the University. By letters dated July 17, 1996, the MDHR dismissed the charges and notified appellants that they had 45 days in which to file civil suits in state district court. See Minn.Stat. § 363.14, subd. 1 (1996) (person may bring civil action in state district court within 45 days after receipt of notice that commissioner has dismissed charge).
On August 30, 1996, appellants sued the University in federal district court. They each alleged one claim under the Age Discrimination in Employment Act of 1974 (ADEA) and one claim under the MHRA. Their actions were consolidated.
Nine months later, the University moved to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The University argued that the court lacked jurisdiction over the ADEA and the MHRA claims because the Eleventh Amendment bars suits in federal court against a state by citizens of that or another state. The federal district court granted the University's motion and dismissed appellants' claims without prejudice.
Appellants challenged the federal district court's decision in the Eighth Circuit Court of Appeals. That appeal has been stayed pending a decision by the United States Supreme Court in another case involving the issue of whether an ADEA claim against a state is barred by the Eleventh Amendment. Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted, ___ U.S. ___, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999).
Twenty days after the federal district court dismissed their action, appellants brought this action in state district court alleging age discrimination under the MHRA. This action was stayed for several months pending a decision in the federal appeal. The state district court lifted the stay, however, to allow the University to bring this motion to dismiss on statute of limitations grounds.
ISSUES
1. Did the district court err in concluding that the limitation period for appellants' state action was not tolled while appellants' federal action was pending?
*131 2. Did the district court abuse its discretion by rejecting appellants' claim that the limitation period should be equitably tolled?
ANALYSIS
I.
Summary judgment is appropriate where no genuine issues of material fact exist and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When the court examines documents and evidence in addition to the pleadings, a motion to dismiss under Minn. R. Civ. P. 12.02 becomes one for summary judgment. Minn. R. Civ. P. 12.03. Issues involving jurisdiction and application of statutes of limitations require statutory interpretation, which is a question of law that this court reviews de novo. See Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996).
This case involves interpretation of the federal "Supplemental Jurisdiction" statute, which provides in pertinent part:
(a) Except as provided in subsections (b) [which discusses diversity jurisdiction] and (c) [which allows court to decline to exercise supplemental jurisdiction in certain circumstances, such as when a state law claim raises a novel issue or when all original jurisdiction claims have been dismissed] * * *, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. * * *.
* * * *
(d) The period of limitations for any claim asserted under subsection (a) * * * shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.
28 U.S.C. § 1367 (1994).
It is undisputed that the federal district court had original jurisdiction over appellants' ADEA claim, because that claim raised a federal question. See 28 U.S.C. § 1331 (1994) ("district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"). In addition, the gravamen of both the ADEA and MHRA claims was discrimination based on age. Thus, the federal district court had mandatory, supplemental jurisdiction over appellants' MHRA claim, which was "so related to [the ADEA claims] that they form[ed] part of the same case or controversy" under 28 U.S.C. § 1367(a).
Nevertheless, the state district court in this case concluded that appellants' claims were not tolled under 28 U.S.C. § 1367(d). The court reasoned that because these claims were dismissed on Eleventh Amendment grounds, the federal district court never had "original" jurisdiction over them. Thus, the issue here is whether the Eleventh Amendment divested the federal district court of its original, mandatory, and supplemental jurisdiction, such that jurisdiction never attached.
The Eleventh Amendment has been described as a "bar[ ] to federal court jurisdiction over a suit between an unconsenting State and one of its citizens." Humenansky v. Regents of Univ. of Minn., 152 F.3d 822, 823-24 (8th Cir.1998) (ADEA claim against University in federal court barred by Eleventh Amendment). The Eleventh Amendment, however, is not a typical jurisdictional limitation because it can be waived and because a federal court has discretion to raise it sua sponte. Parella v. Retirement Bd. of Rhode Island Employees' Retirement Sys., 173 F.3d 46, 55 (1st Cir.1999). Although the Eleventh Amendment provides a state with an immunity defense, it does not necessarily *132 destroy a federal district court's underlying jurisdiction:
[B]ecause Eleventh Amendment immunity can be waived, the presence of an Eleventh Amendment issue does not threaten the court's underlying power to declare the law. If this were not the case, sua sponte consideration of a possible Eleventh Amendment bar would have to be obligatory, not discretionary - but the Supreme Court has now clearly stated that courts are free to ignore possible Eleventh Amendment concerns if a defendant chooses not to press them.
Id. at 55-56 (citing Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 2052-53, 141 L.Ed.2d 364 (1998)).
In Schacht, the Supreme Court considered whether removal jurisdiction is destroyed when one of the removed claims is subject to an Eleventh Amendment bar. 524 U.S. 381, 118 S.Ct. at 2051. Similar to the federal question jurisdiction here, removal jurisdiction requires "original jurisdiction." 28 U.S.C. § 1441(a). The Supreme Court concluded that while the Eleventh Amendment may place a particular claim beyond the power of the federal courts to decide, it does not destroy previously existing original jurisdiction. Id., 524 U.S. 381, 118 S.Ct. at 2052-53. The Court further recognized the distinction between diversity jurisdiction, which is automatically destroyed if one party is not diverse, and original jurisdiction, which is not destroyed even if the Eleventh Amendment is successfully asserted. Id. Thus, Schacht supports appellants' position that the Eleventh Amendment does not destroy or vitiate original jurisdiction until it is successfully asserted by a state or state entity.
The University argues that even if the federal district court had original jurisdiction over appellants' ADEA claim, 28 U.S.C. § 1367(d) does not toll the limitations period because appellants' state law MHRA claim was not dismissed by the federal district court for one of the reasons enumerated in 28 U.S.C. § 1367(c) (federal district court may "decline" to exercise supplemental jurisdiction in certain circumstances, including one in which claim raises complex issue of state law or court has dismissed all claims over which it has original jurisdiction). The University argues that because the federal district court was required to dismiss appellants' state law claim under the Eleventh Amendment, the court did not "decline" to exercise supplemental jurisdiction over that claim.
The University's argument is partially correct: MHRA claims are subject to the Eleventh Amendment. See, e.g., Mayer v. University of Minn., 940 F.Supp. 1474, 1476 (D.Minn.1996) (Eleventh Amendment bars federal court jurisdiction over state law claims under the MHRA, against unconsenting states or state officials) (citing Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Thus, the federal district court in this case may have also dismissed appellants' MHRA claim under the Eleventh Amendment.
A close reading of 28 U.S.C. § 1367, however, establishes that the tolling provisions of subsection (d) apply to "any" claim asserted under subsection (a), which discusses original and supplemental jurisdiction. Subsection (d) does not require a supplemental state law claim to be dismissed for a reason under subsection (c) in order for that claim to be tolled. Rather, subsection (d) expressly states:
The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.
28 U.S.C. § 1367(d). Thus, the plain language of subsection (d) allows tolling of *133 any claim dismissed by a federal district court, whether dismissed on Eleventh Amendment grounds or at the discretion of the federal district court under subsection (c).
Finally, at oral arguments before this court, counsel for the University repeatedly represented that "state law claims against a state can never be brought in federal district court" and that the "federal court never had subject matter jurisdiction over the state law claims," citing the Supreme Court's decision in Pennhurst. Pennhurst discusses a federal district court's "pendent" jurisdiction over state law claims and requires a federal court, once an Eleventh Amendment immunity defense is raised, to "examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Pennhurst, 465 U.S. at 121, 104 S.Ct. at 919. At no point, however, does the Supreme Court discuss "subject matter jurisdiction" or hold that the Eleventh Amendment destroys or vitiates subject matter jurisdiction over state law claims.
Moreover, Pennhurst was decided in 1984, prior to the 1990 enactment of 28 U.S.C. § 1367, which codified the case law doctrines of "pendent" and "ancillary" jurisdiction under the name of "supplemental" jurisdiction. See David F. Siegel, Practice Commentary, "The 1990 Adoption of § 1367, Codifying `Supplemental' Jurisdiction," reprinted in 28 U.S.C.A. § 1367, at 829 (West 1993). Although Pennhurst remains good law, it must be read in conjunction with 28 U.S.C. § 1367 and with recent cases discussing the Eleventh Amendment, such as Schacht.
We therefore conclude that the district court erred in granting summary judgment to the University. Under 28 U.S.C. § 1367(d), the statute of limitations governing appellants' MHRA claim was tolled during the pendency of their federal district court action.
II.
Appellants alternatively argue that the limitation period should be equitably tolled under the facts of this case. The filing requirement of Minn.Stat. § 363.14 is subject to equitable tolling. Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn. App.1997). Factors to consider include prejudice to a defendant and the conduct of the plaintiff. Id. The burden is on appellants to prove they are entitled to equitable tolling. See Bartlett v. Miller & Schroeder Muns, Inc., 355 N.W.2d 435, 441 (Minn.App.1984).
There is little or no evidence that the University would be prejudiced if appellants' claims were equitably tolled. Appellants have asserted no new claims in this state district court action. Thus, any discovery the University has undertaken may be used here. Perhaps more importantly, the University could have notified appellants that it would not consent to suit in federal district court, thus allowing appellants time to file in state court; rather, the University waited nine months before asserting its Eleventh Amendment defense. Any prejudice to either party was partly caused by the University's own actions.
With respect to appellants' conduct, the lack of clarity and clear precedent on the issues involved justifies equitable tolling. See Capital Tracing, Inc. v. United States, 63 F.3d 859, 862 (9th Cir.1995). We cannot fault appellants for failing to simultaneously file identical lawsuits in federal and state courts. At the time appellants brought their action in federal district court, federal law was unclear on whether a state was entitled to Eleventh Amendment immunity from ADEA claims. Indeed, federal circuits are split on this issue, and since the filing of appellants' lawsuit, the Eighth Circuit has taken a minority position and held that the Eleventh Amendment defense is available on ADEA claims against a state. See Humenansky, 152 F.3d at 825 n. 2 (noting Eighth Circuit's disagreement with other circuits). Moreover, an appeal taken by appellants *134 to the Eighth Circuit has been held in abeyance pending a decision by the Supreme Court in a case involving this same issue. See Kimel, 139 F.3d 1426. Finally, appellants could reasonable interpret 28 U.S.C. § 1367 as allowing tolling of their claims. Given the lack of clarity in this area, appellants' decision to file suit only in federal district court was legally sound and not based on their attorney's incorrect interpretation of the law. Cf. Ochs, 568 N.W.2d at 860 (equitable tolling not appropriate where plaintiff's choice of remedies based on attorney's incorrect interpretation of law).
We therefore conclude that even if appellants are not entitled to relief under 28 U.S.C. § 1367, their claims were equitably tolled during the pendency of their federal district court action.
DECISION
We reverse the district court's grant of summary judgment to the University. The University's assertion of an Eleventh Amendment defense did not vitiate or destroy the federal district court's underlying original jurisdiction over appellants' ADEA claim or its mandatory, supplemental jurisdiction over appellants' MHRA claim. Thus, under 28 U.S.C. § 1367(d), the 45-day limitations period for asserting appellants' MHRA claim was tolled during the pendency of appellants' federal district court action.
Reversed.
NOTES
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2189019/ | 915 N.E.2d 567 (2009)
TOLLIVER
v.
STATE.
No. 20A03-0904-CR-134.
Court of Appeals of Indiana.
September 24, 2009.
BAKER, C.J.
Disposition of case by unpublished memorandum decision affirmed, reversed and remanded.
FRIEDLANDER, J., concurs.
RILEY, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615025/ | 23 So. 3d 1 (2009)
Cindy PRILL, as administratrix of the estate of Michael David Prill, deceased
v.
Sean W. MARRONE et al.
1050332.
Supreme Court of Alabama.
February 20, 2009.
Rehearing Denied May 8, 2009.
*2 Ronald R. Crook of Smith & Alspaugh, P.C., Birmingham; and Dennis Harmon, Columbus, Mississippi, for appellant.
*3 William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellees Sean W. Marrone and John Marrone.
Wilbor J. Hust, Jr., of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellee Justin M. Beams.
PER CURIAM.
Cindy Prill, as the administratrix of the estate of Michael David Prill, her deceased son, appeals from a summary judgment entered in favor of Sean Marrone ("Sean"), John Marrone ("Mr. Marrone"), and Justin R. Beams in Ms. Prill's wrongful-death and negligent-entrustment action against them.
Procedural History
On July 15, 2004, Ms. Prill sued Justin, Sean, and Mr. Marrone, alleging wrongful death against Justin and Sean and negligent entrustment against Mr. Marrone. Ms. Prill also sought to hold Sean and Justin civilly liable for Michael's death on a conspiracy theory. Mr. Marrone is Sean's father. Sean and Mr. Marrone filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, which the trial court denied. Separately, Justin filed a motion to dismiss for failure to state a claim upon which relief could be granted, which the trial court also denied.
On August 17, 2004, Sean and Mr. Marrone filed their answer to Ms. Prill's complaint, denying the material allegations of the complaint and pleading the affirmative defenses of contributory negligence and assumption of the risk. On August 2, 2005, Justin filed a motion for a summary judgment. On August 8, 2005, Sean and Mr. Marrone filed a motion for a summary judgment. On November 8, 2005, the trial court granted the motions for a summary judgment. Ms. Prill appealed.
Facts
This case is based on the events that led to Michael's death from a single gunshot wound to the head, which was inflicted by a .38 Special Smith & Wesson brand handgun owned by Mr. Marrone. Michael was 20 years old at the time of his death; Sean and Justin were 17 years old.
On July 21, 2002, Sean entered Mr. Marrone's bedroom closet, while Mr. Marrone was asleep in the bedroom, and removed four guns, including the .38 handgun that later killed Michael and a .45-caliber Glock brand handgun, and some ammunition from a closet. Sean did not have Mr. Marrone's permission to remove any guns from the closet. Mr. Marrone testified that neither the closet nor the guns in the closet were secured with locks.
On at least one prior occasion, Sean had removed a gun from his father's closet without permission. On that occasion, Mr. Marrone warned Sean not ever again to remove any guns from the closet, and it appears that Mr. Marrone grounded Sean for having done so on that occasion. This incident happened at least six months before the events here.
Shortly after Sean removed the guns from his father's closet, Justin arrived at Sean's house. Sean and Justin placed the guns and ammunition in Justin's vehicle and then drove to Michael's mobile home to "go shooting" with him. Two days before this event, Sean, Justin, and Michael had gathered at Michael's mobile home and shot a shotgun that belonged to Michael.
Upon arriving at Michael's mobile home, Sean placed the .38 handgun and some bullets for it in the front pocket of his pants, and Justin concealed the Glock in his hand. They knocked on the front door of the mobile home at around 3:30 p.m., and Ms. Prill allowed Sean and Justin to *4 enter the mobile home. Ms. Prill did not know that they brought guns into her house until after the shooting. Also present in the mobile home were Michael and Ms. Prill's boyfriend, Lance Smelley. Smelley was asleep in the master bedroom when Sean and Justin arrived.
After Sean and Justin woke Michael from a nap, Sean, Justin, and Michael went into the dining room of the mobile home and played a game with the .38 handgun, which was unloaded. The game consisted of each of the boys taking turns placing the gun in his "wallet" and then pulling the gun out of his wallet and acting like he was robbing a store. Ms. Prill, who was in another room, asked the boys to quiet down. The boys then returned to Michael's bedroom.
After returning to Michael's bedroom, all three boys took turns handling the .38 handgun. Each boy would take a turn putting a bullet into one chamber of the handgun, spin the cylinder, and close the cylinder to see where the bullet had landed. These actions were meant to imitate Russian roulette, but the boys did not point the .38 handgun at anyone, including themselves.
At some point, Sean began loading bullets into all but one of the chambers of the.38 handgun and spinning the cylinder to see where the empty chamber would land. While Sean was doing this, Ms. Prill knocked on the bedroom door. Before Ms. Prill entered the bedroom, Sean laid the loaded gun beside Michael, who was lying on his bed. Ms. Prill stuck her head in the bedroom door and asked Michael if he had a piece of paper with a neighbor's telephone number on it. Michael responded that he did not have the piece of paper, so Ms. Prill left the room. According to Sean, shortly after Ms. Prill left the room, Michael, who was left-handed, picked up the .38 handgun with his right hand[1] and said, "[L]et's play Russian roulette." Michael immediately pointed the gun at his head and pulled the trigger. The gun fired once, and a bullet struck Michael in his right temple, killing him.
Justin testified that he was walking out of the bedroom door when the gun was fired. Justin said that he turned around and saw Sean standing near the foot of the bed where he had been sitting moments before. Ms. Prill testified that only 15 or 20 seconds elapsed from the time she left Michael's bedroom until she heard the shot. Ms. Prill further testified that it did not occur to her that anything odd or unusual was going on in the bedroom when she spoke to Michael. Justin and Sean agreed that Michael did not know that the gun was loaded before he picked it up, placed it to the right side of his head, and pulled the trigger.
Dr. William Shores, a forensic pathologist for the Alabama Department of Forensic Sciences, performed an autopsy on Michael. Dr. Shores testified that he could not determine whether the gun was fired by Michael or by someone else.
Justin testified that Michael had said that he had played Russian roulette before, but Justin did not believe him. According to Justin, Michael was reckless and seemed always to be depressed. Justin further testified that Michael had wrecked his sister's automobile because he was upset and he said that he had wanted to kill himself. Sean testified that, at some time before the day Michael died, *5 Sean had asked Michael if he would ever play Russian roulette and he responded that he would play.
Ms. Prill acknowledged that she did not have any personal knowledge that either Sean or Justin had handled the gun that caused Michael's death or that either Sean or Justin had coerced or tricked Michael into handling the gun or pulling the trigger himself. Ms. Prill testified that she had no knowledge, personal or otherwise, as to who actually pulled the trigger.
Ms. Prill described Michael as a kindhearted, fun-loving person, who loved to make people smile. Ms. Prill testified that Michael was "doing okay" psychologically around the time of the shooting, that he had never had any psychological treatment or counseling, and that she had never known him to express any suicidal thoughts or to have any suicidal tendencies. Ms. Prill further testified that Michael had gone through "some typical teenage stuff with girls breaking up with him" but nothing that caused her great concern. Ms. Prill indicated that Michael was very responsible with guns, and she testified that he had taken a hunter's safety course.
Standard of Review
"This Court's review of a summary judgment is de novo.
"`In reviewing the disposition of a motion for summary judgment, "we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact," Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988), and whether the movant was "entitled to a judgment as a matter of law." Wright v. Wright, 654 So. 2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359 (Ala. 1993) [overruled on other grounds, Bruce v. Cole, 854 So. 2d 47 (Ala. 2003)]; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).'"
Pittman v. United Toll Sys., LLC, 882 So. 2d 842, 844 (Ala.2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala.1997)).
Issues and Analysis
First, Ms. Prill asserts that she presented substantial evidence indicating that Justin's and Sean's negligence caused Michael's death. Specifically, Ms. Prill alleges that Sean and/or Justin negligently concealed handguns on their person and brought the guns into her house, in violation of § 13A-11-73, Ala.Code.1975, and that they negligently handled the guns. In their motions for a summary judgment, Justin, Sean, and Mr. Marrone argued that, as a matter of law, Justin's and Sean's allegedly negligent conduct was not the proximate cause of Michael's death because, they said, Michael's unforeseen *6 actions intervened and were the superseding cause of the injury.
"The elements of a negligence claim are a duty, a breach of that duty, causation, and damage." Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 679 (Ala.2001). "It is settled law in Alabama that even if one negligently creates a dangerous condition, he or she is not responsible for injury that results from the intervention of another cause, if at the time of the original negligence, the intervening cause cannot reasonably be foreseen." Sims v. Crates, 789 So. 2d 220, 224 (Ala.2000) (citing Gilmore v. Shell Oil Co., 613 So. 2d 1272 (Ala.1993)). "In such cases, we have held that the defendant's negligence is not the `proximate cause' of the plaintiff's injury, and, therefore, that the defendant is not liable." Gilmore, 613 So.2d at 1275. "Such an unforeseen agency, which breaks the chain of causation that otherwise might have linked the defendant's negligence to the plaintiff's injury, has been referred to as an `intervening efficient cause.'" Id. "In order for conduct to be considered an intervening efficient cause, it must (1) occur after the defendant's negligent act, (2) be unforeseeable to the defendant at the time he acts, and (3) be sufficient to be the sole cause-in-fact of the plaintiff's injury." Id.
"In Gilmore, an employee at a gasoline station/convenience store kept a loaded handgun on a shelf beneath the counter in the store. The plaintiff's son, Michael Gilmore, was a friend of another employee. On the day he died, Michael had gone to the store to visit his friend. The employee who owned the handgun testified that on that day, he had inadvertently left the handgun on the shelf beneath the counter. Michael went behind the counter to make a telephone call; while there, he took the handgun from underneath the counter. His friend testified that Michael `opened the chamber of the handgun and removed all the bullets. Michael then replaced one of the bullets, closed the chamber, put the handgun to his head, and pulled the trigger.' 613 So.2d at 1274. The shot killed Michael. This Court held that his conduct was an efficient intervening cause that negated any liability of the defendants for any negligence on their part in leaving the handgun on the shelf.
"`The death of Michael Gilmore is also an unexplainable tragedy. We do not understand, nor do we attempt to rationalize, his deliberate and destructive final act. However, we recognize that such acts are not the ordinary and naturally flowing consequences of the defendants' negligent conduct in leaving the handgun under the cashier's counter where it was accessible to those persons who might find themselves behind the cashier's counter. What relieves the defendants of any liability for Michael's death is that Michael, by his own hands, acted intentionally and deliberately in a manner that was calculated to result in his own death.'
"[613 So.2d] at 1278."
Sims, 789 So.2d at 224-25.
In Sims, the father of a teenager who shot himself while attending a party at the home of a friend's stepfather brought a wrongful-death action against the stepfather and the friend, alleging that the teenager's death was the proximate result of negligent, willful, or wanton acts on their part. The stepfather kept handguns in his bedroom in an unlocked cabinet that was built into the headboard of his bed. However, all the handguns were stored unloaded, and the ammunition was kept in a separate locked cabinet. The teenager obtained a .357 handgun from the cabinet, but he obtained ammunition for the handgun *7 from another teenager who attended the party and not from the stepfather's locked cabinet. The teenager was taking cartridges in and out of the chamber of the handgun and spinning the chamber around. Some girls told him to stop playing with the gun. The teenager stated that he could not die, put the gun to his head, and pulled the trigger, but nothing happened. One of the girls left to get someone who would take the gun away from the teenager, but while she was gone he again put the gun to his head and pulled the trigger. The gun discharged, killing the teenager. Sims, 789 So.2d at 222-23. This Court held that the teenager's own actions were sufficient to break any chain of causation between the stepfather's actions and the teenager's death. 789 So.2d at 224.
Likewise, in the present case, Michael's own negligent and unforeseeable actions were sufficient to break any chain of causation between Justin's and Sean's actions and Michael's death. Michael intentionally and suddenly picked up the .38 handgun, pointed it at his head, and pulled the trigger. There is no evidence indicating that Justin or Sean coerced or tricked Michael into handling the gun or pulling the trigger or that they could foresee that Michael was about to take these actions. At the time of the shooting, the three friends had been playing for approximately an hour without incident, there had been no discussion of suicide, and they had not actually played Russian roulette or pointed the gun at anyone or at themselves. Justin and Michael had simply gathered at Michael's house to "go shooting" with him, as they had done two days earlier.
Furthermore, the fact that Michael may not have known that the gun was loaded is irrelevant. Ms. Prill testified that Michael, who was 20 years old, had taken a hunter's safety course, and there was evidence indicating that Michael had some familiarity with guns. As the United States Court of Appeals for the Sixth Circuit has stated: "Any gun safety course teaches and any reasonable gun user should know that no gun, loaded or unloaded, should ever be pointed at [a] human, much less pointed and mockingly fired." Davis v. McCourt, 226 F.3d 506, 512 (6th Cir.2000). Therefore, even if Sean and/or Justin negligently created a dangerous condition with their actions, they are not responsible for Michael's death, which resulted from the intervention of his unforeseeable conduct. Michael's actions were unforeseeable as a matter of law and were the proximate cause of his death.
Ms. Prill next argues, as an exception to the general rule that suicide is an intervening cause that serves to break all causal connections between the alleged negligent acts and the death, that, assuming Michael committed suicide, Justin and Sean "created an uncontrollable impulse in Michael which led to suicide or caused a mental condition which resulted in his suicide." (Ms. Prill's brief, at 30.) In Vinson v. Clarke County, Alabama, 10 F. Supp. 2d 1282, 1303-04 (S.D.Ala.1998), the court stated:
"Under Alabama law, suicide generally functions as an efficient intervening cause which serves to break all causal connections between the alleged wrongful or negligent acts and the death at issue. See Gilmore v. Shell Oil Co., 613 So. 2d 1272, 1275-76 (Ala.1993). Consequently, a defendant cannot be found liable for the suicide of another unless `the relationship between a decedent and a defendant is such that we expect the defendant to take reasonable steps to protect the decedent from deliberate and self-destructive injury.' Id. at 1278."
*8 Furthermore, the court noted that "the Alabama Supreme Court has indicated that liability for suicide might result in one other circumstance, namely where a defendant created an uncontrollable impulse in another which led to suicide, see Gilmore, 613 So.2d at 1276 . . . ." Vinson, 10 F.Supp.2d at 1304. Finally, the court recognized that "[w]here there is neither a custodial relationship which would indicate the foreseeability of suicide, or a claim of irresistible impulse, Alabama law provides that `suicide . . . is unforeseeable as a matter of law, and civil liability will not be imposed upon a defendant for a decedent's suicide.'" 10 F.Supp.2d at 1304 n. 21 (quoting Gilmore, 613 So.2d at 1278).
This Court has not elaborated on what type of conduct by a defendant might cause a victim to experience an "uncontrollable impulse," so that the act of suicide is considered to be the last link in the chain of causation from the defendant's alleged wrongful act to the suicide and, thus, the defendant's act is the proximate cause of death. However, other jurisdictions have explained that an "uncontrollable impulse" consists of "a delirium, frenzy or rage, during which the deceased commits suicide `without conscious volition to produce death.'" McMahon v. St. Croix Falls School Dist., 228 Wis. 2d 215, 225, 596 N.W.2d 875, 880 (Wis.Ct.App.1999) (quoting Bogust v. Iverson, 10 Wis. 2d 129, 138, 102 N.W.2d 228, 232 (1960)); see also Restatement (Second) of Torts § 455 (1965) (actor liable if actor's negligent conduct causes another's insanity, making it impossible for the other to resist an impulse caused by her insanity). The key to finding an "uncontrollable impulse" is finding that "the defendant actually causes the suicide." McMahon, 228 Wis.2d at 225, 596 N.W.2d at 880.
In the present case, Ms. Prill has not presented any evidence indicating that Justin or Sean caused Michael to enter a "delirium, frenzy or rage" during which he committed suicide. In fact, Ms. Prill did not present any expert or circumstantial evidence of Michael's state of mind at the moment he shot himself. Ms. Prill testified that she talked to Michael seconds before he shot himself and that at that time it did not occur to her that anything odd or unusual was going on. There is no evidence indicating that Justin's or Sean's conduct caused Michael to surrender his own free will. All the evidence presented to the trial court leads to the conclusion that, with conscious volition, Michael recklessly and without warning picked up the gun, pointed it at his head, and pulled the trigger. Ms. Prill failed to present substantial evidence indicating that Justin and/or Sean created an uncontrollable impulse in Michael that led to his suicide. Therefore, Ms. Prill has failed to present substantial evidence creating a genuine issue of material fact in response to the properly supported summary-judgment motions, and, thus, the summary judgment in favor of Justin and Sean on her wrongful-death claim is affirmed.
Next, Ms. Prill alleges that she presented substantial evidence to support her claim of negligent entrustment against Mr. Marrone. "`The essential ingredients of a cause of action for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; and (5) damages.'" Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 412 (Ala.2005) (quoting Mason v. New, 475 So. 2d 854, 856 (Ala.1985) (emphasis omitted)). Mr. Marrone responds that he is not liable under the theory of negligent entrustment because, he says, he did not entrust the .38 handgun to Sean.
This Court has not specifically defined the element of entrustment in the context *9 of a claim that alleges the negligent entrustment of a gun. However, in Edwards v. Valentine, 926 So. 2d 315 (Ala.2005), this Court discussed the element of entrustment in the context of a claim alleging the negligent entrustment of an automobile:
"`In Alabama, when one person drives a car belonging to another, a rebuttable presumption of entrustment, i.e., that the car was being operated by the driver with the permission of the owner, arises when ownership is established . . . . Thus, the owner of a vehicle is faced with a substantial burden in order to disprove an entrustment.' Note, Negligent Entrustment in Alabama, 23 Ala. L.Rev. 733, 738 (Summer 1971) (emphasis added; footnote omitted); see also Thompson v. Havard, 285 Ala. 718, 721, 235 So. 2d 853, 856 (1970). `Entrustment can include either [1] actual entrustment, [2] continuing consent to use the vehicle, or [3] leaving the vehicle available for use.' Note, supra, at 738. A case of entrustment by `leaving the vehicle available' may occur, even though `the entrustor has not given . . . permission [to use the vehicle on a particular occasion] and may even have expressly refused it.' Id. at 739 (emphasis added; footnote omitted). `In order to establish that there has been an entrustment by leaving the vehicle available, it must be shown that the entrustor knew or had reason to know that the particular incompetent involved in the accident was likely to use the vehicle without authorization and that the entrustor failed to take reasonable precautions to prevent such unauthorized use.' Id. (emphasis added; footnote omitted); see also Redmond v. Self, 265 Ala. 155, 90 So. 2d 238 (1956); Paschall v. Sharp, 215 Ala. 304, 110 So. 387 (1926). In this case, the evidence was sufficient for the court to conclude that Edwards left the vehicle available for Garrison's use on the date of the accident."
Edwards, 926 So.2d at 320-21.
In Edwards, a motorist was struck from behind by a pickup truck while it was being operated by the brother-in-law of the owner of the truck. The motorist and his wife sued the owner, asserting a claim of negligent entrustment of a vehicle. Following a nonjury trial, the trial court awarded the motorist $115,000 in compensatory damages and awarded the motorist's wife $35,000 on her loss-of-consortium claim. Edwards, 926 So.2d at 319.
At the time of the accident in Edwards, the owner and the brother-in-law had lived in adjacent mobile homes for approximately 10 years. The owner testified that he "left" his truck for his brother-in-law's wife, who was the owner's sister and had four small children, to use "in case of an emergency." 926 So.2d at 321. The brother-in-law testified that he took the truck on the day of the accident to go to the store. The keys were not in the truck, so the brother-in-law entered the owner's home and got the keys from the dresser or the table, as he had occasionally done in the past. The parties stipulated to the admission of the deposition of Billy Ray Cochran, who testified that he had seen the brother-in-law driving the owner's truck on occasions before the accident. He also stated that, on numerous occasions both before and after the accident he had seen the owner give the brother-in-law the keys to the owner's truck, accompanied by the instructions that if the brother-in-law, his wife, or one of their children ever had a wreck in it, they should claim that they had stolen the truck. Edwards, 926 So.2d at 321.
Based on these facts, this Court held that "the evidence was sufficient for the court to conclude that [the owner] left the vehicle available for [the brother-in-law]'s *10 use on the date of the accident." Edwards, 926 So.2d at 321. Furthermore, "[t]he trial court's conclusion that [the owner] entrusted his vehicle to [the brother-in-law] is not palpably erroneous." Id. But see Penland v. Allsup, 527 So. 2d 715 (Ala.1988) (holding that the owner of a sports car, who had been drinking with the passenger and who had left the keys in the car so the passenger could listen to the radio while the owner got out of the car for a brief delivery, did not entrust the car to the passenger and was not liable for negligent entrustment, even though the passenger had used the car on three prior occasions; the passenger had always used the car with the owner's express permission, had not previously used the car at will, and was not drunk on previous occasions).
Also, in the context of construing a provision in an insurance policy that excluded coverage for property entrusted to an insured for storage or safekeeping, this Court quoted with approval the following language: "`The word entrust has been defined by both lay and legal authorities in substance to mean to commit something to another with a certain confidence regarding his care, use or disposal of it.'" Ho Bros. Rest., Inc. v. Aetna Cas. & Sur. Co., 492 So. 2d 603, 606 (Ala.1986) (quoting Pacific Indem. Co. v. Harrison, 277 S.W.2d 256, 261 (Tex.Civ.App.1955) (emphasis omitted)). This Court also noted that "[u]nder Pacific Indemnity Co., supra, and its progeny, in order for there to be an `entrustment' of an automobile, there basically has to be a voluntary and actual delivery of keys and/or the vehicle to the thief by the insured." Ho Bros. Rest., 492 So.2d at 606. Furthermore, this Court held:
"We hereby adopt the Pacific Indemnity Co., supra, construction of `entrustment' as the construction which ordinary men would place on the word `entrustment.' Implicit in this holding is the requirement of some expectation on the part of each party as to how each will act with respect to the `entrusted' property."
492 So.2d at 606.
In the present case it is undisputed that, unlike the owner of the automobile in Edwards, Mr. Marrone never gave Sean express or implied permission to remove the .38 handgun from the bedroom closet. In fact, Mr. Marrone explicitly told Sean not to remove the gun from the closet. As was the case with the owner of the vehicle in Penland, there is no evidence indicating that Mr. Marrone ever intended for Sean to use the .38 handgun on the day that Michael died. Mr. Marrone did not have any expectation as to how Sean would handle the gun if he removed it from the closet because Mr. Marrone did not have any expectation that the gun would be removed from the closet. Mr. Marrone did not actively aid, assist, or facilitate Sean's removal of the gun from the closet. Ms. Prill did not present substantial evidence indicating that Mr. Marrone knew that Sean was likely to use the .38 handgun without authorization and that Mr. Marrone failed to take reasonable precautions to prevent such unauthorized use. It is undisputed that Mr. Marrone stored the unloaded guns in a closet in his bedroom and explicitly told Sean not to remove the guns. The fact that, at least six months before Michael's death, Sean had removed a gun from Mr. Marrone's closet without his permission is not substantial evidence indicating that Mr. Marrone entrusted the.38 handgun to Sean on the day Michael died.
Moreover, even assuming that Mr. Marrone did negligently entrust the .38 handgun to Sean, Mr. Marrone's negligence was not the proximate cause of Michael's death. As discussed earlier, Michael's *11 own negligence was a superseding intervening cause that attenuated any negligence on the part of Mr. Marrone from the ultimate injury to Michael. Therefore, Ms. Prill did not present substantial evidence to support her negligent-entrustment claim.
Finally, Ms. Prill appears to seek civil liability for certain criminal acts allegedly committed by Justin and Sean. Specifically, Ms. Prill alleges that "since suicide is a felony at common law, if [Justin] or Sean either induced or caused, aided or abetted, or failed to prevent [Michael] from committing suicide, both are criminally liable for his death." (Ms. Prill's brief, at 20.) To support this allegation, Ms. Prill cites § 13A-2-23, Ala.Code 1975, which sets forth criminal liability based upon the behavior of another. Ms. Prill also alleges that "[s]ince suicide is murder at common law, an agreement encompassing it is criminal conspiracy." (Ms. Prill's brief, at 21.) Ms. Prill does not elaborate on either of these allegations, and it is unclear how they relate to the summary judgment. In her complaint, Ms. Prill did allege that "[Sean] and [Justin] were co-conspirators and entered the home of [Michael] with concealed weapons knowing that if weapons had been shown when [Sean and Justin] entered the home of [Michael], they would have been denied entry into the home." However, Ms. Prill scarcely mentions the conspiracy claim in her responses to the summary-judgment motions or in her briefs to this Court.
In Martinson v. Cagle, 454 So. 2d 1383 (Ala.1984), this Court held that, although an act that constitutes a crime can also be the basis of a civil action, civil liability will exist "only if the acts complained of violate the legal rights of the plaintiff, constitute a breach of duty owed to the plaintiff, or constitute some cause of action for which relief may be granted." 454 So.2d at 1385. This Court found that counts alleging "only that the criminal acts were committed and that the [plaintiffs] were thereby injured" did not state a civil cause of action. Id.
Like the plaintiff in Martinson, Ms. Prill alleges only that Justin and Sean committed criminal acts and that those acts caused injury to Michael. The language of the Alabama Code does not create a private right of action for criminal complicity or criminal conspiracy, nor does Ms. Prill show where this Court has recognized that a civil cause of action exists under the criminal statutes proscribing this conduct. To the extent that the allegedly criminal conduct of Justin or Sean also constitutes a legitimate civil cause of action, such as a cause of action for negligence, that claim has been pursued. However, Ms. Prill may not maintain a separate or additional cause of action under the criminal-complicity or conspiracy statutes. Therefore, the motions for a summary judgment were properly granted as to these allegations of criminal conduct.
To the extent that Ms. Prill's conspiracy claim may be construed as a civil-conspiracy claim, she has not presented substantial evidence to support such a claim. "A plaintiff alleging a conspiracy must have a valid underlying cause of action." Callens v. Jefferson County Nursing Home, 769 So. 2d 273, 280 (Ala.2000). As discussed earlier, Ms. Prill's wrongful-death claim fails because she cannot prove causation. Therefore, she does not have a valid underlying cause of action to support her conspiracy claim.
It should also be noted that is unnecessary to address the arguments set forth by the parties concerning the affirmative defenses of assumption of the risk and contributory negligence. A summary judgment is proper for the defendants in this case on the wrongful-death claim because *12 Michael's conduct broke the chain of causation that otherwise might have linked the defendants' negligence to the plaintiff's injury. The conduct of Justin and Sean was simply not the proximate cause of Michael's death. A summary judgment is likewise proper for Mr. Marrone on the negligent-entrustment claim.
Conclusion
Based on the foregoing, the trial court's judgment is affirmed.
AFFIRMED.
COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.
NOTES
[1] Ms. Prill testified that Michael was left-handed and that he was uncoordinated using his right hand but no more so than a typical left-handed person would be. Ms. Prill acknowledged that Michael had broken his left hand in October 2001 and that he was required to use his right hand more while his left hand was in a cast. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615012/ | 497 F. Supp. 839 (1980)
The HISTORIC GREEN SPRINGS, INC., Plaintiff,
v.
Bob BERGLAND et al., Defendants.
Civ. A. No. 77-0230-R.
United States District Court, E. D. Virginia, Richmond Division.
August 11, 1980.
*840 *841 Emanuel Emroch, Emanuel Emroch & Associates and Thomas W. Williamson, Jr., Richmond, Va., for plaintiff.
Gerald L. Baliles, D. Patrick Lacy, and John A. Gibney, Jr., Richmond, Va., for defendant Va. Vermiculite and intervenor landowners.
Stephen C. Harris, Atty. for the Commonwealth of Louisa County, Louisa, Va., for intervenor Louisa County Bd. of Supv.
Raymond A. Carpenter, Asst. U.S. Atty., Richmond, Va., Gary W. Wilburn, Lars Hanslin, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants Andrus and Murtagh.
MERHIGE, Jr., District Judge.
MEMORANDUM
This case involves the controversy surrounding the designation of approximately 14,000 acres of land in Louisa County, Virginia, known as the Historic Green Springs District, as a National Historic Landmark, its listing in the National Register of Historic Places (hereinafter "National Register"), and the acceptance by the Secretary of the Interior of preservation easements over half of the District. An explanation of the posture of the case requires a review of the proceedings, both administrative and judicial, since this suit was filed on April 26, 1977.
This action was originally filed in this Court by Historic Green Springs, Inc. (hereinafter "HGSI"), a local organization dedicated to the preservation of the District's historical qualities. HGSI filed its complaint against Virginia Vermiculite, Ltd. (hereinafter "VVL"), Secretary of Agriculture Bob Bergland, the Farmers Home Administration, and United Virginia Bank. HGSI sought to prevent the Farmers Home Administration from guaranteeing a loan from United Virginia Bank to VVL, the proceeds of which loan were to be used by VVL to finance mining operations in the Historic Green Springs District (hereinafter "District"). The basis of the complaint was that the District's listing in the National Register required compliance with certain protective procedures before such a loan guarantee could be effected.
On May 4, 1977, VVL filed a counterclaim and third-party complaint against defendant Bergland, Secretary of the Interior Cecil Andrus, and Keeper of the National Register William Murtagh. VVL challenged the District's listing in the National Register on the basis of the allegedly defective nomination of the property to the National Register by the Virginia Historic Landmarks Commission. A similar challenge was asserted by intervenors Louisa County Board of Supervisors and various owners of land within the District. Shortly thereafter, the Secretary of the Interior conceded that the state nomination of the District to the National Register was defective due to inadequate notice, but determined that because of its national historic significance, the District would remain on the Register as a National Historic Landmark. Upon motion by HGSI on May 16, 1978, the Court dismissed HGSI's complaint.
*842 VVL and the intervening landowners (hereinafter "plaintiffs") as well as the Louisa County Board of Supervisors supplemented and amended their pleadings in order to challenge the actions of the Department of the Interior taken since the filing of the counterclaim and third-party complaint. A trial in this matter was held, at which time the federal defendants' motion for summary judgment was denied. The parties filed post-trial memoranda with the Court addressing the issues raised at trial. After reviewing such memoranda and the administrative record submitted to the Court, and finding further argument in this matter unnecessary, the Court finds the matter ripe for disposition.
I. FACTUAL BACKGROUND
The factual background that follows, regrettably, is necessarily detailed. The Historic Green Springs District comprises an area of approximately 14,000 acres, described as roughly the size of New York's Manhattan Island. The District lies within Louisa County, Virginia, about midway between Richmond and Charlottesville. While the national significance of the District's historic qualities is disputed, the area does constitute a beautiful and remarkably well-preserved concentration of eighteenth and nineteenth century buildings of architectural merit. Most of its land is used for agricultural purposes, although some commercial development may be found there, such as a lumber company, motel, meat processing plant, and used car dealership. Most importantly, two mining companies, VVL and W. R. Grace Co., Inc., have acquired mining rights over much of the land in and around the District for the mining and processing of vermiculite. Vermiculite is used in the production of plaster and lightweight concrete construction materials, fertilizers, paints, and insulation in both residential and commercial structures. The extent of the vermiculite deposits in the District has been termed significant.
The instant controversy over the district's historic value began as early as 1972, when the Commonwealth of Virginia proposed the construction of a new prison in the District. HGSI, with the support of the District's residents, organized a successful effort to block the construction. HGSI's efforts at promoting the District's historical qualities to state officials resulted in its recognition as a Virginia Historic Landmark by the Virginia Historic Landmarks Commission. This state commission in February, 1973, nominated the District to the National Register. On March 1, 1973, the Department of the Interior (hereinafter "the Department") approved the state nomination and listed the District on the National Register.[1]
HGSI also acquired "preservation easements" over approximately half of the land in the District, which preserved the affected land by prohibiting new industrial and commercial development, limiting in some instances any construction around various historic structures, and requiring proper maintenance of historic buildings. Once acquired by HGSI, these preservation easements were offered in 1973 to the Department of the Interior. Although the Department initially rejected the proffered easements, the offer itself led to consideration of the adoption of a national program of acquiring preservation easements over national historic landmarks.
Despite the Department's rejection of the easements, its interest in the District continued. In 1974, the Secretary considered designating the District a National Historic Landmark. In April, 1974, the Department's Advisory Board on National Parks, Historic Sites, Buildings & Monuments had presented to it a report on the District by Benjamin Levy, a Department historian. Levy's report, after noting a modicum of historical events and persons associated with the District, focused on the District's architectural qualities. Replete with photographs and diagrams, the report discussed in detail the characteristics of the various *843 manor houses and outbuildings said to "constitute a textbook of Virginia architecture up to the period following the Civil War." Based upon this report, the Secretary designated the District a National Historic Landmark in 1974.
After HGSI renewed its offer of the preservation easements to the Department, the Department made clear in a letter to HGSI that the easements would be accepted only as part of a national easements program then under consideration. By September, 1975, the Secretary had decided to proceed with such a national program for accepting easements on selected historic landmarks. Evidence of the Secretary's interest in accepting the Green Springs easements as part of that program can be found in his letter to the Chairman of the Board of W. R. Grace Company, Inc., in which he emphasized the Department's interest in the area in relation to the easements program and suggested that the mining company utilize its vermiculite holdings outside the District.
Although funding for a national easements program was ultimately denied, the Department proceeded with consideration of acceptance of the Green Springs easements. The Department assigned its Senior Historian, Benjamin Levy, to prepare an evaluation of the proffered easements. Levy's report, submitted in November, 1976, noted many flaws in the terms and extent of the easements, such as their failure to grant public use and access, and to prohibit in all cases subdivision and development of the land. Notwithstanding the incomplete protection facilitated by the preservation easements, Levy concluded that their acceptance was a necessary first step in preserving the District. This belief was shared by Assistant Secretary of the Interior Ronald Coleman, who by memorandum dated January 4, 1977, recommended a quick acceptance of the easements without the benefit of an environmental impact statement pursuant to the National Environmental Policy Act of 1969 (hereinafter "NEPA"), 42 U.S.C. § 4321 et seq., or of the promulgation of regulations to govern easement acceptance.
On January 19, 1977, Assistant Secretary of the Interior Nathaniel Reed informed HGSI President, Elizabeth Nolting, that adoption of a policy of accepting the easements was underway. By notice in the Federal Register on March 18, 1977, the Department publicly announced the proposed acceptance of the Green Springs easements. The announcement gave notice of a public hearing on the merits of the proposal to be held on April 22, 1977, and provided for a fact sheet to be made available on request for that hearing. The hearing was held on April 22 in Louisa County at which both proponents and opponents of the proposal stated their respective positions.
Immediately following this hearing, Assistant Secretary of the Interior Robert Herbst requested that the Farmers Home Administration not guarantee a loan to VVL to finance mining operations until the Department could review the proposed mining and loan guarantee, and until the Farmers Home Administration could prepare an environmental impact statement for the operation. In addition, HGSI filed the original complaint in this action seeking to block the loan guarantee. Due to the resulting delay in the loan guarantee, VVL was forced to obtain alternate financing. In a further obvious effort to impede VVL's mining operation in the District, Assistant Secretary Herbst notified VVL on May 16, 1977, that the Department was reviewing the proposed mining pursuant to the Mining in the Parks Act, 16 U.S.C. § 1908, to determine whether the mining would cause irreparable loss or destruction to the District and, if so, how the government could mitigate such activity.
On May 18, 1977, the Department published a notice in the Federal Register announcing its procedure for acceptance of the Green Springs easements. The procedures consisted of departmental review of the easements, preparation of an environmental assessment of the proposal leading to either a negative declaration of significant environmental impact or the promulgation of an environmental impact statement, subsequent publication of such declaration *844 or statement, a public hearing in the event a negative declaration is issued, and final decision by the Secretary. The May 18 notice stated that preparation of the departmental study as well as of the environmental assessment had been accomplished, and further that a public hearing had been held in connection with that assessment. Preparation of the environmental assessment, however, had not in fact been completed at that time.
On June 8, 1977, the Department issued its environmental assessment of the easements proposal. This twenty page document detailed the history of the easements offer, the nature and terms of the easements, the effect of federal acceptance of the easements, and the Department's plans for the District. Although the environmental assessment noted that acceptance of the easements would impede state, local, and industrial development of the District in several ways, the Department issued a negative declaration stating that acceptance of the easements was not a major federal action having a significant impact on the environment. A public hearing was then scheduled for the afternoon of July 27, 1977, to receive public comment on the negative declaration.
Prompted, at least in part, by the protests of Green Springs landowners and by plaintiffs' counterclaim and third-party complaint in this action, the Department announced in the Federal Register on June 29, 1977, that it would reconsider the District's listing on the National Register as a state nomination and the District's designation as a National Historic Landmark. A public hearing was announced for the morning of July 27, 1977, for the purpose of receiving public comment on the reconsideration. By Federal Register announcement of July 18, 1977, the Department defined "reconsider" as to "determine anew, without any presumptions based on prior actions," the issues concerning the District. The Department, however, announced that the reconsideration process would not entail resubmission of the District's landmark status to the Department's Advisory Board.
While the Department's reconsideration of the District's status was pending, Assistant Secretary Herbst again wrote the Farmers Home Administration on July 19, 1977, this time in response to a request for review of the loan proposal. Herbst renewed his suggestion that the Administration prepare an environmental impact statement for the proposal, as well as submit extensive documentation of the proposed mining operation. On the same day, Herbst wrote to the Virginia State Air Pollution Control Board requesting a delay in issuance of VVL's permits until completion of the Department's Mining in the Parks Act study.
On July 27, 1977, the Department held public hearings concerning the District's listing on the National Register and its landmark designation, as well as the negative declaration of environmental impact of the easements proposal. A transcript of the morning hearing concerning the reconsideration of the District's landmark status reveals that great confusion existed over the scope of the hearing and over the action being proposed by the Department. Department officials at the hearing did not, for the most part, respond to the public's questions. By Federal Register notice of September 20, 1977, the Department announced the issuance of, and summarized, an environmental assessment and negative declaration concerning the redesignation of the District as a National Historic Landmark. The September 20 notice also clarified for the first time that the District could remain a National Historic Landmark despite a defective state nomination to the National Register.
Inter-departmental memoranda of November and December, 1977, show that the Department of the Interior had recognized that the state nomination of the District to the National Register was defective and that it had been removed from such a listing. Finally, on December 13, 1977, the Secretary of the Interior decided to redesignate the District as a National Historic Landmark on his own authority, and to accept HGSI's offer of preservation easements. *845 The District's designation as a National Historic Landmark automatically placed it back on the National Register. 36 C.F.R. § 60.2(d)(2). These decisions were announced in the Federal Register on January 24, 1978.
Plaintiffs attacked the Secretary's decisions to designate the District as a National Historic Landmark and to accept the preservation easements on several grounds. Initially, plaintiffs challenge the Secretary's authority to designate the District and to accept easements over it pursuant to the Historic Sites, Buildings and Antiquities Act of 1935, 16 U.S.C. §§ 461 et seq. Plaintiffs contend that the Department of the Interior confused the standards for national significance under the Historic Sites Act of 1935 with the less strict standards of historic importance under the National Historic Preservation Act of 1966, 16 U.S.C. §§ 470 et seq. Arguing that the District's historical significance does not meet a level of national importance, the plaintiffs question the Secretary's authority under the Historic Sites Act of 1935 to take the administrative action challenged here.
Secondly, plaintiffs argue that the Secretary's decisions in this matter were arbitrary and capricious and violated plaintiffs' constitutional rights under the Fifth and Tenth Amendments to the Constitution of the United States. Plaintiffs contend that a finding that the Historic Green Springs District merits treatment as a National Historic Landmark was contradicted by compelling evidence of the area's lack of national significance. Further, plaintiffs assert that the restrictions placed on land in the District as a result of its landmark designation constitute a taking without just compensation in violation of the Fifth Amendment and result in impairment of the county's zoning powers over the area in violation of the Tenth Amendment.
Finally, plaintiffs argue that the administrative procedures employed by the Department, or lack thereof, since its involvement with the Green Springs area, violated basic principles of due process and administrative law, as well as provisions of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and NEPA. In particular, the Department's failure to promulgate either substantive or procedural regulations to govern its discretionary actions, its alleged failure to provide adequate notice to interested parties allowing for meaningful public comment, the Department's alleged bias in its handling of the District, its failure to follow its own informal regulations, and the Secretary's alleged failure to state reasons for his decisions, are all cited as procedural errors invalidating the Secretary's actions. Further, plaintiffs argue that the Department's actions concerning the District constitute rule-making under the Administrative Procedure Act, and that it failed to follow the Act's procedures governing rule-making. A final error is alleged in the Department's failure to prepare environmental impact statements under NEPA for its actions in the District.
II. SCOPE OF REVIEW
This Court's scope of review of the administrative action challenged here is set out in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). The Court's inquiry is described therein as "substantial", to be based on a "thorough, probing, indepth review" of the Secretary's decision. Id. at 415, 91 S.Ct. at 823. This review is broken down into three steps. First, the Court is required to decide whether the Secretary acted within the scope of his authority. Id.; Schilling v. Rogers, 363 U.S. 666, 676-77, 80 S. Ct. 1288, 1295, 4 L. Ed. 2d 1478 (1960). Second, the Court must decide, pursuant to § 706(2)(A) of the Administrative Procedure Act, that the Secretary's actual decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Citizens to Preserve Overton Park, supra at 416, 91 S.Ct. at 823. A corollary of this inquiry is a determination that the Secretary's action is not "contrary to constitutional right, power, privilege, or immunity" under § 706(2)(B). The third and final step is to determine whether the Secretary's action "followed the necessary procedural requirements." Id. at 417, 91 S.Ct. at 824.
*846 III. THE SECRETARY'S SCOPE OF AUTHORITY
As heretofore noted, plaintiffs argue that the Secretary's designation of the District as a National Historic Landmark, and his acceptance of preservation easements in order to protect it, were actions beyond the scope of his authority under the Historic Sites Act of 1935 (hereinafter "the 1935 Act"), 16 U.S.C. §§ 461 et seq. Before addressing the allegations of unauthorized action, the Court must review the legislation that forms the basis of the Secretary's actions.
The policy underlying the 1935 Act is contained in § 461 of the Act: "It is [hereby] declared that it is a national policy to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States." 16 U.S.C. § 461. In order to effectuate that policy, the Secretary of the Interior is empowered, inter alia, to acquire on behalf of the government any historic site, building, or object by gift, purchase, or otherwise. 16 U.S.C. § 462. Further, the Secretary is authorized, in cooperation with state and local agencies and professional individuals, to recognize and study historic landmarks of national significance not owned by the federal government. To this end, the Secretary instituted the National Historic Landmark Program. Both the acceptance of the Green Springs preservation easements and the designation of the District as a National Landmark were accomplished pursuant to the 1935 Act.
In 1966, Congress passed the National Historic Preservation Act of 1966 (hereinafter "the 1966 Act"), 16 U.S.C. §§ 470 et seq., which provided for the recognition of historic places and objects of state and local importance in addition to those of national significance. The 1966 Act expanded the scope of the National Register to include not only National Historic Landmarks and historic properties of the National Park System, but properties of state and local importance nominated by the states. For the first time in such legislation, allowance was made for the recognition of historic "districts" in addition to the previously recognized sites, buildings and objects. Further, the 1966 Act added "cultural" significance as a valid subject of federal protective measures. As part of this expanded concept of cultural and historical significance, the 1966 Act added architectural and archeological importance to social and political importance as worthy of recognition.
In summary, the 1935 Act restricted its scope to the few properties possessing truly national historical significance. The Secretary is empowered thereunder to acquire property on behalf of the United States and to designate as National Historic Landmarks those exceptional properties of national importance. The 1966 Act broadened the scope of federal historical preservation by recognizing properties of state and local importance and by adding "districts" and "cultural" values as subjects of federal protective measures. The 1966 Act did not authorize acquisition of such properties but, rather, provided for the listing on the National Register with the protection inherent in such listing.
Plaintiffs argue that designation of the District as a National Historic Landmark and acceptance of the Green Springs easements, though authorized actions under the 1935 Act, were accomplished by applying the standards of the 1966 Act. As a threshold matter, the Court finds that plaintiffs' contention that the District lacks national significance and is therefore not a proper subject of recognition under the 1935 Act is more appropriately an attack on the merits of the Secretary's decision rather than on his authority; the Court finds that the Secretary regarded the District's historic qualities as possessing national importance and did not misapply a state or local standard to the District. This attack on the merits will be addressed in a later section. However, plaintiffs do raise some apparent inconsistencies between the Secretary's actions under the 1935 Act and the language of that Act.
First, the Secretary appears to have based the findings of the District's historical *847 significance on its architectural qualities, yet recognition of "architecture" and "cultural" values is only mentioned in the 1966 Act. Further, recognition of a historic "district", as opposed to sites, buildings and objects, is likewise mentioned only in the 1966 Act. Plaintiffs also argue that because the Green Springs easements do not grant any right of public access to the affected land, and because the Department has consistently disavowed any intention of publicizing the District, the acceptance of the easements does not constitute acquisition of property "for public use", the stated policy of the 1935 Act. A further violation of the underlying policy of the 1935 Act is alleged in the fact that the easements provide incomplete protection to the District and therefore their acquisition does not in fact "preserve" the historic property. Finally, plaintiffs argue that the Department's acceptance of the easements before approval of any appropriations for the undertaking violates the 1935 Act requirement that no property be acquired thereunder "which will obligate the general fund of the Treasury for the payment of such property, unless or until Congress has appropriated money which is available for that purpose." 16 U.S.C. § 462(d).[2]
The Court has little trouble with most of these allegations. That the easements do not grant a right of public access to the property is not violative of the policy of preserving historic properties "for public use," as that term may encompass the "taking of land for commemorative purposes." Barnidge v. United States, 101 F.2d 295, 298 (8th Cir. 1939). Nor is it a violation of the Act's policy that the preservation easements in many instances allow for subdivision and development of the land or cover less than half of the District. It is clear from the administrative record that the Department viewed acceptance of the easements as merely an initial step towards preservation of the District and not as a final protective measure. The Court also finds that the acceptance of the easements did not "obligate the general fund of the Treasury for the payment of such property," (emphasis added) but simply entailed certain administrative costs for maintenance of the easements.
The Court admittedly is troubled, however, by the Department's assertion that a "district" the size of Manhattan can be a historic "site," in spite of the absence of any significant commemorative event or historical person associated with it, and further that its architectural significance is covered by the term "historic" in the 1935 Act. A review of the legislative history of the 1935 Act and the 1966 Act reveals that the latter was necessitated by the narrow scope of the 1935 Act. In light of that fact, it strikes the Court as incongruous that the scope of the 1935 Act's protection should be expanded here so far beyond a literal reading of the Act's language.
In construing the extent of the Secretary's authority under the 1935 Act, the Court's task is made the more difficult by the absence of adequate substantive criteria for that which merits treatment as a National Historic Landmark or what constitutes national historic significance for purposes of acquiring property. Further, while the Court finds it possible that the Secretary's actions were authorized under the 1935 Act, the paltry statement of reasons for the Secretary's actions forces the Court to speculate about how the Secretary applied the Act's standards to the District. Because these and other procedural problems, in the Court's view, require a reversal and remand to the Secretary, as hereinafter discussed, the Court will not engage in speculation concerning the scope of the Secretary's authority.
IV. REVIEW OF SECRETARY'S FINDINGS AND CONCLUSIONS
As noted above, plaintiffs challenge the Secretary's decisions regarding the District *848 as being arbitrary, capricious, and violative of the Fifth and Tenth Amendments. The Court shall address these challenges in reverse order.
A. Tenth Amendment
The Court finds no support in the record for plaintiffs' argument that the Department's designation of the District as a historic district constitutes federal impairment of essential state functions in violation of the Tenth Amendment.[3] The Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), emphasized the crucial distinction for Tenth Amendment purposes between federal regulation of wholly private activity and regulation "directed, not to private citizens, but to the States as States." Id. at 845, 96 S.Ct. at 2471, citing Heart of Atlanta Motel v. United States, 379 U.S. 241, 262, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964). The former is a valid exercise of Congress' commerce power so long as the means used are "reasonably adapted to the end permitted by the Constitution." Id. at 840, 96 S.Ct. at 2469. The latter, however, is precluded by the Tenth Amendment where such action "force[s] directly upon the States [Congress'] choices as to how essential decisions regarding the conduct of integral governmental functions are to be made." Id. at 855, 96 S.Ct. at 2476.
The federal program, in the instant case, is not of the same type as that found violative of the Tenth Amendment in Virginia Surface Mining & Reclamation Ass'n., Inc. v. Andrus, 483 F. Supp. 425 (W.D.Va. 1980). In Virginia Surface Mining, the court found certain provisions of the Surface Mining Control and Reclamation Act of 1977 unconstitutional as it impaired Virginia's freedom to operate in "areas of traditional governmental functions." Id. at 435, citing National League of Cities, supra at 852, 96 S.Ct. at 2474. Specifically, the court found that the Act, which basically imposes environmental performance standards on coal surface mining operations, "forced relinquishment of state control of land use planning; . . . loss of state control of its economy; . . . economic harm, from the expenditure of state funds to implement the Act and from destruction of the taxing power of certain counties, cities, and towns." Id.
The regulatory scheme implemented under the 1935 Act in the instant case imposes no financial burden on the state for funding the landmarks program. The federal oversight of certain land development, triggered by the landmark designation, has not wrested control of land use from the state, nor has it visited such economic harm as to deprive Virginia of control of its economy. Plaintiffs have show no significant interference with local zoning powers, notwithstanding their characterization of the program as federal zoning. Instead, as will be discussed more fully below, the effects of the Department's actions in the District are felt more severely by the property owners than by the State.
B. Fifth Amendment
Although a closer question, plaintiffs' Fifth Amendment attack on the Secretary's actions concerning the District also fails to make out a valid claim. Plaintiffs contend that the Secretary's designation of the District as a historic landmark constitutes a taking for a public use "without just compensation" in violation of the Fifth Amendment.[4] Plaintiffs argue that the economic injuries to Green Springs landowners inherent in the Secretary's actions must be compensated by the government. While the Court acknowledges that the Department's actions subject Green Springs *849 property to the purview of federal statutes which may restrict the future use of such property, such governmental action is not confiscatory in nature as to constitute a taking.
A determination of whether governmental actions affecting private property implicate the Taking Clause of the Fifth Amendment requires the Court to examine whether those actions "force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 1554 (1960); see Prune Yard Shopping Center v. Robins, ___ U.S. ___, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123-25, 98 S. Ct. 2646, 2659-60, 57 L. Ed. 2d 631 (1978). Factors relevant to this inquiry include the character of the governmental action, its economic impact, and the degree of its interference with reasonable investment-backed expectations. Id. at 124, 98 S.Ct. at 2659; see Prune Yard Shopping Center, supra; Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979).
The government activity in the instant case, though intrusive, is not confiscatory. No title to Green Springs property has changed hands as a result of the Secretary's actions. Rather, the recognition of the District's landmark status triggers the application of several federal statutes which could impede or discourage commercial and industrial development in the area. Specifically, the District's listing on the National Register triggers inter-agency consultations pursuant to 16 U.S.C. § 470f, in the event of any federal or federally assisted undertakings in the area. Further, such listing entails the application of § 2124 of the Tax Reform Act of 1976, 26 U.S.C. § 280B, which denies a business deduction for expenditures for the destruction of any "certified historic structures" within the District. Designation of the District as a landmark triggers review under the Mining in the Parks Act, 16 U.S.C. §§ 1901 et seq., of any surface mining activity in the District which could have a harmful effect on the registered property. Such review could ultimately lead to an abatement of the mining operation by the federal government. Designation also makes the District a proper subject under the 1935 Act for acquisition by the federal government, including acquisition by eminent domain. 16 U.S.C. § 462(d).
The economic effects of these actions are several. A Louisa County businessman who testified at trial reported that the Department's activities had had a chilling effect on business development in that county. In particular, VVL's mining operation in the District was delayed nearly a year, as the Department sought to delay both VVL's financing and the issuance of necessary permits by the Virginia State Air Pollution Control Board. W. R. Grace Co., Inc. heeded the Department's request not to exercise its mining rights in the District. A steel company reportedly abandoned its plans to locate a mill in the District due to the controversy over the Department's recognition of the District.
Recent U. S. Supreme Court opinions, however, indicate that this degree of interference with land use does not constitute a taking without just compensation. In Penn Central Transportation Co. v. New York City, supra, the Supreme Court found no taking under the Fifth Amendment in the application of New York City's Landmarks Preservation Law to the city's Grand Central Terminal. The city had declared the terminal to be a landmark and, pursuant to the statute, blocked construction of a proposed high-rise office building above the terminal. The Supreme Court found that the New York City law neither interfered with existing uses of the terminal nor prohibited all construction above or around the terminal. Instead, the Court found that the law allowed for "reasonable beneficial use" of the property without unduly restricting opportunities for further construction. Id. at 138, 98 S.Ct. at 2666. The Court thus sustained the application of the law despite its denial to the property owners of the potential income to have been *850 generated by a fifty-five story office building. See also, Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926) (75% diminution in value caused by zoning law held not to constitute a "taking"); Hadacheck v. Sebastian, 239 U.S. 394, 36 S. Ct. 143, 60 L. Ed. 348 (1915) (87.5% diminution not a "taking"); Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir. 1980) (33.3% diminution not a "taking").
More recently, in Agins v. City of Tiburon, ___ U.S. ___, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980), the Supreme Court held that a municipal zoning ordinance restricting landowners' development of property to a limited number of single-family dwellings did not take the landowners' property without just compensation. The Supreme Court held that such a limitation on development neither prevented the best use of the land nor extinguished a fundamental attribute of ownership. ___ U.S. at ___, 100 S.Ct. at 2142.
In the instant case, the Secretary's recognition of the District's landmark status triggers administrative review of surface mining and federal or federallyassisted undertakings in the area. To date, no type of development or industry within the District has been prohibited. The District's landmark status may in the future result in restrictions on land use, particularly on vermiculite mining. However, at this time, plaintiffs simply cannot show that the federal intervention into the District has been of such magnitude, or that the economic injuries so severe, that the Fifth Amendment's Taking Clause is violated. If, in the future, plaintiffs can demonstrate that the recognition of landmark status has more severely restricted development in the District than the record now shows, then a viable claim for relief under the Taking Clause may be presented. See Penn Central, supra, at 138 n.36, 98 S.Ct. at 2666.
C. Arbitrary or Capricious
Plaintiffs' chief attack on the merits of the Secretary's decisions is under the "arbitrary, capricious, [or] an abuse of discretion" standard of § 706(2)(A) of the Administrative Procedure Act (hereinafter "APA") as applied in Citizens to Preserve Overton Park v. Volpe, supra. Plaintiffs argue that the District has no historic value of national significance and that the Secretary's recognition of, and efforts towards preservation of such historic value are abuses of discretion under that standard.
Plaintiffs allege a total absence of historical events, persons, or structures of national importance associated with the District that could support the Secretary's findings and conclusions. They emphasize that the Department historian was able to find records of only a few Revolutionary War or Civil War skirmishes which took place in or near the District. One structure in the District was said to have been used briefly as a hospital during the Civil War. Some of the first of McCormick's reapers were said to have been used to harvest crops in the Districta slim basis indeed for the Secretary's conclusion.
Plaintiffs argue further that other factors apparently relied upon by the Department in addition to traditional historic values fail to explain or support the landmark designation of the entire District. The uniform soil type of District, which the Department perceived as a major factor contributing to the District's unbroken history of agrarian use, consists in fact of several soil types. The District's boundaries appear to be broader than either the underlying soil zone or the "visual unity" attributed to the District by Department officials. Finally, plaintiffs argue that the District's architectural significance in representing a rural community of the eighteenth and nineteenth centuries is of statewide importance at best, and, at worst, is merely a confusing array of contrasting architectural styles.
In reviewing the merits of the Secretary's decisions, the Court is required to consider whether the decisions were "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, supra at 416, 91 S.Ct. at 824. As noted above, with regard to determining whether the Secretary acted within the *851 scope of his authority, the absence of any detailed statement of reasons or of clear formal standards concerning national historic significance hinders the Court in ensuring that relevant factors were accurately considered. Cf. Human Resources Management, Inc. v. Weaver, 442 F. Supp. 241, 249 (D.D.C. 1978). Without them, the conclusory findings of national historic importance and of the acceptability of the easements offer provide little insight into whether the Secretary's discretion was properly exercised. However, rather than require the Secretary to submit post hoc rationalizations for his decisions, the Court must remand the case for proper compliance with procedural due process, as is set out below, of which a statement of reasons and promulgation of substantive standards are merely two of several components.
V. NECESSARY PROCEDURAL REQUIREMENTS
Plaintiff's primary attack on the Secretary's decisions concerning the District deals with alleged procedural inadequacies which, plaintiffs argue, contravene basic principles of due process and provisions of the APA and NEPA. Specifically, plaintiffs contend that the Due Process Clause of the Fifth Amendment requires the Secretary to promulgate both substantive and procedural regulations to guide the Department and the affected landowners in the process of landmark designation and easement acceptance. The Secretary's failure to develop such official guidelines, plus his alleged failure to state adequately reasons for his decisions, the purportedly inadequate notice to the public of the procedures being followed and actions being taken, and an alleged bias on the part of several Department officials, are cited as violative of plaintiffs' due process rights. Plaintiffs further argue that the Secretary's decisions concerning the District constitute rules under § 551 of the APA, 5 U.S.C. § 551(4), but that the Department failed to follow the requisite procedures for rulemaking under the APA, 5 U.S.C. § 553. Finally, plaintiffs argue that the Department erred in not preparing an environmental impact statement pursuant to the NEPA, for each of the landmark designation, the acceptance of the Green Springs easements, the Department's overall plan for the District, and the proposed national easements acceptance program. With regard to this latter claim, however, the Court finds the Department's negative declarations of environmental impact reasonably concluded that environmental impact statements were unnecessary. See Conservation Council of North Carolina v. Costanzo, 398 F. Supp. 653 (E.D.N.C.), aff'd 528 F.2d 250 (4th Cir. 1975).[5]
Exactly what procedures are required in designating a property a National Historic Landmark and in acquiring property interests in such landmark is not clarified by the 1935 Act nor by the APA. The 1935 Act is silent concerning the methods for these exercises of the Secretary's discretion. The Court finds also that these decisions do not constitute rules under the APA and that therefore the Department is not bound by the Act's rulemaking requirements. Nor does the Department seem, in this instance, to be governed by the APA's requirements concerning adjudicative procedure, 5 U.S.C. §§ 554, 555, 556 and 557. Instead, this agency action, like that in Citizens to Preserve Overton Park, supra, falls through the cracks of the APA.
The Department's procedures and standards with regard to the landmark designation and easement acceptance seem to have developed as the decision-making process went along. From the outset of this controversy, there were no formal criteria published for qualification as a National Historic Landmark. A pamphlet entitled "The National Historic Landmarks Program," and another entitled "Part One of the National *852 Park System Plan History," both published by the Department, contain a list of criteria for national significance purportedly employed by the Department's Advisory Board. The only criterion relevant to a district reads:
7. When preserved or restored as integral parts of the environment, historic buildings not sufficiently significant individually by reason of historic association or architectural merit to warrant recognition may collectively compose a "historic district" that is of historical significance to the nation in commemorating or illustrating a way of life in its developing culture.
The pamphlets follow this list of criteria with an explanation of the single quality necessary for all historic districts, sites, structures, or objects: "integrity". With regard to a historic district, "integrity is a composite quality derived from original workmanship, original location, and intangible elements of feeling and association inherent in an ensemble of historic buildings having visual architectural unity."
These pamphlets, according to the Department, also contain the procedures governing the Department's designation process. The procedures detailed therein consist of the preparation of a study report concerning a potential landmark, review by a consulting committee of experts, followed by Advisory Board review. The Advisory Board then submits its recommendations to the Secretary who makes the final decision.
With regard to the Green Springs decisions, the Department neglected to make reference to the pamphlets in any public notice and mentioned the criteria contained therein only in a September 20, 1977 Federal Register announcement nearly two months after the public hearing on the issue. Further, on reconsideration of the District's landmark qualifications, the Secretary failed to follow the procedures he now claims govern his actions, choosing instead to substitute a public hearing for review of the proposal by the Advisory Board. Because the Advisory Board had no input into the reconsideration process, there can be no assurance that the criteria quoted above, which are to govern its review and recommendations, were employed by the Secretary. The Secretary's final decision, consisting of a single conclusionary sentence confirming a finding of national historic significance by Department officials, suggests only that Department officials may have employed such criteria.
In the absence of statutorily mandated procedures, courts must often set the minimal procedural requirements for informal adjudications. The Court borrows the term "informal adjudication" from Professor Paul R. Verkuil to signify those "administrative decisions that are not governed by statutory procedures but which nevertheless affect an individual's rights, obligations, or opportunities." P. Verkuil, A Study of Informal Adjudication Procedures, 43 U.Chic. L.Rev. 739, fn.1. (1976). In so doing, Courts are not so naive or presumptuous as to believe that procedures alone will ensure rational decisions. The courts' role is not to require correct or rational decisions, as noted in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S. Ct. 1197, 65 L. Ed. 2d 460 (1978), but "to preserve the integrity of the decision-making process." Barnes Freight Line, Inc. v. I.C.C., 569 F.2d 912, 923 (5th Cir. 1978).
The guiding light, albeit a dim one at times, for discerning the procedural adequacy of informal adjudication is the Due Process Clause of the Fifth Amendment.[6] Due process is called into play in the instant case by the degree of interference with plaintiffs' property interests, specifically their right to the use and enjoyment of their property. While the Court found such interference of insufficient magnitude to constitute a taking under the Fifth Amendment the Secretary's actions do place substantial restrictions on plaintiffs' property interest so as to require satisfaction of procedural due process. As noted briefly above, the Secretary's designation of the *853 District as a National Historic Landmark triggers the application of several federal statutes, the effect of which is to discourage private and governmental development of the land. Recognition of landmark status targets the District, or any part thereof, for acquisition under the 1935 Act. While the Secretary has limited his acquisition thus far to the preservation easements, the plans for the District published by the Department do not appear to rule out further acquisition, which could include acquisition by eminent domain. Barnidge v. United States, supra. Also triggered by landmark designation is the Mining in the Parks Act, 16 U.S.C. § 1901, et seq., which provides, in pertinent part, for review by the Secretary of the Interior of any surface mining activity which may irreparably damage or destroy any part of the District. 16 U.S.C. § 1908(a). The Secretary's report of the potential damage is to be submitted to the Advisory Council on Historic Preservation, which may then recommend to Congress such legislation as it feels is necessary to mitigate or abate such mining activity. 16 U.S.C. § 1908(b).
Because landmark designation results in listing on the National Register, 36 C.F.R. 60.2(d)(2), the protective measures inherent in such listing apply with full force to the District. Among those measures is § 2124 of the Tax Reform Act of 1976, which denies the taxpayer any deduction otherwise allowed for amounts expended for, or incurred in, the demolition of a "certified historic structure." 26 U.S.C. § 280B(a). Structures within a historic district such as Green Springs are all treated as certified historic structures unless the Secretary certifies them to the contrary. 26 U.S.C. § 280B(b).
Listing in the National Register also entails the application of § 470f of the 1966 Act, which provides in pertinent part:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any state and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f (as amended). Regulations promulgated by the Advisory Council on Historic Preservation, 36 C.F.R. §§ 800.1-800.10, and case law interpreting the scope of the term "Federal or federally assisted undertaking," suggest a very broad reading. See, e. g., Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971); Thompson v. Fugate, 347 F. Supp. 120 (E.D.Va. 1972). The Court takes judicial notice of the extent of federal involvement in private and public land development of any magnitude.
The Department attempts to minimize the effect of these statutes, characterizing their application as speculative. However, plaintiffs need not speculate about the Department's intentions to utilize the protective measures available to it after having experienced the Department's efforts at preventing vermiculite mining in the District, coupled with those aimed earlier at blocking construction of the state prison facility.
Two inter-related principles have developed in recent years out of the concept of due process in the field of administrative law. The first principle holds that, in certain instances, the risk of erroneous deprivation by administrative action of an important property or liberty interest warrants additional procedural safeguards in the decision-making process, generally some form of hearing. See K. Davis, Administrative Law Treatise, §§ 13:1-13:15 (2d ed. 1979). The Supreme Court has adopted a balancing approach to determine what additional procedures, if any, are required in individual cases, entailing a *854 weighing of the importance of the private interest against the government's interest in efficient decision-making. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-3, 47 L. Ed. 2d 18 (1976). See also, Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). The second principle, still in its fledgeling stage, recognizes that "due process means that administrators must do what they can to structure and confine their discretionary powers through safeguards, standards, principles and rules." City of Santa Clara v. Kleppe, 418 F. Supp. 1243, 1261 (N.D.Cal. 1976), aff'd in part and rev'd in part on other grounds sub nom. City of Santa Clara v. Andrus, 572 F.2d 660 (9th Cir.), cert. denied 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 167 (1978). This principle employs no balancing approach but simply holds that due process requires some standards, both substantive and procedural, to control agency discretion. See K. Davis, supra at 7:26.
Plaintiffs have not challenged the form of procedural safeguards employed by the Department, although the Court agrees with plaintiffs that a public hearing and review by the Advisory Board ought to be used as successive and not alternative procedures. A landmark designation process involving preparation of a departmental study report, opportunity for public comment and public hearing, review by a consulting committee and Advisory Board, prior to the final decision by the Secretary, represents for the most part a proper balancing under the first principle referenced above of private and governmental interests in this administrative context. Cf. Appalachian Power Co. v. Environmental Protection Agency, 477 F.2d 495, 503 (4th Cir. 1973). Plaintiffs' chief due process argument, however, is that without published rules of procedure and substantive criteria for qualification as a landmark, they have been denied any meaningful opportunity for informal response to the proposed action and the Court has been precluded from meaningful review of the Secretary's decisions. The Court agrees.
Perhaps the most informative case in the development of the due process principle of required rulemaking for the establishment of agency standards is Environmental Defense Fund v. Ruckelshaus, 142 U.S.App. D.C. 74, 439 F.2d 584 (D.C. Cir. 1971). The U.S. Court of Appeals for the District of Columbia Circuit was reviewing an order of the Secretary of Agriculture refusing to suspend a registration of a pesticide, under a statute permitting such suspension "to prevent an imminent hazard to the public." The Court remanded the case to the agency due to the absence of any regulations relating to suspension and of any explanation of the decision. Discussing the role of judicial review of agency action, the Court held: "Judicial review must operate to ensure that the administrative process itself will confine and control the exercise of discretion. Courts should require administrative officers to articulate the standards and principles that govern their discretionary decisions in as much detail as possible." 439 F.2d at 598. On remand, the agency was required to formulate standards and state findings and reasons showing a proper application of those standards.
Such a fundamental principle, though only recently linked with due process, has been invoked in several administrative contexts. Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968), involved a challenge to the City Housing Authority's procedures for admission of tenants to low-rent public housing projects. The plaintiffs complained that the Authority did not process the applications chronologically or in any other systematic manner, and further that when a determination of ineligibility was made, no notice or statement of reasons was given. In affirming a denial of the city's motion to dismiss, the court held that in light of the potential for abuse of uncontrolled agency discretion, "due process requires that selections among applicants be made in accordance with `ascertainable standards'". Id. at 265, citing Hornsby v. Allen, 326 F.2d 605, 609-10 (5th Cir. 1964).
*855 In White v. Roughton, 530 F.2d 750 (7th Cir. 1976), welfare recipients challenged the termination of their benefits under a general township assistance program. The court held that the administrator of the program, although not bound by any eligibility requirements other than those in the state general assistance statute, was still required "to administer the program to ensure the fair and consistent application of eligibility requirements." Id. at 754. Finding the administrator's use of personal unwritten standards for eligibility violative of due process, the court required him to "establish written standards and regulations." See also Silva v. Secretary of Labor, 518 F.2d 301, 311 (1st Cir. 1975); United States v. Barbera, 514 F.2d 294, 302-04 (2d Cir. 1975); Mobil Oil Corp. v. Federal Power of Com., 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973); Soglin v. Kauffman, 418 F.2d 163, 168 (7th Cir. 1968); Baker-Chaput v. Cammett, 406 F. Supp. 1134 (D.N.H.1976); Smith v. Ladner, 288 F. Supp. 66, 70-71 (S.D.Miss. 1968).
Although the Secretary in the instant case purports to have relied on the informal criteria contained in two agency publications, the Court finds that that does not satisfy due process for several reasons. First, the criteria contained in the two pamphlets are merely to be used by the Advisory Board, which can only make recommendations on a final decision by the Secretary. Second, the procedural guidelines contained in those publications were not treated as binding by the Secretary, as he chose to substitute a public hearing for the required Advisory Board review. If the procedures contained therein are optional, presumably the substantive criteria are as well. Third, the criteria referred to are so vague and open-ended that their use in the designation process provides no limitations on the Secretary's discretion. Fourth, the public affected by landmark designation, who in the Court's view were entitled to their public hearing, were not informed of these criteria until after the hearing.
In addition to regulations establishing substantive criteria, the Department is required to promulgate rules of procedure to govern its landmark designation process. The source of this requirement is shared by the Due Process Clause and § 552 of the APA, which requires each agency to publish in the Federal Register for the guidance of the public:
(B) statements of the general course and method by which its functions are channeled and determined . . . [and]
(C) rules of procedure . . ..
5 U.S.C. § 552(a)(1). This provision provides further that no person may be adversely affected by administrative action taken pursuant to unpublished procedures. See W. G. Cosby Transfer & Storage Co. v. Froehlke, 480 F.2d 498 (4th Cir. 1973).
Instructive of this aspect of due process in administrative law is Judge Gesell's well-reasoned opinion in Northern California Power Agency v. Morton, 396 F. Supp. 1187 (D.D.C.1975), aff'd sub nom. Northern California Power Agency v. Kleepe, 176 U.S.App.D.C. 241, 539 F.2d 243 (D.C. Cir. 1976). Northern California Power involved a challenge to the promulgation of rate increases by the Department of the Interior for electrical power sold to customers in California through a Department project. The procedures employed by the Department were not unlike those used in the instant case. Rather than promulgate and adhere to a formal code of procedural rules, the Department, through its Bureau of Reclamation developed informal procedures "on an ad hoc basis as the matter went along." 396 F.Supp. at 1189. The Department gathered and disclosed to its customers a substantial amount of information concerning the proposed increases. When a public hearing was held, as in the instant case, no questioning of Department officials was allowed and no response was made to points raised at the hearing. When the Assistant Secretary of the Interior announced the rate increases, the factors relied on and the underlying reasoning were not disclosed.
The court in Northern California Power held that the Department's procedures violated both the APA and due process. As in the instant case, the court found that there *856 were no procedural guidelines by which the electrical power customers could gauge their actions. Although the Department claimed that its "actual and timely notice" of the procedures to be followed exempted it from this APA provision,[7] the court held such procedures to be "incomplete, imprecise and inaccurate." The "timely" notice of rules of procedure referred to in the APA was held to contemplate "a reasonably complete code of procedures set out in advance by which action can be guided and strategies planned." 396 F.Supp. at 1191.
As in Northern California Power, the Department, in the instant case, relied on unpublished procedures for its landmark designation. The public information pamphlets published by the Department, and the June 29, 1977, Federal Register announcement of the substitution of a public hearing for Advisory Board review hardly suffice as a "reasonably complete code of procedures" by which plaintiffs could plan their strategy. The procedures were formulated on a similar ad hoc basis, involving deviation from the informal procedures and identification of the issues after the public hearing. The Department's easements acceptance suffered from the same procedural inadequacies. Procedures were announced in the Federal Register on May 18, 1977, at which time half of the procedures had been "accomplished". In addition, the statement of procedures was misleading in that the hearing held on the easements acceptance on April 22, 1977 was designated after the fact as a hearing in connection with an environmental assessment of the easement proposal, not simply a general hearing on the merits of the proposal.
Similarly, the court in Northern California Power found that the ad hoc procedures actually followed in that case fell short of the due process requirement that the agency "acquire the information it should have in a manner fairly calculated to illuminate the issues for reasoned decisionmaking." 396 F.Supp. at 1193. The court there found that in the context of rate-making, due process required that the basis for the proposed agency action be set out in sufficient detail to permit those affected to make a meaningful response. That opportunity for meaningful response was held denied by the "vague and shifting" procedures not fixed in advance, the non-disclosure of important information relied on by the Department, the fact that Department officials made recommendations to the Assistant Secretary but were unavailable for on-the-record questioning, and the absence of a detailed explanation of the reasons underlying the rate increases. 396 F.Supp. at 1194. The instant case, in the Court's view, is burdened by the same due process failings. The Department had no fixed procedures published in advance by which the Green Springs landowners could plan their response. Important information relied on by the Department was disclosed, if at all, in piecemeal fashion often after any opportunity for meaningful response had passed. Department officials made several off-the-record, undisclosed recommendations to the Secretary, but were unavailable for on-the-record questioning. Finally, the Secretary neglected to explain in sufficient detail the rationale underlying the designation decision.
VI. CONCLUSION
The Court thus finds the landmark designation invalid based on the Department's failure to promulgate substantive standards for national historic significance and its failure to prepare and publish rules of procedure to govern the designation process.[8] The Court finds further that the administrative record provides an inadequate insight into the reasons underlying the landmark designation, including but not limited to the District's historic values of *857 national importance and the justification for drawing the boundaries as they now exist. As discussed above, the flaws in the Department's actions concerning the District are for the most part relevant only to the landmark designation. The Court finds that plaintiffs' due process rights are not implicated by the Department's acceptance of alreadyexisting preservation easements over parts of the District. However, because the Secretary's powers of acquisition are contingent upon a property's landmark status, the easements acceptance is hereby invalidated irrespective of the procedural flaws associated with it.
The Court must, therefore, remand this matter to the Department for promulgation of both substantive and procedural regulations consistent with the Court's opinion. On remand, the Court urges the Secretary not simply to codify the criteria and procedures developed informally in the instant case, but to articulate meaningful standards in as much detail as possible so that the Department's efforts are channeled efficiently, the public may make a meaningful response, and, in the event further judicial review is necessary, a court may determine that the proper standards have been applied. In articulating substantive standards, the Department should be careful to develop criteria for landmark designation that are consistent with the language of the 1935 Act. With regard to the standards to be applied to historic districts, the Department should address the question of a district's inclusion under the term "site" and provide for the criteria relevant to setting the boundaries of such a site. To the extent that other comments of the Court have suggested additional clarification, the Secretary should respond thereto in the subsequent promulgation of regulations.
In addition, the Secretary should ensure, by means of a clear statement of reasons, that the public and, if necessary, a reviewing court, can understand the grounds for his exercise of discretion. See Matlovich v. Secretary of the Air Force, 192 U.S.App.D.C. 243, 248, 591 F.2d 852, 857 (D.C. Cir. 1978); Environmental Defense Fund v. Ruckelshaus, supra, 142 U.S.App. D.C. at 86, 88, 439 F.2d at 596, 598. No formal findings need be articulated, but the Secretary should indicate in as much detail as possible the reasoning supporting his ultimate decision.
ORDER
In accordance with the memorandum of the Court this day filed, and deeming it proper so to do, it is ADJUDGED and ORDERED that:
1. The designation of the Historic Green Springs District as a National Historic Landmark and its placement on the National Register of Historic Places be, and the same are hereby set aside as violative of plaintiffs' due process rights under the Fifth Amendment, U.S.Const. Amend. V, and of the Administrative Procedure Act, 5 U.S.C. § 552(a)(1);
2. The acceptance of the preservation easements over the District be, and the same is hereby set aside due to the defective landmark designation;
3. The Secretary shall remove the District from the National Register and any list of National Historic Landmarks; and
4. The Secretary shall develop and promulgate regulations setting out substantive criteria and procedural guidelines for landmark designation under The Historic Sites Act of 1935, 16 U.S.C §§ 461 et seq., not inconsistent with the Court's memorandum.
The Court having found that counsel for the Secretary of the Interior has increased the costs unreasonably and vexatiously in connection with the interrogatories addressed to the defendants Andrus and Murtagh, it is ADJUDGED and ORDERED that said counsel pay unto Virginia Vermiculite, Ltd. the sum of Four Hundred and Eighty Dollars ($480.00), representing excess costs incurred.
This action stands dismissed.
NOTES
[1] This listing on The National Register by state nomination was later found to have been defective for lack of adequate notice to the affected landowners.
[2] 16 U.S.C. § 462(d) includes the following proviso concerning the acquisition of property under the 1935 Act:
That no such property shall be acquired or contract or agreement for the acquisition thereof made which will obligate the general fund of the Treasury for the payment of such property, unless or until Congress has appropriated money which is available for that purpose.
[3] The Tenth Amendment provides as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the state, are reserved to the states respectively, or to the people.
U.S.Const. Amend. X.
[4] The Fifth Amendment provides, in pertinent part:
No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S.Const. Amend. V.
[5] The Court finds further that the Department was justified in treating the landmark designation and easements acceptance as separate actions for NEPA purposes, not requiring environmental impact statements. In addition, it was perfectly reasonable for the Department not to address the necessity for assessing the environmental impact of a national easements program as such proposal never materialized.
[6] See Note 4, supra.
[7] 5 U.S.C. § 552(a)(1) provides that no person may be adversely affected by a matter required to be published in The Federal Register and not so published "[e]xcept to the extent that a person has actual and timely notice of the terms thereof."
[8] Because the Court finds these procedural flaws fatal to the landmark designation, it is unnecessary to address plaintiffs' allegations concerning improper notice and bias. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615050/ | 502 So. 2d 518 (1987)
Linda F. KOLB (Wildermuth), Appellant,
v.
Dewey Ronald KOLB, Appellee.
No. BN-31.
District Court of Appeal of Florida, First District.
February 17, 1987.
Dale E. Rice, Crestview, for appellant.
Dewey Ronald Kolb, pro se.
WENTWORTH, Judge.
Appellant, a former wife having custody of three minor children, appeals an order finding that appellee, the former husband and father, "is entitled to credit against child support otherwise payable during the time frame that one of the children was living with him" (e.s.). Because the order may be read as one erroneously effecting cancellation of accrued child support payments due under prior order, based solely on temporary residence of the child, we reverse and remand for reconsideration and entry of a new order.
Appellant asserts that if appellee were not entitled to credit for that period of time "the correct arrearage amount would have admittedly been $887.16, as alleged in appellant's motion for contempt." This alleged admission as to the amount of support *519 owed is not referenced in the order. Although appellant also asserts that the appellee placed into evidence an exhibit which reflects the amounts that he paid for the time in question, this exhibit does not provide the specifics of the credits in question.
Appellant presents no record of the testimony in this case,[1] and we are unable to determine with certainty either from the orders or documentary exhibits before us that the circumstances of this case are analogous to those in Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984), cited by appellant. The court there concluded that a setoff for child support was improper for the period of time in which the parties' son lived with the father and that "absent compelling circumstances the trial court lacks the authority to retrospectively cancel or reduce past due child support payments."
We agree, however, with the referenced authority and, for reasons above stated, reverse with directions for entry of an order consistent with that principle.
WIGGINTON and NIMMONS, JJ., concur.
NOTES
[1] a sufficient record, the appellate court may not properly consider the [factual] points on appeal and must affirm... .' Steinhauer v. Steinhauer, 336 So. 2d 665, 666 (Fla. 4th DCA 1976); Haller v. Santona Land Corp., 275 So. 2d 591 (Fla. 1st DCA 1973); Starks v. Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1983).
Wing v. Wing, 464 So. 2d 1342, 1344 (Fla. 1st DCA 1985), Wentworth, J., concurring specially. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615081/ | 502 So. 2d 1100 (1987)
Arthur SHORT
v.
OTIS ELEVATOR CO., Panarem, Inc. and Liberty Mutual Insurance Co.
No. CA-5597.
Court of Appeal of Louisiana, Fourth Circuit.
January 14, 1987.
Writ Denied March 13, 1987.
*1101 Nancy G. Collins, Donna R. Moliere, Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, for plaintiff.
C. Edgar Cloutier, Christovich & Kearney, New Orleans, for defendants.
Before BARRY, WILLIAMS and ARMSTRONG, JJ.
BARRY, Judge.
Otis Elevator Company and its insurer appeal a jury finding that the company was 60% at fault under strict liability and negligence theories for plaintiff's injuries.
On June 15, 1984 Arthur C. Short, a court reporter, tripped and fell while exiting an automatic elevator on the 25th floor of the Pan American office building. Short and his companion, Carol Leff, were the only occupants in the elevator. Short left first and Leff testified that after his fall she noticed the elevator had stopped four to six inches below the floor level. She stepped up to get out of the car to assist Short who had struck his face against his stenographic machine case. Short continued his workday and did not report the incident because he did not believe he was injured.
The next morning Short had a swollen jaw, headache, toothache and backache. He was eventually examined by an ear, nose and throat specialist, two dentists and an orthopedic surgeon. Dr. Witherspoon, a dentist, diagnosed a spasm of the masticulatory muscles causing secondary temporomandibular joint disfunction and prescribed muscle relaxers and pain medication. He testified that Short's traumatic injury resulted from his fall and that chewing, swallowing and speaking caused him great pain. As a result of the pain and numerous dental appointments, Short missed several freelance job assignments and court work.
Short sued Otis, its insurer, Liberty Mutual Insurance Company, the owner of the building, Pan American Life Insurance Company, and Panarem, Inc., the management company for the building.
Short was awarded $16,000 for pain and suffering, $5,200 for mental anguish and distress, $3,000 for lost wages and $800 for medical expenses. The jury unanimously allocated fault at 60% to Otis and 40% to Pan American/Panarem. Only Otis appealed.
Otis specifies the jury erred by finding: that the elevator was defective or inadequately maintained, that Short failed to prove products liability and negligence, and that Short was not at fault.
The standard of proof in products liability cases was set forth in Hunt v. City Stores, Inc., 387 So. 2d 585 (La.1980) at page 589:
Thus, under Weber[1], the plaintiff in a products liability suit must only prove *1102 that the product was defective, i.e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product's defect caused his injury; and that the injury might reasonably have been anticipated by the manufacturer. It is unnecessary to prove that the manufacturer was negligent because he knew or should have known of the dangerous condition of the product at the time of the manufacture or sale. The focus is on the product itself and whether it is unreasonably dangerous to normal use ... Again, a balancing test is mandated: if the likelihood and gravity of harm outweigh the benefits and utility of the manufactured product, the product is unreasonably dangerous. If the product is unreasonably dangerous to normal use, the manufacturer is ultimately responsible to one injured in the course of that use.
Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La.1986) mandated the use of the Hunt danger-utility balancing test and specified four theories for products liability recovery: (1) unreasonably dangerous per se; (2) unreasonably dangerous in construction and composition; (3) unreasonably dangerous because of failure to adequately warn about a danger inherent in the normal use of the product which is not within the knowledge of or obvious to the ordinary user; (4) unreasonably dangerous in design because (a) the danger outweighs the utility of the product, (b) alternative products are available to serve the same needs with less risk of harm, and (c) there are feasible ways to design the product with less harmful consequences.
Ms. Leff testified that the elevator stopped four to six inches below the floor. Ms. Mae Helen Boudreaux, a worker in the building, stated that six months prior to trial she tripped when the same elevator stopped three to five inches below the floor. James Restel, the building's manager, and Dr. Fred Liebkemann, an engineer, testified that an elevator's failure to stop level with a floor creates a tripping hazard. Mr. Restel said non-leveling had been a problem in the Pan Am building and admitted there were three complaints prior to the accident that the same elevator failed to level and two more after the incident. He notified Otis on each instance. Dr. Liebkemann testified that an elevator which fails to level within three-eighths of an inch violates the American National Safety Institute's standards.
The elevator was in regular service when it failed to properly level and the jury obviously concluded the floor disparity was the sole cause of the accident. Otis had been placed on notice about the problem (at least three times), thus, it had knowledge of the defect but did not correct it. The evidence shows that the elevator was inadequately maintained and could be considered defective. See Jackson v. Tri-State Elevator Co., Inc., 401 So. 2d 538 (La.App. 3rd Cir.1981).[2]
While an elevator is convenient and beneficial to the Pan Am building's tenants, clients and employees, its utility is outweighed by the tripping hazard. The jury had ample evidence to conclude that the likelihood and gravity of the harm created by the elevator's repeated failure to level outweighed its social utility.
Otis argues that Short did not prove any of the theories for products liability recovery according to Halphen v. Johns-Manville Sales Corp., supra. We disagree. Halphen's third ground for recovery was the manufacturer's failure to adequately warn about a danger related to the way the product was designed. A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. In performing this duty the manufacturer is held to the knowledge and *1103 skill of an expert and must keep abreast of scientific knowledge, discoveries and advances. The manufacturer further has a duty to test and inspect its product to the extent commensurate with the dangers involved. Halphen at 115.
Here the risk of harm was known to Otis, but was not obvious to the public. Despite its knowledge of the danger presented to passengers who fail to notice that an elevator has not stopped level with the floor, Otis did not warn of the known tripping hazard. Hunt v. City Stores, Inc., supra.
Otis argues that the elevator's failure to level was obvious to the ordinary passenger and contends the jury erred by failing to find some fault attributable to Short who failed to glance down while exiting the elevator.
Short testified he was looking forward and did not know about the elevator's unlevel condition until later when Ms. Leff brought it to his attention. She stated that she was watching Short and did not observe the four to six inch elevation difference until he tripped. She said if she had walked out first she probably would have fallen. Thus, the unlevel elevator was not obvious to Short or Ms. Leff before the accident. The jury concluded that the elevator caused the accident, that Short was not at fault, and we have no basis to make a de novo determination otherwise.
In the absence of any warning of a potential leveling problem, we feel a passenger is entitled to presume that the elevator will level properly.
When there is evidence before the jury which, upon its reasonable evaluation of credibility, furnishes a factual basis for its finding, we will not disturb that finding absent manifest error. Canter v. Koehring Co., 283 So. 2d 716 (La.1973). We are satisfied the jury had sufficient evidence for its conclusion.
The judgment is affirmed.
AFFIRMED.
WILLIAMS, J., dissents with reasons.
WILLIAMS, Judge, dissenting.
I respectfully dissent.
I would find that the failure to level should be obvious to an ordinary passenger, especially a four to six inch difference in height as in this case. Short should have noticed this disparity. I would have allocated a percentage of fault to Short.
Furthermore, I disagree with the finding that the elevator's "repeated failure to level outweighed its social utility." There were only five recorded complaints of the elevator's failure to level. The utility of an elevator in a high-rise building such as the Pan-American Building is immeasurable. In such a building, an elevator makes thousands of stops a day. The five complaints weighed against the function of the elevator does not necessarily indicate that there existed a "danger in design."
NOTES
[1] Weber v. Fidelity and Casualty Insurance Company of New York, 259 La. 599, 250 So. 2d 754 (1971).
[2] Denial of damages was affirmed in Jackson because the court found that the jury could have reasonably found that the alleged injuries were not related to the claim or because the plaintiff was at fault. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615086/ | 502 So. 2d 1149 (1987)
Elliott P. BOISDORE
v.
Ben BRIDGEMAN, et als.
No. CA-4602.
Court of Appeal of Louisiana, Fourth Circuit.
January 22, 1987.
*1151 A.D. Freeman, New Orleans, for plaintiff-appellee.
Russell J. Schonekas, New Orleans, for defendants-appellants.
Before GULOTTA, KLEES and BYRNES, JJ.
BYRNES, Judge.
This is an appeal from a judgment finding appellants Ben Daly Bridgeman and Janet Raineri, liable to Elliott Boisdore for fraud and breach of fiduciary duty arising out of two corporate real estate ventures. We affirm in part and reverse in part.
In 1979, Boisdore became interested in purchasing a property which he managed on Governor Nicholls Street in New Orleans. Boisdore claims he retained Bridgeman as his attorney for legal advice concerning the best way to achieve this objective and take advantage of low interest loans and subsidies offered by the city and the federal governments. Bridgeman claims he was asked to join in the project as a partner.
In August 1979, Gilted Wood Inc. was incorporated by Janet Raineri, Bridgeman's secretary, with Bridgeman acting as attorney in the incorporation. The stated purpose of this corporation was to acquire and renovate the Governor Nicholls Street property. Boisdore was named President of the corporation, and all of the stock was issued in his name. At that time, he endorsed the certificates in blank and executed separate blank assignments of the shares. Boisdore claims Bridgeman told him this was necessary so that the stock could be pledged to secure financing. According to Bridgeman, Boisdore put up no money, but was to receive one-third of the corporation in return for finding the property, securing government subsidies and low-interest loans, and carrying out the renovations. Bridgeman claims he was to receive one-third of the corporation's stock in return for rendering legal services and finding investors, and that the remaining one-third was reserved for those investors.
Boisdore denied the existence of such an arrangement and eventually filed suit against the corporation seeking to be recognized as sole owner. He was ultimately unsuccessful in his suit and was declared a one-third owner of Gilted Wood Inc. See Boisdore v. Bridgeman, 439 So. 2d 1266 (La.App. 5th Cir.1983), writ denied, 444 So. 2d 1221 (La.1984).
Appellants in this case place a good deal of emphasis on this previous appeal, contending that Boisdore's claims of fraud were litigated and rejected therein and should not be considered by this court. We do not agree. A full reading of the Fifth Circuit's opinion reveals that it did not address the issue of fraud. The court's holding was based on its finding that Boisdore was estopped from relitigating the issue of ownership because he had failed to appeal an earlier lower court judgment in which his claim of full ownership of Gilted Wood Inc. had been rejected. See 439 So.2d at 1268.
Appellants also argue that because Boisdore's claims against Bridgeman and Raineri were based on their acts as officers and directors of the corporation, he should have been required to assert those claims in a shareholders' derivative suit. We reject this argument. An examination of the pleadings in this case reveals that Boisdore sued Bridgeman in his capacity as Boisdore's attorney, not in his capacity as a director or shareholder of Gilted Wood. The director of a corporation and a private attorney are not judged by the same standards, and conduct which may be permissable for a director can nonetheless violate an attorney's duty to his client. The mere fact that Birdgeman is both an attorney and a corporate officer does not limit Boisdore to one course of action. He was free to sue Bridgeman in his corporate or private capacity. Under these circumstances the trial court correctly denied appellant's exception of no cause and no right of action which sought to limit Boisdore's rights *1152 against them to a shareholder's derivative suit.
Having disposed of this issue we must now address the threshold question of whether it was established by a preponderance of the evidence that an attorney-client relationship existed between Boisdore and Bridgeman. The jury found that such a relationship was proven at trial.
Bridgeman's appeal to this court does not specify this finding as error nor has the issue been briefed to this court. Under Rules 1-3 and 2-12.4 of the Uniform Rules-Courts of Appeal this question has not been properly preserved for review. See Police Jury of Ascension Parish v. Shaffett, 461 So. 2d 1072 (La.App. 1st Cir.1984), Ketcher v. Illinois Central Gulf R.R., 440 So. 2d 805 (La.App. 1st Cir.1983), writ denied, 444 So. 2d 1220 (La.1984). However, because resolution of this issue is essential to a decision in this case we have nonetheless reviewed the record to determine if an attorney-client relationship was proven.
At trial, Boisdore testified that he had known Bridgeman for some years and went to him for legal advice and assistance in setting up the financing and acquisition of the Governor Nicholls Street property. It seems clear that Bridgeman acted as an attorney in the formation of Gilted Wood. The paperwork was prepared in his law office and Janet Raineri, his secretary, acted as incorporator. However, Bridgeman claims that he performed these tasks as Boisdore's partner, not as his attorney. Because there was no written contract of employment between the parties, the exact nature of their relationship had to be divined from their conflicting testimony and the conduct of their enterprise.
There is no doubt that Bridgeman was the sole legal and financial advisor for the corporation. It is also clear that Boisdore relied on Bridgeman for this advice and viewed Bridgeman as his attorney. The jury, as finder of fact, evaluated the credibility of the witnesses and the circumstances surrounding their activities and concluded that an attorney client relationship existed. Our review of the record in this matter convinces us that the jury's resolution of this issue was not manifestly erroneous. We therefore accept the jury's finding that an attorney-client relationship existed and will now analyze the facts of the case to determine if Bridgeman's conduct violated his duty to Boisdore and constituted fraud.
GILTED WOOD
One of Bridgeman's first acts after the formation of Gilted Wood was to approach Mrs. Mary Helen Bryant concerning the possibility of her "investing" in the corporation. To induce her to do so, Bridgeman, without Boisdore's knowledge or consent, personally guaranteed Mrs. Bryant the return of her investment plus a specified profit within a one year period. Mrs. Bryant ultimately advanced $75,000.00 to Gilted Wood, which permitted the corporation to purchase the Governor Nicholls Street property. As security for her investment Bryant was granted a second mortgage on the property. She also received the remaining one third of the shares in Gilted Wood.
Boisdore testified that because he thought Bridgeman had put up the $75,000.00, he agreed to Bridgeman's request that he sign a continuing guarantee which was blank as to both investor and amount. When Boisdore became aware that Bridgeman had not advanced the $75,000.00, he asked that the investor's identity be revealed to him. Bridgeman repeatedly refused to do so and told Boisdore that this was "private information."
In order to obtain a low interest grant/loan from the Community Improvement Agency (CIA), Gilted Wood was required to obtain an additional $124,000 in financing from private sources. To meet this requirement, Bridgeman produced a loan commitment letter from Carver Development Company (Carver), a corporation wholly owned by Bridgeman. This letter was signed by Bridgeman's secretary Janet Raineri, who was also treasurer of Carver. Bridgeman subsequently prepared a $124,381.00 *1153 collateral mortgage note and a $40,000.00 demand note from Gilted Wood to Carver which Boisdore signed as president of Gilted Wood. This $40,000.00 demand note was apparently used by Carver/Bridgeman to obtain a $40,000.00 loan from Century Bank, the proceeds of which were then advanced to Gilted Wood. It appears from the record that Bridgeman caused Gilted Wood to pay the interest which Carver owed Century Bank on the $40,000.00 loan, then charged Gilted Wood additional interest on the loan it received from Carver and finally charged Gilted Wood interest for payments which he personally made to Century on behalf of Carver.
In spite of the infusion of capital from Bryant and the Carver loan, further funds were required to continue renovation work. During the spring and summer of 1980, Boisdore personally advanced sums totaling $40,000.00 to Gilted Wood and received promissory notes from the corporation as security. The record also shows that Boisdore personally paid $15,000.00 of a $27,000.00 debt owed by the corporation to a contractor who performed work on the Governor Nicholls Street property.
In November 1980, Bridgeman informed Boisdore that certain unspecified interest payments and other indebtedness of Gilted Wood had to be paid. Bridgeman did not identify to whom the payment was due and requested that Boisdore make the checks payable to him. Boisdore, trusting Bridgeman, complied and in his capacity as president of Gilted Wood signed two checks totaling $40,000.00. The record shows that rather than apply these funds to Mrs. Bryant's $75,000.00 demand note, Bridgeman unilaterally decided to use the $40,000.00 to repay the five year loan made by his own corporation (Carver). His explanation for this self serving action was that Boisdore did not tell him which loan was to be paid first.
In May, 1981 Bridgeman informed Boisdore that he wanted to replace the unknown investor in Gilted Wood with another and requested that he execute a new promissory note on behalf of the corporation in the amount of $93,906.25. Boisdore refused when he realized that the first $75,000.00 note had not been paid and that he did not know how the $40,000.00 already paid by the corporation had been used.
In March, 1982 Bridgeman called a shareholders meeting of Gilted Wood, and utilizing a proxy from Mrs. Bryant, ousted Boisdore as president of the company, thus depriving him of any participation in corporate affairs. In June 1982, Bridgeman proposed a buy out of Mrs. Bryant's interest and by December 1982 he had succeeded in acquiring her shares. Bryant's $75,000.00 demand note was acquired by Bridgeman's father after Bridgeman told him that it was available for purchase. Bridgeman then transferred all the remaining shares of Gilted Wood to himself utilizing the certificate assignments which he had induced Boisdore to sign in blank. This was the first time the record ownership of any of these shares was placed in a name other than Boisdore's. Bridgeman's father then proceeded to foreclose on the Governor Nicholls Street property.
The foreclosure proceedings were handled by an attorney who Bridgeman had caused to be made a director of Gilted Wood after Boisdore was ousted. Bridgeman notarized an affidavit used by his father in this proceeding. When citation was served on Bridgeman as new president of the corporation, he allowed a default judgment to be taken, thus placing the corporation's only asset in his father's hands. The attorney then wrote to the Civil Sheriff on behalf of Bridgeman's father instructing him not to seize the rentals from the property, thus allowing the corporation to continue receiving this revenue in spite of the seizure.
A file memorandum, written by Bridgeman and dated January 26, 1982 indicated that Bridgeman had been considering a plan by which he would purchase Mrs. Bryant's second mortgage note, get the holder of the first mortgage to allow foreclosure without calling in that mortgage, then purchase Bryant's shares in the corporation. *1154 Boisdore contends this document showed that Bridgeman's intent all along had been to acquire control of the corporation and its assets.
LONDON AVENUE
In January 1981, before their relationship deteriorated completely, the parties began another venture and formed London Avenue, Inc. for the purpose of acquiring and developing a property on London Avenue in New Orleans. The stock in this corporation was all issued in appellant Janet Raineri's name. The down payment for this property was put up in equal shares by Gilted Wood and Beaumont Properties, Inc., another Bridgeman entity. Boisdore was named president of this corporation and was induced by Bridgeman to sign a $110,000.00 mortgage note on the property in his personal as well as his corporate capacity. Boisdore testified that he did this in reliance on Bridgeman's representation that he would obtain some $700,000.00 to finance development of the property. According to Bridgeman, he asked Boisdore to assume personal liability on the note to increase the confidence of potential investors in the project. Bridgeman, however, did not assume this personal liability.
When zoning difficulties and the failure of Bridgeman to produce the promised funding placed the corporation in financial peril, Boisdore attempted to extricate the corporation from its difficulties by locating a buyer who was willing to pay a price sufficient to discharge the mortgage note and return the down payment made by Gilted Wood and Beaumont Properties. When Bridgeman learned of this he had another attorney write to Boisdore and the prospective buyer informing them that the corporation's charter, which was drafted by Bridgeman, did not give Boisdore the authority to arrange the sale.
Bridgeman admitted at trial that to further assure that Boisdore could not sell the property, he caused a $200,000.00 collateral mortgage to be recorded against the property for the sole purpose of preventing Boisdore from finding a willing buyer. As a result of Bridgeman's actions the sale did not take place and foreclosure proceedings were instituted. When the sheriff's sale did not generate sufficient funds to pay the mortgage, Boisdore was exposed to a potential deficiency judgment.
LIABILITY
At the close of trial, the jury found: 1) that an attorney client relationship existed between Boisdore and Bridgeman; 2) that Bridgeman violated the standard of professionalism, care, and fiduciary duty which attorneys must exercise towards their clients; 3) that Bridgeman was guilty of fraud or violation of fiduciary duty in his treatment of Boisdore and; 4) that Janet Raineri acted in concert with Bridgeman, rendering her liable for any fraud he may have committed.
We have no difficulty in affirming the jury's finding that Bridgeman and Raineri are liable to Boisdore. It is clear from the record that Bridgeman's conduct of his client's business amounted to fraud and fell below the high standards of fiduciary duty which should exist between attorney and client. It is also clear that his secretary actively participated in his actions.
Under C.C. Art. 1953 fraud is defined as:
A misrepresentation or a supression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.
C.C. Art. 1957 states that:
Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence.
The record leaves no doubt that Bridgeman misrepresented and concealed the true nature and extent of his interest in Gilted Wood and London Avenue from Boisdore. Although an attorney may deal with his client and acquire an interest in his client's property in exchange for services rendered, his actions should be subjected to the most exacting scrutiny. In such situations, the attorney is under a continuing *1155 duty to fully inform his client of all aspects of the transaction. Matthews v. Spears, 24 So. 2d 195 (La.App. 1st Cir.1946). Moreover, when a transaction between attorney and client is attacked, the burden is on the attorney to prove that the transaction was made in the best of faith without disadvantage to the client; that it was fair and equitable; and that the client was fully informed of his rights and so was able to deal with the attorney at arms length. Searcy v. Novo, 188 So. 490 (La.App. 2nd Cir.1939).
In this case, Boisdore was kept in the dark as to vital elements of his attorney's interest and participation in the affairs of both corporations. It is clear from the record that Boisdore relied on Bridgeman to conduct the financial and legal business of the corporation and confined his activities to renovation supervision, collection of rentals, and related activities. It is also clear that Bridgeman withheld and/or misrepresented vital information concerning the financial footing of the corporations. For example, he concealed the identity of the only investor in Gilted Wood from Boisdore for some months. He also concealed the fact that he had personally guaranteed that investor a specified return on her investment within a one year period. These promises, even though made by Bridgeman personally, affected the corporation. Mrs. Bryant's dissatisfaction with the corporation's performance was tied to the expectations which Bridgeman's promises raised in her mind. Boisdore, who was not informed of these promises, had no opportunity to object and without such information could not know whether Bridgeman's advice was in his best interests.
Bridgeman's repayment of the $40,000.00 five year term note to his own corporation (Carver) before the $75,000.00 demand note held by Mrs. Bryant is further evidence that he put his own interest above that of his client. The failure to pay the Bryant note was directly responsible for the eventual loss of the property in foreclosure proceedings. Bridgeman's excuse that Boisdore did not tell him which note to pay borders on the absured and totally ignores his duty to do what was best for his client, or at the very least to advise him as to which loan was being repaid. Bridgeman's acquisition of the Bryant stock and his ultimate acquiescence in a default judgment against the corporation is yet another example of his lack of concern for Boisdore's best interest. Allowing his father to seize the property while arranging for the corporation to collect the rents it generated also shows Bridgeman's intent to gain control of the corporation and its only asset.
As to London Avenue, Inc., Bridgeman's consistent obstruction of Boisdore's efforts to sell the property and recoup the down payments made by both parties is a further indication that he failed to exercise his judgment solely on Boisdore's behalf. The result of Bridgeman's obstructive tactics was foreclosure, loss of the corporation's only asset, and the exposure of Boisdore to a deficiency judgment.
From the foregoing it is clear that Bridgeman misrepresented and suppressed the truth in his business dealings with Boisdore and did so with the intent to obtain an unjust advantage over him. It is also clear that Boisdore was damaged by Bridgeman's actions. We therefore affirm the jury's findings regarding Bridgeman's liability.
Raineri's knowing participation in various aspects of Bridgeman's scheme was, in our opinion, sufficient to justify a finding of liability in her part. Under C.C. Art. 2324:
He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person for the damage caused by such act.
There is no doubt that Raineri assisted Bridgeman in the commission of fraud against Boisdore. She acted as incorporator and secretary to both Gilted Wood and London Avenue and was treasurer for Carver Development. As an officer of these corporations she assisted Bridgeman in the furtherance of his designs by acting *1156 as a conduit for his manipulations. For example, at Bridgeman's request Raineri endorsed all the certificates in London Avenue (which had originally been issued in her name) to Bridgeman without complying with the procedures set forth in the corporate charter. She likewise signed the collateral mortgage note which Bridgeman placed on the London Avenue property to obstruct Boisdore's attempt to sell it, also in violation of the corporation's charter. The record is replete with similar examples of Raineri's participation in Bridgeman's activities. We therefore affirm the jury's finding that Raineri is liable to Boisdore.
DAMAGES
We now address the issue of damages. At the close of trial, interrogatories were submitted to the jury. Among the issues addressed by these interrogatories was the measure of Boisdore's damages. The jury awarded Boisdore $70,000.00 for the loss of cash he invested in Gilted Wood, Inc. and $125,000.00 for his loss of equity ownership in that corporation. As to London Avenue, Inc., the jury awarded $48,000.00 for Boisdore's loss of equity ownership. These awards totaled $243,000.00. Raineri was found liable for $2,000.00 of this award. The remainder was assessed against Bridgeman.
The trial then court granted defendants' motion for judgment notwithstanding the verdict under C.C.P. Art. 1811 and reduced the jury's award to $150,000.00 without specifying which awards were reduced or for what reasons. Bridgeman and Raineri, appealed the finding of liability. Boisdore answered the appeal, seeking reinstatement of the jury verdict.
As this court observed in Blum v. NOPSI, 469 So. 2d 1117 (La.App. 4th Cir. 1985);
[i]n ruling on a motion for a judgment notwithstanding the verdict, pursuant to LSA-C.C.P. Art. 1810.1 (now substantially reenacted in LSA-C.C.P. Art. 1811), the trial judge considers all of the evidence and reasonable inferences in a light most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable persons could not arrive at a contrary verdict, the motion should be granted and the trial judge should render a judgment notwithstanding the jury's findings. On the other hand, if there is substantial evidence of such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions, the motion for judgment N.O.V. should be denied.
Applying this standard to the evidence in this case, we find that the trial court abused its discretion by granting the defendant's motion. The evidence simply was not so overwhelmingly in favor of the defendants that interference with the jury's findings was justified. We therefore reverse the granting of the judgment N.O.V.
Having reviewed the record, we cannot say that the jury's damage awards were an abuse of discretion. The $70,000.00 award for loss of cash invested in Gilted Wood reasonably tracks the evidence presented by Boisdore. This award appears to have been intended to compensate Boisdore for amounts which he advanced to the corporation for various operating expenses during renovation. The fact that Boisdore gave himself promissory notes which he signed as president of Gilted Wood as security for some of these advances does not change the fact that Bridgeman's conduct has made these sums virtually uncollectable. Bridgeman allowed his father to seize the corporation's only asset and thus made it difficult if not impossible for Boisdore to recover his money. Under these circumstances, we cannot say that the jury abused its discretion in making this award.
As to the award for loss of equity ownership, we conclude that this award was intended to compensate Boisdore for the decreased value of his ownership interest in the corporations. The jury must have concluded that Bridgeman's manipulation of both corporations has caused them to decrease *1157 in value. Considering that, due to Bridgeman's conduct, neither corporation has retained the property which was its primary asset the jury's conclusion does not seem unreasonable, and we will not disturb its decision to award damages for loss of equity ownership. Moreover, the amount of damages seems reasonable based on the evidence in the record.
Appellants are incorrect in their claim that Boisdore will get double recovery by receiving an award for loss of cash invested and loss of equity ownership. Boisdore's one third ownership did not arise from cash invested, but from work performed. Thus, return of cash invested is not double recovery in the event the property eventually sells for more than the debt. Moreover, Bridgeman now controls how that cash would be used and it seems unlikely that he will disburse it to the shareholders.
Finally, we note that Raineri should have been held solidarily liable with Bridgeman's under C.C. Art. 2324. Instead, the jury fixed her liability at $2,000.00. However, since neither party has raised this issue by assignment of error or brief, we will not disturb the jury's award against Raineri.
For the foregoing reasons, we reverse the trial court's granting of the judgment N.O.V. and affirm the jury verdict and damage awards. All costs of this appeal are assessed against Ben Bridgeman and Janet Raineri.
AFFIRMED IN PART AND REVERSED IN PART.
GULOTTA, J., concurs.
GULOTTA, Judge, concurring.
I concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616875/ | 132 Mich. App. 667 (1984)
347 N.W.2d 779
PIERSON
v.
PIERSON
Docket No. 70146.
Michigan Court of Appeals.
Decided March 6, 1984.
Hooper, Hathaway, Price, Beuche & Wallace (by James A. Evashevski), for plaintiff.
Law Offices of Peter J. Johnson (by William J. Pearson), for defendant.
Before: MacKENZIE, P.J., and J.H. GILLIS and T.C. MEGARGLE,[*] JJ.
PER CURIAM.
Defendant husband appeals as of right from the denial of his motion to set aside a default judgment of divorce for lack of subject matter jurisdiction.
Plaintiff Charlotte Pierson and defendant Ronnie Pierson were married on December 13, 1975, in Riverside, California. Two children were born during the course of the marriage: Carrie, born May 14, 1977; and Lora, born April 3, 1978. After numerous domestic arguments, plaintiff and her two daughters left the parties' home in Santa Rosa, California, arriving in Michigan on April 14, 1981. On April 28, 1981, plaintiff filed a complaint for separate maintenance in Washtenaw County Circuit Court.
On October 15, 1981, six months and one day after her arrival in Michigan, plaintiff filed an amended complaint for divorce. No original complaint of divorce was filed.
Defendant failed to respond to the amended complaint within the 20 days allotted by statute. Accordingly, a default judgment was entered on *669 November 20, 1981, in which plaintiff was granted custody of the two children. Defendant then filed a special appearance to attack the subject matter jurisdiction of the trial court on two separate grounds. First, defendant alleged that plaintiff had not been a resident of Michigan for at least 180 days prior to the filing of the original complaint as required by MCL 552.9; MSA 25.89. Second, defendant claimed that plaintiff failed to comply with the six-month "waiting period" specified under MCL 552.9f; MSA 25.89(6).
This motion was denied by the trial judge who reasoned that because plaintiff had been a resident of Michigan for 180 days at the time the amended complaint was filed, public policy did not require that the default judgment be overturned in order to "prevent forum shopping". Defendant now appeals as of right from the judge's determination that subject matter jurisdiction over the divorce existed at the time the default judgment was entered.
In order to obtain a divorce in Michigan, the following statutory residency and waiting period requirements must be met.
Under MCL 552.9; MSA 25.89,
"[a] judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint."
MCL 552.9f; MSA 25.89(6) requires that:
"In every case where there are dependent minor children under the age of 18 years, no proofs or testimony *670 shall be taken in such cases for divorce until the expiration of 6 months from the day the bill of complaint is filed."
Plaintiff asserts that she fully complied with both of these statutory provisions. Plaintiff reaches this conclusion by using the date of the complaint for separate maintenance to fulfill the waiting period required under MCL 552.9f. Since six months and one day elapsed between the date of filing and the day proofs and testimony were taken, plaintiff claims that she complied with the statutory requirement.
Also, plaintiff contends that the 180-day residency requirement should be measured from the date she arrived in Michigan to the date she filed the amended complaint of divorce. Measuring from the date of the amended complaint for divorce, rather than the date of the complaint for separate maintenance, plaintiff argues that she satisfied the 180-day residency requirement.
We disagree.
As defendant correctly points out, GCR 1963, 118.4 requires that the October 15, 1981, date on which the amended complaint for divorce was filed relate back to April 28, 1981, the date of the original complaint for separate maintenance.
The test for determining if an amendment relates back to the date of the original proceeding is whether "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading". GCR 1963, 118.4; Guerra v Bar-Har Investments, Inc, 112 Mich. App. 302, 306; 315 NW2d 921 (1982).
The focus is on whether the amendment springs from the same transactional setting as the original *671 pleading. LaBar v Cooper, 376 Mich. 401, 405-406; 137 NW2d 136 (1965). The relation-back provision of GCR 1963, 118.4 applies here since both the original complaint for separate maintenance and the amended complaint for divorce arose out of the breakdown of the marriage. Consequently, the trial court was without jurisdiction to render a default judgment.
This conclusion is further supported by the ruling in Bull v Bull, 109 Mich. App. 328; 311 NW2d 768 (1981). In Bull, this Court ruled that under GCR 1963, 118.4 the date of filing amended divorce and custody pleadings relates back to the date the original pleading was filed for the purposes of establishing or negating jurisdiction. This Court reasoned that:
"There is nothing in the act [Uniform Child Custody Jurisdiction Act] which would indicate that jurisdictional requirements may be established during the pendency, as opposed to the commencement, of the proceedings." Bull, supra, p 341.
Therefore, the date which the trial court was to consider for the establishment of jurisdiction was the date on which the original pleading was filed, April 28, 1981. As of that date, plaintiff had not satisfied the 180-day minimum residency requirement. Consequently, the trial court lacked jurisdiction and the default judgment must be set aside.
Consistent application of GCR 1963, 118.4, however, requires a finding that plaintiff satisfied the six-month waiting period under MCL 552.9f; MSA 25.89(6). Consequently, our setting aside the default judgment of divorce is based solely on the ground that plaintiff failed to satisfy the 180-day residency requirement contained in MCL 552.9; MSA 25.89.
*672 Although not raised by the parties, we note that an additional requirement contained in MCL 552.9f; MSA 25.89(6) appears to apply to the instant case:
"When the defendant in any case for divorce is not domiciled in this state at the time of commencing the suit or shall not have been domiciled herein at the time the cause for divorce arose, before any decree of divorce shall be granted the complainant must prove that the parties have actually lived and cohabited together as husband and wife within this state, or that the complainant has in good faith resided in this state for 1 year immediately preceding the filing of the bill of complaint for divorce." MCL 552.9f; MSA 25.89(6).
Because the record is insufficient to determine whether the parties must comply with this requirement, we only note it here in order that it be considered should either party reinstitute divorce proceedings.
Reversed. The default judgment of divorce is set aside.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616932/ | 347 N.W.2d 156 (1984)
Wesley J. UMPLEBY, By and Through his co-conservators, Charles UMPLBY and Geneva Umpleby, Plaintiff and Appellant,
v.
STATE of North Dakota, By and Through the NORTH DAKOTA STATE GAME AND FISH DEPARTMENT; and Morton County, North Dakota, a political subdivision, Defendants and Appellees.
Civ. No. 10545.
Supreme Court of North Dakota.
March 29, 1984.
*158 Vogel Law Firm, Mandan, for plaintiff and appellant; argued by Jos. A. Vogel, Jr., Mandan.
Gunhus, Grinnell, Klinger, Swenson and Guy, Moorhead, Minn., for defendants and appellees; argued by Jeffrey Hannig, Moorhead, Minn.
*159 SAND, Justice.
Plaintiff Wesley Umpleby appealed from a summary judgment granted in favor of defendant Morton County in a personal injury action.
In April 1981 Umpleby was injured in a one-vehicle accident on a curve on an access road in an area known as the Schmidt Bottoms south of Mandan between North Dakota Highway 1806 and the Oahe Reservoir. Umpleby sustained injuries which rendered him a quadriplegic. Umpleby contended that his injuries were proximately caused by Morton County's breach of duty to properly design and construct the road. Specifically, Umpleby contended that the county failed to provide the proper superelevation (bank) on the curve in the road.
The road is located on land owned by the United States Corps of Engineers and licensed to the North Dakota Department of Game and Fish. Prior to 1969 the road was an unimproved trail used by hunters and fishermen. In 1969 the corps of engineers and the game and fish department decided to improve the road. The corps and the game and fish department subsequently reached an "agreement" with the Morton County commissioners to widen and gravel about one and one-half miles of the road. Another one-half mile section was improved in 1970. The accident occurred on the curve that joins the two sections.
Each of the three entities contributed about one-third of the cost of the entire project. However, Morton County employees performed the work, using Morton County equipment. No plans or specifications were made and the corps did not provide any supervision. The configuration of the road followed the preexisting trail.
Upon written request from the game and fish department, the Morton County commissioners thereafter authorized periodic blading of the road during 1977. In 1978 the corps hired an independent contractor to regravel the road but no structural changes were made.
Umpleby's complaint originally included the State but the two parties later stipulated to a dismissal. Morton County subsequently made a motion for summary judgment. The court granted the motion and Umpleby appealed.
Summary judgment is a procedural device available for promptly and expeditiously disposing of a controversy without a trial if there is no dispute as to either the material facts or the inferences to be drawn from the undisputed facts, or whenever only a question of law is involved. Spier v. Power Concrete, Inc., 304 N.W.2d 68, 72 (N.D.1981).
In considering a motion for summary judgment the court may examine the pleadings, depositions, admissions, affidavits and interrogatories, and inferences to be drawn therefrom, to determine whether or not summary judgment is appropriate. First National Bank of Hettinger v. Clark, 332 N.W.2d 264, 267 (N.D.1983).
Summary judgment is inappropriate if either party is not entitled to judgment as a matter of law or if reasonable differences of opinion exist as to the inferences to be drawn from the undisputed facts. Ibid.
Even when factual disputes exist between the parties, summary judgment is appropriate if the law is such that the resolution of the factual dispute will not change the result. Such facts, in essence, are not considered material facts. Spier, supra, at 72.
On appeal from a summary judgment, we view the evidence in a light most favorable to the party against whom the summary judgment was granted. Clark, supra, at 267.
Generally, negligence actions are not appropriate for summary judgment. However, a negligence action presupposes the existence of a duty. Whether or not a duty exists in a negligence action is a matter of law to be resolved by the court before allowing a jury to hear evidence *160 concerning a breach of that duty and proximate cause. DeLair v. County of LaMoure, 326 N.W.2d 55,58 (N.D.1982); see W. Prosser, Law of Torts § 37 at 206 (4 ed. 1971). Thus, if Morton County did not owe a duty to Umpleby then summary judgment dismissing Umpleby's complaint was proper.
The power of county commissioners to act in matters affecting county roads is a power conferred by statute. See North Dakota Century Code Ch. 24-05. Specifically, NDCC § 24-05-17 provides:
"The board of county commissioners in their respective counties shall have the sole authority and responsibility to acquire land for, construct, maintain and operate the county road system as designated and selected by them."
The depositions and affidavits indicate that the road is not a part of Morton County's designated road system under NDCC § 24-05-16 and that it is not located on a congressional section line. In DeLair we held that a county or township does not have a duty to maintain an improved road on each section line. DeLair, supra, at 61. It follows that a county has no duty to construct roads on land not located on section lines or not part of the county road system.
The road does not connect any part of the county road system nor has the county attempted to condemn the area to obtain an easement over the property for public roadway purposes. See NDCC § 24-05-07. The depositions further reflect that although the road is open to the public, it was not intended as an all-purpose public road. It was originally intended as an access road to the corps facilities on Lake Oahe and it is now also used by the game and fish department. In sum, the road is not a public road in a literal sense. It is merely an access road owned by the corps of engineers and licensed to the department of game and fish. If the corps decided to close the road the county or anyone else would lack effective redress to force it open.
Other factors indicate that control over the road rested with the corps and the game and fish department. The license from the corps to the game and fish department provides that the game and fish department is required to "administer and maintain the said property in accordance with the master plan for the said project area" and to "provide appropriate markings at its own expense." Although the county periodically bladed the road during 1977, they did so at the request of the game and fish department. The improvements in 1978 were made pursuant to a contract between the corps and an independent contractor. Morton County was not involved in any manner.
During oral argument to this court Umpleby attempted to place significance upon the fact that the county's work on the last one-half mile of the road in 1970 was done pursuant to a memorandum agreement. Although portions of the agreement are contained in plaintiff's appendix to his brief, there are important sections, including those containing the alleged signatures of the parties, that are absent. Morton County, during oral argument, stated that Morton County did not sign the agreement.
A party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, and, if appropriate, drawing the court's attention to evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising a material factual issue, or from which the court may draw an inference creating a material factual issue. Clark, supra, at 267.
In summary judgment proceedings the trial court has no legal obligation or judicial duty to search the record for evidence opposing the motion for summary judgment. This principle is equally applicable, if not more so, to appellate proceedings because the appellate court, except for jurisdictional matters and the taking of judicial notice, generally considers only those issues raised in the trial court. Ibid.
*161 Umpleby relied upon the law stated in Clairmont v. State Bank of Burleigh County Trust, 295 N.W.2d 154 (N.D. 1980), that a person may voluntarily perform an affirmative act and may thereby assume a legal duty that will afford a basis for tort liability. In such cases the standard of reasonable care applies. Clairmont, supra, at 158; see Prosser, supra, at § 56. Umpleby's reliance upon Clairmont, however, is misplaced.
Umpleby failed to establish that the county commissioners had the authority to enter into a legal, binding agreement on behalf of the county to do the work. He also failed to establish that the commissioners had the legal authority to volunteer or commit county resources to improve the road in question. The commissioners are not a party to this action.
The law regarding the authority of public officers has been established for some time. "In general, the powers and duties of officers are prescribed by the Constitution or by statute, or both, and they are measured by the terms and necessary implication of the grant, and must be executed in the manner directed...." Kopplin v. Burleigh County, 47 N.W.2d 137, 140 (N.D.1951) [citing 43 Am.Jur.2d Public Officers & Employees § 263 (1972) ]; Brink v. Curless, 209 N.W.2d 758, 767 (N.D.1973); Madrid Lumber Co. v. Boone County, 121 N.W.2d 523, 525 (Iowa 1963); South Dakota Employers Protective Assn v. Poage, 65 S.D. 198, 272 N.W. 806, 809 (1937). Persons transacting business or dealing with public officers are charged with knowledge of the officers' authority. Cf. Feiler v. Wanner, 340 N.W.2d 168, 171 n. 2 (N.D.1983); Roeders v. City of Washburn, 298 N.W.2d 779, 782 (N.D.1980) (parties dealing with municipalities are charged with notice of the extent of that authority); Madrid, supra, at 527 (party bound at its peril to take cognizance of all statutory limitations upon authority of county); Consolidated Chemical Laboratories, Inc. v. Cass County, 141 Neb. 486, 3 N.W.2d 920, 922 (Neb.1942) (merchant dealing with counties and county officers must note and respect their powers and duties). Further, 20 C.J.S. Counties § 174, p. 1007, states:
"One who contracts with a county is bound to recognize the statutory limitations of its power, and persons dealing with officers or agents of counties are bound to ascertain the limits of their authority or power as fixed by statutory or organic law, and are chargeable with knowledge of such limits."
The Legislature, in 1969, enacted NDCC § 11-11-55, which provides:
"The board of county commissioners shall have the power to enter into agreements with private landowners for the purpose of making improvements on private roads. The board shall charge the landowner for the improvements made pursuant to such agreement, and such charges shall constitute a line upon the real estate of the landowner in the same manner as personal property taxes are made a lien upon real estate as provided in chapter 57-22." [Emphasis ours.]
This section does not grant plenary authority to the county commissioners, but rather limits the authority to private landowners and private roads with the further condition that the expenditure shall constitute a lien upon the property. Neither the corps of engineers nor the state game and fish department are private parties or private landowners, nor is the road in question a private road. This statute does not aid Umpleby.[1]
Even accepting, arguendo, that the county commissioners acted pursuant to *162 authority provided by law, we are convinced that no material fact remains to be resolved regarding their status or liability. Generally, a contractor may be relieved of liability if he followed the contractee's plans or specifications which were defective or insufficient, and the defect or insufficiency caused the damage. Mayville-Portland School District v. C.L. Linfoot Co., 261 N.W.2d 907, 911 (N.D.1978).
Although the record does not contain any specific plans or specifications for the work done by Morton County, the corps has standards for such projects which are contained in the corps'"Engineering Manual." Regarding access roads, the manual states in pertinent part:
"Generally 20 to 22-foot width paved surface, but not to exceed 24 feet; with desirable minimum 4-foot shoulders and 10% maximum grade. Access roads connecting recreation areas with state and county road systems generally will not exceed the road width of those systems."
The record reflects that the corps' design standards for access roads do not contain criteria for superelevation of curves. In addition, the corps' failure to direct Morton County, or anyone else, to make alterations on the road and its payment of a portion of the project indicates that the corps tacitly accepted Morton County's work. From this any reasonable person may draw an inference that the work met the specifications of the corps.
We conclude that Morton County had no legal duty to construct and maintain or exercise actual control over the road upon which Umpleby was injured. The County was a mere instrumentality for performance of the improvements and owed no duty to the plaintiff and thus summary judgment was appropriate.
Affirmed.
ERICKSTAD, C.J., and GIERKE and PEDERSON, JJ., concur.
VANDE WALLE, Justice, concurring specially.
I agree with the result reached in the majority opinion, but I am not convinced that the County had no authority to enter into a legal, binding contract on behalf of the County to do the work on the road in question. Section 11-11-55, N.D.C.C., when read together with Chapter 54-40, N.D.C.C., involving joint exercise of governmental powers, could result in a conclusion that the County had authority to contract with the Corps of Engineers and the State Game and Fish Department to improve the road. However, I agree with the majority opinion that if the County Commissioners had such authority it was as a contractor and that the road was built to the specifications and satisfaction of the Corps of Engineers. Because the County had virtually no control over the design, construction, maintenance, or signing of the road, it owed no duty to the plaintiff.
NOTES
[1] The Legislature, in 1983, enacted NDCC § 11-11-55.1 authorizing the making of improvements in an area provided sixty percent of the landowners petition the commissioners to request the improvement and provide for finances to accomplish the improvement. This law, however, was not in effect at the time. It does, nevertheless, demonstrate that the county commissioners need to have authority before they may undertake to commit any obligation on behalf of the county. Even if this amendment had been applicable at the time it would not have served as a basis for the county commissioners to exercise the authority they did. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615068/ | 23 So. 3d 120 (2009)
STRICKLAND
v.
STATE.
No. 2D09-3290.
District Court of Appeal of Florida, Second District.
December 4, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615230/ | 502 So.2d 229 (1987)
SUCCESSION OF Mattie Smith THOMPSON, Edith N. Williams, Administratrix, Plaintiff-Appellant,
v.
Curtis HARRINGTON, Defendant-Appellee.
No. 86-204.
Court of Appeal of Louisiana, Third Circuit.
February 4, 1987.
*230 Lauri G. Boyd, Ferriday, for plaintiff-appellant.
V. Russell Purvis and George Griffing, Jonesville, for defendant-appellee.
Before DOUCET, LABORDE and KING, JJ.
LABORDE, Judge.
Curtis Harrington, appellee, brought a rule to show cause against Edith Nugent Williams, administratrix of the succession of Mattie Smith Thompson, asking the District Court under an exception of improper venue to transfer the succession proceedings from Catahoula Parish to LaSalle Parish. After hearing the evidence, the trial judge sustained the exception of improper venue and ordered the proceeding transferred to the 28th Judicial District, Parish of LaSalle. From this judgment Williams has appealed. Harrington answered the appeal, seeking damages for frivolous appeal. We affirm.
FACTS
Mattie Smith Thompson died in Catahoula Parish in April of 1985. In November of 1984, Thompson allegedly moved most of her personal belongings to Catahoula Parish where she resided in the home of her niece, Edith Nugent Williams. Until her death, Thompson also owned a home in Tullos, LaSalle Parish, Louisiana, which she maintained as her domicile prior to residing with Williams. At her home in Tullos, Thompson maintained the utilities, including telephone service. She received mail and maintained bank accounts in Catahoula and LaSalle parishes. She was registered to vote in LaSalle Parish, but had not exercised that right since 1981.
Appellant contends that Thompson had been living with her for six months and intended to remain in Catahoula Parish permanently. The appellant further testified that Thompson had resided with other relatives prior to living with her along with staying at home in LaSalle Parish and also in the hospital. Appellant further testified that most of Thompson's personal belongings were in the appellant's home and that when Thompson was physically able, she would sell her home in LaSalle Parish and move the rest of her belongings into an apartment owned by appellant.
Appellee contends that Thompson never intended to change her domicile to Catahoula Parish. The appellee points to the home in LaSalle Parish which was still maintained in full working order and that at no time prior to Thompson's death was it *231 put up for sale. The appellee also entered into evidence a letter postmarked December 5, 1984, written to appellee by the decedent stating "... she sent for me. I was going to stay at home, but ... was so sick an [sic] she don't like to stay here by herself ..."
The question presented by this appeal is whether the decedent changed her domicile from LaSalle Parish to Catahoula Parish. LSA-C.C. art. 38 provides that the domicile of a citizen is the parish of his principal establishment or habitual residence. To effect a change in domicile from one parish to another requires actual residence in another parish, together with the intention of making a principal establishment there and of abandoning the former domicile. LSA-C.C. art. 41; Temple v. Jackson, 376 So.2d 972 (La.App. 1st Cir. 1979); In re Kennedy, 357 So.2d 905 (La. App. 2d Cir.1978). This intention is proved by either an express declaration of an intent to change before the recorder of the parishes or by proof showing a change in circumstances. LSA-C.C. arts. 42, 43; Brown v. Brown, 378 So.2d 164 (La.App. 1st Cir.1979). The circumstances indicating establishment of a domicile include: "where a person sleeps, takes his meals, has established his household, and surrounds himself with his family and the comforts of domestic life." Succession of Rhea, 227 La. 214, 78 So.2d 838 (1955); Charbonnet v. Hayes, 318 So.2d 917 (La. App. 4th Cir.1975). The law is well settled that the party who seeks to establish a change of domicile bears the burden of proving it. In re Kennedy, 357 So.2d at 909. Furthermore, as long as there is any doubt concerning whether a change of domicile has occurred, the presumption is that the domicile has not been changed. Succession of Simmons, 109 La. 1095, 34 So. 101 (1903); Succession of Barger, 217 So.2d 779 (La.App. 4th Cir.), writ refused, 253 La. 877, 220 So.2d 459 (1969).
In Barger, the facts are similar to those in the instant case. Mrs. Barger owned a home in Ascension Parish. On January 4, 1967, she went to New Orleans to visit with a friend. From there she moved into a nursing home in Jefferson Parish on May 16, 1967, where she resided until her death on February 1, 1968. Mrs. Barger still maintained her home in Ascension Parish even though she was not able to return to it due to her poor health. The court in Barger held that there had not been a change of domicile.
In the instant case, the decedent was also in poor health and unable to fully care for herself. Testimony at trial reflects that the decedent was being administered insulin, was having trouble seeing, and was unable to stay by herself for any extended period of time. While it is true that the decedent brought most of her personal effects with her to appellant's house, we do not find that sufficient to show a change in domicile. Nor do we feel the testimony of the appellant that decedent intended to make her permanent home in Catahoula Parish sufficient proof of intent. Besides staying with appellant for six months, no other intention was implied by decedent. The only written evidence of the decedent's intention is a letter to appellee stating that she wanted to go home. Furthermore, Thompson had a home in LaSalle Parish fully maintained which she could have returned to had she been physically able without having to obtain anyone's permission. Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3d Cir.), writ den., 334 So.2d 217 (La.1976). After a thorough review of the record, it is clear to us that the decedent's change of residence was brought about due to health reasons rather than an intent to change her domicile. The appellant has not borne the burden of proving a change in domicile. Consequently the Civil District Court for the Parish of Catahoula lacked jurisdiction to administer her succession and properly transferred the suit to LaSalle Parish. LSA-C.C.P. art. 2811; Succession of Guitar, 197 So.2d 921 (La.App. 4 Cir.1967).
The only issue remaining is disposition of appellee's demand for frivolous appeal. LSA-C.C.P. art. 2164 provides an award for damages for frivolous appeal. *232 Appeals are favored, and damages for frivolous appeal are allowed only where the appeal was taken solely for purposes of delay or where counsel did not seriously believe in the position she advocates. Guidry v. Carmouche, 320 So.2d 267 (La.App. 3rd Cir.1975).
We conclude that appellant believed in the view she advocated and that such view was not entirely unreasonable. Hence, we deny appellee's claim for damages for frivolous appeal.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697439/ | [Cite as State v. Davis, 2013-Ohio-1642.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 11CA3262
vs. :
JERRY L. DAVIS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: James S. Sweeney, James Sweeney Law, LLC, 673
Mohawk Street, Ste 403, Columbus, Ohio 43206
COUNSEL FOR APPELLEE: Matthew S. Schmidt, Ross County Prosecuting Attorney,
72 North Paint Street, Chillicothe, Ohio 45601
_________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-22-13
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of
conviction and sentence. Jerry L. Davis, defendant below and appellant herein, pled guilty to:
(1) rape in violation of R.C. 2907.02(B); (2) three counts of sexual battery in violation of R.C.
2907.03; and (3) failure to register a change of address in violation of R.C. 2950.05. Appellant
assigns the following error for review:
“DEFENDANT-APPELLANT’S GUILTY PLEA WAS NOT
KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY
MADE AS TO THE SENTENCE HE COULD BE SUBJECTED
TO.”
{¶ 2} On March 26, 2010, the Ross County Grand Jury returned an indictment that
charged appellant with the aforementioned crimes. Appellant initially pled not guilty, but later
agreed to plead guilty to all offenses in exchange for the State's recommendation of cumulative
twenty year prison sentence. On January 13, 2011, after ascertaining that appellant understood
his constitutional rights, the trial court accepted appellant's pleas and found him guilty as
charged.
{¶ 3} Subsequently, the trial court sentenced appellant to serve ten years for rape, three
years on each sexual battery count and one year for the failure to register an address change.
The court ordered the last charge to be served concurrently with all the others, but ordered the
sentences on the first four charges to be served consecutively to one another for a nineteen year
cumulative total. On January 30, 2012, this Court granted appellant leave to file a delayed, and
the matter is now before us for review.
{¶ 4} In his sole assignment of error, appellant asserts that he did not knowingly,
voluntarily or intelligently enter his guilty plea. In particular, appellant posits that the trial court
erroneously informed him that he could be imprisoned for one to five years for the failure to
register a change of address when, in fact, he could only have received a term of twelve to
thirty-six months. Thus, appellant argues that his guilty plea was unknowing and involuntary.
{¶ 5} Initially, we point out, and appellant correctly notes at the end of his brief's
argument portion, that a claim that a guilty plea was involuntary requires the challenger to
establish prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, at ¶15; State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Generally, the test is
whether the plea would otherwise have been made. Veney, supra at ¶15; Nero, supra at 108. In
ROSS, 11CA3262 3
the case at bar, for appellant to show that his plea would have been otherwise, he must argue that,
although he willingly pled guilty to a greater term of imprisonment, he would not have been
willing to plead to a lesser term of imprisonment. Obviously, we find no merit in this argument.
{¶ 6} As to the merits of appellant’s argument, as the State notes in its brief, appellant
relies on a statutory subsection of R.C. 2929.14 that did not exist at the time he received his
sentence. Subsection (A)(3)(b) of R.C. 2929.14, which imposes a range of prison sentences for
third degree felonies of twelve to thirty-six months, was not added to the Ohio Revised Code
until Am.Sub.H.B. No. 86, 2011 Ohio Laws File 29, with the effective date of September 30,
2011. Here, the trial court filed the sentencing entry on June 30, 2011, several months before
the new legislation's effective date. Prior to that legislation's effective date, one to five years
spanned the range of sentences for third degree felonies. See prior version of R.C.
2929.14(A)(3)(a). This, in fact, was the range of sentence that the trial court advised appellant.
Therefore, the trial court’s colloquy with appellant regarding the maximum penalty on count five
of the indictment was indeed correct. Thus, appellant has not persuaded us that he entered his
guilty plea either unknowingly or involuntarily.
{¶ 7} For these reasons, we hereby overrule appellant's assignment of error and affirm
the trial court's judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Davis, 2013-Ohio-1642.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2697434/ | [Cite as State v. Thornsbury, 2013-Ohio-1914.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, : Case No. 12CA9
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
HEATHER THORNSBURY, :
: RELEASED 05/03/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Stephen K. Sesser, Chillicothe, Ohio, for appellant.
J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Jeffrey M. Smith,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Heather Thornsbury appeals her conviction for escape and claims that the
trial court erred by denying her motion to dismiss because the facts alleged in the
indictment were legally insufficient to support a conviction. We agree. Because
Thornsbury was released on bond at the time the state alleges she escaped, she was
not under “detention” as required by the statute. Furthermore, although she was initially
confined in the county jail following her arrest, her detention ended after she posted
bond and was released. Therefore, the state could not prosecute her under R.C.
2921.34(A)(1) for escape.
I. FACTS
{¶2} The state initially charged Heather Thornsbury with endangering children
in a separate case. Following her arrest, she was in the county jail until her release on
bond. Ultimately, Thornsbury pleaded guilty and received a sentence of 36 months in
Lawrence App. No. 12CA9 2
prison. The court continued her bond after sentencing and ordered her to report to the
county jail in December 2011. However, Thornsbury failed to report to the jail on time
and instead arrived in February 2012.
{¶3} As a result, she faced a charge of escape in violation of R.C.
2921.34(A)(1) and pleaded not guilty. At a change of plea hearing, defense counsel
made an oral motion to dismiss the indictment, arguing that the facts alleged in the
indictment were not legally sufficient to support a conviction for escape. The trial court
denied the motion to dismiss and Thornsbury pleaded no contest.1 The court
sentenced her to 24 months in prison, to run consecutively to her sentence for
endangering children. She now appeals the trial court’s denial of her motion to dismiss.
II. ASSIGNMENT OF ERROR
{¶4} Thornsbury raises one assignment of error for our review:
1. “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO
DISMISS THE INDICTMENT ON THE GROUNDS THAT THE INDICTMENT DID
NOT PROVIDE ANY FACTS LEGALLY SUFFICIENT FOR A FINDING OF
GUILT UNDER OHIO REVISED CODE §2921.34.”
III. LAW AND ANALYSIS
{¶5} Thornsbury argues the facts alleged in the indictment are legally
insufficient to support a finding of guilt under R.C. 2921.34(A)(1) because she was not
“under detention” as required by the statute. She claims none of the situations in which
a person can be under “detention” as defined in R.C. 2921.01(E) apply to her, and
therefore the trial court erred by failing to dismiss the indictment. The state contends
1
After hearing arguments from both parties, the trial court orally denied Thornsbury’s motion to dismiss.
However, the record does not contain an entry journalizing the court’s ruling. But because the court
proceeded to accept her plea, found her guilty and imposed a sentence, it effectively denied the motion
for purposes of appeal.
Lawrence App. No. 12CA9 3
because Thornsbury was confined in the county jail after her initial arrest and purposely
failed to return to detention after sentencing as ordered by the trial court, her conviction
was proper.
A. Legal Standard
{¶6} A motion to dismiss an indictment tests the legal sufficiency of the
indictment, without regard to the quantity or quality of evidence that may be produced
by either the state or the defendant. State v. Evans, 4th Dist. No. 08CA3268, 2010-
Ohio-2554, ¶ 18. The sufficiency of an indictment is a question of law that we review de
novo. Id. Accordingly, “[u]nder Crim.R. 12(C)(2), trial courts may judge before trial
whether an indictment is defective.” State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-
580, 964 N.E.2d 406, ¶ 23. “In conducting this pretrial review, courts may look to
‘evidence beyond the face of the indictment.’” Id. at ¶ 22, quoting State v. Brady, 119
Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 18 [citing Crim.R. 12 (F)].
“However, a Crim.R. 12 ruling may not decide ‘what would be the general issue at trial.’”
Palmer at ¶ 22, quoting Brady at ¶ 18.
{¶7} An indictment is defective if it alleges a violation of the Revised Code by a
person who is not subject to the statute. See Palmer at ¶ 23. “The general issue for trial
* * * is whether the accused violated the law as set forth in the indictment. Where the
law simply does not apply, the trial court is well within its authority to dismiss the
indictment before trial.” Id. at ¶ 24.
B. R.C. 2921.34
{¶8} This case involves the interpretation of a statute, which we review as a
matter of law (de novo) without deference to the trial court’s determination. In re
Lawrence App. No. 12CA9 4
Adoption of T.G.B., 4th Dist. Nos. 11CA919, 11CA920, 2011-Ohio-6772, ¶ 4. “The
primary goal of statutory construction is to ascertain and give effect to the legislature’s
intent in enacting the statute.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861
N.E.2d 512, ¶ 9. If the meaning of a statute is unambiguous and definite, it must be
applied as written and no further interpretation is necessary. Mathews v. Waverly, 4th
Dist. No. 08CA787, 2010-Ohio-347, ¶ 23. Only if a statute is unclear and ambiguous,
may we interpret it to determine the legislature’s intent. State v. Chappell, 127 Ohio
St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. A statute is ambiguous if its
language is susceptible to more than one reasonable interpretation. State ex rel. Toledo
Edison Co. v. Clyde, 76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996).
{¶9} Thornsbury was convicted of escape in violation of R.C. 2921.34(A)(1),
which provides:
No person, knowing the person is under detention, other than supervised
release detention, or being reckless in that regard, shall purposely break
or attempt to break the detention, or purposely fail to return to detention,
either following temporary leave granted for a specific purpose or limited
period, or at the time required when serving a sentence in intermittent
confinement.
{¶10} Thus for an escape to occur, the defendant must first have been under
lawful detention. See State v. Edwards, __ Ohio App.3d __, 2012-Ohio-4685, 979
N.E.2d 1, ¶ 8 (4th Dist.). R.C. 2921.01(E) defines “detention”:
“Detention” means arrest; confinement in any vehicle subsequent to an
arrest; confinement in any public or private facility for custody of persons
charged with or convicted of crime in this state or another state or under
the laws of the United States or alleged or found to be a delinquent child
or unruly child in this state or another state or under the laws of the United
States; hospitalization, institutionalization, or confinement in any public or
private facility that is ordered pursuant to or under the authority of section
2945.37, 2945.371, 2945.38, 2945.39, 2945.40, 2945.401, or 2945.402 of
the Revised Code; confinement in any vehicle for transportation to or from
Lawrence App. No. 12CA9 5
any facility of any of those natures; detention for extradition or deportation;
except as provided in this division, supervision by any employee of any
facility of any of those natures that is incidental to hospitalization,
institutionalization, or confinement in the facility but that occurs outside the
facility; supervision by an employee of the department of rehabilitation and
correction of a person on any type of release from a state correctional
institution; or confinement in any vehicle, airplane, or place while being
returned from outside of this state into this state by a private person or
entity pursuant to a contract entered into under division (E) of section
311.29 of the Revised Code or division (B) of section 5149.03 of the
Revised Code. For a person confined in a county jail who participates in a
county jail industry program pursuant to section 5147.30 of the Revised
Code, “detention” includes time spent at an assigned work site and going
to and from the work site.
{¶11} Looking at the plain language of R.C. 2921.01(E) we find that the statute
is clear and unambiguous. The statute sets forth a limited list of circumstances that the
legislature identified as “detention.” Therefore applying the statute as written, we agree
with Thornsbury that none of the situations listed in R.C. 2921.01(E) cover the facts of
this case. When she failed to report to the county jail, she was “out on bond,” which the
court continued after sentencing; but she was not confined, serving work release, or
under any of the types of supervision listed in the statute. In short, because “out on
bond” is not listed in R.C. 2921.01(E), she was not under “detention” at the time the
state alleged she escaped.2 See State v. Hughes, 6th Dist. Nos. E-08-034, E-08-035, E-
08-036, 2009-Ohio-3499, ¶ 18.
{¶12} We also briefly consider the state’s argument that Thornsbury was “under
detention” in the county jail following her arrest and failed to return to detention when
she did not report to the jail on the date ordered by the court. Initially we agree that
while Thornsbury was in the county jail after her arrest, she was “confine[d] in any public
2
Because the parties do not raise the issue, we decline to address whether the trial court had the
authority to continue Thornsbury’s bond after sentencing. See State v. Harvey, 6th Dist. No. E-08-009,
2009-Ohio-1534, ¶¶ 30-39 (Skow, P.J., concurring).
Lawrence App. No. 12CA9 6
or private facility for custody of persons charged with * * * crime in this state,” and
therefore was under “detention” as provided in R.C. 2921.01(E). However, as we have
already determined, the plain language of R.C. 2921.01(E) does not include release on
bond. So, Thornsbury was no longer under “detention” after she posted bail and was
released from the county jail. Because “one must first be in detention in order to be
found guilty of escape,” Thornsbury could not be convicted on this basis. State v. Mehl,
4th Dist. No. 08CA5, 2008-Ohio-6702, ¶ 10. The state cites Mehl for the proposition
that Thornsbury was under detention. However, Mehl implicitly assumed the appellant
was under detention and focused upon whether the court had granted a temporary
leave for a specific purpose or limited period under R.C. 2921.34(A)(1). Here we deal
with the definition of detention under R.C. 2921.01(E) and conclude that definition was
not met.
{¶13} Because Thornsbury was not under “detention” as defined in R.C.
2921.01(E), she could not have been convicted of escape and the trial court erred by
failing to dismiss the indictment. Accordingly, we sustain her sole assignment of error
and remand this case to the trial court for an entry of dismissal.
JUDGMENT REVERSED AND
CAUSE REMANDED.
Lawrence App. No. 12CA9 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, P.J.: Dissents.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1615127/ | 502 So.2d 1188 (1987)
Mary Lee SHEPHERD, et al.
v.
DELTA MEDICAL CENTER, et al.
No. 55461.
Supreme Court of Mississippi.
February 4, 1987.
Rehearing Denied March 11, 1987.
*1189 Johnnie E. Walls, Jr., Walls, Buck & Irving, Greenville, for appellant.
L. Carl Hagwood, Campbell & DeLong, Greenville, James E. Upshaw, Tommie G. Williams, Lonnie D. Bailey, Upshaw & Ladner, Greenwood, for appellee.
Before HAWKINS, DAN M. LEE and ANDERSON, JJ.
ANDERSON, Justice, for the Court:
The appeal now before us grew out of an appalling tragedy. On July 3, 1982, Larry Donnell Shepherd, a 17-year-old boy in good health, was injured when his eye was struck by a nail he had been hammering. He was quickly taken to the emergency room of Delta Medical Center in Greenville. There he was examined by co-defendant Dr. Robert Suares, who determined that the cornea and retina of Shepherd's left eye were badly damaged, and that emergency surgery was necessary to avert loss of sight. The surgery began at about midnight on July 3/4 and lasted well into the morning. It was completed without apparent incident, and Shepherd was taken to the recovery room. Very soon after his arrival there, it became evident that he had gone into cardiac arrest. Doctors and nurses were summoned, and emergency resuscitation was begun. After laboring for an hour and a half, the team succeeded in re-establishing a heartbeat. By that time, however, Shepherd's brain had been deprived of oxygen for a considerable period, and the damage was severe. Shepherd never regained consciousness, and died in the hospital on August 4, 1982. A neurologist had determined that he was "brain dead" several days before his heart actually stopped. At trial, there was testimony that the cardiac arrest was caused by an anaphylactic shock reaction to the antibiotic drug Keflin, which was administered at or near the close of the surgery.
Larry Shepherd's mother, Mary Lee Shepherd, and the other appellants in the present case filed a complaint in wrongful death against Delta Medical Center and numerous individual defendants, alleging that Shepherd's death resulted from negligence on the part of hospital personnel in failing to provide adequate post-operative care.
When the case came to trial, the plaintiffs presented only one medical expert Dr. John Adriani. Upon the close of voir dire, the trial judge ruled that Dr. Adriani had not demonstrated sufficient knowledge of the local standard of care for doctors then prevailing under King v. Murphy, 424 So.2d 547 (Miss. 1982). He therefore excluded Dr. Adriani's testimony. Realizing that without expert medical testimony they had no case, plaintiffs' counsel moved for a voluntary dismissal without prejudice under Rule 41(a)(2), Mississippi Rules of Civil Procedure, so that they could obtain another expert and start over. The trial judge denied this motion without comment. The inevitable result was that, on defense motion, the court directed a verdict for all the defendants. The appeal of that ruling is now before us.
LAW
It is obvious from the record that Dr. Adriani is an anesthesiologist of very great distinction.[1] Nonetheless, his testimony was excluded a casualty of the traditional *1190 "locality rule". Under that rule, as modified by this Court in King v. Murphy, supra:
[t]he standard of care by which the acts or omissions of physicians, surgeons, or specialists were [to be judged was to] be that degree of care, skill and diligence practiced by reasonably careful, skilful and prudent practioners in such field of practice or specialty in this state, and for a reasonable distance adjacent to state boundaries. An expert witness who [was] knowledgeable of and familiar with the statewide standard of care [was not to] have his testimony excluded on the grounds that he [did] not practice in this state.
424 So.2d at 550.
Were the same question to be posed today, the ruling would surely be different. Since the case at bar was tried, this Court has brought about a revolution in the standards governing malpractice actions. In the second case of Hall v. Hilbun, 466 So.2d 856 (Miss. 1985), we effectively did away with the locality rule. After an extended consideration of the issues involved, we gave this description of the physician's duty of care:
Given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat ... each patient with such reasonable diligence, competence, and prudence as practiced by minimally competent physicians in the same speciality or general field of practice ... throughout the United States who have available to them the same general facilities, services, equipment and options.
466 So.2d at 873.
Moreover, the language used in Hall indicates that even under King v. Murphy standard, Dr. Adriani's testimony should have been admissible, since the "reasonable distance adjacent to state boundaries" we spoke of in King, "necessarily includes Memphis, Mobile and New Orleans at the very least." Hall, 466 So.2d at 873. (Emphasis added.)
Because the appellants failed to make a formal proffer of Dr. Adriani's testimony, the appellees claim that any appeal of its exclusion is barred under our holding in Martin v. Gill, 182 Miss. 810, 814-15, 181 So. 849, 850 (1938). The briefs contain involved discussions of whether the pleadings and interrogatories sufficed to place the substance of Dr. Adriani's testimony "in the record" in the sense necessary to preserve the issue for appeal.
It is not necessary for us to enter this labyrinth. The refusal of the trial judge to grant a voluntary dismissal without prejudice furnishes us with an independent basis for reversal.
Rule 41(a)(2), Mississippi Rules of Civil Procedure, states:
Except as provided in paragraph (a)(1) of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper... . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
The comment to the rule states:
The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissal which unfairly affects the other side and to permit the imposition of curative conditions. Accordingly, the dismissal should be allowed generally unless the defendant will suffer some plain legal prejudice, other than the mere prospect of another lawsuit. It is not a bar to dismissal that plaintiff may obtain some tactical advantage thereby.
Our leading case on Rule 41(a)(2) dismissals is Smith v. H.C. Bailey Co., 477 So.2d 224 (Miss. 1985). In Smith, a plaintiff filed two separate actions, the first under the old common-law rule and the second under the new Mississippi Rules of Civil Procedure. The second suit was apparently filed during the brief life of our first Rule 14 allowing third party practice, for a third party complaint was filed in the action. (Under the old common-law rules, of course, third party practice was not known in Mississippi.) The plaintiff sought a voluntary *1191 dismissal under Rule 41(a)(2) so that all the issues could be tried in the earlier action, thus avoiding the third party complaint. This Court refused to allow it.
Our discussion of the considerations affecting a Rule 41(a)(2) motion was very general. The overall rule was stated thus:
[A] motion for dismissal is addressed to the sound discretion of the trial court and we have authority to reverse only where there has been an abuse of that judicial discretion.
(477 So.2d at 230).
The opinion went on to discuss the factors affecting such a decision. We said:
The trial court's decision and disposition of a motion for voluntary dismissal must consider the effect the action will have on the defendants and other plaintiffs, if any, and must assure fairness and protection for them. Generally, a voluntary dismissal should be permitted unless such prejudice will occur, other than the prospect of another lawsuit, since a dismissal under Rule 41(a) is without prejudice unless the order states otherwise.
(477 So.2d at 230).
Since in Smith, the granting of the voluntary dismissal would have prejudiced the rights of a third party complainant, we held that the denial of it had been perfectly proper.
Obviously, any prejudice to the defendant will increase in proportion to the advancement of the litigation. Thus, the farther the litigation has progressed, the more likely a court is to look upon such request with disfavor. Courts also consider the expenses and other inconveniences incurred by the defense in the trial so far. In numerous cases cited by the appellees, such factors influence the courts in their determination that the granting of a voluntary dismissal without prejudice was improper. See e.g., Ferguson v. Eakle, 492 F.2d 26 (3d Cir.1974) (cost to defendant must be considered); Paturzo v. Home Life Ins. Co., 503 F.2d 333, 336 (4th Cir.1974) (no involuntary dismissal when trial underway) Shaffer v. Evans, 263 F.2d 134, 135 (10th Cir.1958) (no involuntary dismissal when case ready to be tried); Ockert v. Union Barge Line, Inc. 190 F.2d 303, 305 (3rd Cir.1951) (no involuntary dismissal when trial underway); Thomas v. Amerada Hess Corp., 393 F. Supp. 58, 70 (E.D.Pa. 1975) (expense to defendants a factor to be considered).
Some courts have held that the granting of an involuntary dismissal without prejudice is improper when the defendant is entitled to judgment as a matter of law and the motion is made to avert such judgment, e.g. Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir.1969) (summary judgment); Evans v. Teche Lines, Inc. 112 F.2d 933, 934 (5th Cir.1940) (no involuntary dismissal to avert directed verdict); Thomas, supra, 393 F. Supp. at 70 (summary judgment).
However, most of those cases cited by the appellees involve some sort of misconduct or other deficiency by the plaintiff. Ferguson v. Eakle, supra, was a fraudulent conveyance case in which the plaintiff sought voluntary dismissal simply because he believed he had a separate action against the broker. Similarly, in Paturzo, supra, the plaintiff announced on the morning of trial that he preferred to try part of his claim in a separate class action filed that morning. In Ockert v. Union Barge Line, supra, the plaintiff's witness was not excluded, but he failed to appear for reasons of his own, sending a note instead. Plaintiff's lawyer did not have him subpoenaed. Many cases cited by appellees involve motions for involuntary dismissal made to avert a summary judgment. By definition a summary judgment against a plaintiff is proper only when the plaintiff has failed to develop any genuine issues of material fact. In S.A. Andies v. Versant Corp., (4th Cir. decided April 22, 1986, not yet reported) the case was far advanced when the plaintiff discovered that his defendants were judgment proof. The Court denied the plaintiff's motion for an involuntary dismissal without prejudice.
Finally, courts usually insist on some explanation for the dismissal, and in some of the cases cited by the appellees, no adequate *1192 explanation was offered. In Shaffer v. Evans, supra, the court denied the plaintiff's motion because "no reason prejudicial to his substantive rights was suggested for dismissal." (263 F.2d at 135) In Pace v. Southern Express Co., supra, the plaintiff failed to file any brief against the summary judgment and gave an insufficient explanation of his motion to dismiss. (409 F.2d at 334). The remarks of the court in Thomas v. Amerada Hess, Corp., supra, are of special interest. There the Court, having stated that the plaintiff's "insufficient explanation for the needed dismissal" was "not the least" consideration affecting the denial of the motion, the court went on to say: "Possible smoother sailing in another venture is insufficient reason for permitting [the plaintiff] to start anew. To the extent that plaintiffs have failed to complete discovery in this action, it is due to their own dilitoriness." (393 F. Supp. at 70). Thus, Thomas, too, stands for the proposition that a motion for voluntary dismissal is more likely to be denied when the plaintiff has been guilty of some shortcoming.
Also of special interest is Evans v. Teche Lines, supra. In that case one of the two witnesses for plaintiff was excluded, for reasons not stated in the opinion. The plaintiff then moved for voluntary dismissal, but the court on denying the motion stated the evidence be excluded witness had no "probative force" as to the decisive issue in the trial. (112 F.2d at 934).
The present case obviously differs from all of these in that the motion for voluntary dismissal was not rendered necessary by any failure or shortcoming of the plaintiffs. It does not appear the plaintiffs delayed the trial or protracted the discovery process in any way. On the contrary, the plaintiffs tried hard to get their expert witness' testimony heard by the jury. More to the point, their belief that his testimony was admissible has since been vindicated by this Court's decision in Hall v. Hilbun. Since the standard of care was undergoing major revision, and the exclusion of the plaintiff's expert evidence was obviously going to be decisive, the equities weighed so heavily in favor of granting the nonsuit that failure to do so constituted an abuse of the trial judge's discretion.
Therefore, the judgment must be reversed, and the cause remanded for a new trial.
REVERSED AND REMANDED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, SULLIVAN and GRIFFIN, JJ., concur.
ROBERTSON, J., not participating.
NOTES
[1] Dr. Adriani taught anesthesiology for 43 years at Charity Hospital in New Orleans (the world's second largest hospital); for 35 years he was head of the anesthesiology department at Charity Hospital; he has served on the staffs of LSU and Tulane; he has served 12 years on the certifying board for anesthesiology, including one year as president; he received from Columbia University, his alma mater, a gold medal for his contribution to medicine; he received the Ralph Watters Award, the Noble Prize of anesthesiology; he has published some 600 articles and 13 books in the field. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615140/ | 502 So.2d 918 (1986)
PLAZA BUILDERS, INC., Appellant,
v.
Dean M. REGIS, As Trustee of That Certain Declaration of Trust of the Revocable Living Trust Agreement of Dean M. Regis, Dated November 6, 1981, Appellee.
Nos. 85-2308, 86-83.
District Court of Appeal of Florida, Second District.
December 30, 1986.
Rehearing Denied February 18, 1987.
*919 George J. Felos of Felos & Felos, Dunedin, for appellant.
Margot Pequignot of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clearwater, for appellee.
*920 RYDER, Acting Chief Judge.
On January 5, 1984, Dean Regis (Regis) contracted with Plaza Builders (Plaza) to construct a warehouse on Regis' property. Plaza was to build the warehouse in compliance with Regis' architectural plans and was to receive $80,000.00 upon completion. Regis, at its election, could perform certain contractual work for specified reductions in the contract price.
Plaza was incorporated as a construction company. Plaza's vice president, T.J. Fulkerson, a licensed general contractor, was to transfer his license from his current corporation, Citation Construction Co., to Plaza. Plaza, however, was unable to acquire Fulkerson's license. Consequently, Plaza arranged with Fulkerson to act as a licensed professional on the subject job. Fulkerson, with Regis' knowledge, constructed the warehouse.
On March 21, 1984, Regis removed Fulkerson from the job for defective construction and failure to comply with Regis' wishes as to the contract completion time. Plaza received $39,850.00 under the contract. It credited Regis $23,550.00 for work Regis elected to have other persons perform. Sixteen thousand six hundred dollars remained unpaid on the contract. Regis refused to pay the remaining $16,600.00 to Plaza and Plaza brought suit.
Plaza claimed that Regis owed it $16,485.00 because Plaza fully performed its contractual duties by furnishing labor, material or services. Plaza also sought to establish and foreclose a mechanic's lien against Regis' property. Regis answered and counterclaimed that Plaza breached the contract by doing defective work, failing to complete the job, and failing to have a contractor's license. Regis claimed it cost him $39,503.00 to complete the contracted for work and sought the same in damages against Plaza. The issues thus presented to the trial court for determination were complex and a great deal of testimony and documentary evidence was submitted by both sides.
The trial court, in its verbal opinion, found that Regis owed Plaza $17,000.00 on the contract. The trial court offset from that amount $14,300.00 for construction defects involving the concrete slab, doors and windows. The trial court awarded Plaza $3,110.00 on its contractual claim. The trial court discharged Plaza's mechanic's lien claim. The trial court held that although Plaza filed its lien within the ninety-day statutory time period, it failed to file the statutorily required contractor's affidavit within that same ninety-day period. The trial court awarded Regis attorney's fees on the theory that Regis was the prevailing party on the mechanics lien action and was entitled to an award of attorney's fees pursuant to section 713.29. The court awarded costs to both parties.
Plaza appeals from the trial court's final judgment awarding Plaza $3,110.00 on its construction contract with Regis; denying Plaza's mechanic's lien foreclosure action; and awarding Regis attorney's fees for prevailing on the mechanic's lien action. Regis cross-appeals from the trial court's denial of its motion for involuntary dismissal and from the trial court's award of $3,110.00 to Plaza.
Plaza raises three points on appeal. Regis raises two points on cross-appeal. We will deal with each in order.
Plaza contends that the trial court erred in awarding Regis attorney's fees and costs because he was not the prevailing party in the action. We agree. When a contractor fails to establish a mechanic's lien but obtains a money judgment in the same case for labor or materials, or both, furnished for the landowner's benefit, the landowner is not entitled to an award of attorney's fees under section 713.29. Schabert v. Montaltos, 445 So.2d 1136 (Fla. 2d DCA 1984); General Development Corp. v. John H. Gossett Construction Co., Inc., 370 So.2d 380 (Fla. 2d DCA 1979); Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971). Accord, First Atlantic Building Corp. v. Neubauer Construction Co., 352 So.2d 103 (Fla. 4th DCA 1977).
*921 In the instant case, Plaza brought a breach of contract action and sought to foreclose a mechanic's lien against Regis' property. Although Plaza lost on its mechanic's lien action, it succeeded on its breach of contract claim receiving $3,110.00. As a result, Regis could not be considered the prevailing party for purposes of awarding attorney's fees.
The cases which Regis cites for the proposition that a party is entitled to recovery of fees and costs when he successfully resists a lien foreclosure action are all factually distinguishable. Say Service, Inc. v. Willig, 473 So.2d 43 (Fla. 3d DCA 1985); Snaidman v. Harrell, 432 So.2d 809 (Fla. 1st DCA 1983); Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982); Sanfilippo v. Larry Giacin Tile Co., Inc., 390 So.2d 413 (Fla. 4th DCA 1980); Dynamic Builders, Inc. v. Tull, 365 So.2d 1032 (Fla. 3d DCA 1978). Falovitch v. Gunn & Gunn Construction Co., 348 So.2d 560 (Fla. 3d DCA 1977). Say Service, Snaidman, Saleh, Sanfilippo, and Falovitch solely involved the mechanic's lien issue. Dynamic, while concerning both a breach of contract claim as well as a mechanic's lien claim, is also distinguishable in that the contractor succeeded on the mechanic's lien action but had the mechanic's lien award set off by the contractee's damages for the contractor's defective construction. Accordingly, we reverse that part of the trial court's final judgment awarding Regis attorney's fees.
Plaza next contends that the trial court erred in discharging Plaza's mechanic's lien for not serving the contractor's affidavit within ninety days of the last furnishing of labor or materials. We agree. Section 713.08(5) provides that:
The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than ninety days after the final furnishing of the labor or services or materials by the lienor.
Section 713.06(3)(d)(1) provides that:
The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. The contractor shall execute the affidavit and deliver it to the owner at least 5 days before the institution of any action to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not.
Plaza recorded their lien on June 6, 1984. June 6 was within ninety days of March 21, 1984, the last day in which Plaza furnished labor, services or materials to Regis. Plaza furnished Regis with its contractor's affidavit on June 28, 1984 and filed suit on July 26, 1984. Thus, Plaza complied with the statute in that it supplied Regis with its contractor's affidavit more than five days before filing suit. Accordingly, we reverse that part of the trial court's final judgment discharging Plaza's mechanic's lien action and order the trial court to enter an order establishing the lien in the amount of the damages to be awarded.
Plaza also contends that the trial court erred in giving Regis a setoff of $9,300.00 for allegedly defective windows and doors. Plaza argues that the trial court's decision was not based on competent, substantial evidence. We disagree. The trial court's final judgment comes to this court clothed with a presumption of correctness. The lower court's findings and conclusions will not be disturbed where there is competent, substantial evidence to support such findings and conclusions. Friedman v. U.S. Home Corp., 452 So.2d 1111 (Fla. 2d DCA 1984); Withers v. Flagship Peoples Bank of Tallahassee, 473 So.2d 789 (Fla. 1st DCA 1985). The setoff was based upon competent, substantial evidence. *922 Both sides presented testimonial and documentary evidence in support of their positions. The trial court was in the best position to evaluate the evidence presented. Thus, we affirm that part of the trial court's final judgment setting off $9,300.00 from Plaza's award.
On cross-appeal, Regis first contends that the trial court erred in failing to grant Regis' motion for involuntary dismissal. At trial, Regis argued that Plaza was estopped to sue for contractual damages under a contract which it breached by assigning its contractual rights and duties to Fulkerson. Regis moved for an involuntary dismissal at the close of Plaza's case. The trial court stated that it would rule on Regis' motion at the end of Regis' case. Regis neither renewed its motion at the end of its case nor at the end of trial.
Regis' position is without merit for two reasons. First, Regis is estopped to deny the contract's validity. Regis waived whatever breach of contract claim it had when it continued to deal with Plaza after learning that Plaza was unable to acquire Fulkerson's license. Second, Regis waived its involuntary dismissal claim when Regis' counsel failed to renew its motion for involuntary dismissal at the close of its case and at the end of trial. Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980).
Regis' second point on cross-appeal has two subparts. First, Regis contends that the trial court erred in awarding Plaza $3,110.00 in damages on its breach of contract claim. Regis, relying on section 713.05, argues that the trial court should have set off $4,387.60 from Plaza's award because Plaza owed said amount to its subcontractors. Section 713.05 states that:
A contractor may claim a lien for any labor, services, or materials furnished by another lienor for which he is obligated to pay the lienor, regardless of the right of the lienor to claim a lien; but if the lienor claims a valid lien, the contractor shall not recover the amount of the lien recovered by the lienor, and the amount of the contractor's claim of lien may be reduced accordingly by court order.
We find Regis' position on this point to be without merit. A contractor's award is not to be reduced by a subcontractor's claim unless the subcontractor has filed a lien and recovered thereon from the contractee. The contractor's affidavit listed three unpaid subcontractors. At trial, Regis stated that only one of the three filed a lien on Regis' property. Regis stated that he had not satisfied the lien. Because the lien remained unpaid, Regis was not entitled to a credit.
In Regis' next subpart, it contends that the trial court's setoff of $14,300.00 was inadequate. Regis argues that the setoff should have been $24,237.60. The $24,237.60 amount includes $19,850.00 for project completion costs and $4,387.60 for subcontractors' claims. Regis includes the following within its $19,850.00 claim: (1) installation of a concrete parking lot; (2) miscellaneous completion costs; (3) installation of water lines; (4) blocks and pilasters; and (5) costs to complete office area.
We find Regis' position to be without merit. Once again, we are being asked to reweigh the evidence presented to the trial court. Once again, we must state that an appellate court's function is not to review the evidence, but to review the record to determine if it contains competent, substantial evidence to support the trial court's ruling. Friedman; Withers. The trial court was in the best position to evaluate the evidence presented and competent, substantial evidence was presented.
Finally, both parties have pointed out that the final judgment contains a computational error. In both its oral and written order, the trial court sets off $14,300.00 from $17,000.00 to arrive at an award of $3,110.00. Seventeen thousand dollars minus $14,300.00 is not $3,110.00. The trial court also fails to state how it arrived at the $17,000.00 figure. Plaza only claimed $16,485.00 in its complaint. We must remand for a proper computation of damages.
*923 Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion.
CAMPBELL and HALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615141/ | 677 F.Supp. 1302 (1988)
Jesus WOODS, Petitioner,
v.
Robert KUHLMANN, Superintendent of Sullivan Correctional Facility, Respondent.
No. 87 Civ. 0052 (RWS).
United States District Court, S.D. New York.
January 6, 1988.
*1303 Michael B. Pollack, New York City (Jonathan J. Silbermann, of counsel), for petitioner.
Mario Merola, Dist. Atty., Bronx County, Bronx, N.Y. (Stacey K. Edelbaum, Asst. Dist. Atty., of counsel), for respondent.
OPINION
SWEET, District Judge.
Petitioner Jesus Woods ("Woods") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Woods was convicted, after a trial by jury, of criminal possession of a weapon in the third degree and was sentenced on October 5, 1983 to an indeterminate term of imprisonment of from three to six years. On November 29, 1984, the Appellate Division, First Department, confirmed the judgment of conviction without opinion. Leave to appeal that decision to the Court of Appeals was denied on March 15, 1985.
In the instant petition, filed on January 6, 1987, Woods asserts that the state conviction must be set aside on three grounds: (1) that Wood's arrest was made without probable cause and, therefore, that the weapon that was allegedly retrieved pursuant to a search incident to the arrest should have been suppressed; (2) that the trial court improperly precluded cross-examination of the prosecution's main witness; and (3) that the prosecutor improperly cross-examined Woods concerning his post-arrest silence. The respondent's answer was filed on August 28, 1987. For the reasons set forth below, the petition is granted.
The Suppression Hearing
On December 14, 1982, a Bronx County Grand Jury charged Woods with criminal possession of a weapon in the third degree. Prior to trial, a hearing was held on Wood's motion to suppress the gun that was the subject of the indictment. The transcript of the suppression hearing reveals the following testimony, most of which was not adduced at trial but which nonetheless forms the basis for Wood's petition.
On September 14, 1982, Police Officer Gary Carlo ("Officer Carlo") was assigned to investigate the theft of a 1982 Pontiac Trans Am from the Prime Pontiac dealership on East Tremont Road in the Bronx. During a test drive on September 14, a man described as a light-skinned Hispanic accompanied by a woman pulled a gun on the salesman, forced him to disembark and stole the car. One week later the car was returned to the dealership. Upon examining the returned vehicle, Officer Carlo found a florist's receipt dated September 20, 1982, which indicated that a person named "Jesus" had ordered $165 worth of flowers to be delivered to a Joanne Bevilacqua ("Bevilacqua") at 1234 Mayflower Avenue.
In connection with his investigation, Officer Carlo interviewed the florist, Bevilacqua and Barry Zwilling ("Zwilling"), the general manager of Prime Pontiac. The *1304 florist told Officer Carlo that the customer who had placed the order was a male Hispanic or caucasian of average height who drove a black Trans Am. Bevilacqua told Officer Carlo that she had received the flowers from her boyfriend Jesus Woods who at the time was driving a black Fire Bird. Officer Carlo then traced the telephone number on the florist's receipt through the Coles book to an E. Woods at 2004 Ellis Avenue. He called the number, spoke to a person who identified himself as Jesus Woods and asked Woods if he could come over and speak with him. Woods admitted that he had sent the flowers, but he declined the request for an interview.
When interviewed by Officer Carlo, Zwilling declined to identify Woods as the person who had stolen the car. Zwilling testified at the hearing that he had known Woods since 1978 or 1979 and that Woods and his brother, John Woods, had purchased two cars from him, both Pontiac Trans Ams. Zwilling testified that he told Officer Carlo at least two or three times that Woods had not stolen the car. Zwilling's testimony as to his statements to Officer Carlo was confirmed by Officer Carlo.
Finally, Officer Carlo testified that he had filed a sworn complaint on a date not revealed by this record that Prime Pontiac had made a complaint that Woods was illegally in possession of the stolen automobile.
In the afternoon of November 29, 1982, Officer Carlo and his partner Officer James Flaherty ("Officer Flaherty") were on anticrime patrol in plain clothes in an unmarked car when they observed a late model Volvo with no front license plate travelling westbound on Watson Avenue. The officers, who were proceeding eastbound, made a u-turn and followed the car, which stopped in front of 2004 Ellis Avenue. Woods was exiting the car as the officers approached. Officer Carlo and his partner identified themselves as police officers and requested Wood's license and registration. According to the officers, Woods could not produce a license, registration or personal papers of any kind. He did produce a garage receipt bearing the name of John Woods and told the officers that the car belonged to his brother. At this point Officer Carlo asked Woods his name, and he replied "Jesus Woods." Officer Carlo then informed Woods he was under arrest for possession of a stolen automobile, the Trans Am. According to Officer Carlo, when he and his partner attempted to handcuff Woods, he turned his body and reached toward his back. The officers grabbed his arm and retrieved a loaded .380 automatic pistol from Wood's rear waistband.
John Woods also testified at the suppression hearing. He stated that the Volvo was his and that he had loaned it to his brother on November 29, 1982. He stated further that the license plate was not affixed to the front of the car but was displayed in the front windshield and that the registration and insurance card were in the car on that day. He testified that he looked at the car after his brother's arrest and observed that the license plate was still inside the front windshield and that the insurance papers and registration card were inside the glove compartment.
After the hearing concluded, the trial court denied the motion to suppress the gun over the objections of defense counsel that the officers did not have probable cause to arrest Woods on the stolen car charge and that a search for a weapon is not permissible pursuant to an arrest for a traffic infraction. The trial court concluded that Officer Carlo had probable cause to arrest Woods for a violation of New York's Vehicle and Traffic Law.
The Trial
At trial, Officers Carlo and Flaherty repeated the testimony they had given at the suppression hearing concerning their questioning of Woods over the apparent traffic violations, their arrest of Woods and their recovery from Woods of the loaded gun. The officers did not testify as to any circumstances related to the stolen automobile charge.
On cross-examination, defense counsel asked Officer Carlo to identify the charge that the officer had told Woods he was being arrested for on November 29, 1982. After the trial judge had sustained the *1305 prosecution's objection to this question, argument was heard out of the presence of the jury. Defense counsel contended that cross-examination as to all the circumstances of the arrest, including the stolen property charge and the sworn complaint, was essential to the defense's attempt to test the credibility and possible bias of the officer. The trial judge concluded that facts concerning the stolen property charge and the sworn complaint were "irrelevant" to the charge of criminal possession of a weapon.[1] The trial judge threatened defense counsel with contempt of court and, thereafter, sustained objections to a series of questions concerning Officer Carlo's investigation of the stolen car complaint and the extent of his information concerning Woods prior to the arrest on November 29, 1982. At a sidebar following one of the objections, defense counsel argued, unsuccessfully, that the judge's rulings with respect to cross-examination denied Woods his Sixth Amendment right of cross-examination and confrontation.
Two witnesses of the arrest, Agustin Maldonado and Thomas Oman, testified that after seeing Woods handcuffed and placed in the rear of the police vehicle, they saw the vehicle stop and observed the officers remove Woods from the vehicle, beat him, push him back in the car and drive away.
Woods testified in his own behalf. He related that Officers Flaherty and Carlo had approached him and asked for his license and registration as he was getting out of his car. He asserted that the registration and insurance card for the vehicle were in the glove compartment and that he produced them but told the officers he would have to go to his house to get his license. Woods stated that when he gave the officers his name, they handcuffed him and put him in the back seat of the police car. He testified that the officers drove him down the street, stopped, took him from he car and punched and kicked him at least ten times, and then threw him back into the car. Woods stated that at that time Officer Carlo reached under the front seat and pulled out a gun. Finally, Woods testified that he never touched the gun and that he went to the hospital the next day for treatment but never reported the officers' misconduct.
After rereading the testimony of Officers Carlo and Flaherty, the jury found Woods guilty of criminal possession of a weapon in the third degree. Woods appealed his judgment of conviction in the New York State courts raising all of the grounds that he presents in the instant petition.
Wood's Fourth Amendment Claim
A federal court lacks the authority to consider a habeas petitioner's Fourth Amendment claim if the state has provided an opportunity fully and fairly to litigate it. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67 (2d Cir.1983); Gates v. Henderson, 568 F.2d 830 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). The possibility that a federal court would have reached a different result from the state court does not remove Stone v. Powell's barrier to review of the Fourth Amendment claim. Gates, 568 F.2d at 840; Shaw v. Scully, 654 F.Supp. 859, 863 (S.D.N.Y.1987). In this Circuit, a federal court will review a Fourth Amendment claim only where the petitioner was "precluded from utilizing [the available state process] by reason of an unconscionable breakdown in that process." Gates, 568 F.2d at 840; see Cruz v. Alexander, 477 F.Supp. 516, 522-23 (S.D.N.Y. 1979) (breakdown in state process deprived petitioner of full and fair opportunity to litigate his claim).
*1306 Here, Woods took full advantage of the available state process by presenting his Fourth Amendment claim at both the suppression hearing and in his briefs to the state appellate courts. The transcript of the hearing does not reveal that the trial judge improperly restricted Woods' ability to participate in the hearing. Nevertheless, Woods argues that the trial court's erroneous fact-finding and refusal to consider the pertinent issues during the suppression hearing constituted an "unconscionable breakdown" in state process. The doctrine of Stone v. Powell, however, forbids de novo review of state court fact-finding on a Fourth Amendment issue particularly where, as here, the petitioner can claim only that the issue was wrongly decided. Accordingly, Woods' request for relief on the basis of his Fourth Amendment claim is denied.
Woods' Sixth Amendment Claim
Woods contends that the trial judge deprived him of his rights under the Sixth Amendment by ruling that his defense counsel could not attempt to impeach the prosecution's main witness, Officer Carlo, by cross-examining him with respect to the stolen automobile charge, Woods' arrest on that charge, and Officer Carlo's sworn complaint relating to that charge. In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court reaffirmed the fundamental importance of an accused's Sixth Amendment rights:
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923] (1965), "means more than being allowed to confront the witness physically." Davis v. Alaska, 415 U.S. [308] at 315 [94 S.Ct. 1105, 1110, 39 L.Ed. 2d 347 (1974)]. Indeed, "`[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Id., at 315-316 [94 S.Ct. at 1110] (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940)) ... Of particular relevance here, "[w]e have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis, supra, at 316-317 [94 S.Ct. at 1110] (citing Greene v. McElroy, 360 U.S. 474, 496 [79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377] (1959)).
Van Arsdall, 475 U.S. at 678-79, 106 S.Ct. at 1435. As the Court in Van Arsdall was careful to point out, however, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. at 679, 106 S.Ct. at 1435.
Here, the trial court barred all inquiry into Officer Carlo's stated reason for Woods' arrest, the officer's sworn complaint and all other circumstances related to the officer's investigation of the stolen automobile complaint. Through such cross-examination, Woods' counsel sought to present to the jury the testimony that had been elicited at the suppression hearing; namely, that although Officer Carlo had been told by Zwilling, the general manager of Prime Pontiac, that Woods was not involved in the theft of the Trans Am, he had nevertheless sworn out a complaint, in which he purported to rely expressly on statements from the complainant Prime Pontiac, alleging that Woods had knowingly and unlawfully possessed a stolen automobile.[2] The trial court's ruling prevented Woods' counsel from offering evidence to the jury that Officer Carlo had made a prior statement under oath concerning Woods that Woods' attorney could then *1307 attempt to show was at minimum inconsistent with his present testimony and at worst false.[3] Thus, the trial court deprived Woods of a fertile area of inquiry plainly relevant to the jurors' determination of Officer Carlo's credibility. By cutting off all questioning about events that were inseparable from the alleged recovery of the weapon from Woods, the trial court violated Woods' rights secured by the Confrontation Clause. Cf. Klein v. Harris, 667 F.2d 274, 289-91 (2d Cir.1981).
Having found that error of constitutional dimension occurred at Wood's trial, the question remains whether this constitutional error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); see Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (Confrontation Clause); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (Confrontation Clause). In overturning the Delaware Supreme Court's application of the automatic reversal rule in Van Arsdall, the Supreme Court stated the parameters of a district court's inquiry into whether a Confrontation Clause violation was harmless beyond a reasonable doubt:
Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.
Once a petitioner establishes the infringement of a constitutional right, the burden shifts to the state to establish that the error was harmless. Hawkins v. LeFevre, 758 F.2d 866, 877 n. 15 (2d Cir.1985). The state purports to meet its burden by arguing that "the issue at trial was whether petitioner possessed a gun on November 29, 1982, not whether he possessed a stolen car a few months before." Furthermore, the state contends, Woods "failed to lay any proper foundation at trial which would lead the court to believe that there might exist some prejudice or bias against petitioner by these police officers." The state's contentions ignore not only the repeated efforts by defense counsel to persuade the trial court of the relevance of inquiry into the conduct of the arresting officers at the moment of arrest but also the fact that the state's case against Woods rested in large measure on the credibility of Officer Carlo's testimony.
Applying the Van Arsdall factors to this case, the constitutional error was not harmless. In order to convict Woods, the jury had to credit the testimony of Officers Carlo and Flaherty who were the only witnesses as to the critical issue of possession, which was contradicted by Woods who testified that they had planted the gun and by Maldonaldo who testified that he had observed the officers making the arrest and saw no gun being recovered. There was no evidence which could have substituted for the testimony of Officer *1308 Carlo concerning the misrepresentations in his sworn complaint against Woods on the stolen car charge. The trial court also precluded cross-examination concerning the officers' general activities to enforce the traffic laws, which could have supported the inconsistency of Officer Carlo's statement relating to the cause for the arrest. Given the presumption of credibility that attaches to the testimony of law enforcement officers, the constraints placed on Woods' attorney's ability to impeach the arresting officers by inquiry into the very events that gave rise to weapons charge against Woods cannot be sanctioned.
In sum, the trial court barred cross-examination of the prosecution's main witnesses concerning matters that were relevant to the credibility of both the prosecution's main witness and the defense presented by Woods. As the Supreme Court stated in Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974):
A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore, Evidence § 940, p. 775.
The importance of the officers' testimony to the prosecution's case precludes a finding that the trial court's unconstitutional prohibition on cross-examination of those witnesses, particularly Officer Carlo, was harmless error. Accordingly, Woods' petition will be granted on the basis of the trial court's violation of his Sixth Amendment rights.
Wood's Fourteenth Amendment Claim
In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), the Supreme Court held that "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." The Court's decision was based on its recognition that silence in the wake of Miranda warnings may be nothing more than the arrestee's exercise of those rights. Id. at 617, 96 S.Ct. at 2244. The Court also found that since the Miranda warnings convey an implicit assurance to a suspect that his silence will not be used against him, it would be "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618, 96 S.Ct. at 2245.
In the present case, the prosecution attempted to impeach Woods by cross-examining him as to his failure to tell "any public agency, or the police department or the District Attorney's office" about his exculpatory version of the facts, that is, that the police officers beat him and planted the gun on im. Woods responded that he had told both his attorney at his arraignment and the attorney who represented him at trial his version of the facts. Under ordinary circumstances, the prosecution's behavior would be a straightforward violation of the due process rights articulated in Doyle. However, in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Supreme Court summarily reversed an attempt by the Court of Appeals for the Sixth Circuit to apply Doyle in a case where the record did not indicate that the defendant had been given any Miranda warnings. In Fletcher, the Supreme Court stated, "In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Fletcher, 455 U.S. at 607, 102 S.Ct. at 1312. Accordingly, because the record here does not reflect that Woods received any Miranda warnings during the period in which he remained silent following his arrest, this court feels constrained by the Supreme Court's decision in Fletcher to hold that Woods' constitutional rights were not violated by the prosecution's inquiry into his postarrest silence.
*1309 For the reasons set forth above, the petition for a writ of habeas corpus is granted and the conviction set aside. Woods is to be released unless the State promptly affords him a new trial.
IT IS SO ORDERED.
NOTES
[1] In his opening statement, defense counsel attempted to explain to the jury the significance of the police complaint concerning Prime Pontiac's stolen automobile. The prosecutor objected, and a sidebar occurred. The trial judge told defense counsel that "he cannot speak about the other case not before me, it has nothing to do with the case." It appears that the trial judge was referring to the stolen automobile complaint, which apparently was never the subject of an indictment. Although the record does not reveal what became of the stolen automobile complaint, Woods was tried solely on the charge of criminal possession of a stolen weapon.
[2] During cross-examination of Officer Carlo during the suppression hearing, Woods' defense counsel was able to elicit inconsistent statements from the witness concerning the information he had gathered from the complainant Prime Pontiac and the information he had written down as having been obtained from Prime Pontiac in his sworn complaint against Woods for possession of a stolen automobile.
[3] Officer Carlo's sworn complaint would have been admissible for impeachment purposes under Fed.R.Evid. 613(a). To avoid exclusion as hearsay, the complaint could have been offered under Fed.R.Evid. 803(6) which excepts from the hearsay rule certain reports if kept in the course of a regularly conducted business activity. See Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, 605 F.2d 1228, 1250-51 (2d Cir.1979) (police officer's signed complaint report admitted under Rule 803(6)); see also Fed.R.Evid. 803(8)(C) (excepts from hearsay rule "records, reports, statements, ... of public offices or agencies, setting forth ... 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."); Fed.R.Evid. 801(d)(1)(A) (prior inconsistent statement by witness "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding."); 4 J. Weinstein, Evidence ¶ 801(d)(1)(A)[03] (cross-examination can probe the witness' perception and memory and can develop all the reasons why the witness made a statement which his present testimony indicates was not true). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615151/ | 502 So.2d 349 (1987)
Fred E. STRICKLAND
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
85-352.
Supreme Court of Alabama.
January 9, 1987.
*350 Jim H. Fernandez of Allen & Fernandez, Mobile, for appellant.
Reggie Copeland, Jr., and Forrest S. Latta of Nettles, Barker, Janecky & Copeland, Mobile, for appellee.
BEATTY, Justice.
Appeal by plaintiff, Fred E. Strickland, from a judgment for defendant, Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. ("Farm Bureau"), in plaintiff's action against the defendant for breach of a contract of insurance. We affirm.
At the request of Strickland, its insured, Farm Bureau transferred existing collision coverage from a farm truck to Strickland's newly acquired automobile. The new policy was issued effective November 3, 1982; however, no premium payment was made upon issue. The declarations sheet on the new policy, together with the first notice of premium due, was mailed by Farm Bureau and was received by Strickland on November 10, 1982. The premium was not paid. A second notice was mailed by Farm Bureau and was received by Strickland on either November 20 or 21, 1982. That notice recited: "THIS IS YOUR FINAL NOTICE. DO NOT LET YOUR POLICY BE CANCELLED FOR NON-PAYMENT OF PREMIUM."
When no premium payment had been received by December 7, 1982, Farm Bureau on that date mailed a letter to Strickland at the address shown on the policy, the same address as used on previous correspondence and later confirmed as correct by Strickland. This letter stated:
"We have not received the additional premium recently requested to maintain coverage on the above listed policy. This policy is therefore rescinded and you have no coverage.
"Should you wish to reinstate your policy, we will be happy to comply, effective the date premium is received in this office or any of our local service centers."
Strickland denied receiving this letter, but maintained that the premium was paid by mail on December 18, 1982. Farm Bureau received the premium payment on December 22, 1982, in a Farm Bureau return envelope postmarked December 21, 1982. In accord with its letter of December 7, 1982, Farm Bureau negotiated Strickland's check, issued a new declarations sheet which reflected a new effective date, December 22, 1982, and mailed the new declarations sheet to Strickland.
Meanwhile, Strickland's automobile was damaged in a collision which occurred on December 20, 1982. Strickland filed a loss report with Farm Bureau on the next day. A Farm Bureau agent contacted Strickland and acquainted him with the question concerning the premium. Another representative contacted Strickland about a week later and arranged to take the policyholder's statement, which was done. After investigation, Farm Bureau denied coverage by letter on January 10, 1983, on the ground that the policy had been cancelled before the date of the accident, December 20, 1982, and that notice of the cancellation had been properly mailed on December 7, 1982.
Thereafter, Strickland filed this action, alleging breach of contract. Following Farm Bureau's answer, Strickland filed an amended complaint alleging bad faith refusal to pay; he later amended the complaint to state a claim based upon fraudulent misrepresentation. Apparently considering matters outside the pleadings, the trial court granted Farm Bureau's motion to dismiss the fraud count, and the case was tried to a jury on the claims of breach of contract and bad faith refusal to pay.
At the close of the evidence, both parties moved for directed verdicts. Farm Bureau's motion addressed to the bad faith *351 refusal to pay count was granted, while Strickland's motion addressed to the contract count was denied. The jury returned a verdict in favor of Farm Bureau. Subsequently, Strickland moved for judgment notwithstanding the verdict or a new trial. This motion was denied, and Strickland appealed.
The standard of review applicable to this appeal is as it was explained in Casey v. Jones, 410 So.2d 5, 7-8 (Ala.1981):
"The standard of judicial review for testing a motion for directed verdict is identical to that for testing a motion for J.N.O.V. Evidence sufficient to take the case to a jury as against a motion for directed verdict is likewise sufficient to withstand a motion for J.N.O.V. Citing 5A Moore's Federal Practice § 50.07[2], this Court in Hanson v. Couch, 360 So.2d 942, 944 (Ala.1978), stated:
"`A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ala.R. Civ.P. 50, Committee Comments. Granting the motion for judgment notwithstanding the verdict says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the proper judgment.'
"...
"For the sake of clarity, we restate the familiar: Other than objections to admissibility, evidentiary challenges are divided into two separate and distinct categories: 1) sufficiency of the evidence, raised by motions for directed verdict and for J.N.O.V. and measured by the objective `scintilla' rule; and 2) weight and preponderance of the evidence, raised by motion for a new trial and measured by the more subjective `palpably wrong, manifestly unjust' standard."
By way of his motion for J.N.O.V., Strickland also contends that the trial court erred in directing a verdict for Farm Bureau on his bad faith refusal claim and in dismissing his fraud claim. As far as the bad faith refusal claim is concerned, our review of the evidence is made in a light most favorable to Strickland to determine whether or not there was any evidence to support that theory. On the fraud claim, the question is whether there was a genuine issue of material fact regarding the allegation of fraud. Morton v. Allstate Ins. Co., 486 So.2d 1263 (Ala.1986).
I. The Contract Claim.
Against the breach of contract claim, Farm Bureau pleaded cancellation as a defense. Under Code of 1975, § 27-23-25:
"Proof of mailing of notice of cancellation or of reasons for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice."
In Hilliar v. State Farm Mutual Automobile Ins. Co., 451 So.2d 287, 288-89 (Ala. 1984), this Court cited its decision in Security Ins. Co. of Hartford v. Smith, 360 So.2d 280 (Ala.1978), for the proposition controlling in these instances:
"[W]here an insurer is setting up cancellation as a defense on a policy, it has the burden of proving by clear and convincing evidence that the notice of cancellation was mailed to the insured. Proof of actual receipt of the notice by the insured is not required, and where the insured insists, as in this case, that the notice was never received, it becomes a question of fact as to whether the cancellation notice was properly mailed...."
A review of the record establishes that Farm Bureau complied with these authorities and met its burden of proving the proper mailing of the cancellation notice.
A vice president in Farm Bureau's underwriting department, Ms. Jane Adams, detailed the special procedure used by the company in handling a cancellation notice:
"`When a cancellation letter is prepared, it is first sent to a typist and then to a proofreader for the accuracy of name, address, policy number, and cancellation date, among other things to be checked. Next the original and one copy of the *352 letter is sent to the mail clerk to be prepared for mailing.' ...
"`The original and copy are then placed in a designated basket for cancellation letters only. Once the letter is ready, it is removed from the basket by Linda Hudson or Darlene Evans.' ...
"`After examination, the original is put in an envelope and the copy is date stamped and initialed by one of these two employees'...."
"`The letter is then postaged [sic], sealed, counted, and placed in a tray and then taken to the loading dock to be picked up by postal employees.' ..."
The mailroom supervisor at Farm Bureau, Ms. Linda Hudson, testified that she receives two original copies of the cancellation letter, compares the two for the address, places the signed original in a window envelope, and initials the other to verify her actions. Ms. Hudson further explained that she then places postage on the letters and places them in a postal tray, from which an employee under her direction takes them to a loading dock to be picked up by the Postal Service. She added that persons check to insure that this mail has been picked up and report to her.
In this instance, the initial "L" as written by Ms. Hudson appeared on the unsigned original as did the date stamp, December 7, 1982, applied by her. This evidence clearly established that the cancellation notice was properly mailed. Strickland testified that the address on the notices was the correct mailing address and that he received the billing notices mailed to that address, which notices preceded the cancellation notice. Having this evidence, the jury could have properly found a verdict for Farm Bureau. The trial court was thus not in error for denying Strickland's motion for J.N.O.V. or new trial on the contract count.
It is true, as Strickland argues, that the policy contained a provision which required ten days' notice, while the cancellation letter stated that cancellation was effective immediately. But Strickland can take nothing from that fact. This Court has addressed such a situation in Trans-American Ins. Co. v. Wilson, 262 Ala. 532, 80 So.2d 253 (1955), which adopted the principle earlier pronounced in Black v. Travelers Ins. Co., 231 Ala. 415, 416, 165 So. 221, 222 (1936):
"The rule is well settled in this and other jurisdictions, that, when the notice declares that the cancellation is presently operative, or fixes a time shorter than that prescribed, where the policy requires a certain number of days' notice, it becomes effective at the expiration of the prescribed period. Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250 [(1923)]; 32 Corpus Juris, 1249, 1250, § 437, note 18; 35 A.L.R. p. 899 et seq., note."
Under that rule, the cancellation notice became effective ten days after December 7, 1982, i.e., December 17, 1982, which date was still prior to the date of the loss occurring on December 20, 1982.
Finally, Strickland argues that coverage existed for the collision loss because the company had failed to clearly convey to the insured its intent to prospectively apply any premium received. Farm Bureau had the burden of proving that it clearly conveyed its intent to do so to Strickland. The cancellation letter itself stated: "Should you wish to reinstate your policy, we will be happy to comply, effective the date premium is received." This was a clear expression of Farm Bureau's intent, as the jury must have found.
II. The Bad Faith Refusal To Pay Claim.
In National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357, 1362 (Ala.1982), this Court explained:
"In the normal case in order for a plaintiff to make out a prima facie case of bad faith refusal to pay an insurance claim, the proof offered must show that the plaintiff is entitled to a directed verdict on the contract claim and, thus, entitled to recover on the contract claim as a matter of law. Ordinarily, if the evidence produced by either side creates a *353 fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury."
There is nothing in the record indicating that this case falls beyond the normal. Not only does the proof in this case fail to show that Strickland was entitled to a directed verdict, but, to the contrary, the evidence supports the verdict of the jury in favor of Farm Bureau. Thus, the tort claim failed as a matter of law. Mordecai v. Blue Cross-Blue Shield, 474 So.2d 95 (Ala.1985); Dutton, supra.
III. The Fraud Claim.
Strickland's allegations of fraud are contained in Count III of his amended complaint:
"1. The allegations of paragraph one are incorporated herein by reference.
"2. At the time defendant negotiated plaintiff's check, and applied same to a policy other than the policy for which the said check was tendered, it knew the check was tendered for coverage effective 11-3-82, it knew the plaintiff was relying on such coverage, and it knew all of the facts upon which it ultimately based its denial of coverage, yet it failed to reveal or withheld from plaintiff the fact that coverage would be denied, did not inform plaintiff of its intent to apply plaintiff's check to a `new' policy not affording coverage, which it issued prior to advising plaintiff of the denial of coverage, while its agents, servants and employees were telling plaintiff that the matter was still being looked into, there should not be a problem, and the like, all of which amounts to a willful misrepresentation, or a reckless misrepresentation, or mistaken misrepresentation, or deceit, or suppression of the truth by concealing or withholding material facts.
"3. Plaintiff was induced to act or refrain from acting to his injury as a result of the actions of the defendant."
Farm Bureau's motion to dismiss this fraud count was argued to the trial court and then granted, apparently under the authority of Rule 12(b), A.R.Civ.P. It appears that the fraud claim was based upon the allegation that Strickland had mailed his late premium check to Farm Bureau. This was alleged as the reliance. Thus, whatever misrepresentation existed must have occurred prior to that reliance. See Sovereign Camp, W.O.W. v. Moore, 232 Ala. 463, 168 So. 577 (1936); Code of 1975, § 6-5-101. In other words, the element of reliance cannot precede the alleged misrepresentation where fraud by misrepresentation is claimed.
Strickland argues fraud by suppression from the fact that Farm Bureau's agents, during their investigation, told Strickland nothing about the company's intention to cancel or to apply any premium received thereafter prospectively. Strickland, however, failed to adduce any evidence that these agents possessed any prior knowledge of either the company's intention to cancel or to apply, prospectively, any premium received thereafter, or that these agents, themselves, had any intention to deceive him. In short, no evidence of any active concealment or misrepresentation was shown to be present. Berkel & Company Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala.1984). The company clearly disclosed its intention to prospectively apply late premiums, as we have shown. No inference of concealment is suggested by the fact that such action was taken by the company following the mailing of the late payment, or from any other conduct on the part of the company. Summary judgment, therefore, was appropriate on the plaintiff's fraud count.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, ADAMS and HOUSTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615156/ | 502 So.2d 915 (1986)
Belinda ROBERTS, Richard H. Darlington, As Personal Representative of the Estate of Melody S. Darlington, Deceased, and Margaret Spurling, As Personal Representative of the Estate of Misty K. McCullough, Deceased, Appellants,
v.
SHOP & GO, INC., Appellee.
No. 85-2132.
District Court of Appeal of Florida, Second District.
December 19, 1986.
Rehearing and Rehearing Denied February 20, 1987.
*916 Lee S. Damsker of Maney, Damsker & Arledge, Tampa, and Emmett Abdoney, Tampa, for appellants.
William M. Schneikart and John K. McKay of Robbins, Gaynor, Burton, Hamp, Burns, Bronstein & Shasteen, P.A., St. Petersburg, for appellee.
Rehearing and Rehearing En Banc Denied February 20, 1987.
FRANK, Judge.
The present appeal originates in a civil action arising from the heinous behavior of one Billy Ferry. It comes to us from an order of the trial court dismissing two amended complaints with prejudice. Accordingly, our opinion is based upon all well pleaded facts being taken as true.
On July 2, 1983, Ferry entered a Winn Dixie grocery store in Hillsborough County, Florida. He was carrying a pail of gasoline he had purchased minutes before at a Shop & Go convenience store. Once inside the Winn Dixie store, he hurled the gasoline on Winn Dixie customers and employees; he then ignited the gasoline. The blaze killed or severely injured several people. Belinda Roberts, one of the appellants, survived the event. Margaret Spurling and Richard H. Darlington, two of the appellants, are the personal representatives of the estates of two deceased victims.
At the initial stage before the trial court, the appellants separately sought damages from Winn Dixie and Ferry. The actions were consolidated by the trial court. The complaints were subsequently amended to add Shop & Go as a defendant. The sole question with which we are confronted derives from the trial court's dismissal with prejudice of the claims asserted against Shop & Go. The theories upon which the appellants proceeded in the trial court and are urged on appeal are grounded upon common law negligence and negligence per se.[1] We find that neither theory will sustain the imposition of liability upon Shop & Go.
On the night of July 2, 1983, Ferry entered the Shop & Go store carrying an open-mouth pail. He spent "twenty minutes to pick out an RC Cola and a cupcake," departed, but returned only to retrieve the pail he had been carrying. He entered the store a third time complaining that the RC Cola was flat; the Shop & Go clerk gave him a Pepsi Cola. The fourth time Ferry entered the Shop & Go, shortly before 8:00 p.m., he purchased $4.50 worth of unleaded gasoline and filled his pail from an unsupervised self-service gas pump. The clerk next observed Ferry walking across the street towards the Winn-Dixie store with a large cardboard box over his head. She was unable to see his right arm; it was obscured by the box. Immediately thereafter, Ferry deliberately threw and ignited the gasoline inside the Winn-Dixie store.
It is further asserted in the amended complaints that the Shop & Go clerk knew Ferry "was up to something," that his behavior was odd, he had never bought gasoline from the clerk and the clerk knew he did not own a car. The Shop & Go clerk also had observed words painted on a nearby wall: "Billy can't handle it" "Fire, Fire, Fire"; she knew it was Ferry who had purchased gasoline that night and she also knew that Ferry had a preoccupation with fire. Finally, the Shop & Go store was located in an area with the third highest crime rate in Hillsborough County and such information was available in the public records.
Based upon the foregoing facts, we are unable within the confines of well settled principles to conclude that Shop & Go was either negligent or responsible for Ferry's monstrous conduct under a claim of negligence *917 per se resulting from its failure to comply with section 526.141, Florida Statutes (1983).
Assuming the pleaded facts capable of proof, it is our judgment that the trial court properly found Ferry's sudden criminal actions unforeseeable notwithstanding the knowledge Shop & Go's clerk may have possessed with respect to his unconventional and aberrant nature. Ferry's "criminal act ... was an independent intervening cause that was not within the realm of reasonable foreseeability on the part of [Shop & Go]." Everett v. Carter, 490 So.2d 193 (Fla. 2d DCA 1986). To conclude otherwise in the instant setting would expose every common-place purveyor of gasoline to liability for a virtually boundless spectrum of acts beyond those which may reasonably and logically be anticipated. We have said, however, that "even where there is a duty to exercise the highest degree of care, the possessor of the duty is required to guard against only those occurrences that can reasonably be anticipated through use of the utmost foresight." City of Sarasota v. Eppard, 455 So.2d 623, 624 (Fla. 2d DCA 1984). We have found no authority to justify saddling gasoline vendors with a duty in each instance of sale to assess the mental stability or criminal propensity of the persons who purchase their products.
We recognize that the "foreseeability" of an intervening causation is frequently a question to be determined by the trier of fact, Vining v. Avis Rent-A-Car Systems Inc., 354 So.2d 54 (Fla. 1977), but it may also be determined as a matter of law in the circumstance where, as here, the intervening act is merely "possible" rather than "probable." Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980); see Rios v. Junco, 487 So.2d 331 (Fla. 3d DCA 1986).
We find the Third District's most recent expression of the doctrine we followed in Eppard particularly supportive of our result in the matter at hand:
It is said that [foreseeability] will be decided as a matter of law only in cases where reasonable men could not differ. As a guide to what is a case "where reasonable men could not differ," our courts have employed notions of fairness and policy considerations so as to appropriately relieve a defendant of liability only in highly unusual, extraordinary cases or those with bizarre consequences. Bennett M. Lifter, Inc. v. Varnado, 480 So.2d 1336, 1339 (Fla. 3d DCA 1985) (Citations omitted). (Emphasis added).
In spite of the Shop & Go clerk's awareness that Ferry acted strangely and did not appear to have a customary use for the gasoline, it cannot be said that there existed any degree of "probability" that he would enter the Winn Dixie store, douse people with gasoline and set them afire. In short, the events following the sale of the gasoline to Ferry are well outside the concept of "natural" and "probable" consequences; consequences of that kind "are those which a person by prudent human foresight can expect to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again." Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148, 149 (Fla. 1949).
We agree with the appellant that permitting Ferry to fill his pail with gasoline, unsupervised by the Shop & Go employees, offended section 526.141, Florida Statutes (1983). We cannot, however, join in the view that Shop & Go's failure to comply with the statute constituted a concurring cause of the deaths and injuries. The demonstration of negligence per se, standing alone, is not sufficient to create liability; the statutory violation must also be the proximate cause of the injury. Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980). A statutory violation is merely evidence of negligence and the element of foreseeability in that context is no less essential to a claim of actionable negligence than is the case where the tort action is predicated upon any other theory of negligence. See Roberts v. James, 447 So.2d 947, 950 (Fla. 2d DCA 1984). Our analysis set forth above finds the foreseeability factor wanting.
*918 The reasoning we have followed, for example, in such cases as Budet v. K-Mart Corporation, 491 So.2d 1248 (Fla. 2d DCA 1986), is not applicable in the setting before us. A sharp distinction exists between the negligent act of permitting a large rolling platform, as occurred in Budet, to remain in an area where customers could foreseeably trip over it and the sale of gasoline, which is a normal everyday event. Permitting Ferry to place the gasoline in a pail supports a reasonable belief "that some injury" could result from that act, and it is possible that had Ferry unintentionally sloshed the gasoline while carrying the pail, causing an undesigned conflagration resulting in injuries, Shop & Go could be exposed to liability. In that circumstance, the violation of section 526.141 might warrant invocation of the negligence per se doctrine. The difficulty with the application of that doctrine or any theory of negligence in the present setting, however, derives from the total absence of a reasonable expectation that Ferry would intentionally commit the pathologically deviant act which occurred on July 2.
Accordingly, we affirm the trial court's dismissal with prejudice of the appellants' amended complaints.
SCHEB, A.C.J., concurs.
PATTERSON, DAVID F., Associate Judge, dissents with opinion.
PATTERSON, Associate Judge, dissenting.
I disagree with the holding of the majority that Count IV of the amended complaint does not as a matter of law state a cause of action in common law negligence. One who supplies a product to a person under circumstances which will likely produce an unreasonable risk to others is subject to liability for the resulting harm. Restatement (Second) of Torts § 390 (1966); Rio v. Minton, 291 So.2d 214 (Fla. 2d DCA 1974). The pre-violent conduct of Ferry on the night in question, including the purchase of gasoline, in fact put Shop & Go's employee, Archer, on notice of a likelihood of harm to others, and prompted her to exclaim that Ferry was "up to something." Additionally, the plaintiffs have pleaded a breach of section 526.141, Florida Statutes, in the dispensing of gasoline in an open container. That event, while insufficient to sustain a cause of action in and of itself, constituted the breach of a statutory duty and can be evidence of negligence. deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla. 1973).
On the issue of foreseeability it is not necessary that one be able to foresee the exact nature of the harm which is done; it is only necessary to foresee that some injury is likely to result. Budet v. K-Mart Corporation, 491 So.2d 1248 (Fla. 2d DCA 1986). The fact that Ferry's acts were criminal in nature does not alter this rule. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla. 1977). The issue of foreseeability as presented in this case is one to be determined by the trier of fact, Bennett M. Lifter, Inc. v. Varnado, 480 So.2d 1336 (Fla. 3d DCA 1985), Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983), and should not be resolved by a dismissal in the pleading stage of the action. Midflorida Schools Federal Credit Union v. Fanster, 404 So.2d 1178 (Fla. 2d DCA 1981).
NOTES
[1] Our disposition of the appellant's common law negligence contention encompasses the claim based upon Shop & Go's negligent entrustment of gasoline to Ferry. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615172/ | 502 So.2d 511 (1987)
Willie VAUSE, Appellant,
v.
STATE of Florida, Appellee.
No. BN-382.
District Court of Appeal of Florida, First District.
February 16, 1987.
Gwendolyn Spivey, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., for appellee.
MILLS, Judge.
Vause contends the trial court committed reversible error in denying his petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree and reverse.
Vause was indicted in 1979 for first degree murder (Count I), shooting into an occupied vehicle (Count II), and using a firearm in the commission of a felony (Count III). He went to trial in January of 1981. The jury convicted Vause of third degree murder on the first count and as charged on the remaining counts. On 16 March 1981, Vause was sentenced to 12 years on Count I, 12 years on Count II, and 5 years on Count III, such sentences being ordered to run concurrently. In addition, the trial court imposed a mandatory minimum sentence of three years pursuant to Section 775.087(2), Florida Statutes (1981).
Thereafter, Vause pursued a direct appeal. Vause v. State, 424 So.2d 52 (Fla. 1st DCA 1982), affirmed in part, quashed in part, Vause v. State, 476 So.2d 141 (Fla. 1985). As his sixth issue on appeal Vause challenged the legality of the three-year mandatory minimum sentence, specifically contending that the use of a weapon was necessary to prove the crime itself, and therefore the use of a weapon could not be considered a separate facet of the offense sufficient to justify an aggravated penalty. His argument was rejected.
Vause, who was incarcerated for his crimes after the Supreme Court's decision became final, promptly filed a Rule 3.850 *512 motion for post-conviction relief, alleging that imposition of the three-year mandatory minimum sentence based upon his possession of a firearm was improper because the jury did not explicitly find the murder was in fact committed with a firearm. On 13 May 1986, the petition was denied and this timely appeal then followed.
Before a mandatory three-year sentence may be imposed pursuant to Section 775.087(2), the jury must either find the defendant guilty of a crime which necessarily involves the use of a firearm or the jury must specifically find the defendant did in fact use a firearm during the commission of the crime. State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984); State v. Smith, 462 So.2d 1102 (Fla. 1985). Use of a firearm is not an essential element of third degree murder. Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982). Further, the jury did not specifically find Vause used a firearm during the murder. Therefore, it can be seen the trial court committed error in aggravating Vause's sentence. This error is not cured, as the State contends, by virtue of the fact that Vause was simultaneously convicted of two counts involving the use of a firearm. Streeter v. State, supra (jury's verdicts on Counts III and IV that defendant possessed a weapon during the commission of the felonies charged in counts I and II, second degree murder and attempted second degree murder respectively, did not supply the trial court with a basis to reclassify Counts I and II).
The question then becomes could Vause have raised the sentencing error he now asserts in his direct appeal and, if so, is the error still cognizable under Rule 3.850 because it amounts to fundamental error. Rule 3.850 allows relief where there has been a change in the applicable law. See, Witt v. State, 387 So.2d 922 (Fla. 1980). Vause contends that State v. Overfelt, supra, represents the change of law applicable to the instant case. It is true that State v. Overfelt was not decided until after Vause's direct appeal to this court; however, Streeter v. State, supra, upon which the decision in Overfelt was based, was rendered on 13 July 1982. This was five months prior to the issuance of the opinion on Vause's direct appeal. Hence, arguably the contention now raised was available to Vause at the time of his direct appeal.
Turning to the question of fundamental error, Reynolds v. State, 429 So.2d 1331, 1333 (Fla. 5th DCA 1983), specifically states: "An erroneous application of the three year mandatory minimum sentence would constitute a fundamental sentencing error." Accord, Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981) (unlawful imposition of three-year minimum sentences upon defendant constitutes fundamental error); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984) (improper imposition of a mandatory minimum sentence, because of its inherent potential of causing or requiring a defendant to be incarcerated or restrained for a greater length of time than provided by law in the absence of sentencing error, constitutes fundamental error); Pettis v. State, 448 So.2d 565 (Fla. 4th DCA 1984); Cisnero v. State, 458 So.2d 377 (Fla. 2d DCA 1984); Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984).
Based on the foregoing cases and the general rule that fundamental errors may be raised for the first time in a Rule 3.850 motion, notwithstanding the fact that the error could have been raised on direct appeal, Stephens v. State, 478 So.2d 419 (Fla. 3d DCA 1985), we reverse the trial court's denial of Vause's Rule 3.850 motion.
Reversed and remanded.
THOMPSON, J., concurs.
BOOTH, C.J., dissents without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615174/ | 677 F.Supp. 581 (1988)
James THORNBURG, Plaintiff,
v.
Michael DORA d/b/a Indiana Columbus Developers, John Doe, Night Manager, Old Columbus Holiday Inn, City of Columbus, Indiana, and Officer Gary W. Coon; Bartholomew County Sheriff; Board of Commissioners of Bartholomew County and Deputy Ronald Hoskins, Defendants.
No. IP 86-1354-C.
United States District Court, S.D. Indiana, Indianapolis Division.
January 21, 1988.
Byron C. Wells, Byron C. Wells and Associates, Shelbyville, Ind., for plaintiff.
Richard M. Knoth, Indianapolis, Ind., for defendants Michael Dora d/b/a Indiana Columbus Developers, John Doe Night Manager, Old Columbus Holiday Inn.
*582 Joan F. Irick, Kightlinger & Gray, Indianapolis, Ind., for defendants City of Columbus, Indiana.
Stephenson and Kurnik, Indianapolis, Ind., Joseph S. Thompson, Columbus, Ind., for defendants Officer Gary W. Coon, Bartholomew County Sheriff, Bd. of Com'rs of Bartholomew County, and Deputy Ronald Hoskins.
BARKER, District Judge.
ENTRY
This matter is before the court on two motions for summary judgment. The Bartholomew County (hereinafter "County") defendants and the City of Columbus (hereinafter "City") defendants initially filed motions to dismiss. On September 4, 1987, by order of this court, both motions were converted, according to the dictates of Fed. R.Civ.P. 12(b), to motions for summary judgment, pursuant to Fed.R.Civ.P. 56(c).
Procedural Background
The plaintiff James Thornburg filed his second amended complaint on April 27, 1987. In it he alleges that each of the eight defendants, acting under color of state law, conspired with each other to deprive him of his constitutional rights under the fourth and fourteenth amendments to the United States Constitution and in violation of 42 U.S.C. § 1983. Defendants Michael Dora d/b/a Indiana Columbus Developers, Old Columbus Holiday Inn, Officer Gary Coon, and Deputy Ronald Hoskins have all filed timely answers to Thornburg's second amended complaint. Defendants City of Columbus, Bartholomew County Sheriff and Board of Commissioners of Bartholomew County filed motions to dismiss or to update their motion to dismiss on April 28, 1987 and May 8, 1987, respectively. The County's motion was accompanied by an affidavit. On September 4, 1987, according to the dictates of Fed.R. Civ.P. 12(b), the court ordered these motions converted to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). The parties were given fifteen (15) days from that date to present the court with additional pertinent material.
On September 18, 1987, plaintiff filed an additional response in view of the court's conversion of the motion. No responses have been filed by the other parties so the court will rely on the previously filed pleadings, affidavits, and motions to decide the issues.
As with all summary judgment motions, none will be granted unless the court finds, based on the pleadings, motions, discovery material and affidavits, that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The nonmoving party's reasonable allegations are to be accepted as true and all doubts will be resolved against the movant. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218 (7th Cir.1984). Inferences drawn from the underlying facts in the pleadings and documents must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
Therefore, unless the city and county defendants have shown that no genuine issue of material fact exists to prevent judgment in their favor, both motions must be denied.
Factual Background
With his second amended complaint, Thornburg establishes the following scenario for the evening of March 6, 1986. Thornburg was a paid guest at the defendant Old Columbus Holiday Inn. He objected to the pool in the motel being closed at midnight, maintaining that this was a change of motel policy on this date because of the Indiana High School Basketball Regional contests being held in the city. Plaintiff contends that he was treated rudely by the night manager of the Holiday Inn and told to return to his room or be arrested. When plaintiff requested the manager's name he was arrested by defendant Gary W. Coon, taken to the Bartholomew County Jail, incarcerated at the demand of the night manager, and charged with criminal trespass. He contends the arrest was *583 without probable cause, in that arresting officer Coon was aware that plaintiff was a paid guest at the motel.
Plaintiff also alleges that he was subjected to an illegal search when required to submit to a Breathalyzer test which resulted in a reading of .16 blood alcohol content. Plaintiff contends that the defendant Sheriff Department's policy of requiring anyone intoxicated at the time of arrest, regardless of the arresting charge, to submit to a Breathalyzer constituted coercion because of an express threat of loss of driving privileges to those who refused. In addition, he contends that the Breathalyzer was not authorized by law or court rule. The plaintiff alleges that he was then strip searched, detained in a cell, and not allowed to post bond for more than eight hours. The Bartholomew County prosecutor dismissed the charge almost immediately upon verification of the motel registration.
Plaintiff's 42 U.S.C. § 1983 claim against the defendant City
In the second amended complaint, the plaintiff makes the following allegations against the City of Columbus. First, he claims that the City is the legal entity responsible for the Columbus Police Department, which has the primary duty of enforcing state and local law, and that defendant Gary Coon was a member of the Columbus Police Department. He alleges that on March 6, 1986, Officer Coon arrested him on a charge of criminal trespass, at the request of the night manager of the Old Columbus Holiday Inn, where plaintiff was a paid guest. This charge was dismissed almost immediately by the Bartholomew County Prosecutor upon verification of the plaintiff's motel registration. Plaintiff further alleges that his fourth and fourteenth amendment rights were violated by the City and its officers in that
the deprivation was the result of acts involving deceit and deception for as many as 19 other individuals arrested around the same night by numerous police officers without regard to individual civil rights, such as claiming to be motel management in order to enter private rooms to search for underage drinking. This was with the consent and approval of motel management.
The defendant City's motion attacks the sufficiency of these allegations. It is now well-settled law that a municipality such as the City of Columbus cannot be held liable under section 1983 for constitutional deprivations solely for the acts or omissions of its agents or employees. In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that to state a claim against a municipality as a section 1983 "person," the plaintiff must allege that the city's employee was acting pursuant to governmental policy or "custom" when the alleged unconstitutional conduct occurred. 436 U.S. at 690-91, 98 S.Ct. at 2036. More specifically, the Court held:
[t]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
Id. at 691, 98 S.Ct. at 2036.
The defendant City, in its motion, contends only that the plaintiff has failed to meet the Monell standard. This is based on its view that the plaintiff only alleges a conspiracy between the arresting officer and the defendant Holiday Inn. The City contends that the plaintiff's further allegations concerning other events during that time are conclusory and thus insufficient to meet the Monell standard and establish liability of the City.
The defendant illustrates only those allegations that support its contentions and ignores those facts that contradict its position. The facts ignored include the plaintiff's claim that nineteen other people were arrested around the same time by "numerous officers" without regard to their individual *584 civil rights. In his second amended complaint, plaintiff has set forth allegations, and specific facts in support thereof, of an official policy or an unofficial custom on the part of the City. The plaintiff has further alleged that the defendant officers were acting pursuant to this policy or custom in making arrests on or around March 6, 1986, in violation of the individual civil rights of the arrestees, including the plaintiff. Therefore, the City's alleged unconstitutional policies and customs were the "moving force of the constitutional violation" and thus meet the Monell standard for municipal liability. Id. at 694, 98 S.Ct. at 2038.
In Strauss v. City of Chicago, 760 F.2d 765 (7th Cir.1985), the court held that the plaintiff must establish that his injury was proximately caused by a municipal policy, custom, or practice. Plaintiff has alleged that "19 others were arrested around the same night by numerous police officers without regard to individual civil rights, such as claiming to be motel management in order to enter private rooms to search for underage drinking." As a result of the conduct of the police officers, the plaintiff has established that the "execution of a governmental policy or custom ... by those whose edicts or acts may fairly be said to represent official policy" inflicted his injury and that if proved could hold the municipality, as a government entity, responsible. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38.
In the City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), the Supreme Court held that an "affirmative link" between the custom or policy in question and the constitutional violation must be established in order to meet the Monell standard. In Jones v. City of Chicago, 787 F.2d 200, 204 (7th Cir.1986), the Seventh Circuit interpreted the "affirmative link" requirement by stating that
there must be some knowledge or an awareness actual or imputed of the custom and its consequences showing the municipality's approval, acquiescence or encouragement of the alleged unconstitutional violation.
While mere allegations of a municipal custom or policy may withstand a motion to dismiss a section 1983 action, in order to prevail on the defendants' summary judgment motion, the plaintiff must adduce a fact which would enable a jury to find a custom or policy on the part of the City of Columbus. Larson v. Wind, 536 F.Supp. 108, 111 (N.D.Ill.1982).
The plaintiff has met that burden and the Monell standard by his allegation of the concurrent arrests of nineteen other persons, and that those arrests were also the result of violations of individual civil rights. The court will caution the plaintiff that while he has met the Monell pleading standard, he will have a heavy burden at trial to present specific facts and proof of the defendant's policy or custom resulting in the alleged constitutional deprivations.
For the foregoing reasons, the defendant City of Columbus's motion for summary judgment is DENIED.
Plaintiff's section 1983 claim against the county defendants.
In defense to the plaintiff's complaint, the county defendants contend that there is no section 1983 liability on their part for the administration of a Breathalyzer test and the subsequent detention of the plaintiff.[1] In support thereof, they advance several arguments.
First, the defendants maintain that a fourth amendment claim cannot be stated against them for detention of the plaintiff without probable cause, as they were simply the custodial officers and not the arresting officers. As the defendants seem to recognize, however, the plaintiff's fourth amendment claim against them does not focus on his initial detention pursuant to an arrest without probable cause; rather, the plaintiff alleges that he was subjected to *585 an illegal search and seizure by the county defendants and that he was wrongfully prohibited from posting bail. The plaintiff also alleges, in paragraphs 8 and 10 of his second amended complaint, common law false imprisonment. The defendants' argument and authority are therefore not germane to the plaintiff's claims in this regard.
Second, the defendants argue that the plaintiff's detention in these circumstances was constitutionally permissible and does not amount to a constitutional deprivation upon which section 1983 liability can be predicated. In opposition, the plaintiff asserts that his claim is based, first, on the administration of a Breathalyzer test, and, second, on his consequent detention based on the results of the Breathalyzer. He argues that because the administration of the Breathalyzer was wrongful and unauthorized, his detention without the bail opportunity that would have been afforded him absent the Breathalyzer result was wrongful as well.
The defendants maintain that the plaintiff's subjection to a Breathalyzer and his consequent detention were authorized by virtue of their local Court Rule 23 and its Appendix D. In an affidavit sworn by Keith Foster, a captain in the county sheriff's department, the defendants set out their policy implementing Court Rule 23 and Appendix D:
4. Under the Rule, as applied by this Department, when an individual is arrested on a alcohol-related offense, or is intoxicated at the time of his arrest, he is not released from the custody of the Sheriff's Department until his blood alcohol level reaches a level of 0.05.
5. The time that the individual is held in custody is determined from the initial blood alcohol reading results from a breathalizer and the application of the chart utilized in Appendix D to Rule 23.
Affidavit of Keith Foster, filed August 27, 1987 (emphasis added).
The defendants' apparent implementation of Court Rule 23 and Appendix D, and their application of it to the plaintiff in this case, is based on an erroneous reading of the rule. Rule 23(A) provides:
With respect to all misdemeanors and Class D felonies, the Court adopts the bond schedule established in Appendix C which is attached hereto.
(Emphasis added).
The plaintiff alleges, and it seems apparent from the wording of Rule 23(A), that Appendix C is a bond schedule approved by the court that would allow the arrestee to post reasonable bail and be released for all misdemeanors and Class D felonies, promptly after arrest and processing. Therefore, because the plaintiff was arrested and charged with criminal trespass, a Class A misdemeanor, bond would have been available to him based solely on the arresting charge.
The defendants contend, however, that the plaintiff's arrest constituted an "alcohol-related offense" as set out in Appendix D to Court Rule 23, which provides in pertinent part:
WHEREAS the Court feels it is necessary to make sure that a person arrested for an alcohol related offense, where their [sic] blood alcohol content is .10 or above, is not prematurely released from the Sheriff's custody after arrest.
IT IS ORDERED that persons arrested for operating a vehicle under the influence shall not be released from the Sheriff's custody until a sufficient number of hours have elapsed to permit the blood alcohol content within that person's blood system to dissipate in the following fashion.[2]
(Emphasis added). The court initially points out that in order to apply Appendix D, which includes the correlation table of blood alcohol content to "minimum hours before release," to a given arrest situation, the arrest must fall under Court Rule 23(C) *586 or 23(D). Section (A) of Rule 23 suggests that on these facts bond was available to the plaintiff because the arresting charge was a misdemeanor, so no detention or Breathalyzer would have been authorized. Section (B) deals with "all capital offenses and felonies" and is inapplicable. Section (C) relates to "operating a vehicle while intoxicated," also not applicable on these facts. Section (D) states in pertinent part:
Refusal of Blood Alcohol Analysis. Any person arrested or charged with operating a vehicle while intoxicated who refuses to submit to a blood/alcohol analysis test shall be held in the custody of the Bartholomew County Sheriff for an initial period of four (4) hours....
(Emphasis added). The plaintiff was arrested for criminal trespass, not operating a vehicle while intoxicated, so this section is not applicable. Therefore, the defendants cannot logically make the move to apply Appendix D of Rule 23, which requires minimum detention based on blood alcohol content results, to Thornburg.
By Keith Foster's affidavit, the defendants have admitted a policy of requiring Breathalyzer tests and attendant detention based on Appendix D, not only for those arrested on an alcohol-related offense, but to anyone, regardless of the charge, who is intoxicated at the time of the arrest. The use of the Breathalyzer and the detention for those who are not charged with alcohol-related offenses is not authorized by Court Rule 23 or Appendix D and therefore was not required on these facts, as a matter of law.
Assuming arguendo that the defendants were entitled to look to Appendix D (even though the plaintiff had not been arrested for driving while intoxicated), Appendix D's broader language, which contemplates testing and detention for "alcohol-related offenses," would not have applied to the plaintiff's arrest. The construction and common sense meaning of the phrase "alcohol-related offense" suggests that intoxication must be an element of the crime in order for it to be described as an "alcohol-related offense." Intoxication is not an element of criminal trespass, and the court finds that criminal trespass is not encompassed by a reasonable interpretation of the term "alcohol-related offense."
The defendants also contend that the plaintiff's allegation of being "coerced" into taking the Breathalyzer with the threat of loss of driving privileges cannot be maintained. They argue that "this type of coercion or duress has long been settled by the courts of federal and state jurisdiction in the context of sustaining the constitutionality of the `implied consent' laws." The defendants are correct in their assertion that the constitutionality of "implied consent" laws, which provide for the mandatory suspension of a driver's license for refusal to take a Breathalyzer test, has been upheld by the Supreme Court. See Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). The defendants' reliance on an "implied consent" law is misplaced in this case, however, because those laws apply only to refusals of Breathalyzer tests upon arrest for driving under the influence or some other alcohol-related offense. As determined above, criminal trespass could not, by any reasonable interpretation, come under the "implied consent" umbrella. The court cannot therefore find as a matter of law that the allegedly coerced administration of a Breathalyzer on the plaintiff was authorized by any law of "implied consent."
The foregoing discussion demonstrates that the defendants' subjection of the plaintiff to a Breathalyzer and detention was not authorized by the rule upon which they relied. To say that these measures were unauthorized, however, is not synonymous with concluding that they were unconstitutional. See, e.g., Kompare v. Stein, 801 F.2d 883, 888 (7th Cir.1986).
The primary question raised by the defendants' motion is, therefore, whether the defendants' alleged coercion of a Breathalyzer and the resultant detention of the plaintiff were constitutional as a matter of law. The plaintiff maintains that these measures ran afoul of the fourth amendment.
The fourth amendment affords protection against unreasonable search and seizure *587 without warrant. There is authority for the proposition that a breath test is a "search" subject to the requirements of the fourth amendment. See Burnett v. Municipality of Anchorage, 806 F.2d 1447 (9th Cir.1986) (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). See also Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986). The defendants maintain that the plaintiff consented to the search expressly or by virtue of the laws of implied consent. As the court has already determined, implied consent has no application in this case. Beyond this, the voluntariness and reasonableness of the search are questions of fact under the circumstances of this case.
As to the plaintiff's detention without opportunity to post bail, the court initially notes that the fourth amendment requires a judicial determination of probable cause as a prerequisite to an extended restraint of liberty following arrest. Llaguno v. Mingey, 739 F.2d 1186 (7th Cir.1984), cert. dismissed, ___ U.S. ___, 107 S.Ct. 16, 92 L.Ed.2d 783 (1986) (citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed. 2d 54 (1975)). In this case, the plaintiff alleges that he was so held for eight hours. The question, therefore, is whether this restraint of the plaintiff's liberty was reasonable under these circumstances as a matter of law.[3]
The defendants first argue that courts have held detentions of twenty-four hours prior to judicial determinations of probable cause constitutionally permissible. See Llaguno, 739 F.2d at 1196 (citing cases). Llaguno and the other decisions cited therein are based, however, on the conclusion that a reasonable period must be afforded custodial officers for administrative processing of the arrestee and for arranging a hearing before a magistrate. The defendants in this case have not proffered evidence that these factors necessitated the plaintiff's eight-hour detention. Rather, they maintain, first, that Court Rule 23 justified the detention. The court has already determined, however, that that rule's guidelines for detention did not apply in this case. Second, the defendants argue that the department could have been subject to civil liability if it released a person incapable of caring for himself or likely to injure others. See Iglesias v. Wells, 441 N.E.2d 1017 (Ind.Ct.App.1982). The reasonableness of detention based on this justification depends on facts and circumstances not in evidence. For example, if the plaintiff had had someone available and willing to transport him from the jail, the defendants' purported concern over civil liability may not have been reasonable. Third, the defendants suggest that the plaintiff, if released, could have been arrested for public intoxication. This argument has the same infirmity as the last: it depends on all the factual circumstances present. Furthermore, the court notes that the plaintiff had not been arrested for public intoxication and that the level of intoxication necessary to sustain a charge of public intoxication could be far greater than that upon which driving under the influence is based. Finally, the court is troubled by logic of the defendants' argument in this regard. By analogy, it would justify detention where the police have gone to a person's home, arrested him while he was taking a shower, and then detaining him merely because his release might result in a charge of public indecency.
For all of these reasons, the court finds that genuine issues of fact material to the reasonableness of the plaintiff's detention preclude summary judgment for the defendants on the plaintiff's fourth amendment claims.
The defendants also argue that the plaintiff cannot prove an "official policy" or an "unofficial custom" as mandated by *588 Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny. Specifically, they maintain that their policy of complying with court rules (rule 23) cannot be linked to any constitutional deprivation. This argument is flawed for at least two reasons. First, the court has already established that detention pursuant to rule 23 was not authorized in this case because the plaintiff had not been arrested for driving while intoxicated or any other alcohol-related offense. Second, the defendants, with the affidavit of Keith Foster, have admitted a practice of administering a Breathalyzer and detaining persons intoxicated at the time of arrest without regard to other circumstances that may have rendered such measures unreasonable. The plaintiff has therefore met his Monell pleading requirements.
As a final matter, the county defendants argue that they are entitled to a qualified immunity from any individual liability for damages. Qualified immunity applies only to the extent relief is sought against an official in his individual capacity. Although the plaintiff's complaint does not indicate whether such relief is sought, the court will address the matter at this stage, because the doctrine actually affords immunity from suit rather than a mere defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985).
Whether a defendant is entitled to qualified immunity for his actions is generally a question of law for the judge to decide. Whitt v. Smith, 832 F.2d 451 (7th Cir.1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982)). Under the doctrine of qualified immunity, government officials are shielded from civil liability unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. See also Green v. Carlson, 826 F.2d 647 (7th Cir.1987). The question, then, is two-fold: Did the defendants violate clearly established constitutional or statutory rights of the plaintiff? Would a reasonable official have known that what he was doing violated those rights?
The Supreme Court has further elucidated this standard recently in Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Court noted that while certain general rights (such as due process) are clearly established, a more specific interpretation of that general right may not be clearly established such that, under an objective test of legal reasonableness, an individual official would have known he was violating that right. Id. at 3038-39. Hence, the Court said:
It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Id. at 3039 (citation omitted).
Given these parameters of the doctrine, the court holds that the county defendants are entitled to immunity for any individual liability. This conclusion is based on several factors. First, although the general fourth amendment prohibition against unreasonable searches and seizures is clearly established, its specific interpretation to preclude administration of Breathalyzer tests and detentions pursuant thereto is not clearly established such that a reasonable officer would have known he was violating the plaintiff's rights. Furthermore, the court has indeed not yet determined that these measures, under the attendant circumstances, were violative of the plaintiff's constitutional rights. Finally, the individual officer was in this case acting pursuant to a stated department policy or practice. Although the court has determined that the department's implementation *589 of Court Rule 23 was flawed, it does not follow that the individual officer should reasonably have known that it was flawed, or, even if the officer knew that the department's practice was not in conformity with Court Rule 23, that the lack of conformity resulted in an unconstitutional deprivation. For these reasons, the plaintiff's claims will proceed against the county defendants in their official capacities only.
Conclusion
The summary judgment motion of the defendant City of Columbus is DENIED. The summary judgment motion of the Bartholomew County defendants is also DENIED, except with respect to the qualified immunity defense. On that ground, the motion is GRANTED, and suit shall proceed against the county defendants in their official capacities only. The defendants have not sought summary judgment on the plaintiff's claims based on an alleged unconstitutional strip search, and the court's rulings do not apply in any respect to those claims.
NOTES
[1] The county defendants do not seek judgment in their favor at this stage on the plaintiff's claims regarding his subjection to a strip search. The court will therefore not address that issue. See "Bartholomew County Defendants' Report to Court on Status of Motion to Dismiss," filed May 8, 1987.
[2] A table, which has been deleted, lists the minimum hours before release based on the applicable blood alcohol content.
[3] The court assumes, although the parties have not made it clear, that the county defendants did not learn of the dismissal of the criminal trespass charges at any time during the plaintiff's eight-hour detention. Had they learned of the dismissal prior to the plaintiff's release and were relying on the Breathalyzer results as the sole basis for the continued detention, the detention could be subject to a stricter scrutiny. See Llaguno, 739 F.2d at 1196-97. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615189/ | 23 So.3d 774 (2009)
SUNTRUST BANK, Appellant,
v.
ELECTRONIC WIRELESS CORP. and Fabian Pesantes, Appellees.
No. 09-1952.
District Court of Appeal of Florida, Third District.
November 25, 2009.
*775 GrayRobinson and Jeffrey T. Kuntz, Fort Lauderdale, Roland E. Schwartz, Fort Lauderdale, and John M. Brennan, Orlando, for appellant.
Ferdie and Lones and Ainslee R. Ferdie, Miami, for appellees.
Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
ROTHENBERG, J.
SunTrust Bank seeks reversal of a non-final order quashing service of process on Electronic Wireless Corp. and Fabian Pesantes, contending that they "concocted a hodgepodge of both actual and fictional requirements" for service of process and that "SunTrust duly complied" with each of the actual requirements. We agree and reverse and remand for proceedings consistent with this opinion.
SunTrust filed a complaint in February 2009, seeking to recover funds lent to Electronic Wireless pursuant to a commercial note guaranteed by Pesantes, the corporation's registered agent. On February 23, 2009, a process server served Electronic Wireless by serving Andres Cardona, an employee, and he filed a verified return of service on March 2, 2009. The process server later served Pesantes individually through Pesantes' wife, Juliana Pesantes. This summons contained the Spanish and French language information suggested by the Florida Rules of Civil Procedure. The process server filed a verified return of service for the second summons on March 9, 2009.
Electronic Wireless and Pesantes filed a joint motion to quash process and service of process. The trial court granted the motion and gave SunTrust 120 additional days to effectuate proper service. This appeal followed.
*776 We review the trial court's order quashing service of process de novo. Alvarado v. Cisneros, 919 So.2d 585, 587 (Fla. 3d DCA 2006). A return of service that is "regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary." Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). Further, "a defendant may not impeach the validity of the summons with a simple denial of service." Id. at 819. Pesantes and Electronic Wireless failed to meet this burden and presented no evidence to invalidate the service on Pesantes individually or on Electronic Wireless.
Service on Pesantes
Pesantes claims: (1) the "required Spanish and Creole information" was not attached to his summons (emphasis added); (2) the summons failed to provide an address for the Clerk of Court; and (3) the process server did not properly complete the return of service. The record evidence, however, reflects that Pesantes' summons, in addition to providing the requisite information in English, also provided information in Spanish and French, as suggested in Form 1.902, Florida Rules of Civil Procedure. Section 48.031, Florida Statutes, and Florida Rule of Civil Procedure 1.070, which govern service of process, contain no requirement that the summons contain any language other than English. Form 1.902, which accompanies Rule 1.070, however, suggests that the information be provided in Spanish and French, and Pesantes' summons contained that language. We therefore find this argument of no merit.
The summons included the address to serve a responsive pleading (the lawyer's offices), and because there is no requirement under Florida Statutes or the Florida Rules of Civil Procedure that the summons include the Clerk's address, we reject Pesantes' second argument. Lastly, the verified return of service filed by the process server avers that Pesantes was served (by Enrique Pintado, a certified process server in Miami-Dade County, with the identification number 1241) by serving Pesantes' wife, Juliana Pesantes, and there was no evidence to the contrary. Based on the record evidence and because Pesantes presented nothing more than "a simple denial of service," Telf Corp., 671 So.2d at 819, we find that Pesantes was properly served and the trial court erred in quashing the service.
Service on Electronic Wireless
Electronic Wireless claims: (1) Electronic Wireless' employee, Cardona, was not authorized to accept service for its registered agent, Pesantes; (2) the employee was improperly served because the rule requires service between 10:00 a.m. and noon and the employee was served at 9:00 a.m.; (3) the summons failed to provide the Clerk of Court's address; and (4) the process server did not properly complete the return of service.
Despite Electronic Wireless' unsubstantiated claims regarding service on its employee, the record reflects that the verified return of service filed by the process server avers that he served Electronic Wireless at 11:40 a.m., not 9:00 a.m., on February 23, 2009, by serving Cardona, who was authorized to accept service for the corporation's registered agent. Section 48.081(3)(a), Florida Statutes (2008), provides: "[P]rocess may be served on the agent designated by the corporation under s. 48.091. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation's principal place of business." Section 48.091(2) also provides: *777 "Every corporation shall keep the registered office open from 10 a.m. to 12 noon each day ... and shall keep one or more registered agents on whom process may be served at the office during these hours."
Because Electronic Wireless presented no evidence to dispute that: service was made on Cardona; Cardona was authorized to accept service for the registered agent, Pesantes; and service was made at 11:40 a.m., as indicated on the process server's return of service, we conclude that the service complied with Florida law. This finding is not in conflict, as Electronic Wireless suggests, with S.T.R. Industries, Inc. v. Hidalgo Corp., 832 So.2d 262 (Fla. 3d DCA 2002). In S.T.R., evidence was provided that the corporation's sole officer and registered agent was present at the corporation at the time of the alleged service; the alleged service was on a woman who was not an employee of the corporation; and a delivery driver found the complaint and summons in the parking lot outside the business. Id. at 263.
As to Electronic Wireless' third argument, which we have already addressed with regard to service on Pesantes, there is no requirement under Florida Statutes or the Florida Rules of Civil Procedure that the summons include the Clerk's address, and the summons issued for Electronic Wireless included the address to serve a responsive pleading (the lawyer's offices). Also, the process server properly completed the return of service as to Electronic Wireless. Accordingly, we conclude that service on Cardona for Electronic Wireless was valid on its face.
Finally, Pesantes and Electronic Wireless contend that the process was "ambiguous as an attempt to service two parties in a single process." This contention is without merit as Pesantes was served individually and separate from Electronic Wireless. We also find Pesantes and Electronic Wireless' estoppel argument meritless and decline to address it with more specificity. SunTrust neither appealed a final judgment nor accepted a benefit. The order granting Pesantes and Electronic Wireless' motion to quash service of process is reversed, and we remand for further proceedings consistent with this opinion.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615116/ | 23 So. 3d 826 (2009)
A.C., C.M., T.M., D.O., and P.W., Children, Petitioner,
v.
STATE of Florida, Respondent.
No. 5D09-2421.
District Court of Appeal of Florida, Fifth District.
December 4, 2009.
*827 Robert Wesley, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Orlando, for Petitioner.
Bill McCollum, Attorney General, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Respondent.
GRIFFIN, J.
A.C., C.M., T.M., D.O., and P.W. [collectively "Petitioners"] seek a writ of certiorari directed to similar custody orders issued after each failed to appear at their adjudicatory hearing, the date of which was advanced by the court and of which they were unaware.
All of the children had trial dates scheduled for either July 20, July 23, or July 28, 2009. All were represented by the public defender and all were given notice of these dates at their arraignments, which occurred in May. According to the Petition, sometime after the arraignments, thousands of cases were reassigned from one of the four juvenile divisions in the Ninth Judicial Circuit in Orange County which had been eliminated at the beginning of 2009. Because a backlog of juvenile cases continued to build, a senior judge was scheduled to run an additional docket during the week ending June 26, 2009, and the clerk was charged with scheduling hearings on that docket for that week. Petitioners assert that the clerk failed to assign cases and when it was belatedly discovered that no cases had been assigned to the extra docket as they should have been, the administrative judge decided to reassign to that docket cases that had already been set for trial at a later time. Petitioners' cases were among those reassigned cases. Petitioners contend that their attorneys had insufficient time to notify them of the earlier trial dates, or to prepare for them.
According to Petitioners, a stack of orders, dated June 12, 2009, resetting juvenile trials for the week ending June 26, 2009, was received by the Office of the Juvenile Public Defender at the end of the day on Tuesday, June 16, 2009. P.W.'s trial was reset to June 24. A.C., C.M., T.M., and D.O. were all ordered to appear for trial on June 26. All of them failed to appear on these dates and, despite counsel's objection, the trial court issued custody orders for all of them for their failure to appear.[1]
Petitioners argue that they were arrested and jailed upon unlawful orders and that the harm to them will be compounded as the failure to appear is memorialized in their juvenile record and assessed as a risk factor, which adds points toward a threshold that will determine whether they are jailed in future proceedings. See § 985.255(1)(g)(1) Fla. Stat. (2009).
The transcript in all of Petitioners' cases revealed that they lasted no more than two to three minutes, that counsel requested *828 that a custody order not be issued, objected to the case being reset with such short notice, informed the court that he or she had not been able to contact Petitioners and asked that the original trial date be restored. In each case, the court concluded that notice was reasonable and that if Petitioners did not receive notice, it was due to his or her own failure to keep in touch with his or her counsel.
There is no rule of juvenile procedure that speaks specifically to service of orders resetting trials or the amount of notice required when a trial is reset. Petitioners assert that notice given only to their counsel was not "reasonable notice" as is required by rule 8.100(f). The State contends that service upon counsel is all that is required and that twelve days is a reasonable amount of time under rule 8.100(f). We agree that service on counsel for the juveniles[2] is sufficient, but we disagree that the time allowed for notice of the advancement of the trial dates was sufficient. Subsection (c) of rule 8.085 provides that notices of hearings shall be served a "reasonable time" before the time specified for the hearing. "While there are no hard and fast rules about how many days constitute a `reasonable time,' the party served with notice must have actual notice and time to prepare." Crepage v. City of Lauderhill, 774 So. 2d 61, 64 (Fla. 4th DCA 2000) (quoting Harreld v. Harreld, 682 So. 2d 635, 636 (Fla. 2d DCA 1996)); State Dep't of Transp. v. Plunske, 267 So. 2d 337, 339 (Fla. 4th DCA 1972). Although general time parameters are usually recognized, what constitutes "reasonable notice" will necessarily depend on the interests at stake. See, e.g., J.B. v. Dep't of Children & Family Servs., 734 So. 2d 498 (Fla. 1st DCA), rev. granted, 749 So. 2d 503 (Fla.1999), decision quashed on other grounds, J.B. v. Florida Dep't of Children & Family Services, 768 So. 2d 1060 (Fla.2000); Harreld, 682 So.2d at 636; Anderson v. Sun Trust Bank/North, 679 So. 2d 307 (Fla. 5th DCA 1996); Montgomery v. Cribb, 484 So. 2d 73, 74 (Fla. 2d DCA 1986); Henzel v. Golstein, 349 So. 2d 824 (Fla. 3d DCA 1977). See also Reynolds v. Reynolds, 187 So. 2d 372, 373 (Fla. 2d DCA 1966).
In Crepage, the Fourth District, in evaluating the reasonableness of notice given before a forfeiture hearing, observed:
The amount of notice, like other components of procedural due process, depends on the nature of the proceeding. For example, the amount of notice that is necessary to provide a meaningful opportunity to be heard is not the same for an evidentiary hearing as it is for a status conference. The opportunity to be heard at an evidentiary hearing requires time to secure the attendance of witnesses and to prepare for the presentation of evidence and argument.
774 So.2d at 65 (quoting J.B., 734 So.2d at 500). In this case, the proceedings at issue were all adjudicatory hearings, for which significant preparation is required, and the defendants, who have the constitutional right to be present at all stages of a trial, are entitled to actual notice of the hearing. See Baker v. State, 979 So. 2d 453 (Fla. 2d DCA 2008).
In this case, the State did not present any evidence that Petitioners actually knew about the moved-up dates of their trials; to the contrary, there was evidence that they did not know about them. Counsel representing several of the defendants *829 said their office had tried but had not succeeded in contacting their clients to let them know about the advancement order. It may well be that the public defenders assigned to these cases failed to act with the requisite dispatch when they received the orders on June 16 rescheduling the adjudicatory hearings, and the trial court understandably was not impressed with the argument that their clients were not amenable to contact. Nevertheless, we think that the amount of time the public defenders were given to notify their clients that their hearings had been advanced by a month to a date only six to eight working days hence was not reasonable under the circumstances. Accordingly, the custody orders based on the failure to appear in response to those orders are quashed.
WRIT GRANTED; ORDERS QUASHED.
SAWAYA and EVANDER, JJ., concur.
NOTES
[1] There are some factual differences between these cases. The order resetting the trials of A.C., T.M. and D.O. show that copies were provided to the public defender, the state and DCFS/DJJ. They do not reflect that they were provided to the child. The order resetting C.M.'s trial shows that it was also sent to the child at the address noted on the order. The order resetting P.W.'s hearing does not reflect service upon anyone.
[2] Florida Rule of Juvenile Procedure 8.085(b) provides that service of pleadings and papers upon a party shall be made on the attorney, if the party is represented, unless service on the party is ordered by the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615112/ | 677 F. Supp. 1061 (1988)
Gary Lee JENNINGS, Petitioner,
v.
William OKU, Administrator, Halawa High Security Facility, Respondent.
Civ. No. 86-1026.
United States District Court, D. Hawaii.
January 15, 1988.
Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for petitioner.
Ryan Jiminez and Peter Morimoto, Kauai County Prosecutor, Lihue, Kauai, Hawaii, Warren Price, Atty. Gen., Honolulu, Hawaii, for respondent.
ORDER CONDITIONALLY GRANTING PETITIONER'S REQUEST FOR WRIT OF HABEAS CORPUS
KAY, District Judge.
I.
The petitioner herein, Gary Lee Jennings, was tried and convicted in state court of murder. On May 18, 1984, Jennings was sentenced to life imprisonment.
While the jury deliberated on Jennings' verdict, it conducted an experiment in order to resolve a crucial issue in the murder trial. Jennings sought a new trial on the grounds that the jury had engaged in unconstitutional misconduct by performing the experiment. The trial court refused to grant the motion for a new trial, and the Hawaii Intermediate Court of Appeals affirmed *1062 the trial judge. Consequently, Jennings brought a habeas corpus petition to this court under 28 U.S.C. § 2254. In an order of October 5, 1987, Magistrate Tokairin recommended that the petition be granted. The state has filed objections to the Magistrate's report and recommendation that the petition be granted. The defendant, through counsel, has filed an answering brief. Since the State of Hawaii has objected to the Magistrate's report and recommendation, the matter will receive de novo review in this court. See Local Rule 404-2.
II.
Abigail Williams was found murdered on March 1, 1983, lying on the ground near her car near Moloaa on Kauai. There was evidence indicating Williams had also been raped.
Police investigators focussed their investigation of Williams' murder on Jennings. A fingerprint which was found on the doorjamb of the driver's seat door of the victim's vehicle matched Jennings' fingerprint, although no other physical evidence which was found by the police could be linked to Jennings. Apparently, the fingerprint on the doorjamb was the only direct evidence linking Jennings with the crime. Although police investigators took hair and blood samples from both Jennings and the victim, the investigators were unable to establish any link which would have evidenced that Jennings had assaulted the victim, sexually or otherwise.
The jury began to deliberate on their verdict at 4:35 p.m. on April 18, 1984. At around noon on April 19, the entire jury left the jury room in order to conduct an experiment. The purpose of the experiment was to determine how Jennings' fingerprint could have been placed on the murdered woman's car door. While the prosecutor's version was that the fingerprint was placed on the doorjamb when Jennings murdered the woman and attempted to wipe his fingerprints off the car door, Jennings asserts that the fingerprint was placed on the doorjamb when he opened the car door to steal the wallet of the dead woman. Jennings alleges that the wallet was lying on the floor of the car.
The particulars of the experiment are as follows: the entire jury left the jury room and went to the jury foreman's car which was, like the victim's car, a Datsun. The victim's car, however, had been a Datsun station wagon while the jury foreman's car was a Datsun sedan. The jurors chose the jury foreman's car for the experiment because his car was closest to the jurors after they left the jury room. See Transcript of Proceedings, Motion for New Trial, May 16, 1984, pp. 4-6. One of the female jurors sat in the driver's seat of the car while one of the male jurors assumed the role of the murderer. Id. Apparently, the intent of the experiment was to resolve how Jennings' fingerprint could have been found on the door of the car. Accordingly, the jurors attempted to reenact the crime, as they perceived it had been committed. The jury foreman testified at the hearing on the motion for a new trial that "some of the jurors couldn't understand how his [Jennings'] hand was on the car, so we just went outside to show them how it was physically, so they could see it and better understand." Id. at 5. Within about an hour of conducting this experiment, the jury returned a verdict of guilty against the defendant on the murder charge.
As noted above, Jennings' fingerprint on the car doorjamb was amongst the most important evidence linking Jennings to the crime. The defendant notes that the prosecutor mentioned the presence of Jennings' fingerprint on the car doorjamb six times during his closing argument. Based upon the alleged juror misconduct which resulted in the creation of extraneous evidence, the defendant has moved for habeas corpus relief. Magistrate Tokairin has recommended that the petition for habeas corpus relief be granted.
III.
Whether jury misconduct is sufficiently egregious to warrant a federal court to grant habeas corpus relief pursuant to 28 U.S.C. § 2254 is addressed in the Ninth Circuit case of Marino v. Vasquez, 812 *1063 F.2d 499 (9th Cir.1987). In Marino, the Ninth Circuit held that when a jury obtains or uses evidence that has not been introduced into the trial record in reaching a verdict, a petition for habeas corpus relief to overturn the conviction for jury misconduct should be granted unless "it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict." Id. at 504. The burden of proof in this matter is on the prosecution. Id. The rationale for overturning a conviction because of jury misconduct was set forth by the Ninth Circuit in Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.1980), wherein it was held that
"[w]hen a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence. In one sense the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact."
In the instant case, the respondent claims that the jury experiment should not sustain a petition for habeas corpus relief because the experiment did not give rise to any "new evidence" at all. Indeed, the trial court and the Intermediate Court of Appeals found that the experiment had not led to "new evidence" because the jurors could have drawn a diagram of the car, or conducted the experiment mentally, and reached the same conclusion they had reached by performing the physical experiment during deliberation. The respondent further claims that the state court's findings that the experiment did not create new evidence is entitled to the statutory presumption of correctness set forth in 28 U.S.C. § 2254(d).
The petitioner, on the other hand, argues that the experiment did lead to the jury's consideration of new evidence which would have been inadmissible at trial. The petitioner states that the differences in the measurements of the victim's and the jury foreman's cars, as well as the differences in body size and type between the jurors who assumed the rolls of the victim and the murderer and the actual victim and murderer, may have been so substantial as to render the results of the physical experiment inadmissible at trial, if the results had been sought to be introduced. See Hall v. General Motors Corp., 647 F.2d 175, 180 (D.C.Cir.1980) (experimental evidence is not admissible unless the experiment conditions are nearly identical to the conditions involved in the incident involved in the litigation so "as to afford a fair comparison in respect to the particular issue to which the test is directed"). The petitioner also argues that the fact that the jury could have performed the experiment mentally or by drawing a diagram is irrelevant. The petitioner concedes that a mental experiment performed by the jury, or the preparation of a diagram in the jury room, would not have tainted the verdict. The petitioner argues, however, that the performance of what appears to be an unreliable physical experiment impermissibly tainted the jury's verdict.
This court begins by noting that the statutory presumption of correctness set forth in 28 U.S.C. § 2254(d) is inapplicable in the instant case. Section 2254(d) provides in pertinent part that
"a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction ... [and] evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct ..."
The statutory presumption of correctness does not apply to a State court's conclusions of law. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 1714, 64 L. Ed. 2d 333 (1980). In the seminal case of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), the opinion which precipitated the enactment of the statutory presumption *1064 of correctness, the Supreme Court mandated federal court deference to State courts' findings of "basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators ...'" Id. at 83 S.Ct. at 755 n. 6 (citation omitted). While this court will defer to the State courts' findings on what actually transpired during the course of jury deliberations in this case, the existence or non-existence of "extrinsic evidence" created by the jury experiment is a mixed question of fact and law. Mixed questions of fact and law are not entitled to the statutory presumption of correctness. Cuyler, 100 S.Ct. at 1715; Marino, 812 F.2d at 504; Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir.1987).
Having concluded that the statutory presumption of correctness does not apply to the State courts' conclusion that the jury experiment did not create new evidence, this court finds that the jury experiment did, indeed, create new evidence. "Evidence" is defined as
"[a]ny species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention."
Black's Law Dictionary, Rev. 4th Edition. Although the results of the jury experiment were not presented at the trial (and, as noted above, would have probably been inadmissible at trial), the results of the experiment meet the foregoing definition of "evidence" in every other respect. That is, the results of the experiment were probative material that could have induced a belief in the jury as to the veracity of either the government's or defendant's version of how Jennings' fingerprints were placed on the doorjamb.
In reaching the conclusion that the jury's experiment led to "new evidence" in violation of the petitioner's Sixth and Fourteenth Amendment rights, this court is guided by the Ninth Circuit's recent Marino opinion. In Marino, the Ninth Circuit reviewed the propriety of a district court's grant of habeas corpus relief pursuant to 28 U.S.C. § 2254. The district court had granted the writ because of two instances of jury misconduct. One of the instances involved an out-of-court experiment wherein a juror experimented with a handgun belonging to her ex-husband "to see if she could pull the trigger with the gun in the relevant position." 812 F.2d at 503. Even though the Ninth Circuit noted that a similar authorized experiment had been performed during jury deliberations with a plastic toy gun, the court felt that the juror's experiment had resulted in constitutional error mandating a writ of habeas corpus. (It should be noted that in Marino, the unauthorized experiment was conducted by the juror with the assistance of a non-juror. The involvement of the non-juror made the unauthorized experiment even more constitutionally offensive according to the Ninth Circuit.)
Similarly, in Durr v. Cook, 589 F.2d 891 (5th Cir.1979), a convicted defendant filed a petition for writ of habeas corpus based on the allegation that the jury foreman had improperly engaged in an out-of-court experiment during the course of his deliberations. The petitioner alleged that the jury foreman
"went to a local Ford dealership and asked to look at a pickup truck. Once in the truck, [the petitioner] alleges that [the foreman] made certain twisting movements in an apparent attempt to test [the petitioner's] self-defense explanation. [The petitioner] further alleges that [the foreman] returned to the jury and reported the findings of his experiment."
Id. at 892. In support of these allegations, the petitioner had the dealership owner, who had observed the foreman's conduct, testify before the district judge. The trial judge found that the experiment
"amounted to taking the truck into the juryroom and having it available in deliberations by that body before reaching its verdict of guilty ... [T]he actions of the jury foreman constitutionally were impermissible, and amounted to evidence being introduced without knowledge or *1065 consent of the court and without defendant or the State being able to contest, or make inquiry, as to the evidence thus adduced. This is one of the basic rights enunciated by the Sixth Amendment."
Durr v. Cook, 442 F. Supp. 487, 489-90 (W.D.La.1977). On review, the Fifth Circuit did not disagree with the legal conclusions that the district court had reached, but found that the testimony of the dealership owner had been insufficient to establish the fact that the foreman's actions in the Ford were in any way connected with an experiment relating to the petitioner's trial. Accordingly, the cause was remanded to the district court for further factual inquiry. The District Court subsequently found that prejudice did occur in the defendant's trial so that he was deprived of his Fourteenth Amendment right to due process of law, with the evidence indicating that the jury foreman did conduct an out-of-court experiment and that the results of this experiment were communicated to members of the jury before the jury began its deliberations. Durr v. Cook, Civ. No. 77-0816 (W.D.La. June 29, 1979).
In the instant case, the testimony of the jury foreman at the hearing on the petitioner's motion for a new trial leaves no doubt that a constitutionally impermissible experiment transpired during the course of jury deliberations. With guidance from the Marino and Durr decisions, this court concludes that that experiment led to the jury's consideration of "extrinsic evidence."
Having found that the jury's experiment created "extrinsic evidence," this court must go on to determine whether that "extrinsic evidence" tainted the verdict. As noted above, the Ninth Circuit has held that when a jury obtains or uses evidence that has not been introduced into the trial record in reaching a verdict, a petition for habeas corpus relief to overturn the conviction for jury misconduct should be granted unless "it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict." Marino, 812 F.2d at 504. The burden of proof in this matter is on the prosecution. Id. In Bayramoglu v. Estelle, 806 F.2d 880 (9th Cir.1986), the Ninth Circuit enumerated five factors to be considered in determining whether "extrinsic evidence" tainted a verdict:
"(1) whether the material was actually received, and if so how, (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict."
Id. at 887. In the instant case, all of the jurors participated in the constitutionally impermissible experiment before they reached a verdict in the petitioner's case. The fact that the jury returned its verdict very shortly after the experiment was conducted gives substantial evidence of a "reasonable possibility" that the "extrinsic evidence" affected the verdict. The respondent has failed to present evidence which would establish beyond a reasonable doubt that the "extrinsic evidence" did not affect the verdict. Thus, the respondent has failed to carry its burden in this regard.
Because this court has concluded that the jury's experiment resulted in the jury's consideration of "extrinsic evidence" in its deliberations, and because this court has determined that there is a reasonable possibility that this "extrinsic evidence" affected the jury verdict, the petitioner's request for a writ of habeas corpus must be granted. With all due deference to the State courts in their careful consideration of the important issues raised by the petitioner, this court finds that denial of the petitioner's writ of habeas corpus would violate his Sixth and Fourteenth Amendment rights.
Jennings was convicted of a brutal murder. This court has the highest respect for the Hawaii Intermediate Court of Appeals, and this court appreciates the difficulties that may be present in the prosecution of a new trial at this date. Nevertheless, this court is compelled to protect Jennings' constitutional rights as enunciated by the 9th *1066 and 5th Circuit Courts of Appeal in Marino and Durr.
WHEREFORE, the court adopts the Recommendation of the Magistrate, and it is HEREBY ORDERED that the petitioner's conviction and sentence be vacated and set aside, and that he be retried within 120 days. In the event that the State decides not to retry petitioner within 120 days, he shall be released. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1429882/ | 436 F. Supp. 907 (1977)
Complaint of TUG OCEAN PRINCE, INC. and Red Star Towing & Transportation Company, as Owner and Charterer of the TUG OCEAN PRINCE, for Exoneration from or Limitation of Liability, Plaintiffs and Third-Party Plaintiffs,
v.
UNITED STATES of America, Third-Party Defendant.
UNITED STATES of America, Plaintiff,
v.
PITTSTON MARINE TRANSPORT CORPORATION, Red Star Towing & Transportation Company, Tug Ocean Prince, Inc.,
and
TUG OCEAN PRINCE and BARGE NEW LONDON, in rem, Defendants.
Nos. 74 Civ. 3358(GLG) and 75 Civ. 5801(GLG).
United States District Court, S. D. New York.
September 6, 1977.
*908 *909 Healy & Baillie, New York City, for plaintiffs and third-party plaintiffs; John D. Kimball, New York City, of counsel.
McHugh, Heckman, Smith & Leonard, New York City, for defendant, Pittston Marine Transport Corp.; Maurice F. Beshlian, New York City, of counsel.
Gilbert S. Fleischer, New York City, in charge, for the third-party defendant and plaintiff, United States of America Admiralty & Shipping Section Dept. of Justice; Janis G. Schulmeisters, New York City, of counsel.
FINDINGS OF FACT
GOETTEL, District Judge.
1. At all material times Tug Ocean Prince, Inc. was, and still is, a New York corporation and the owner of the Tug OCEAN PRINCE. Red Star Towing & Transportation Company (hereinafter collectively referred to with Tug Ocean Prince, Inc. as "Plaintiffs"), was, and still is, a West Virginia corporation with an office and principal place of business in New York, and at all material times was the charterer of the Tug OCEAN PRINCE, and *910 manned, victualed, supplied and operated said Vessel.
2. The Tug OCEAN PRINCE is a United States documented, steel hulled, diesel driven, single screw, 1,800 horsepower tugboat built in 1958, having an overall length of 94.7 feet, an extreme breadth of 27.1 feet and a deep draft of about 13 to 14 feet. Her registered gross tonnage is 198 tons and her registered net tonnage is 134 tons.
She was at all material times equipped with direct pilothouse engine controls, a gyro compass, a magnetic compass, a Decca radar and a searchlight. Her chart for the area was a 1969 edition. Although a subsequent edition was available, there were no material differences between the charts in the location and characteristics of the relevant aids. Buoy "21" had been renumbered to Buoy "25".
3. Red Star had no written procedure for supplying its tugs with navigational information or material. The ordering of charts was left to the captain without the office having a system to check what charts and other navigational publications were needed. Red Star had no procedure for checking that this material was obtained by the Captains. On the voyage in question, the OCEAN PRINCE was carrying current editions of the Light List and Coast Pilot.
4. Red Star Towing & Transportation Company (hereinafter singly referred to as "Red Star") is engaged in the business of general towage in the coastal and inland waters of the United States, including New York Harbor and its tributaries.
5. Red Star Marine Services, Inc. is a company which at all material times provided "management services" for Red Star, including "operations" such as booking of work, scheduling and dispatching of tugs to accomplish that work, hiring and firing of personnel, and overseeing the total operation of the Red Star fleet which includes the Tug OCEAN PRINCE.
6. Red Star and Red Star Marine Services, Inc. are related companies, and have the same president, Mr. Robert W. Sanders.
7. Walter Kristiansen at all material times was vice-president of operations of Red Star Marine Services, Inc.
8. The Red Star companies are also related to the Bushey shipyard at Brooklyn, New York and the various Bushey companies in the New York Harbor area.
9. Red Star has offices at 500 Fifth Avenue, New York, New York, where its tug dispatchers are located.
10. The dispatchers of another related company, at all materials times, were located in the same offices, and used the same radios and frequencies.
11. Captains, Relief Captains, Mates and other crew members serving on Red Star tugs are hired by Red Star Marine Services, Inc. but are paid by Red Star.
12. Red Star Marine Services, Inc. had internal requirements for the hiring of navigators, which included a requirement that Tug Captains and Mates it employed either have or obtain a Coast Guard license for the operation of Red Star tugs as a condition to their employment, which company policy preceded subsequent Coast Guard licensing requirements. In addition, when one of the navigators was unfamiliar with the area the tug was dispatched to, Red Star's policy was that the other navigator have extensive experience in and be familiar with the area, and that this man be available to assist the other navigator whenever necessary or if requested by the man on watch.
13. Pittston Marine Transport Corporation (hereinafter "Pittston") is a New York corporation and, at all material times, was engaged in the business of transporting petroleum cargoes by barge in, among other places, New York Harbor and its tributaries. At all material times Pittston owned, operated, manned, victualed and supplied the tank barge NEW LONDON, of 1,665 gross and net tons and having overall dimensions of 295 feet in length and 43 feet in breadth. The Barge is equipped with a pushing well or notch at its stern into which the bow of a pushing tug fits, providing motive power and steering control.
14. The United States of America (hereinafter the "Government") is a sovereign *911 which, under the auspices of the Coast Guard, establishes, maintains and operates an aids to navigation system on the entire length of the Hudson River in the State of New York. It does so under statutory authority to serve, inter alia, the needs of the commerce of the United States. (14 U.S.C. § 81).
15. On February 2 and 3, 1974, the Tug OCEAN PRINCE carried a full crew of six men including two United States Coast Guard licensed (for uninspected towing vessels not more than 200 miles off-shore) navigators, John Kiernan and Walter Reimer, two deckhands, an engineer and a cook.
16. At all relevant times, Mate Reimer held a valid license issued by the United States Coast Guard which gave him authority to serve as operator of uninspected towing vessels upon the inland waters of the United States, including the Hudson River. Reimer had been a Tug Captain for five years, and was qualified generally to serve as a Tug Captain, although he had never before navigated the Hudson River. He had served as a deckhand on tankers on the Hudson River briefly some six years earlier. He worked for Red Star in the capacity of Captain, Relief Captain and Mate, principally on board the OCEAN PRINCE, for a period of one and one-half (1½) years before the voyage in question.
17. Kiernan was also licensed by the Coast Guard and had extensive experience as a Tugboat Captain on the Hudson River which spanned a period of more than 30 years. He was employed by an associated company as a Tug Captain, but was temporarily assigned to Red Star to fill a vacancy on the Tug OCEAN PRINCE and went on board on February 1, 1974.
18. During the voyage in question, Kiernan and Reimer stood alternating six hour watches, with Kiernan standing the 6:00 to 12:00 watches in the morning and evening and Reimer standing the 12:00 to 6:00 watches. One deckhand was assigned to each watch. The Captain or Mate of the watch did the steering and navigating. The deckhand performed various chores, such as line handling, general maintenance on board the tug, and, if requested by the Captain or Mate, lookout duties, steering under the Captain's or Mate's supervision, and getting coffee, all of which were well known to Red Star's vice-president of operations.
19. Prior to the voyage in question, the Tug OCEAN PRINCE had operated in southern waters, in Georgia, Florida, Texas and Louisiana for over a year. During December of 1973 and January of 1974, it operated in and about New York but Reimer was on vacation at that time. He rejoined the Tug in New York on February 2, 1974 at the Bushey shipyard in Brooklyn. Kiernan was already on board. Kiernan had never met Reimer before February 2, 1974, but knew that he was regularly assigned to the OCEAN PRINCE. He was not advised and was unaware of Reimer's lack of familiarity with the Hudson River.
20. While the plaintiffs knew that Reimer lacked familiarity with the Hudson when he rejoined the OCEAN PRINCE on February 2, it was assumed that this lack of experience would be discussed between Reimer and Kiernan when they met on the vessel.
21. Red Star's Personnel Department was responsible for designating the Captain of the Vessel. Red Star intended Kiernan would be Captain. Kiernan indicated doubt in his own mind that he was Captain, but he took certain steps which were appropriately done by the Captain. It is the Captain's duty to know the experience and qualifications of the Mate.
22. On Friday, February 1, 1974, Pittston phoned in an order to Red Star, advising that it would need a tug to tow its Barge NEW LONDON to Kingston, New York sometime during the weekend. The order was entered on a job order card, which was given to the tug dispatcher's office. In response to Pittston's order, the dispatcher, Philip Keenan, decided to assign the Tug OCEAN PRINCE to do the job, and did so at 1800 hours on February 2nd. Keenan did not discuss with Kiernan or Reimer who was to be Captain and who the Mate.
*912 23. Keenan was aware of the make-up of the pilothouse crew on the OCEAN PRINCE on February 2nd, and had been told by the day dispatcher, Robert Fitch, that Kiernan was Captain and Reimer was Mate. Keenan was aware of Reimer's lack of experience as a navigator on the Hudson. He decided, however, that the OCEAN PRINCE would be suitable for the voyage since Kiernan, who had extensive experience as a tug navigator on the Hudson River, was on board and would be available to assist Reimer if necessary. He also assumed Reimer's lack of experience on the Hudson River would be discussed between Kiernan and Reimer. The dispatcher's decision to assign the OCEAN PRINCE to the NEW LONDON job was in accordance with accepted practice in the tugboat industry of dispatching a tug to an area one of the navigators had not navigated before so long as the other navigator on board has experience in the area.
24. From the Bushey shipyard the OCEAN PRINCE, with Kiernan on watch, proceeded to Esso dock in Bayonne, New Jersey, and made up to the loaded Barge NEW LONDON. Reimer, who was off-watch, nevertheless assisted the deckhands in making up the tow, and then went below when the Tug and Barge left on the voyage to Kingston, New York.
25. The NEW LONDON was taken in tow forward of the OCEAN PRINCE in push-tow fashion with the bow of the Tug snuggly secured in the Barge's stern notch with steel cables and several parts of synthetic lines. The overall length of both Vessels was about 385 feet, with steering and propulsion being supplied by the Tug. Both Vessels had a combined gross tonnage of 1,863. The Barge had a draft of about 12 feet. In its loaded condition, the Barge had only two feet freeboard and the view ahead from the Tug's pilothouse was unobstructed.
26. John Kiernan was in charge of the navigation during the first leg of the voyage which commenced at 1915 hours. At 2330 hours, Mate Walter Reimer came to the pilothouse of the Tug and relieved Captain Kiernan of the watch. Kiernan remained with Reimer for about 15 minutes, and then retired without any discussion of navigation on the river. The Tug and her Tow were approaching Haverstraw, New York at the time. The Tug, with Reimer now in charge of navigation, continued the trip northbound past Peekskill, New York and through Bear Mountain Bridge. At about this time, Reimer sent his deckhand to the galley to get coffee, leaving Reimer alone in the wheelhouse.
Reimer did not ask Kiernan to stand the watch with him, although Kiernan would have if asked. This is customary practice aboard towboats. At all relevant times the tide was ebbing, there was ice in the river, and visibility was two miles with snow flurries. The Tug was making good a speed of about 6 knots over the bottom (the Vessels were proceeding against the current). At this time the Tug's radar was operating and in use. A navigation chart for the area was open and in use. Reimer was able to see both shorelines of the river to port and starboard and was also able to see over the full length of the Barge and a safe distance ahead. He was using his radar from time to time to confirm his visual sightings and to locate aids to navigation and other points of reference ahead. At all times the Tug's radar, steering system and engine controls were operating properly.
27. Reimer had not attended any navigation school and never had any formal training in the use of the radar, but was familiar with its operation.
28. The river north of the Bear Mountain Bridge is bounded on both sides by mountains. There was ice flowing on the river with heavy accumulations along parts of the shorelines.
Dead ahead of the Bear Mountain Bridge, west of the navigable channel, approximately one and three-quarter miles north of the Bridge is an obstruction consisting of a pinnacle rock or rocky area, the apex of which is 7 feet below the mean low water line and not visible to vessels in navigation. It is located east of a wide shoal area along the west shore which also is not visible from *913 the surface. The rock obstruction and shoal area west of it projects almost 400 yards into the river from its westerly shore.
About 600 to 800 yards north of the rock is lighted beacon # 27 located on the easterly shore of Con Hook Island. The light is 46 feet above the water according to the Light List and is visible to a tug from the town of Manitou about 1.3 miles south.
The River is 800 yards wide off Mystery Point, and narrows to 450 yards off Con Hook Island. The channel east of the rock described above, which is located between Mystery Point and Con Hook Island, is about 500 yards wide. The river depth in this area varies between 35 feet and 127 feet.
29. The rock presents a dangerous hazard and obstruction to navigators in the Hudson River, apparent on the chart and well known to mariners familiar with the waters and to the Coast Guard.
30. The obstruction is marked by the "25" lighted buoy, which was established and is maintained and operated by the Coast Guard for the purpose of marking the rocky obstruction near the channel. The buoy also marks the westerly extreme of the navigable channel and a bend in the river. The "25" light buoy is replaced by the Coast Guard annually in December at the commencement of the ice season by an unlighted, second class black can buoy. The can buoy was in use on February 3, 1974. This change is noted in the Light List.
31. Reimer knew of the existence of the buoy on the chart and the obstruction it designated.
32. As the Tug and her Tow passed abeam Mystery Point, Reimer did not locate the "25" can buoy either visually or on the radar. Because the said buoy marks a dangerous obstruction as well as a bend in the channel, Reimer reduced engine speed, turned on the Tug's powerful spotlight to illuminate the area ahead, and continued to search for the buoy visually and by radar.
33. Shortly afterwards, at about 0130 on February 3, 1974, the Barge struck the rock on its port bow resulting in damage to the Barge's forepeak and # 1 and 2 port side cargo compartments. After impact, Reimer sighted the buoy to the starboard partially visible in the ice near the Vessel's wake. He assumed that the Barge and the Tug in making the turn to starboard after the incident had freed the buoy from the ice.
34. The buoy was obscured by ice and was not seen by Reimer as the Tug and Tow approached it. The ice flow and ice accumulation along the shorelines including north of Mystery Point on the easterly shore partially obscured the image of the shoreline both to the eye and on radar.
35. Immediately after the casualty Kiernan was summoned and return to the pilothouse. He saw the lighted tower of Con Hook Island ahead and the "25" black can buoy about 50-75 feet off the starboard beam of the Tug. The Vessels were still on a northerly heading at the time. After turning around, the lights on the Bear Mountain Bridge about 2 miles south of the Tug's position were also visible. Kiernan brought the Tug and Barge to the Day Line Pier south of the casualty site where they remained until the NEW LONDON was partially lightened into another barge later in the day.
36. The grounding of the Barge NEW LONDON resulted, in part, from Reimer's lack of knowledge of local landmarks and experience on the Hudson River.
37. Reimer did not examine the Light List or the Coast Pilot very carefully because he was unfamiliar with the warning therein not to rely solely on buoys and the warning that ice covers the buoys in this area during the winter.
38. Reimer failed to post a lookout when conditions were such that same was required.
39. A navigator who is about to enter strange waters should familiarize himself with the applicable charts, the Light List and the Coast Pilot.
40. The Light List contains a number of warnings to the navigator including the following:
*914 "It is imprudent for a navigator to rely on floating aids to navigation to always maintain their charted position and to constantly and unerringly display their advertised characteristics. The obstacles to perfect performance are of such magnitude that complete reliability is manifestly impossible to achieve. Buoys are liable to be carried away, shifted, capsized, or sunk as the result of storms, ice conditions, collisions, or other accidents.
* * * * * *
"All buoys should, therefore, be regarded as warnings or guides and not as infallible navigation marks; especially those located in exposed positions. Whenever possible, a ship should be navigated by bearings or angles on fixed objects on shore and by soundings rather by reliance on buoys."
41. The Light List also states that the lighted buoy "25" (Aid, No. 1874) is "replaced by an unlighted can from Dec. 15 to April 1." It also shows that the fixed light No. 27 on Con Hook Island is on a black skeleton tower, the top of which is 46 feet above water.
42. With respect to the ice on the Hudson, the Coast Pilot states:
"The ice season usually starts in early January and ends in mid-March. Normally shipping is affected most seriously in the Hudson River between Tappan Zee and Albany. In addition to the problem of getting through the ice, aids to navigation are covered or dragged off station by moving ice. Buoys are removed from the Hudson River during the ice season then reset in late March when the ice clears. However, the river is well marked by lights along the shore." (p. 235).
43. The rock obstruction marked by the "25" can buoy is located in an area which is susceptible to ice accumulation on the ebb tide because an "eddy" is created south of Con Hook Island which results in ice buildup. On the ebb tide, ice accumulation north of Mystery Point on the east shore, directly across the channel from the rock, also occurs. These conditions are known to the Coast Guard and, on occasion, result in the obscuring of the buoy on the west and a distortion of the shoreline on the east.
44. With respect to Con Hook Island, the Coast Pilot makes the following observation:
"A rock, with a depth of 7 feet over it and marked by a lighted buoy, is about 0.3 mile southward of Con Hook. When descending the river, particularly with a fair current, there is a tendency to set toward the rock; caution is advised."
45. At no time prior to the grounding did Mate Reimer see the flashing light on Con Hook Island, north of the can buoy "25".
46. The proximate and predominate causes of the grounding were errors in navigation. These errors in turn were the result of an error in management, whereby a navigator inexperienced with the waters was given no assistance from an experienced navigator then on board in traversing a portion of the river that was dangerous under the circumstances then existing.
47. With proper use of radar, Reimer could have gotten a radar range from the Bear Mountain Bridge with reasonable accuracy. With a radar range off Bear Mountain Bridge and a visual bearing on Con Hook Light it would have been possible to construct a danger bearing to keep the Vessel off the rock. However, since the Tug, as most tugs, was not equipped with a gyro repeater or a pelorus it was difficult to take accurate visual bearings.
48. The obscuring of the buoy by ice contributed to the grounding in that if the buoy had been visible it would have indicated to Reimer he was off course and to the west of the channel.
49. The casualty involving the NEW LONDON was the third grounding at the same location involving similar circumstances during the prior 20 years. One year before the grounding of the NEW LONDON, on February 26, 1973, the loaded gasoline Barge GEORGE T. TILTON, while being push-towed by the Tug BART TURECAMO, struck the rock marked by the "25" black can buoy, causing damage to the *915 Barge and pollution. Coast Guard records show the buoy was reported to be under the ice at the time of the grounding.
50. In January, 1969, the Coast Guard Cutter SASSAFRASS went aground on the same rock due to a navigational error with the buoy in plain view.
51. In December, 1963, the Coast Guard Cutter SAUK went aground at the same location. In this case, it was reported to the Coast Guard that the can buoy in question was under the ice. In investigating the incident, the Coast Guard learned that several other casualties at the same rock preceded the SAUK grounding, although those incidents occurred in the 1920's and 1930's and the conditions existing therein were not developed.
52. Similarly, in January, 1976, the Barge ROBERT L. POLING, while in tow of the Tug JOAN MORAN went aground on the same rock. Coast Guard records show that the buoy was reported to be almost completely submerged under the ice at the time of the grounding.
53. During the following winter a major oil spill occurred at the same location, but the facts of that incident were not developed at trial.
54. The can buoy is the best practical floating aid for the site, available under present technology. A fixed tower on the rock, the base of which would be in 7 feet of water, would be damaged or destroyed by ice.
55. In light of the difficulty in keeping this floating aid to navigation visible during the winter season, there were available other navigational aids which could have been established on land which would better aid the mariner in staying in the channel.
56. The Coast Guard has not established any ranges or lights on the eastern shore in the immediate area approaching can buoy "25".
57. The Government publication of Waterborne Commerce of the United States shows the following with respect to the number of trips passing the Con Hook area:
Vessels and tug and barge flotillas travelling between Upper Bay, New York Harbor and Waterford, New York
Up Bound Down Bound
1971 70,586 73,081
1972 57,779 59,378
1973 61,741 62,468
1974 55,578 55,306
_______ _______
Total 4 years 245,684 250,233
Of these, 118,435 were up bound tug and barge flotillas and 166,133 were down bound tug and barge flotillas with drafts of 18 feet or less.
58. As a result of the NEW LONDON striking the rock, oil leaked from the Barge into the river. Notice of violation was given to Pittston on August 27, 1974; written response was submitted by Pittston and a hearing was held on September 26th; thereafter a civil penalty of $5,000.00 was assessed and notice of Pittston's right to appeal the penalty was given to Pittston. Pittston appealed the assessed penalty. The Commandant of the Coast Guard denied the appeal.
OPINION
To summarize the major events giving rise to this litigation, on February 3, 1973, the barge New London, loaded with oil and in the tow of the Tug Ocean Prince, ran aground on a submerged rock formation in the Hudson River. The buoy, placed by the Coast Guard to mark the obstruction, was apparently obscured by ice. The impact caused the New London to leak oil, fouling the river. The Government undertook the cleanup operation. This sequence of events raises some difficult questions of maritime liability and novel issues of interpretation of the Water Quality Improvement Act of 1970.[1]
Tug Ocean Prince, Inc., as owner, and Red Star Towing & Transportation Company, as charterer of the Tug Ocean Prince, *916 seek exoneration from liability on the ground that the accident was caused by the Government's failure to maintain adequate aids to navigation. (They are referred to hereafter simply as "Plaintiffs"). Alternatively, they seek to have their liability limited to the value of the tug, claiming that the grounding resulted from a cause outside their privity and knowledge. Claimant Pittston seeks to recover the value of all the oil lost from its barge either from the plaintiffs or from the Government. The Government seeks the substantial costs of the oil pollution cleanup from the other parties and a civil penalty from Pittston. Pittston, in turn, seeks indemnity from the plaintiffs for any liability it may have to the Government because of the oil spill.
The trial was bifurcated and issues concerning damages reserved for later consideration. The liability issues will be considered separately.
Plaintiffs' Claim for Exoneration or Limitation of Liability
The grounding of the barge New London was caused by a grave error in navigation by the Mate, Reimer. Unfamiliar with the locale, deceived by ice build-up along the shore, he allowed the tow to stray to the west of the channel while he concentrated on attempting to locate a buoy which had apparently become obscured by drifting ice floes. His concentration on locating the buoy was ill advised in light of the fact, clearly set forth in the Coast Pilot, that buoys in this area (the Hudson River between Tappan Zee and Albany) get covered and moved off station at that time of year by moving ice. Even without the warning in the Coast Pilot, a mariner familiar with the river would not have relied on the buoy at this time of year under the existing conditions.
While the plaintiffs contend that the inability to locate the buoy was the proximate cause of the grounding, it is clear that the errors of navigation were the proximate cause. The obscured buoy was merely a "but for" factor which, had it been visible, might have corrected the navigational errors. It cannot be said, therefore, that inability to use the aid to navigation was the proximate cause of the incident. American Smelting & Refining Co. v. S. S. Irish Spruce, 548 F.2d 56 (2d Cir. 1977). Because the accident was not inevitable, but was instead due to negligence, plaintiffs are not entitled to exoneration from liability. The Grace Girdler, 74 U.S. 196, (7 Wall.) 441, 18 L. Ed. 790 (1868); The Jumna, 149 F. 171 (2d Cir. 1906). Whether the plaintiffs are entitled to indemnity from the Government under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52, because of its failure to provide a more reliable aid to navigation, will be considered subsequently.
Having concluded that plaintiffs are not entitled to exoneration from liability, we turn to the related question of whether plaintiffs are nevertheless entitled to limit their liability pursuant to the Limitation of Liability Act, 46 U.S.C. § 183 et seq.
The operation of tug boats differs in several material respects from that of ocean going vessels. Because tugs are kept in operation so steadily and the watch standers work such long hours (twelve a day) it is necessary to have two complete sets of crews, changing every two weeks, as well as alternates for vacation periods. The crew ordinarily includes two watchstanders, a Captain and a Mate, who alternate six hour watches. While on watch they usually not only command and navigate the tug but also serve as helmsmen "steering" the vessel. Necessarily this limits the amount of instrument navigation and plotting of position possible. For this reason such tugs are not usually equipped with gyro repeaters or peloruses for taking positions. Navigation is done by sight of eye, piloting from known landmarks and aids to navigation. Consequently, intimate familiarity with the waters and hazards is far more important than in ocean navigation. An unfamiliar helmsman requires assistance from an experienced one. It is the responsibility of the Captain to see that the inexperienced navigator (who could be himself) gets such assistance. This responsibility, along with certain administrative chores, is one of the *917 few distinguishing factors between the duties of a Captain and those of a Mate.
Plaintiffs appreciated this factor in assigning a crew to the Ocean Prince, but an unfortunate set of circumstances created unforeseen confusion relating to which of the watchstanders was to assume the position of Captain. Much of the uncertainty stemmed from the fact that Reimer, one of the watchstanders on the night in question, had been a regular pilothouse watch stander aboard the Ocean Prince. He had served as both Mate and Captain when the vessel was stationed in the South. After Reimer had left for an extended vacation, the vessel was brought to New York. Reimer had no experience in piloting the Hudson.
The day before Reimer returned to the Ocean Prince, the Mate then aboard took leave. Needing an experienced man, plaintiffs called upon an associated company to supply a suitable person. It sent John Kiernan, a tugboat captain with 30 years experience on the Hudson River. When Kiernan came aboard on February 1, 1974, the preceding Captain was still there, so Kiernan started as Mate. The next day Reimer rejoined the vessel and the Captain left. Kiernan knew that Reimer was a full-time employee of plaintiff, regularly assigned to the vessel, and qualified to act as its Captain. He did not know that Reimer had not been aboard the vessel during the couple of months it had been operating on the Hudson or that he had never navigated the Hudson on any vessel.
The vessel commenced the voyage in question shortly after Reimer came on board and, during the half day preceding the grounding, the two had only two brief discussions. Kiernan contends that, since he was only a replacement, and it was Reimer's regular vessel, he believed Reimer was the Captain. Kiernan, however, occupied the Captain's cabin, stood the watch traditionally taken by the Captain and performed certain administrative tasks which were the Captain's responsibility. (Kiernan maintains that he was forced to assume these tasks after the grounding due to Reimer's extremely upset emotional state.) While Kiernan vaguely claims he alerted Reimer when the watch changed to the general navigational situation ahead, his testimony in this regard was not credible, particularly in light of his professed lack of knowledge of Reimer's unfamiliarity with the river.
It remains a mystery why Reimer did not seek assistance as navigation became progressively more difficult due to the treacherous river conditions. (The issue could not be explored because Reimer, who is no longer in plaintiffs' employ, was beyond the subpoena power of the court and did not testify at trial.) His evidence was offered through two lengthy depositions, but in neither of these did any of the counsel explore his motivation in proceeding alone at night up a strong ice-choked river, while aware that he was not picking up the next aid to navigation along the route. One possible answer lies in his having sent his deckhand down to the galley to make coffee prior to the grounding. (He returned, apparently just about the moment of the grounding.) Had the deckhand been available, he could have taken the wheel while a radar range was taken, or been sent forward as a lookout, or, as the best course, been sent to get Kiernan out of his bunk. Had Kiernan been brought to the wheel house, it is very likely he would have quickly detected that they were to the west of the channel and that the buoy was obscured by drifting ice. The question remains whether Reimer's error in judgment is attributable to plaintiff. If so, it is a factor within plaintiff's "privity or knowledge" and a ground for denying limitation of liability under the Limitation of Liability Act, 46 U.S.C. § 183 et seq.
Limitation of Liability
The claimant and the Government maintain that limitation should be denied because Reimer's inexperience rendered the vessel unseaworthy. They contend that plaintiff's failure to post a lookout violated Title 33 U.S.C. § 221. They also claim that plaintiffs had failed to provide proper charts aboard the tug. These contentions will be discussed in order.
*918 The burden is clearly upon plaintiffs, in a proceeding under Title 46 U.S.C. § 183, to establish their own lack of privity or knowledge in order to limit their liability. Coryell v. Phipps, 317 U.S. 406, 63 S. Ct. 291, 87 L. Ed. 363 (1943). In Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, 52 S. Ct. 450, 76 L. Ed. 903 (1932), the Supreme Court, while denying limitation in that case, nevertheless distinguished situations in which an "emergency must be met by the master alone. In these there is no opportunity of consultation or cooperation or of bringing the proposed action of the master to the owner's knowledge. The latter must rely upon the master's obeying rules and using reasonable judgment." Id. at 511-12, 52 S.Ct. at 453. Plaintiffs claim that the collision at issue here presented just such an emergency and contend that it is questionable whether there were any preventative measures which could have been taken to avoid the accident.
Claimants and the Government maintain that Reimer's general unfamiliarity with the Hudson, rather than a specific error of navigational judgment, was the direct cause of the accident. Following this line of argument, they contend that his inexperience created a condition of unseaworthiness which was within the privity and knowledge of plaintiffs. While this view finds support in a nineteenth century case, The Lady Pike, 88 U.S. 1, 21 Wall. 1, 22 L. Ed. 499 (1874), modern authority has rejected it. In The Temple Bar, 137 F.2d 293 (4th Cir. 1943) the court stated:
"[T]he decision [The Lady Pike] cannot be accepted as authority for the broad proposition that it is negligent to put a master in charge of a ship, whatever the voyage, unless he is familiar with all the local conditions he may be expected to encounter. If, as in the case at bar, a master, qualified in other respects, is placed in command, and if he is supplied with charts and publications sufficient to enable a competent man safely to navigate the ship, it is not necessary that he should have prior knowledge of local conditions; and lack of it will not cause the ship to be unseaworthy."
Id. at 297.
It is clear that the court did not base its finding of the Master's competence on his familiarity with the assigned route. The court required, instead, that the Master be qualified in other respects (not specified) and that owner stock the ship with relevant charts and navigational publications.
Plaintiffs maintain that they have fulfilled these conditions. Reimer is a licensed tug captain with several years' experience in tugboats. He had available charts and publications which clearly designated the location of the submerged rocks. Moreover, he was clearly aware of the hazard because he had been searching for the can buoy for a substantial period prior to the grounding. A failure to perceive the hazard might have been indicative of generalized incompetence which would have created an unseaworthy condition. An inadequate response to a known danger presents an error in navigational judgment and, as such, falls outside the owner's privity and knowledge. As stated by a definitive treatise in the field:
"The navigation of the vessel is under the absolute control of her master ... and no case has been found where a shipowner, individual or corporate, has been denied limitation because of a liability arising out of an error of management or of navigation on a voyage committed by an employee whom the owner was warranted in believing to be competent with knowledge of his duties."
3 Benedict on Admiralty § 42 at 5-25 (6th ed. 1975).
Defendant also argues that plaintiffs failed to provide proper charts aboard the tug. Reimer denied this assertion in his depositions and claimed that he had referred to both a chart of the Hudson which designated the location of the rock and the Coastal Pilot and Light List. The Coastal Pilot and Light List state that during the winter, can buoys become submerged in the ice and cannot be seen. It appears that Reimer was not aware of this condition. But this was due to his own negligence in *919 not referring to the manual, rather than the owner's negligence in not providing it. Since the materials were on board, it is clear that the owner's duty was satisfied. The question is whether the equipment on board was "reasonably fit under the circumstances":
"Neither the absence of an additional watch officer nor the location of the rudder angle indicator involved negligence or rendered the vessel unseaworthy. Although the presence of an additional officer or the relocation of the indicator might have reduced the possibility of collision, that is not the standard by which we are to determine whether Farrell [the owner] is entitled to limitation. Rather, we must ask whether the procedures and equipment utilized rendered the vessel reasonably fit under the circumstances. ... the vessel as equipped was reasonably capable of performing the intended mission if properly operated. The accident resulted from lack of care and failure to exercise proper procedures by those on the bridge. For this Farrell is liable, but it is also entitled to limit." (emphasis added; footnote omitted.)
Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976) at 12-13. See also United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir. 1967).
Defendants also contend that there existed a violation of Title 33 U.S.C. § 221 which provides in pertinent part:
"Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of ... any neglect to keep a proper lookout ...."
Mate Reimer was alone in the wheelhouse at the time of the casualty since he had sent the deckhand, Hebert, below to make coffee.
The parties appear to have assumed, with some support from precedent (see Dwyer Oil Transport Co. v. The Edna M. Matton, 255 F.2d 380 (2d Cir. 1958); The Supply No. 4 (The Dalzellea), 109 F.2d 101 (2d Cir. 1940)) that there is no compliance with the statute where a tug master simultaneously serves as a lookout. It seems somewhat unreasonable to require a small vessel running in uncongested waters to maintain both a pilot and a lookout at all times. In fact, one court in a case involving a tugboat stated that the rule requiring a separate lookout was limited to large vessels. In other instances, a court should weigh "the size of the vessel and the opportunity of the navigator to have a full view of the sea." Anthony v. International Paper Co., 289 F.2d 574, 580 (4th Cir. 1961). It is unclear whether the law of this Circuit requires a tug to have a lookout at all times or only when conditions of navigation require it. Poling Russell, Inc. v. United States, 196 F.2d 939 (2d Cir. 1952).
Assuming, arguendo, that the law of this Circuit requires the posting of a separate lookout on a tug at all times, a violation would then be established and the Pennsylvania rule, 86 U.S. 125, 19 Wall. 125, 22 L. Ed. 148 (1874) would come into play with the effect that the owner must prove that the violation could not have contributed to the casualty in any way. See Ira S. Bushey & Sons v. United States, 172 F.2d 447 (2d Cir. 1949). This is not, however, an unbearable burden. Dwyer Oil Transport Co. v. The Edna M. Matton, supra at 382; National Bulk Carrier v. United States, 183 F.2d 405 (2d Cir.), cert. denied, 340 U.S. 865, 71 S. Ct. 89, 95 L. Ed. 631 (1950).
There was no proof whatever that a lookout forward could have observed the ice stranded buoy. The buoy, according to the evidence, was not visible until freed from the ice by the wake of the passing tug. Indeed, as indicated earlier, had the deckhand been in the wheelhouse, he would have been more useful taking the wheel and freeing Reimer to either take navigational fixes or call Kiernan, the experienced pilot. Therefore, the failure to post a lookout cannot be said to have contributed to the collision.
Finally, we have the question concerning the plaintiffs' responsibility for the alleged confusion as to who was to be the Captain of the vessel. Kiernan testified *920 that had he known he was the Captain, he would have assured himself that Reimer was familiar with the river before allowing him to take the wheel under the conditions. Again, errors in management aboard the vessel may not be imputed to the owners so as to deny limitation. South Carolina Highway Dep't v. Jacksonville Shipyards, Inc., 1976 A.M.C. 456 (S.D.Ga.1975); see also New York Marine No. 10, (The C. F. Coughlin), 109 F.2d 564, 565 (2d Cir. 1940); Petition of Tracy, 194 F.2d 362, 363 (2d Cir. 1952).
It is argued that the failure to make the chain of command apparent prior to departure was an error by the managing officers of the corporation and, consequently, within the owner's privity and knowledge. Craig v. Continental Ins. Co., 141 U.S. 638, 12 S. Ct. 97, 35 L. Ed. 886 (1891). But without regard to whether he acted in the capacity of Captain or Mate, Reimer was well aware that he was unprepared to navigate under the difficult conditions which were rapidly developing. Kiernan was quite emphatic that he was willing to render assistance to Reimer whether he was Captain or Mate. Therefore, it was Reimer's failure to seek assistance, more than Kiernan's failure to offer it, that caused the accident. Reimer's failure in this regard is similar to the neglect of an otherwise competent officer to consult available charts and aids to navigation an event which is not an unseaworthy condition for which the owner is responsible. California and Hawaiian Sugar Co. v. Columbia S. S. Co., 391 F. Supp. 894 (E.D.La.1972), aff'd, 510 F.2d 542 (5th Cir. 1975). Plaintiffs are, therefore, entitled to limit their liability.
Governmental Responsibility for the Grounding
We turn now to the plaintiff's contention that the Government's negligence in maintaining the aids to navigation in the area of the grounding was a factor in the grounding and, therefore, the Government should be found liable for negligence under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52.
In Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955), the Supreme Court recognized that liability under the Federal Tort Claims Act extended to the Coast Guard's failure to adequately maintain a lighthouse. Contrasting nonfeasance and misfeasance, the Court held that, while the Coast Guard had no obligation to supply lighthouse services, once it exercised its discretion by electing to do so, it must use due care. Consequently, the Coast Guard was under a duty to maintain the equipment and to warn mariners in the event the lighthouse became inoperative.
Indian Towing was applied to the placement and maintenance of buoys by this court in Afran Transport Co. v. United States, 309 F. Supp. 650 (S.D.N.Y.1969), aff'd, 435 F.2d 213 (2d Cir. 1970), cert. denied, 404 U.S. 872, 92 S. Ct. 72, 30 L. Ed. 2d 116 (1971). In that case, damages were sought following the grounding of an oil tanker on a reef caused by a marker buoy having drifted out of position. Again, while the decision to erect a navigational aid lay within the Coast Guard's discretion, having acted, the Coast Guard was required to act with due care.
Thus Indian Towing imposes a dual responsibility upon the Coast Guard, once it has decided to locate an aid to navigation in a waterway. First, the Coast Guard must use due care to see that the aid is properly maintained and operated. Secondly, should an aid become inoperative the Coast Guard has an additional duty to warn mariners of the absence of the expected aid. Merely warning mariners of a perilous condition, as a rule, will not absolve the Coast Guard of the duty to correct a dangerous condition, but adequate warnings may absolve them from a particular liability. Compare Greer v. United States, 505 F.2d 90 (5th Cir. 1974) with De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971).
In the instant case, the Coast Guard was confronted with submerged rocks at the periphery of the Hudson River channel relatively close to another aid to navigation *921 (Con Hook Light). This area had a good safety record during most of the year while the lighted aid was in use. At the time of the Ocean Prince grounding, the buoy was in position, although obscured by ice. Applying Indian Towing to these facts, the Coast Guard had the duty to maintain the buoy or to warn of any interruption of service. The evidence demonstrates that the Coast Guard, in the Coast Pilot, warned mariners of the possibility of ice obstructing buoys in this particular span of waterway and, additionally, the "Notice to Mariners" for the week of the accident made particular mention of the problem of ice covered buoys in that area. Absent a showing that the Coast Guard had notice of ice covering this particular buoy during the day in question (and could have repaired it), the Court is not persuaded that the Coast Guard was negligent in its servicing of the buoy.
The Coast Guard had determined (and the evidence supported its conclusion) that during the winter months a can buoy was the most effective floating aid to navigation available. The large, lighted buoy not only was more vulnerable to flow ice, but was also subject to the added danger that the light would be broken, thereby extinguishing the expected aid. The plaintiff does not strenuously challenge this but argues, instead, that the problems of maintaining the buoy ice free and the dangers of the location, warranted the installation of different forms of aids to navigation, either constructed on man-made islands or shorebased range lights.
In considering the dangers of the location, some evidence was admitted concerning accidents at the site during the prior thirty years, as well as two groundings (one of which resulted in a severe ecological disaster) occurring in the following couple of years.
Courts have generally recognized that evidence of a prior similar accident has some tendency to establish a dangerous or defective condition at the place in question. Hayes v. Lane Construction Corp., 260 F.2d 279 (2d Cir. 1958) (applying New York law); Balchunas v. Palmer, 151 F.2d 842 (2d Cir. 1945) (applying Conn. law). Such evidence draws its relevance from the principle that similar causes can be expected to produce similar effects, so that admissibility hinges upon a demonstration that the conditions had been substantially similar on all occasions. Hayes, supra; Balchunas, supra; Knight v. Baltimore & Ohio R.R. Co., 8 F.R.D. 261 (S.D.N.Y.1948).
Judge Weinstein, in his treatise on evidence, does not distinguish between prior and subsequent accidents, but states generally that
"[e]vidence of other accidents in the same place or involving the same machinery or instrumentality is generally admissible, not because it shows that defendant has a general tendency to be negligent, but because it tends to prove either (1) the existence of a dangerous or defective condition where this is in issue or (2) that defendant knew or should have known of the dangerous or defective condition.
"The requisite similarity of accidents depends on what the evidence is designed to prove:
`If the proof of other accidents is offered to establish the dangerous condition, logic would require similarity of hazard. But if offered to prove notice of danger, the requisite is the warning quality of the other accident. Thus evidence of a previous accident at the place, unknown to the owner defendant, would be irrelevant to prove notice of the danger, but it may be relevant to prove the dangerous condition of the place. Likewise, evidence that is unnecessary to prove dangerous condition may be logically relevant to prove the notice of the hazard. Of course as the circumstances of other accidents are more similar to the one in question, the probative value of such evidence for either or both purposes is likely to be greater.'" 2 J. Weinstein & M. Berger, Weinstein's Evidence § 404[11] at 404-76 (1976), citing, Trautman, "Logical or Legal Relevancy A Conflict in Theory," 5 Vand.L.Rev. 385, 402 (1952).
*922 While the subsequent disasters have emphasized the navigational hazard in this area, we must evaluate the reasonableness of the Coast Guard's decisions on the basis of facts available at the time of the grounding. Prior thereto, and over a period of thirty or so years, despite an extremely heavy volume of traffic, there had only been two groundings under similar circumstances. (One of them, to the mortification of the Coast Guard, involved the Cutter Sauk in 1963. Another cutter, in completely dissimilar circumstances, ran aground in 1969 causing the reef to be known locally as "Coast Guard Rock".)
Although, at the time of the accident the location was not considered to have a high priority among Hudson River sites needing additional aids to navigation, some consideration was given to the situation by the Coast Guard's officials. Evidence as to the cost and feasibility of aids to navigation other than a buoy at this location persuades the Court that the Coast Guard used due care in its decision to mark the reef in the winter of 1974 with a black can buoy. The Coast Guard weighed the need for some other aid to navigation against the costs of various fixed lights, constructions on the pinnacle or its demolition. It also considered the ecological problems in establishing shore based aids, the priority needs of other, more dangerous, locations and the funds available.
In the absence of showing that a can buoy was so ineffective that its choice constituted negligence per se, the Coast Guard should not be divested of its executive discretion to choose such aids to navigation as will most effectively and efficiently function within its fixed budgetary limitations. In so concluding, it must be stressed that this evaluation is limited to the history of the hazard in 1974. The Coast Guard's liability for the subsequent groundings, and the wisdom of erecting different types of aids to navigation at this time, are issues not before this Court.
There is a further reason for refusing to find the Coast Guard liable for this accident. Reimer had available for navigational purposes both radar, which could take bearings and ranges on prominent objects (such as Bear Mountain Bridge) and the Con Hook Light, on which a visual bearing could have been taken. Nevertheless, he strayed west of the channel looking for an obscured buoy. The premise that the presence of additional aids might have assisted in correcting his navigational error would be a
"fortuity [having] nothing to do with proximate cause. Liability must rest on causal relationship between the negligent aspect of the conduct and the harm resulting from the conduct."
American Smelting and Refining Co. v. S.S. Irish Spruce, 548 F.2d 56, 60 (2d Cir. 1977).
It cannot be said, therefore, that the negligence, if any, of the Government in not establishing more effective aids to navigation was the proximate cause of the grounding.
The Amount of Plaintiff's Liability Under the Water Quality Improvement Act
The Water Quality Improvement Act of 1970, as amended by the Federal Water Pollution Control Amendments of 1972, was passed by Congress in the wake of two disastrous oil spills: the running aground of the tanker, Torrey Canyon, off the coast of England in 1967 and the Santa Barbara drilling disaster in 1969. The primary purpose of the new legislation was to permit the Government to collect cleanup costs directly from the polluter. To effect this goal, the Act provided, in Section 102(f)(1) of the Water Quality Improvement Act of 1970, later codified at 33 U.S.C.A. § 1321(f)(1) (Supp.1977) that:
"Except where an owner or operator can prove that a discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether any such act or omission was or was not negligent, or any combination of the foregoing clauses, such owner or operator of any vessel from which oil or a hazardous substance is discharged . . . *923 shall ... be liable to the United States Government for the actual costs incurred ... in an amount not to exceed $100 per gross ton of such vessel or $14,000,000, whichever is lesser, except that where the United States can show that such discharge was the result of willful negligence or willful misconduct within the privity and knowledge of the owner, such owner or operator shall be liable to the United States Government for the full amount of such costs." (emphasis added).
In other words, the owner or operator of a vessel which discharges oil can limit its liability, provided the government cannot show willful negligence or misconduct.
The legislative history indicates that conflicting policies resulted in both the limitation amount and the willful negligence standard for breaking the limitation. The Senate bill, as introduced, would have imposed liability only if negligence were shown. The original limitation amount was the lesser of $450 per gross ton or $15 million. The $450 amount was based upon the estimated cleanup cost of one ton of oil. Later evidence indicated that while this figure reflected an accurate, cleanup estimate, it was improbable that any vessel would discharge its entire cargo. The $100 figure was thereafter substituted to approximate actual, anticipated costs. S.Rep.No. 91-351 at 4, 91st Cong., 1st Sess. (1969), 3 E.P.A. Legal Compilation (Water) at 1327.
While the limitation amount appears to reflect actual cleanup costs, this goal is not realized where a third party causes the oil spillage. Section 102(g), 33 U.S.C.A. § 1321(g) (Supp.1977) controls third party liability and provides that subject to the same defenses provided in Section 102(f)(1), a third party which causes an oil spill will be liable instead of the owner or operator of the spilling vessel. This section also contains a limitation of liability, and further distinguishes situations where the third party is the owner or operator of a vessel from other third party situations. Where the third party is an owner or operator of a vessel "the liability of such third party ... shall not exceed $100 per gross ton of such vessel or $14,000,000, whichever is the lesser." (emphasis added). The section goes on to provide that where the third party causing the spillage is not an owner or operator of a vessel, its liability "shall not exceed the limitation which would have been applicable to the owner or operator of the vessel . . . from which the discharge actually occurred." (emphasis added). Clearly this represents a conscious legislative choice to inject traditional admiralty concepts into the limitation calculation by limiting a third party vessel owner's liability with reference to his vessel rather than the vessel which actually spilled the oil. Obviously, once the limitation is calculated with reference to a vessel other than that which spilled the oil, the correlation between vessel gross tonnage and actual cleanup costs is destroyed.
The legislative history indicates that the drafters, in providing the third party defense, envisioned a situation where the third party vessel collides with an oil-carrying vessel. S.Rep.No. 91-351 at 5, 91st Cong., 1st Sess. (1969), 3 E.P.A. Legal Compilation (Water) at 1329. The available legislative materials provide no clue as to whether the drafters ever considered the situation presented where a substantially smaller vessel either collides with or, as presented here, negligently causes the oil spillage. It is inconceivable that Congress was unaware that much of the oil moving on inland waterways is carried by barges and that the tugs pushing them are often owned by third parties. Faced with the clear choice to limit a third party's liability with reference to the gross tonnage of a vessel not spilling the oil, the Court must construe the section in accordance with the clear import of its terms, even if the effect would seem contrary to the general legislative intent. Where statutory language is clear and unequivocal, there is no occasion for the Court to resort to interpretive aids. United States v. Oregon, 366 U.S. 643, 648, 81 S. Ct. 1278, 6 L. Ed. 2d 575 (1961); Arkansas Valley Industries, Inc. v. Freeman, 415 F.2d 713, 717 (8th Cir. 1969).
*924 In the face of unequivocal statutory language and the absence of conflicting legislative history, the Government nevertheless contends that the "flotilla rule" should apply. Application of this rule would result in the calculation of the limitation amount by reference to the combined gross tonnage of the tug and the barge. While no authority has been submitted concerning the application of the rule in the statutory context presented here, it has been applied in traditional admiralty petitions for exoneration or limitation of liability. The Supreme Court in Sacramento Nav. Co. v. Salz, 273 U.S. 326, 47 S. Ct. 368, 71 L. Ed. 663 (1927) required surrender not only of a barge but also of the steamboat towing the barge in an action by the owners of the barge's cargo. In a later case, Standard Dredging Co. v. Kristiansen, 67 F.2d 548, 550 (2d Cir. 1933), the Second Circuit interpreted the flotilla rule to permit recognition of a tug and barge as a single vessel where they are "owned in common and engaged in a common enterprise." Thus, the rule which emerged, as the Government concedes, is that where there exists a contractual or other obligation running from the petitioner for limitation to the claimant and a flotilla of commonly owned vessels was used to fulfill the obligation, the flotilla is regarded as one vessel for calculating the limitation fund.
The Tug Ocean Prince and the barge were not owned by the same entity nor is there any vestige of a contractual relationship running between the owners of either of these two vessels and the Government. Consequently, the flotilla rule, as traditionally stated, would be inapplicable to the facts of this case. The Government, conceding this much, would have this Court break new ground, and apply a mutation of the rule to flesh out the terms of the statute. As the discussion of the language and history of the statute indicates, the provision limiting the liability of third party vessel owners to the value of their vessel is unambiguous. The Court cannot substitute its notions of proper legislative goals for those adopted by Congress. Arkansas Valley Industries, Inc. v. Freeman, supra.
The Amount of the Penalty To be Assessed Against Pittston
The penalty provision added by the Federal Water Pollution Control Act Amendments of 1972, codified at 33 U.S.C. § 1321(b)(6) (Supp.1977) reads in pertinent part:
"Any owner or operator of any vessel ... from which oil ... is discharged ... shall be assessed a civil penalty ... of not more than $5000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. ..."
A civil penalty in the amount of $5,000 was assessed against Pittston after a hearing before a Coast Guard hearing examiner. Pittston had refused to pay the penalty on the authority of the federal district court holding in United States v. LeBeouf Bros. Towing Co., 377 F. Supp. 558 (E.D.La.1974). The lower court had held that the penalty provided by 33 U.S.C.A. § 1321(b)(6) (Supp. 1977) was criminal in nature and could not be imposed except in a criminal proceeding which afforded adequate protections for Fifth and Sixth amendment rights. This holding was thereafter reversed on appeal, 537 F.2d 149 (5th Cir. 1976) and a petition for certiorari has been denied, 430 U.S. 987, 97 S. Ct. 1688, 52 L. Ed. 2d 383 (1977). With the exception of this single, lower court holding, courts appear to be unanimous in finding the penalty civil. United States v. General Motors Corp., 403 F. Supp. 1151 (D.Conn.1975); United States v. Eureka Pipeline Co., 401 F. Supp. 934 (N.D.W.Va. 1975); United States v. Independent Bulk Transport, Inc., 394 F. Supp. 1319 (S.D.N.Y. 1975); United States v. W. B. Enterprises, Inc., 378 F. Supp. 420 (S.D.N.Y.1974).
The penalty provision at issue holds the owner or operator of a vessel strictly liable for the penalty, following a hearing at which normal due process safeguards are extended. Section 1321(b)(6) provides that "[i]n determining the amount of the penalty *925 ... the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator's ability to continue in business, and the gravity of the violation, shall be considered ...."
The Coast Guard has stated its interpretation of these standards in "Coast Guard Policy for the Application of Civil Penalties Under Section 311(b)(6), FWPCA," which was printed as an appendix to the lower court decision in United States v. LeBeouf Bros. Towing Co., supra, at 569-70. While the statute does not explicitly include the degree of the actor's culpability as a factor in assessing the amount of the fine, the Coast Guard policy statement emphasizes that "[a] number of considerations may be made in determining the gravity of a violation, such as the degree of culpability associated with the violation, the prior record of the responsible party, and the amount of oil discharged. Substantial intentional discharges should result in severe penalties, as should cases of gross negligence, and so on. This is not to suggest that other considerations may not combine to determine the gravity of a violation." Id. at 569 (emphasis added).
In this context, it is valuable to note that while the 1972 amendments make no reference to culpability as a prerequisite for a substantial fine,[2] the predecessor of this penalty did. Section 11(b) of the Water Quality Improvement Act of 1970, Pub. L.No. 91-224, previously codified at 33 U.S.C. § 1161(b)(5), provided for a maximum fine of $10,000 for "knowing" discharges. The 1966 amendments to the Oil Pollution Act of 1924 created liability when a discharge resulted from a "grossly negligent or willful act." Note, Liability for Oil Pollution Cleanup and the Water Quality Improvement Act of 1970, 55 Cornell L.Rev. 973 (1970).
Thus, while the section does not expressly require culpable behavior, prior legislation and the Coast Guard interpretive standards for implementing the penalty all make reference to some element of negligent or knowing conduct prior to the imposition of a substantial penalty. The Government contends that the maximum fine should be assessed against Pittston on the sole basis of the "gravity of the violation," without any consideration of the degree of Pittston's culpability. The Government further argues that, while third party causation does not provide a defense to imposition of the penalty, it does provide a basis for indemnity.
The only case disclosed by our research where the third party's responsibility is discussed is United States v. General Motors Corp., 403 F. Supp. 1151 (D.Conn.1975). In that case, vandals opened the valves of several of defendant's oil storage tanks causing oil to flow into a nearby river. In an extended analysis of the history and purpose of the penalty, Judge Clarie found that while third party causation did not constitute a defense, defendant's lack of culpability would require reduction of the penalty to the nominal sum of one dollar.[3]
Of course, the present case differs from General Motors in that the purportedly culpable party, The Tug Ocean Prince, is before the Court. There are three possible responses to this situation, in that the Court could: 1) obviate the need for indemnity by reducing the fine to a nominal sum; 2) following the Coast Guard's procedure and assess the entire fine against Pittston while recognizing a right to indemnity; 3) assess the fine against the allegedly culpable party, The Tug Ocean Prince. The first course would follow the only authority on point. *926 The second alternative requires more discussion.
Section 1321 does provide generally for indemnity by stating that:
"The liabilities established by this section shall in no way affect any rights which (1) the owner or operator of a vessel ... may have against any third party whose acts may in any way have caused or contributed to such discharge. ..."
33 U.S.C.A. § 1321(h) (Supp.1977). The issue then becomes whether the penalty imposed by Section 1321(b)(6) is a "liability" so as to provide a basis for indemnity. The parties draw support for their indemnity theory by pointing to the penalty provided in 33 U.S.C.A. § 1321(b)(2)(B)(iii) (Supp. 1977) which imposes a "penalty" in lieu of cleanup costs where it is impossible to remove a hazardous substance from the water. This penalty, unlike that of Section 1321(b)(6), is denominated a "liability" and is subject to the defense of third party causation.
Clearly, no indemnity could have been sought had the penalty been construed as criminal, intended to punish the actor. The weight of current authority, discussed above, has concluded that this particular penalty is civil and, therefore, the claimed right to indemnity is at least tenable. However, the penalty imposed in lieu of clean-up costs correlates not to the penalty provision at issue here, but rather to the Government's action for the actual costs of clean-up. Both of these actions recognize the third party defense, and, thereby, implicitly provide a ground for indemnity. The absence of a third party defense in this penalty provision, the language of the statutes, and the purposes of the various remedies supplied to the Government, lead to the conclusion that no indemnity right was contemplated for the penalty imposed by Section 1321(b)(6), even though it is civil in nature.
Finally, the Government urges that the "flotilla rule" should apply not only to determine the correct limitation amount but also the possible imposition of the fine on the third party, Tug Ocean Prince. Both the penalty provision, Section 1321(b)(6), and the provision governing primary liability for cleanup costs, Section 1321(f), impose liability on the "owner or operator of a vessel." It is at least a tenable construction of the statutory language, as applied to the facts of case, that "operator" should be construed to include to a tug operating a "dumb" barge. It is uncertain whether this construction of the statute was argued before the Coast Guard hearing examiner, but by imposing the fine solely upon Pittston, the examiner implicitly rejected this view. Similarly, the Government's stance in its action for cleanup costs in that Tug Ocean Prince is liable, if at all, under Section 1321(g) which concerns third party liability. Thus, the Government has adopted a contrary position and has not taken the required administrative steps to impose liability on plaintiff.
For these reasons, and in light of the General Motors decision, it appears to be the better course not to recognize a right to indemnity and, instead, to permit the absence of culpability to mitigate the amount of the fine. The case should be remanded to the Coast Guard to set a fine consistent with the degree of culpability attributable to the barge owner.
ORDER
1. Plaintiffs are entitled to limit their liability to the value of the Tug Ocean Prince and the amount of her pending freight immediately after the grounding, for which amount Pittston is entitled to judgment with costs.
2. Pittston, not having been responsible for the oil spill, the Government's cause of action against it for cleanup costs is dismissed with costs.
3. The claims of plaintiffs and Pittston against the United States (in 74 Civ. 3358) and Pittston's counterclaim (in 75 Civ. 5801) are dismissed with costs.
4. Plaintiffs are liable to the United States for cleanup costs not to exceed $19,800.
*927 5. The fine against Pittston is remanded to the Coast Guard for reconsideration consistent with this opinion. Pittston's claim for indemnity from plaintiffs is dismissed with costs.
6. If the parties cannot agree on the amount of cleanup costs or the amount of the limitation fund, they should advise the Court and the matter will be set for inquest.
SO ORDERED.
NOTES
[1] 33 U.S.C.A. § 1151 et seq., (Supp. 1977). It is conceded that all claims fall within the admiralty jurisdiction of this court, Fed.R.Civ.Proc. 9(h) and arise under 33 U.S.C.A. § 1321 (Supp. 1977) 46 U.S.C. § 183 et seq. and 46 U.S.C. § 742 (1970).
[2] The Senate bill provided for assessment of the penalty where the government could show that the owner or operator acted "wilfully or negligently." S.Rep. 92-414, 92nd Cong., 2d Sess., reprinted in [1972] U.S.Code & Ad.News 3732.
[3] The parties had stipulated that the proceedings before Judge Clarie should proceed as a trial de novo, and therefore the judge indicated that it was appropriate "to consider whether the sanction imposed by the administrative agency conforms to the facts brought out at the trial." The court found that the Coast Guard's finding that defendants were negligent deviated from the facts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920056/ | 660 So.2d 1067 (1995)
Eduards WILSON, Appellant,
v.
The STATE of Florida, Appellee.
No. 94-2621.
District Court of Appeal of Florida, Third District.
July 19, 1995.
Order Denying Rehearing and Granting Certification October 5, 1995.
*1068 Bennett H. Brummer, Public Defender and Robert Kalter, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before BASKIN, COPE and GREEN, JJ.
PER CURIAM.
As to appellant's first contention on appeal, we reverse and vacate his conviction and sentence for attempted felony murder based upon the Supreme Court's most recent pronouncement in State v. Gray, 654 So.2d 552 (Fla. 1995) that attempted felony murder is no longer a criminal offense in the State of Florida. This decision is applicable to all cases pending on direct review or not yet final. Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992); Fink v. Holt, 609 So.2d 1333 (Fla. 4th DCA 1992). The State nevertheless argues that Gray does not affect potential lesser included offenses of attempted felony murder and that pursuant to section 924.34, Florida Statutes (1993),[1] this court should reduce appellant's conviction to an appropriate lesser included offense for which there was sufficient evidence. We disagree and find that the State's reliance upon section 942.34 is misplaced. In accordance with Gray, appellant's conviction for attempted felony murder is not being vacated due to insufficiency of evidence so as to invoke section 924.34. Moreover, the notion that lesser included offenses can somehow exist for a nonexistent crime simply defies logic. Thus, the trial court is instructed to reverse and vacate appellant's conviction and sentence for attempted felony murder. See Gray; State v. Grinage, 656 So.2d 457 (Fla. 1995), receded from Amlotte v. State, 456 So.2d 448 (Fla. 1984).
As to appellant's remaining argument on appeal, we agree that the trial court erred when it sentenced him to twenty-seven years in state prison where he was convicted of attempted robbery, a second degree felony. The maximum penalty for a second degree felony is fifteen years in state prison. See section 775.082(3)(c) Florida Statutes (Supp. 1994). We, therefore, reverse and remand for a new sentencing hearing on this count.
Reversed and remanded with instructions.
ON MOTION FOR REHEARING AND CERTIFICATION
The State moves for rehearing or certification, arguing that on remand there should either be a new trial on lesser included offenses or that the defendant's conviction for attempted first degree felony murder should be reduced to a lesser included offense. We cannot agree. We interpret the Florida Supreme Court's decision in State v. Gray, 654 So.2d 552 (Fla. 1995), to require an outright reversal, rather than a reduction to a lesser included offense or a new trial on lesser included offenses. Moreover, we see *1069 no principled basis for such a reduction because, as a matter of law, there can be no lesser included offenses under a non-existent offense such as attempted first degree felony murder. We recognize, however, that this issue will arise in most, if not all, cases governed by State v. Gray. Accordingly, we certify that we have passed on the following question of great public importance:
WHEN A CONVICTION FOR ATTEMPTED FIRST DEGREE FELONY MURDER MUST BE VACATED ON AUTHORITY OF STATE V. GRAY, 654 So.2d 552 (Fla. 1995). DO LESSER INCLUDED OFFENSES REMAIN VIABLE FOR A NEW TRIAL OR REDUCTION OF THE OFFENSE?
The motion for rehearing is denied.
NOTES
[1] That statute provides that:
... when the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587876/ | 205 P.3d 102 (2009)
226 Or. App. 604
STATE
v.
LA SUEUR.
Court of Appeals of Oregon.
March 19, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587754/ | 119 P.3d 790 (2005)
339 Or. 230
STATE v. RIOS.
No. S52585.
Supreme Court of Oregon.
August 23, 2005.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615212/ | 502 So. 2d 779 (1985)
Richard M. MADDOX, Vickie Ellen Callahan, Gary Dean Gillum
v.
STATE.
5 Div. 761, 5 Div. 919 and 5 Div. 920.
Court of Criminal Appeals of Alabama.
June 11, 1985.
Rehearing Denied July 23, 1985.
*780 David Cromwell Johnson and Daniel J. Burnick of Johnson & Cory, Birmingham, for appellants.
Charles A. Graddick, Atty. Gen. and James B. Prude, Asst. Atty. Gen., for appellee.
PATTERSON, Judge.
The appellants, Richard M. Maddox, Vickie Ellen Callahan, and Gary Dean Gillum, were arrested on June 10, 1982, and charged with violating the Alabama Uniform Controlled Substances Act. Ala. Code 1975, § 20-2-1 through 20-2-144. Appellants Maddox and Gillum were specifically charged with trafficking in cannabis, in violation of § 20-2-80, and appellant Callahan was specifically charged with possession of marijuana, in violation of § 20-2-70. Indictments were returned against each appellant, by the June 1982 term of the Coosa County Grand Jury, indicting each with the violation for which they were initially charged.
On December 2, 1982, Maddox was found guilty of trafficking in cannabis by a Coosa County jury. Following an unfavorable pre-sentence report, Maddox was sentenced to a term of fifteen years in the penitentiary. On November 28, 1983, eleven months after Maddox was found guilty, Callahan pleaded guilty to felony possession of marijuana and was sentenced to three years' imprisonment. On the same day, Gillum pleaded guilty to trafficking in cannabis, and was sentenced to four years' imprisonment. In a supplemental plea agreement, the State, with apparent approval of the trial court, agreed that Callahan and Gillum retained the right to appeal the legality of the search which led to the obtaining of evidence against the appellants.
Subsequent to this agreement, Callahan and Gillum moved to consolidate their appeals with that of Maddox. A similar motion was made by the State. All appellants are represented by the same attorneys on appeal. The motions to consolidate were granted by this court on November 7, 1984.
On his appeal, Maddox questions the legality of the search and seizure of evidence which led to his conviction. At trial his motion to suppress, after a hearing thereon, was overruled by the trial court. In a supplemental brief filed on behalf of Callahan and Gillum, they raise the same issues presented for review by Maddox. Resolution of the issues raised by Maddox will be dispositive of the issues raised by Callahan and Gillum.
On June 9, 1982, Officer David Windsor, an investigator with the Coosa County Sheriff's Department, received information that marijuana was being grown on premises *781 subsequently determined to be occupied by Maddox, Callahan, and Gillum. Based upon this information, Windsor and Coosa County Deputy Sheriff Terry Browning proceeded to the property. Windsor and Browning approached from a dirt road south of the property and observed what Windsor described as a "normal farmhouse scene."
Windsor testified that he observed a dwelling house, shed, garage, and chicken house, all grouped in the same general area. The chicken house was located 15 to 20 feet from the dwelling. Attached to the east side of the chicken house was a greenhouse-type structure "covered with corrugated fiberglass." Windsor and Browning observed this scene from a wooded area south of the buildings and beyond an "old fence," which encircled the property. This fence was described as "old," but not decayed. Windsor testified that the fence was approximately 200 to 300 feet south of the buildings. J.M. Keel, a land surveyor, testified that the fence was 400 to 425 feet from the greenhouse.
After observing the general area, the deputies then walked along the "edge of the woods" in a westerly direction, to a position due south of the greenhouse. In order to get a better view, Windsor then crossed the fence and concealed himself in some bushes along the edge of a pond which was on the property. From this position, Windsor studied the scene with the aid of a pair of binoculars. Windsor testified that with the aid of the binoculars he observed "a couple of small plants," which he recognized as marijuana, growing outside the greenhouse doors.
Windsor then moved closer to the greenhouse and hid behind a pickup truck parked in front of the greenhouse. Windsor observed two more marijuana plants growing outside the greenhouse. The greenhouse had two large doors which were open; however, a plastic partition with large slits hung at the opening. Windsor could see into the greenhouse and observed more marijuana plants. The deputies then left and obtained a search warrant based on Windsor's observations.
On June 10, 1982, Windsor and five other law enforcement personnel returned to the property to execute the search warrant. The warrant was directed to Gillum as owner of the property. His ownership was indicated by the county tax assessor's records. Maddox, Callahan, and Gillum were found in the greenhouse. Windsor testified that, upon being arrested, Maddox stated, "I don't guess that was such a good idea after all." During a search of the residence, marijuana was found in almost every room. The appellants accompanied the officers during the search, and Windsor testified that Maddox identified one of the bedrooms as being his. The two other bedrooms were identified as belonging to Callahan and Gillum. Maddox also claimed ownership of some "cash money" which was in the room identified as his. In reference to the money, Maddox purportedly stated to Windsor, "I have just gotten my check cashed. That doesn't have anything to do with this." Maddox did not take the stand in his own behalf either on the motion to suppress or at trial. He offered no evidence at trial and his defense consisted of a probing and searching cross-examination of the State's witnesses and arguments to the jury.
On appeal the appellants contend that the search warrant was improperly issued and therefore that no evidence resulting from the search would be admissible against them. Appellants do not question the facial sufficiency of the affidavit nor do they dispute the evidence presented to the magistrate to support a finding of probable cause for the issuance of the search warrant. Rather they contend that all the evidence before the magistrate was obtained by the officer in violation of their Fourth Amendment rights, and, therefore, that it was improper for the magistrate to consider it in making a determination of probable cause. The State's sole argument is that Maddox did not have standing to contest the search; it neither addresses the validity of the search nor the issues as raised by Callahan and Gillum.
*782 I
In contending that the evidence seized pursuant to the search warrant should have been suppressed, it is argued that Windsor's actions in gaining his information for the magistrate's probable cause determination constituted a search; that this warrantless search could not be justified as falling within the "open fields" or "plain view" doctrines; and that, therefore, the evidence obtained should not have been used to secure the warrant. In effect, the appellants contend that the two doctrines do not operate to allow Officer Windsor's observations to be utilized as probable cause to support the issuance of the search warrant. We agree that the cited doctrines are inapplicable to the facts of this case; however, we view the inapplicability of these doctrines as having no effect on the issuance of the warrant.
Our analysis will first focus on Officer Windsor's initial observations from his position near or at the pond. We will then discuss the ramifications of Officer Windsor's second position closer to the greenhouse. As will be seen, Officer Windsor did not violate any of the appellants' Fourth Amendment rights until he crossed the constitutionally protected threshold of the curtilage in order to obtain a better view of the plants he had previously identified as marijuana.
A.
When Officer Windsor positioned himself near the pond and spotted the two marijuana plants growing outside the greenhouse, he was not in a factual situation in which the "plain view" doctrine would have been applicable. This doctrine allows government agents to make warrantless seizures under certain well defined circumstances. See Myers v. State, 431 So. 2d 1342 (Ala.Cr. App.1982), cert. quashed, 431 So. 2d 1346 (Ala.1983). See also Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047 (1975); W. LaFave, Search and Seizure, § 2.2 (1978). We view the facts of the case at bar as a situation more appropriately designated as an "open view" in which Fourth Amendment protections do not operate. See Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Scales v. State, 13 Md.App. 474, 284 A.2d 45 (1971).
Appellant secondly contends that the "open fields" doctrine does not apply. The "open fields" doctrine allows government agents to make warrantless seizures of property in open field areas. "The special protection accorded by the Fourth Amendment to the people in their `persons, houses, papers, and effects', is not extended to open fields." Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 446, 68 L. Ed. 898 (1924). Appellant does not argue that the pond was within the curtilage of the home, and the tendency of the evidence would not support such a finding given, its great distance from the residence. As stated by Judge Moylan, The Fourth Amendment Inapplicable, 1 S.Ill.U.L.J. 75, 83 (1977), "The clear teaching of Hester is rather that in open fields, the Fourth Amendment is inapplicable and that noncompliance with its dictates is therefore, immaterial." The clear pronouncement of Hester was recently reaffirmed by the United States Supreme Court in Oliver v. United States, 466 U.S. 170, 178, 104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214 (1984), where the Court stated that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Furthermore, it is made clear by the teaching of Oliver, 466 U.S. at 184, 104 S.Ct. at 1744, that the fact that Officer Windsor was trespassing when he observed the two marijuana plants, has "little or no relevance to the applicability of the Fourth Amendment." See also, Whistenant v. State, 50 Ala.App. 182, 278 So. 2d 183, cert. denied, 291 Ala. 802, 278 So. 2d 198, cert. denied, 414 U.S. 1066, 94 S. Ct. 573, 38 L. Ed. 2d 470 (1973). It is clear that Officer Windsor could legitimately search the open fields surrounding the property without violating any Fourth Amendment rights, because "[t]he Fourth Amendment is simply not `out there' in the open fields." Moylan, *783 The Fourth Amendment Inapplicable, at 92. See also Skipper v. State, 387 So. 2d 261 (Ala.Cr.App.), cert. denied, 387 So. 2d 268 (Ala.1980).
B.
The testimony of Officer Windsor established that the residence, garage, shed, chicken house, and greenhouse were all in relatively close proximity to each other. Officer Windsor described it as a "normal farmhouse scene" situated on approximately forty acres of land, enclosed by barbed wire fencing. Mr. C.M. Keel testified that he observed the presence of several "no trespassing" signs around the boundary when he surveyed the property. Officer Windsor denied seeing any signs. When Officer Windsor approached the greenhouse, he had to calculate his position in order not to be seen by persons occupying the residence, which was located 15 to 20 feet from the chicken house which had the greenhouse appended to it. This chicken house was located south of the residence, and another, smaller building was situated on the north side of the residence. The front door of the residence faced east. The pond was located south of the chicken house/greenhouse, and Windsor positioned himself on the east end of the pond. Officer Windsor was therefore observing the front of the residence and chicken house/greenhouse. A truck, which Officer Windsor hid behind when he approached for a closer observation, was parked in front of the chicken house/greenhouse.
In Whistenant v. State, 50 Ala.App. at 194, 278 So.2d at 194, this court stated:
"The Fourth Amendment does, however, apply to buildings within the curtilage which may include `a garage ...; a barn ...; a smokehouse ...; a chicken house ...; and similar property. Whether the place to be searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.' Care v. United States (10 Cir.) 231 F.2d 22."
See also Skipper v. State, supra. The evidence adduced at trial clearly established that the chicken house/greenhouse was within the curtilage of the residence. No Fourth Amendment violation occurred until Officer Windsor made this warrantless entry into a constitutionally protected area. As stated by Judge Moylan:
"When the policeman stands outside the constitutionally protected area and looks inside, his constitutionally legitimate observations simply give him probable cause. Some additional predicate is necessary for him then to cross the threshold.
"In the case of fixed premises, all the probable cause in the world will not justify a warrantless entry. Coolidge [v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971),] was very clear on that point...."
Moylan, The Plain View Doctrine, 26 Mercer L.Rev., at 1098.
II
Having determined that Officer Windsor encroached upon the curtilage without a warrant in violation of the Fourth Amendment protection against unreasonable searches, we must now determine whether this violation invalidated the warrant and, consequently, whether the evidence seized should have been suppressed.
In the case sub judice, the warrant affidavit states in pertinent part:
"Before me, Robert J. Teel, Jr., a district court judge, personally appeared David E. Windsor, a law enforcement officer, who being duly sworn deposes and says that on this, the 9th day of June, 1982, he has personally seen in plain view and within the last twenty-four hours and has probable cause to believe and does believe that there is now being cultivated marijuana plants ... upon the premises of, to-wit: Gary Dean Gillum...."
This affidavit was typed by Windsor and taken to judge Teel, who issued the search *784 warrant. Windsor swore, under oath, to the truth and correctness of the affidavit and discussed additional facts with the Judge which were not detailed in the affidavit.
During the suppression hearing, defense counsel extensively cross-examined Windsor about his testimony before Judge Teel. The pertinent part of the record reflecting this cross-examination is as follows:
"Q.... All right. With the information that you then had you came down, Mr. Windsor, and talked with Judge Teel?
"A. On the 9th.
"Q. On the 9th, and swore to the pertinent aspects for the purpose of getting a search warrant?
"A. Yes, sir.
"Q. And everything that you told him is within the four corners of this warrant here?
"A. No, sir, not everything.
"Q. Well, the pertinent materials are within the four corners of this warrant?
"A. There was other information mentioned.
"Q. What other information did you give him?
"A. That there was a greenhouse and there was marijuana growing in it.
"Q. Is that all?
"A. I don't remember everything that was said but there were other things.
"Q. Whatever you recall, I would like for you to tell us what you recall.
"A. I told him to the effect that there was a large greenhouse up there on the side of the chicken house and that there was marijuana growing in it.
"Q. All right. Anything else?
"A. Not that I recall.
"Q. All right. So what you told him is those things you have just mentioned and of course you said in here that you had seen it?
"A. Yes, sir.
"Q. All right. And what you have told him, that was typed up and that you swore to?
"A. Yes, sir.
"Q. For the purpose of getting a search warrant?
"A. Yes, sir, that's right.
"....
"Q. You came backcalled somebody, I know that, but eventually came back to the courthouse and saw Judge Teel and told him that you had seen plants on the property of Gillumwhatever Gillum's last name is, is that right?
"A. Told Judge Teel that?
"Q. Yes, sir.
"A. Yes, sir.
"Q. You didn't tell him you had already been on that man's property, did you?
"A. I told him I had seen the plants.
"Q. All right. But you didn't tell him you had seen them from an opening on the property up next to the property?
"A. I don't know whether I told him that or not.
"....
"Q. Then you typed it up and went out to Judge Teel's house. What time of night, please, sir?
"A. I arrived at his house sometime shortly before twelve midnight that night. After we talked for a while, when he was ready to sign it.
"....
"Q. But, at any rate, you wanted to search a garage, two chicken houses, and any and all outbuildings of this same residence? That's what you wanted to search, what you told the judge you wanted to search?
"A. Yes, that's what I wanted to search.
"Q. And that was what was these things right here, isn't that true? (Indicating)
"A. Yes, sir."
"Q. Is that what you wanted to search?
"A. Yes, sir.
"Q. And at the time you told the judge that, you had already been up there and seen in the slits, had you not?
"A. Yes, sir.
"Q. And you had seen those plants right there inside the fenced part but *785 before you get to that flapping area? You had seen those plants in there, hadn't you?
"A. Yes, sir."
Our review of the affidavit and testimony leads us to conclude that the search warrant was not invalidated by the illegally obtained information, for it is clear that the tainted information was not included in the warrant affidavit. There is no specific reference in the affidavit to the observations of marijuana growing in the greenhouse, although this information was communicated to Judge Teel outside the affidavit. The affidavit states that Windsor saw "in plain view" marijuana being cultivated on the property. Obviously Windsor's non-technical use of the term "plain view" is synonymous with the term "open view." The only plants which could be said to be in "open view" were the two initially observed by Windsor from the pond. We believe that the facts alleged in the affidavit refer to the officer's untainted observations of the marijuana plants growing outside the greenhouse. This is supported by his testimony quoted above, wherein he, in effect, states that the information given the magistrate concerning the marijuana plants in the greenhouse was not included in the "four corners" of the affidavit. Even if the tainted evidence had been included in the affidavit, it would not have necessarily rendered the resulting warrant invalid. United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974); United States v. DiMuro, 540 F.2d 503 (1st Cir.1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749 (1977). In the recent case of United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 3303, 82 L. Ed. 2d 530 (1984), a case involving electronic surveillance, the Court determined that monitoring the beeper in a private residence not open to visual surveillance, violated the petitioner's Fourth Amendment rights. The Court then stated:
"... That information, which was included in the warrant affidavit, would also invalidate the warrant for the search of the house if it proved to be critical to establishing probable cause for the issuance of the warrant. However, if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid."
Id., 468 U.S. at 719, 104 S.Ct. at 3305. See also Neary v. State, 384 So. 2d 881 (Fla. 1980).
Thus, assuming arguendo that the affidavit's averments can be interpreted to include information gained from the tainted observations, the search warrant is not invalidated because this illegal information was not critical to establishing probable cause. The affidavit obviously includes the untainted evidence of Windsor's initial observations of the two marijuana plants. This information was sufficient to establish probable cause. More than a mere suspicion of illegal activity resulted from an observation of two marijuana plants growing outside what appeared to be a greenhouse. The information obtained by Windsor's closer observation was merely cumulative of the information he had already obtained. As stated in United States v. Epstein, 240 F. Supp. 80, 83 (S.D.N.Y.1965):
"This is not to say that law enforcement officials may with impunity include impermissible matter in applications for search warrants in the hope that a Commissioner might thereby be persuaded to find probable cause where otherwise none exists or the issue is in doubt.... But in a case like the present one, where the challenged matter is merely cumulative, no such danger is run and the warrant may be upheld."
See also United States v. Sterling, 369 F.2d 799 (3d Cir.1966) (quoting Epstein with approval).
Where a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical rather than a commonsense manner, and should resolve doubtful or marginal cases according to the preference to be accorded to warrants. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); 68 Am.Jur.2d *786 Searches and Seizures § 64 (1973). Great deference should be given to a magistrate's determinations. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Houk v. State, 455 So. 2d 115 (Ala.Cr.App. 1984), cert. denied, 455 So. 2d 115 (Ala. 1984); Waters v. State, 357 So. 2d 368 (Ala. Cr.App.), cert. denied, 357 So. 2d 373 (Ala. 1978).
It is our judgment that the affidavit supporting the search warrant met the constitutional requisites, and the resulting search of the property was permissible. We hold that the trial court did not err when it overruled appellant Maddox's motion to suppress. The evidence seized was properly admitted into evidence at appellant Maddox's trial. It would not have been proper to suppress the evidence seized with respect to any of the appellants.
III
Having found that the search was made pursuant to a valid warrant, we find it unnecessary to address Maddox's contention that the statements he made during the search should have been suppressed as being the fruit of an unlawful search and seizure.
IV
As we have pointed out, the sole contention of the State is that Maddox did not have standing to object to the search and seizure. In view of our findings above, we deem it unnecessary to address the questions of standing raised by the State on appeal.
We have considered appellant Maddox's contention that the trial court abused its discretion in sentencing him to fifteen years while sentencing Callahan and Gillum to three and four years, respectively. We find no merit in this contention.
For the reasons stated above, the judgment of the trial court in reference to Maddox is due to be, and it is hereby, affirmed.
We have examined the statement of additional facts set out in the supplemental brief filed on behalf of Callahan and Gillum and find no support for a different result from that which we have reached in the case of appellant Maddox. Accordingly, the judgments of the trial court in reference to appellants Callahan and Gillum are likewise due to be, and they are hereby, affirmed.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2327535/ | 119 F. Supp. 2d 525 (2000)
GOVERNMENT OF The VIRGIN ISLANDS in the Interests of N.G., Minor/Appellant.
No. CRIM. A.1997-084.
District Court, Virgin Islands, Appellate Division, D. St. Thomas and St. John.
Considered March 19, 1998.
Filed October 5, 2000.
*526 Treston E. Moore, Moore & Dodson, St. Thomas, VI, for Appellant.
Joel H. Feld, Assistant Attorney General, Department of Justice, St. Thomas, VI, for Appellee.
Before: RAYMOND L. FINCH, Chief Judge of the District Court of the Virgin Islands; THOMAS K. MOORE, Judge, District Court of the Virgin Islands and JUDGE MARIA M. CABRET, Presiding Judge of the Territorial Court, Division of St. Croix, Sitting by Designation.
MEMORANDUM OPINION
PER CURIAM.
Appellant N.G. ["N.G." or "appellant"], a juvenile at the time of the underlying proceedings, appeals the order of the Family Division of the Territorial Court transferring him to the Criminal Division for further proceedings. For the reasons set forth below, the Court will affirm the Territorial Court's order.
II. FACTUAL AND PROCEDURAL BACKGROUND
On February 1, 1995, a fight took place at Charlotte Amalie High School which resulted in the death of Lamar Knight ["Knight"]. Knight died as a result of a stab wound to his throat which cut through his trachea and aorta. The facts surrounding this altercation are disputed. The following is the statement of facts as provided by the appellant.
*527 On January 31, 1995, N.G. and Knight were in a fight in which Knight beat up the appellant. The appellant states that there are conflicting stories of whether, during this fight, Knight threatened to kill him the following day at school or vice-versa. The next day, N.G. took a knife to school, allegedly to protect himself from the perceived threat posed by Knight. At Charlotte Amalie High School on February 1, 1995, N.G. enlisted the assistance of his cousin to help him resolve the dispute with Knight. The appellant's cousin attempted to speak to Knight but instead began to fight with Knight. Attempting to come to the aide of his cousin, N.G. drew his knife, approached Knight from behind, and made two superficial stab wounds in Knight's back, supposedly to divert Knight's attention from his cousin. N.G. states that his cousin then drew a knife and stabbed Knight from the front in the throat, presumably striking the fatal blow. N.G. maintains that approximately three witnesses saw the entire episode.
The government had a different rendition of the facts. On January 31st, after an altercation between N.G. and Knight, N.G. threatened that he would kill Knight the next day at school. True to his word, N.G. took a knife to school the next day, got into another fight with Knight, and stabbed him at least twice. The government's testimony before the Family Division judge at the 1997 hearing was that there was no evidence that any person other than the appellant came into physical contact with Knight during the fatal fight.
The remaining facts are undisputed by the parties. Following Knight's death, N.G. was arrested and charged with first degree murder. A transfer order was initially entered on April 1, 1995, transferring N.G. to the adult jurisdiction of the Territorial Court. This transfer order was later vacated by this Court. See Government of Virgin Islands in Interests of A.A., 34 V.I. 158, 172, 931 F. Supp. 1247, 1255 (D.V.I.App.Div.), aff'd, 106 F.3d 385 (3d Cir.1996)(Table). A second transfer hearing was conducted on January 27, 1997, at which time the Family Division made a finding of probable cause that N.G. had committed first degree murder. The court's findings were read into the record. On January 28th, the Family Division issued a written order directing that N.G. be transferred to the Criminal Division. N.G. filed this timely appeal.
III. JURISDICTION AND STANDARD OF REVIEW
The Appellate Division has jurisdiction to review the judgments and orders of the Territorial Court in all juvenile cases. V.I. CODE ANN. tit. 4, § 33. The Court has judicially narrowed application of this jurisdiction to include only final judgments and orders. Government of the Virgin Islands in the Interest of A.M., 34 F.3d 153, 156 n. 3 (3d Cir.1994). A juvenile transfer order is considered a final appealable order. See id. at 156.
The Court will uphold findings of fact unless clearly erroneous. 4 V.I.C. § 33. Although the decision to transfer a juvenile to the Criminal Division is "`committed to the sound discretion of the trial court'" and generally can be reviewed only for abuse of that discretion, the Appellate Division exercises plenary review over any constitutional claims or other questions of law. Accord Government of the Virgin Islands in the Interest of M.B., 122 F.3d 164, 167 (3d Cir.1997) (quoting United States v. A.R., 38 F.3d 699, 701-02 (3d Cir.1994)).
IV. DISCUSSION
N.G. was charged with acts of juvenile delinquency which, if committed by an adult, would constitute the felony of first degree murder, subjecting N.G. to the mandatory transfer provisions set forth in 5 V.I.C. § 2508(b)(4). To support a mandatory transfer order, the Family Division of the Territorial Court must find: (1) probable cause that the juvenile committed the alleged act which triggers the mandatory transfer analysis; (2) that the juvenile *528 was fourteen years of age or older at the time of the alleged offense; and (3) that the crime charged is one demanding mandatory transfer, in this instance, first degree murder. Id. § 2508.
The mandatory transfer statute does not define "probable cause." It merely states that "after a determination of probable cause," the Family Division shall transfer the juvenile if the other requirements are satisfied. Id. § 2508(b). Given that the Legislature did not specifically define the term "probable cause" within the confines of section 2508(b), we assume that it intended the term to have the same meaning as it does in adult criminal proceedings. Accord Government of the Virgin Islands in the Interest of A.M., 34 F.3d 153, 160 (3d Cir.1994). Accordingly, probable cause is "defined in terms of facts and circumstances `sufficient to warrant a prudent man into believing that the (suspect) had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)(quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)).
To make these determinations, the Family Division must conduct a "full investigation" that will form a firm basis for each of the court's findings. Kent v. United States, 383 U.S. 541, 553-54, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). N.G. contends that the required full investigation necessary to support a finding of probable cause that N.G. committed the acts charged did not occur because he could not meaningfully cross-examine the government's witnesses at the second transfer hearing in January, 1997, due to the government's refusal to provide discovery.
A. Entitlement to Discovery Materials Before the Transfer Hearing
As succinctly set forth in the government's brief, "[d]iscovery is not a proper function of a probable cause hearing." (Government's Br. at 9) (citing United States v. Conway, 415 F.2d 158, 161 (3d Cir.1969), cert. denied, 397 U.S. 994, 90 S. Ct. 1131, 25 L. Ed. 2d 401 (1970)). Discovery in an adult proceeding is governed by Rule 16 of the Federal Rules of Criminal Procedure,[1] which does not generally permit discovery before a finding of probable cause. We see no reason to distinguish a probable cause determination in a juvenile matter from that in an adult proceeding.
N.G. also argues that he was improperly denied exculpatory Brady material before the transfer hearing, which he asserts he could have used to defeat the court's finding of probable cause. In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). N.G. maintains that the government knew or should have known that several witnesses to his fight with Knight reported seeing the appellant's cousin stab Knight and possibly inflict the fatal wound. The government's failure to uncover these witnesses before the transfer hearing, according to the appellant, cannot excuse this alleged Brady violation.
The government did not violate its obligations under Brady. "There can be no violation of Brady unless the Government's non-disclosure infringes upon the defendant's fair trial right.... No denial of due process occurs if Brady material is disclosed in time for its effective use at trial." United States v. Starusko, 729 F.2d 256, 262 (3d Cir.1984). Since his trial as an adult has been stayed pending resolution of this appeal and he now has the material *529 he requested, N.G. will be able to make effective use of any Brady material at trial.
B. Opportunity to Conduct "Meaningful Cross-Examination"
A juvenile has the right to conduct meaningful cross-examination at a transfer hearing. See Government of the Virgin Islands in the Interests of A.A., 34 V.I. at 170, 931 F. Supp. at 1253; Government v. Santana, 9 V.I. 154, 160 (D.V.I.App.Div.1972). Cross-examination, by definition, is limited to the subject matter of direct examination. Therefore, at a probable cause hearing, the issue of probable cause is the only permissible subject for cross-examination. The juvenile at a mandatory transfer hearing should be permitted to question adverse witnesses to probe the credibility of the evidence being presented. This does not mean that the juvenile is entitled to discover the government's case, such as obtaining the names of its witnesses. The juvenile, however, is entitled to expose areas such as bias by exploring the relationship of a witness to the victim. See Kent, 383 U.S. at 563, 86 S. Ct. 1045 ("[I]t is precisely the role of counsel to `denigrate'" submissions and representations made to the court by the government in support of a finding of probable cause in a juvenile transfer hearing.).
Throughout the 1997 hearing, the court permitted N.G.'s counsel to cross-examine the testifying government agent about the credibility of witnesses he relied upon to establish probable cause. For example, N.G.'s counsel asked whether the witness, a police officer with the Homicide Task Force of the Virgin Islands Police Department, had determined that "the witness that gave you the information [concerning the alleged threats made by the appellant] was [Knight's] best friend?" (App. at 31.) N.G.'s counsel also questioned the officer's opinion of the credibility of other witnesses, id. at 33, and whether or not the other witnesses actually were in a position to see exactly what happened between N.G. and Knight, id. at 34.[2] We therefore conclude that the Family Division afforded the appellant ample opportunity to conduct meaningful cross-examination.
C. Findings of Probable Cause
When granting a motion to transfer a juvenile to the Criminal Division for further proceedings, the Family Division must include a statement of the reasons and considerations prompting the court's decision. Kent, 383 U.S. at 560, 86 S. Ct. 1045. This is to inform the appellate court of the basis for the transfer order and to allow for meaningful review of the transfer order. Id.
The Family Division's findings, made orally at the January 27th hearing, easily satisfy the requirements of Kent v. United States, which require only a "statement" of the reasons supporting the transfer, even though the written transfer order issued on January 28, 1997, did not contain specific findings. (App. at 11.) Kent specifically mentions that this statement does not need to be "formal" or "include conventional findings of fact." 383 U.S. at 561, 86 S. Ct. 1045.
At the transfer hearing, the judge read specific findings into the record:
The Court finds that the Government has brought forth sufficient evidence to have [N.G.] charged with First Degree Murder. Based on the testimony of Detective Phipps alone, we have witnesses placing [N.G.] at the incident with the victim the night before the incident, threats allegedly that [N.G.] made, that [N.G. was] going to kill the victim, both *530 the night and in the morning of the incident on February 1st.
We have witnesses allegedly seeing [N.G.] approach the victim. [N.G.] had a very serious look on [his] face. The witnesses observed [N.G.] again approach the victim, the victim was chanting, singing, and [N.G.] allegedly grabbed the victim around the throat.
The victim died from two superficial stab wounds of the neck, those are superficial, but he did receive two superficial wounds at the back of the neck, because allegedly he was grabbed by [N.G.] around the throat from behind, and he actually died from a knife wound into his left collarbone, which this, which the knife allegedly cut the aorta and his trachea.... After the stabbing [N.G.] allegedly left ... the area with [his] bloody shirt and the knife wrapped in a t-shirt, and [N.G.]...came to the Investigation Unit to essentially turn [himself] in.
(App. at 45-46.) These detailed findings dictated into the record also satisfy this Court's ruling that the Family Division judge
state the reasons for transfer by making clear and specific findings that the necessary prerequisites for mandatory transfer outlined above and in subsection 2508(b) have been satisfied. Such a written articulation of the reasons for transfer will provide a clear and discernible written record of the judge's findings for review on appeal.
Government of the Virgin Islands in the Interests of A.A., 34 V.I. at 171, 931 F. Supp. at 1253-54.[3]
Here, the Family Division's extensive findings of fact are memorialized in a written transcript of proceedings, which satisfies both Kent and Government of Virgin Islands in Interests of A.A. by "provid[ing] a clear and discernible written record of the judge's findings for review on appeal." The Family Division's findings in this instance both inform the Appellate Division of the "reasons motivating the waiver" and support a finding of probable cause.
V. CONCLUSION
A juvenile does not have a right to discovery, including Brady material, before a transfer hearing. The minor's rights to discovery do not ripen until after a finding of probable cause. The juvenile's right to conduct meaningful cross-examination at the transfer hearing is not thereby diminished, as evidenced by N.G.'s ample opportunity to meaningfully cross-examine witnesses on the only relevant issue of probable cause without first obtaining discovery needed for trial. Furthermore, the Family Division's extensive findings dictated into the record at the transfer hearing provide the Appellate Division with a sufficient record to review the reasons motivating the court's decision to transfer the juvenile.
For these reasons, the Court will affirm the order of the Family Division of the Territorial Court transferring N.G. for further proceedings before the Criminal Division. An appropriate order is attached.
ORDER
For the reasons set forth in the accompanying memorandum opinion of even date, it is hereby
ORDERED that the order of the Territorial Court transferring the appellant, N.G., to the Criminal Division of the Territorial *531 Court is AFFIRMED. The Clerk shall issue the mandate and close the file.
NOTES
[1] The Federal Rules of Criminal Procedure are applicable in proceedings before the Territorial Court to the extent they are not inconsistent with the Rules of the Territorial Court. TERR. CT. R. 7.
[2] N.G. also implicitly challenges the admission of hearsay evidence by stating that the evidence was untrustworthy because it was hearsay and thus cannot be used to support a finding of probable cause. It has been firmly established that "the admission of hearsay to establish probable cause in a juvenile transfer proceeding is constitutionally permissible." Government of Virgin Islands in Interest of A.M., 34 F.3d 153, 160 (3d Cir.1994).
[3] N.G. contends that the Court's holding in Government of Virgin Islands in Interests of A.A. ["Government ex rel. A.A."] requires reversal of the transfer order because the Family Division did not repeat its detailed findings in the written order dated January 28, 1997. The holding of Government ex rel. A.A. is not to be so narrowly construed. Whether the reasons supporting a finding of probable cause are dictated into the record at the hearing or subsequently memorialized in a written order, the end result is the same: a written record which is reviewable on appeal that satisfies the tenets of Kent v. United States. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615224/ | 23 So.3d 714 (2009)
DIXON
v.
STATE.
No. 1D09-3598.
District Court of Appeal of Florida, First District.
December 14, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615551/ | 502 So.2d 232 (1987)
Clayous ROYER (Deceased), Lucille Leger Royer, Peggy Joe Royer Frederick, and Juanita Royer Babineaux, Plaintiffs-Appellants,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, Continental Insurance Company, D.J. Palmintier, M.D., and Lafayette General Hospital, Defendants-Appellees.
No. 86-208.
Court of Appeal of Louisiana, Third Circuit.
February 4, 1987.
Writ Denied March 26, 1987.
*233 Anatole J. Plaisance, Baton Rouge, George T. Oubre, LaPlace, Champagne and Colomb, Patrick L. Colomb, Lafayette, for plaintiffs-appellants.
Onebane and Assoc, Timothy J. McNamara, Charles J. Boudreaux, Lafayette Gen. Hosp., Radiology Group, Coolidge Lane, Hamilton Medical Group, Lafayette, for defendants-appellees.
Before DOUCET, LABORDE and KING, JJ.
DOUCET, Judge.
Clayous Royer, decedent, originally filed this medical malpractice suit in 1973 against Dr. D.J. Palmintier, Dr. Albert R. Corne, Jr., Lafayette General Hospital, and their respective insurers, St. Paul Fire & *234 Marine Insurance Company and Continental Insurance Company. Upon his death, Mr. Royer's surviving spouse and two major children were substituted as party plaintiffs. Suit against Dr. Corne was dismissed on the motion of plaintiffs before trial. Plaintiffs appeal from a directed verdict in favor of the remaining defendants.
In 1971, Clayous Royer sought treatment from a dermatologist for a small ulcer on his left ankle. At this time, Mr. Royer was in apparent good health and was employed as a cook on an offshore oil well. However, he returned to the dermatologist the following year with the same problem and was referred to defendant, Dr. D.J. Palmintier, a general surgeon. Dr. Palmintier diagnosed Mr. Royer to be suffering from varicose veins and early arterial insufficiency. Dr. Palmintier scheduled Mr. Royer for surgery to remove the varicose veins. Mr. Royer was admitted to Lafayette General Hospital on June 25, 1972. Because of the evidence of arterial insufficiency, Dr. Palmintier ordered that an arteriogram be performed on Mr. Royer. An arteriogram is an X-ray of the arteries into which a contrast material, or dye, has been injected. The examination enables a physician to determine the extent and location of plaque deposits in the patient's arteries.
Dr. Palmintier referred Mr. Royer to Dr. Brendan Miles, a radiologist, who would perform the arteriogram. Dr. Miles was a member of a group of radiologists which provided radiological services to Lafayette General. The contrast material, or dye, was injected by Dr. Miles into Mr. Royer's bloodstream through a catheter inserted into a major artery in his groin. X-rays were taken and Mr. Royer was returned to his room in apparent good health at approximately 5:00 P.M.
Shortly thereafter Mr. Royer began exhibiting symptoms of severe pain. Dr. Miles stated that he checked Mr. Royer at about 5:30 P.M. and then telephoned Dr. Palmintier. Dr. Palmintier arrived at the hospital around 6:00 P.M. After examining the X-rays and conferring with Dr. Miles, he telephoned Dr. Leslie Guidry, a cardiovascular surgeon. Dr. Guidry determined that immediate surgery was necessary to restore circulation to Mr. Royer's legs. During surgery, Dr. Guidry constructed a bypass of Mr. Royer's lower aorta which was blocked, and removed accumulated plaque from other areas of his arterial system. Dr. Guidry felt that the operation restored the circulation to Mr. Royer's legs and feet. However, because of the interruption of circulation, Mr. Royer developed dry gangrene of the left foot. Shortly after the operation, he also suffered a partial loss of the functioning of his kidneys necessitating dialysis and treatment by Dr. Albert Corne.
Mr. Royer remained at Lafayette General Hospital until July 31, 1972 when he was transferred to the Veterans Administration Hospital in New Orleans. As a result of the gangrene, his left leg was later amputated approximately eight inches below the knee. During subsequent years, Mr. Royer was periodically treated at the Veterans Administration Hospital in New Orleans and Alexandria. He died on March 9, 1984. The cause of death was listed as cardio-respiratory arrest as a consequence of hypertension and chronic renal failure.
On appeal, plaintiffs claim the trial court erred by denying plaintiff-decedent leave to file three amended petitions and by directing verdicts in favor of defendants. A related issue is whether the trial court erred in finding that the doctrine of res ipsa loquitur was not applicable to the facts of this case.
AMENDED PETITIONS
Clayous Royer originally filed suit on June 4, 1973. On June 17, 1975, an amended and supplemental petition was filed making the Veteran's Administration a party plaintiff. The trial court later sustained defendants' exception of no right of action and dismissed the Veterans Administration as a party plaintiff. No appeal has been taken on this issue.
On May 1, 1978, Mr. Royer filed a certificate of readiness for trial stating that all issues were joined and that discovery procedures *235 were complete. Trial was set for September 28,1978 but was later continued on the grounds that Mr. Royer had to undergo surgery. Two subsequent trial dates were continued on the motion of all parties. Trial was then set for October 2, 1980.
On July 25, 1980, plaintiff filed a second amended and supplemental petition which alleged, for the first time, the vicarious liability of the original defendants for the negligence of Dr. Brendan Miles and also increased the total amount of damages sought. Although actions of Dr. Miles, specifically the injection of the dye through a catheter which apparently dislodged some material which caused the blockage of Mr. Royer's kidneys, had been set forth in the original petition, no negligence was alleged on his part nor was he made a party defendant.
A hearing was held on September 2, 1980, after which the trial court denied plaintiff leave to amend except to increase the amount of damages sought. Plaintiff-decedent appealed the ruling of the trial court. This court dismissed the appeal on the grounds that the ruling was an interlocutory judgment which would not cause irreparable injury. Royer v. St. Paul Fire & Marine Insurance Co., 393 So.2d 936 (La. App. 3rd Cir.1981).
Although some of plaintiff-decedent's amended petitions were entitled in part "supplemental", all of them involved issues which could have been included in his original petition and did not arise or become exigible since the filing of the original petition. Therefore, they could not have been technically considered supplemental pleadings. LSA-C.C.P. art. 1155; Adema v. Elliott, 223 So.2d 464 (La.App. 4th Cir.1969).
A plaintiff may amend his petition after defendant has answered only by leave of court or written consent of the adverse party. LSA-C.C.P. art. 1151. A trial judge has much discretion in this regard and its decision granting or denying a party's request to amend or supplement a petition will not be disturbed absent an abuse of discretion. CDT, Inc. v. Greener & Sumner Architects, Inc., 453 So.2d 1252 (La.App. 3rd Cir.1984); Mead v. Mead, 442 So.2d 870 (La.App. 3rd Cir.1983), writ denied, 445 So.2d 452 (La.1984); White v. Cumis Insurance Society, 415 So.2d 574 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 164 (La.1982).
Plaintiffs cite Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981) for the proposition that amendments are favored under the Louisiana Code of Civil Procedure as well as the Federal Rules of Civil Procedure upon which our article 1151 is largely based. We agree in principal with this assertion. Plaintiffs also cite in support of the liberal allowance of amendments, the case of Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1st Cir. 1984), writ denied, 246 La. 598, 165 So.2d 486 (1964).
In an article entitled "Amendment of Pleadings in Louisiana", 43 Tul.L.Rev. 211 (1969), the late Judge Albert Tate, Jr. commented on the Wallace, supra, case, among others, and amendments in general:
"Wallace v. Hanover Insurance Company contains the most complete jurisprudential discussion yet of the Louisiana amendment articles. The thrust of the opinion is that amendment should always be permitted in the absence of serious prejudice to the opponent. However, the court also "categorically" stated that "a trial judge abuses his discretion granted under Article 1151 when he allows an amendment which raises a new issue or defense at such a time as not to afford the other party adequate time to prepare his case to meet the new issue or defense." As the decision notes, at least up until the actual trial, such prejudice may usually be cured by a continuance. Of course, the closer to the trial date that an amendment is offered, the greater the need for a continuance; but, balanced against curing prejudice by such continuance, are other resultant prejudicial factors in the form of additional delay, legal expense and the disruption *236 of orderly trial calendaring by the court. When amendment is offered tardily without justification for the delay, these factors may outweigh the merit-justice interests which favor permitting it." (Footnotes omitted)
The record does not contain a transcript of the hearing or any reasons for the trial court's partial denial of plaintiff-decedent's second amended petition other than the minutes of court which read, "the court will deny the request for filing of Amending and Supplemental Petition and finds that setting up new issues comes to [sic] late." From later statements by defense counsel it can be gleaned that defendants filed an exception and plea of prescription to plaintiff-decedent's second amended petition. However, the record does not contain a copy of it, nor does the judgment denying leave to amend sustain any such exception. Because we have no record of the arguments, if any, of defendants on the issue of prejudice, or whether the trial judge offered to continue the trial date, or whether plaintiff-decedent offered any evidence justifying such an amendment seven years after suit was filed, we pretermit a decision as to whether the trial court erred in denying leave to amend. We do this because even if we were to find that the trial court erred in this respect, for the following reasons we would be constrained to render judgment in favor of the defendants and against the plaintiffs on the issue of the defendants' vicarious liability for any negligence of Dr. Miles.
Subsequent to trial of this case in 1985, the trial court left the record open for sixty days to allow plaintiff to proffer evidence on, among other matters, the issue of vicarious liability on the part of Dr. Palmintier and Lafayette General for any negligence of Dr. Miles. Plaintiffs had the opportunity to proffer any evidence on, among other matters, the issue of vicarious liability on the part of Dr. Palmintier and Lafayette General for any negligence of Dr. Miles. Plaintiffs had the opportunity to proffer any evidence they had on this issue. More than one thousand pages of depositions and attachments were proffered by plaintiffs and defendants. The evidence proffered as well as testimony and evidence adduced at trial show that neither Dr. Palmintier nor Lafayette General could be held vicariously liable for any acts of Dr. Miles.
The basis for plaintiff's claims of vicarious liability on the part of the defendants is found in La.C.C. art. 2317 and La.C.C. art. 2320.
La.C.C. art. 2317:
"We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications".
La.C.C. art. 2320:
"Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it."
Any such liability on the part of Lafayette General would be based on the principle of respondeat superior.
Dr. Miles was a member of the Radiology Clinic (the Clinic), a partnership composed of several radiologists formed for the purpose of providing radiology services to area hospitals including Lafayette General. Services were rendered pursuant to a contract between the Clinic and the hospital. The Clinic provided much of its own equipment and maintained all of the equipment it used at its own cost. The Clinic employed its own X-ray technicians over whom the hospital had no supervision or control. The hospital had no supervision or control over the professional medical *237 judgment of the radiologists although the hospital reserved the right to terminate the contract if, in its and a third party's opinion, the services provided by the Clinic became substandard.
The Clinic billed its own patients although the hospital collected the payments, remitting a percentage to the Clinic. No social security or FICA was withheld by the hospital from the Clinic's share of fees collected. The Clinic provided its own malpractice and workmen's compensation insurance. The contract did provide that the partners of the Clinic were to be members of the active medical staff of the hospital. Dr. Miles was neither an agent, servant, nor employee of Lafayette General Hospital. The jurisprudence is well settled that under the circumstances present in this case, a hospital cannot be held vicariously liable under the doctrine of respondeat superior for any negligence of a physician such as Dr. Miles. Suhor v. Medina, 421 So.2d 271 (La.App. 4th Cir.1982); Badeaux v. East Jefferson General Hospital, 364 So.2d 1348 (La. App. 4th Cir.1978); Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir. 1978). The record contains no evidence which would render Dr. Palmintier vicariously liable for any negligence of Dr. Miles. Neither Dr. Miles nor Dr. Palmintier were the agent, servant, or employee of the other. The two physicians practiced different types of medicine completely independent of each other.
Plaintiffs contend that, should this court find the trial court erred, a remand of this case would be required. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980), is cited for the proposition that a remand would be required because the record is incomplete due to prejudicial evidentiary rulings by the trial court and the denial of amendments. Ragas is also apparently cited for the proposition that since the weight of the evidence is nearly equal in this case, a firsthand view of witnesses is essential to a fair resolution of conflicting evidence. We disagree. Plaintiff was given the opportunity to make a full proffer of evidence on the issue of vicarious liability and the weight of the evidence is not at all equal but clearly favors the defendants. This court has a duty to review facts, as well as law, and render any judgment that is just, legal, and proper upon the record on appeal. LSA-Const. art. 5 § 10; LSA-C.C.P. art. 2164. Accordingly, we reject this contention.
On April 27, 1982, plaintiff-decedent filed a third amended petition wherein he attempted to reassert the allegations concerning the vicarious liability of defendants for acts of Dr. Miles. For the first time he also specifically alleged that Dr. Miles negligently administered or ordered the administration of Demerol to Mr. Royer when he knew or should have known Mr. Royer was allergic to it, and that Lafayette General was vicariously liable for this act by Dr. Miles (Dr. Miles was still not made a party defendant); that other actions by agents, servants or employees of Lafayette General violated rules of the Joint Commission for the Accreditation of Hospitals and that such violations constituted negligence per se; and that Dr. Palmintier needlessly ordered the arteriogram performed on Mr. Royer and that such act constituted negligence.
At the time the third amended petition was filed, the case was set for trial on June 14, 1982. The proposed amendments were discussed at a pre-trial conference on May 3, 1982. The trial judge denied plaintiff-decedent leave to amend the petition as to all paragraphs alleging the vicarious liability of the defendants for any acts of Dr. Miles. We find it unnecessary to address plaintiff's assertion of error as to the trial court's ruling insofar as it concerns this issue since we have previously discussed and disposed of it in reference to the second amended petition.
The trial judge determined that the issues regarding the violation of accreditation rules by Lafayette General and Dr. Palmintier's ordering of the arteriogram were additional theories of recovery. Defendants argued that they would be prejudiced if required to prepare a defense to meet the new allegations in time to meet *238 the June 14, 1982 trial date. The trial judge gave plaintiff-decedent the option of going to trial on June 14, 1982 under the original petition as previously amended or amending the petition to add the two new theories of recovery in which case the court would grant defendants a continuance. At that time, plaintiff indicated that he was going to apply to this court for supervisory writs regarding the ruling of the trial court.
On May 27, 1982, defendants filed a motion for a continuance reciting that, since plaintiff-decedent intended to apply for supervisory writs, a June 14, 1982 trial would not be possible. Defendants also stated in their motion that plaintiff-decedent planned to file a fourth amended petition before he applied for writs. The trial court granted the continuance. On July 29, 1982, plaintiff-decedent filed a fourth amended petition which essentially set forth all allegations and demands contained in his original, second, and third amended petitions except that Dr. Corne was not named as a defendant. Additionally, for the first time since suit was filed nine years previously, Dr. Miles, the Hamilton Medical Group, the Radiology Clinic of Lafayette, and the Radiology Group of Lafayette General Hospital were named as party defendants. That same day, the trial judge signed an order denying plaintiff-decedent leave to amend by filing either his third or fourth amended petitions. Plaintiff applied for supervisory writs to this court which were denied on October 14, 1982. The Supreme Court denied writs on April 18, 1983.
Plaintiffs do not contend that, nor will we entertain any assertion that, since the trial date had been continued, defendants would not have been prejudiced had the trial court granted plaintiff-decedent leave to amend. The trial judge made his ruling on May 3, 1982 in the face of the June 14, 1982 trial date. Plaintiff-decedent chose not to take either option the court offered and the court issued a judgment denying him leave to amend only after he filed a fourth amended petition. For purposes of this review, we will consider both the third and fourth petitions as filed and ruled on by the trial court as of May 3, 1982. To do otherwise would be to encourage delay tactics and interfere with the orderly calendering by a court of its trial docket.
Plaintiffs present the same argument in support of their contention that the trial court erred in denying plaintiff-decedent leave to file the third and fourth amended petitions as they previously set forth regarding the second amended petition. That is, the liberal allowance of amendments under LSA-C.C.P. art. 1151 as interpreted by the courts in the Giron, supra, and Wallace, supra, decisions.
We are unable to find any abuse of discretion in the trial court's rulings as to the third and fourth amended petitions. Nowhere in plaintiff-decedent's original petition, or even his aborted second amended petition, were defendants apprised of, or put on notice of, demands based on Dr. Palmintier needlessly ordering the arteriogram or the violation of acreditation standards by Lafayette General. The Hamilton Medical Group, the Radiology Clinic of Lafayette, and the Radiology Group of Lafayette General were never placed on notice that they would have to defend against the allegations contained in the fourth amended petition and not asserted until ten years after the incident in question. Plaintiffs do not now, nor did plaintiff-decedent then, provide any justification for failing to raise these issues, or bring in these defendants, until shortly before trial when suit had been filed nine years earlier. Defendants claimed that they would be prejudiced in preparing an adequate defense in time for trial. The trial court, in the exercise of its discretion, gave plaintiff-decedent two options. The granting of a continuance is recognized as a way to avoid prejudice to a defendant, while allowing a plaintiff to amend. See: Wallace, supra; 43 Tul.L. Rev. 211. For these reasons, we find no merit in plaintiffs' contentions of error as to the trial court's rulings regarding plaintiff-decedent's third and fourth amended petitions.
*239 RES IPSA LOQUITUR
Plaintiffs contend the trial court erred in finding that the doctrine of res ipsa loquitur was not applicable to the facts of this case. We disagree.
Under the doctrine of res ipsa loquitur, a defendant's negligence is inferred because, under the facts presented, the inference that defendant's negligence caused plaintiff's harm is probable and more plausible than any explanation propounded. Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La.App. 2nd Cir.1984). The doctrine of res ipsa loquitur is appropriate only if the evidence establishes or suggests that the alleged negligence of the defendant excludes every other reasonable hypothesis as to the cause of plaintiff's condition. Guillory v. Buller, 398 So.2d 43 (La.App. 3rd Cir.1981); Helms v. St. Paul Fire and Marine Insurance, 289 So.2d 288 (La.App. 3rd Cir.1974).
In the instant case, Dr. Leslie Guidry, plaintiffs' own witness, explained what, in his opinion, happened to Mr. Royer. Mr. Royer suffered from Leriche Syndrome, which he explained was blockage, due to the accumulation of plaque, of the lower aorta and the beginning of the iliacs, the main arteries supplying blood to the legs. He stated that the disease was present when Mr. Royer entered the hospital and although undetected, the condition had existed for years. He testified that Dr. Palmintier properly ordered the arteriogram after an examination of Mr. Royer revealed evidence of arterial insufficiency manifested by a lack of circulation in his legs. Dr. Guidry explained that the only way to find out the extent to which the arteries are blocked is through an arteriogram.
He opined that during the arteriogram, the catheter used to inject dye into Mr. Royer's arteries dislodged some of the plaque which lined the artery walls. This plaque traveled to a point in Mr. Royer's lower aorta which was significantly narrowed by further accumulation of plaque resulting in a complete blockage of the lower aorta. The blockage stopped the flow of blood to Mr. Royer's legs, causing the stagnant blood to clot all the way down to his toes. Dr. Guidry and Dr. Eugene Kramer, a radiologist, both testified that these complications were known risks of arteriograms which occurred in perhaps two out of every one thousand arteriograms. Dr. Guidry stated that the benefits of an arteriogram outweigh the possible complications.
Dr. Guidry testified that from his examination of the X-rays taken by Dr. Miles, together with Dr. Miles' report, he knew Mr. Royer had a very serious condition and risked losing his legs or becoming completely incapacitated. The gangrene in Mr. Royer's left foot was caused by the loss of circulation which resulted from the clotting. Plaintiffs claim that needed care and surgery were delayed by the negligence of Dr. Palmintier and the nurses and staff of Lafayette General. Mrs. Royer testified that no physician saw her husband from approximately 5:00 P.M., when Mr. Royer returned from radiology, until 7:30 or 7:45 P.M., when Dr. Palmintier came into the room. She claims Dr. Palmintier delayed coming to the hospital but admitted that she would not have known if he was present in another part of the hospital. Dr. Miles stated that he checked on Mr. Royer around 5:30 P.M. and found him to be in discomfort. He then telephoned Dr. Palmintier, who arrived at the hospital at approximately 6:00 P.M. Dr. Palmintier and Dr. Miles discussed Mr. Royer's condition and Dr. Palmintier telephoned Dr. Guidry, who arrived shortly thereafter. Preparations were made and Mr. Royer was taken into surgery between 8:00 and 8:30 P.M. Based on the amount of blood given to Mr. Royer during surgery, Dr. Guidry estimated that the blood was ordered between 6:30 and 7:00 P.M.
Dr. Guidry stated that the renal arteries, which feed blood to the kidneys, were clear as shown by the arteriogram X-rays and were pulsating during the subsequent surgery. Although the renal arteries had not clotted, Dr. Guidry testified that, during surgery, they had to cross clamp that blood vessel. He then stated, "But it was either *240 that or the man would lose both legs entirely and perhaps his life.". Plaintiffs allege that Mr. Royer's kidney problems resulted from a clot which stopped the flow of blood to the kidneys. Dr. Guidry's testimony negates that contention but nowhere in the record is it shown what exactly caused damage to Mr. Royer's kidneys. Plaintiffs also allege that Dr. Albert Corne negligently treated Mr. Royer for his kidney ailment and that his treatment aggravated and worsened Mr. Royer's kidney problems. However, plaintiffs dismissed suit against Dr. Corne. Plaintiffs' only medical expert witnesses at trial, Dr. Guidry and Dr. Kramer, offered no testimony which would indicate that the negligence of Dr. Palmintier or Lafayette General was the probable or most plausible cause of any damage to Mr. Royer's kidneys.
Mrs. Royer and other family members testified that nurses or other hospital staff members, did not respond to their calls for aid when Mr. Royer began experiencing severe pain subsequent to returning from radiology. It is difficult to ascertain whether these allegations are correct or are the result of a misunderstanding. In any case, there is no evidence to show that any such inaction on the part of nurses or hospital staff members caused or contributed in any detrimental way to Mr. Royer's medical condition.
We find the evidence rules out the negligence of Dr. Palmintier or Lafayette General Hospital as the probable or most plausible cause of Mr. Royer's medical complications following the arteriogram. The trial court correctly ruled that the doctrine of res ipsa loquitur was not applicable to the facts of this case.
DIRECTED VERDICT
At the close of plaintiffs' case, defendants filed motions for directed verdicts in their favor which were granted by the trial court. Plaintiffs contend the trial court erred in rendering those directed verdicts.
LSA-C.C.P. art. 1810 authorizes a trial court to grant a directed verdict. The standard by which a trial court determines whether a directed verdict should be granted has been established jurisprudentially. In Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), this court set forth the applicable standard:
"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidencenot just that evidence which supports the non-mover's casebut in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury."
That standard has since been used by this court, Theriot v. St. Martin Parish School Board, 434 So.2d 668 (La.App. 3rd Cir. 1983); Guillory v. Buller, 398 So.2d 43 (La.App. 3rd Cir.1981), and has been impliedly approved by the Supreme Court. See: Breithaupt v. Sellers, 390 So.2d 870 (La. 1980).
A plaintiff's burden of proof in a medical malpractice suit is set out in LSA-R.S. 9:2794:
"A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a *241 particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred."
Dr. Guidry testified that Dr. Palmintier's assessment of Mr. Royer's condition, his diagnosis, his recommendation, and his calling in of himself (Dr. Guidry) met an acceptable standard of professional skill and care of a physician practicing surgery as Dr. Palmintier does. He stated that Dr. Palmintier's recommendation for the arteriogram was absolutely the proper step to take before varicose vein surgery, but that even if Dr. Palmintier had not ordered varicose vein surgery, an arteriogram would have been the proper thing to do to further evaluate Mr. Royer based upon his symptoms of arterial insufficiency. He further stated that Dr. Palmintier's actions were exemplary.
Dr. Palmintier apparently diagnosed plaintiff as suffering from "early" arterial insufficiency when, according to Dr. Guidry, the condition was longstanding or "coming on". Dr. Guidry stated however, that an arteriogram should have been ordered regardless of whether the diagnosis was early or longstanding arterial insufficiency. Dr. Guidry also testified that, in his opinion, the nursing personnel and hospital staff gave Mr. Royer adequate and proper care and did nothing which caused or contributed to Mr. Royer's medical problems.
Considering all of the evidence presented, together with all reasonable inferences, in a light most favorable to the plaintiffs, we find the facts and inferences point so overwhelmingly in favor of the defendants that reasonable men could not arrive at a verdict other than in favor of the defendants. Accordingly, we find no error in the trial court's action in granting a directed verdict in favor of the defendants, Dr. D.J. Palmintier, Lafayette General Hospital, and their respective insurers.
DECREE
For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615554/ | 502 So.2d 843 (1986)
Carl Dennis HAMMOND
v.
STATE.
1 Div. 326.
Court of Criminal Appeals of Alabama.
November 12, 1986.
Rehearing Denied December 30, 1986.
Certiorari Denied February 20, 1987.
*844 Michael J. McHale of Gonas & McHale, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 86-481.
BOWEN, Presiding Judge.
Carl Dennis Hammond was convicted for the unlawful possession of phenmetrazine and sentenced to fifteen years' imprisonment. Four issues are raised on this appeal of that conviction.
I
The jury's verdict read: "We the jury find the defendant guilty of possession of phenmetrazine as charged in the indictment. We believe that it was constructive possession." Hammond contends that he "was merely a conduit, signing for what he considered a harmless package" and that the state failed to prove his constructive possession of the drugs. Appellant's brief, p. 34.
This issue is not preserved for review. There was no motion of any type challenging the sufficiency of the evidence *845 filed at any time in the circuit court. There was not even a written charge requesting a directed verdict or judgment of acquittal. The alleged insufficiency of the evidence to support a conviction was not a ground of the motion for new trial. Consequently, this issue is not available for review. Riner v. State, 241 Ala. 166, 1 So.2d 403 (1941); Pugh v. State, 239 Ala. 329, 331, 194 So. 810 (1940); Thompson v. State, 347 So.2d 1371, 1373 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala. 1977), cert. denied, Thompson v. Alabama, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978); Gilbreath v. State, 54 Ala.App. 676, 681, 312 So.2d 81 (1975).
II
Any error in the admission of the police officer's testimony that the pink tablets were preludin was harmless in view of the subsequent testimony of a toxicologist and properly qualified expert that the tablets were preludin, a trade name, and contained the controlled substance phenmetrazine.
"The rule is that testimony apparently illegal upon admission may be rendered prejudically innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred." Yelton v. State, 294 Ala. 340, 342, 317 So.2d 331 (1974). See also Ex parte Bush, 474 So.2d 168, 171 (Ala.1985). "Admissions of incompetent evidence are harmless, where the fact to which that evidence relates is otherwise established by competent evidence." Smith v. State, 229 Ala. 207, 208, 157 So. 874 (1934).
III
The trial judge properly sustained defense counsel's objection to the prosecutor's statement in closing argument that the defendant's name was Carl Dennis Hammond. There was evidence that the defendant, Carl Hammond, identified himself as Carl Dennis. However, although the defendant was described in the indictment as Carl Dennis Hammond, there was no evidence presented that the defendant was Carl Dennis Hammond.
Even though the comment was improper, the trial court's denial of the requested mistrial was properly denied. "A motion for a mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court." Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, Ex parte Nix, 370 So.2d 1119 (Ala.1979). Here, the trial court instructed the jury to "disregard that remark of the District Attorney because I don't remember any evidence of that" and that the jury should be guided by their collective recollection of the evidence.
We did not find that the comment was so offensive and prejudicial that it constitutes fundamental error vitiating the result of the trial. "[T]he trial court is best able to assess the issues, parties, and circumstances of each case and determine the potential prejudicial impact of the improper argument." Taylor v. State, 408 So.2d 551, 553 (Ala.Cr.App.1981), cert. denied, Ex parte Taylor, 408 So.2d 555 (Ala.1982).
Defense counsel also objected to the prosecutor's argument, "[T]hese pills right here, these aren't no-doze. These aren't diet pills. These pills right here could kill. These pills right here are what's going into the veins of people in Mobile County. People are not buying these drugs for ten dollars apiece." The trial court did not rule on defense counsel's objection but responded, "All right. Well the time is up Ms. Tanner." Without an adverse ruling by the trial court, there is nothing for this Court to review. Jackson v. State, 260 Ala. 641, 644, 71 So.2d 825 (1954); Van Antwerp v. State, 358 So.2d 782, 790 (Ala. Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978). The trial court's response of "all right" does not constitute a ruling. Gross v. State, 395 So.2d 485, 488 (Ala.Cr.App.1981).
IV
The trial court did not err in denying the motion for new trial. As previously noted, *846 the motion did not challenge the sufficiency of the evidence. That motion only raised issues concerning the sentence.
There were 320 preludin tablets involved in this case. Hammond's sentence of fifteen years' imprisonment is the maximum authorized for the charged offense, Alabama Code 1975, § 20-2-70(a). This sentence was to run concurrent with a sentence of six months Hammond was serving for intimidating a witness.
It has not been argued that the sentence is disproportionate under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Under these circumstances, we are not willing to conclude that Hammond's sentence is so disproportionate to the offense charged that it constitutes a violation of his constitutional rights under the Eighth Amendment. Ex parte Maddox, Callahan, and Gillum, 502 So.2d 786 (Ala.1986). See also Ex parte Harbor, 465 So.2d 460 (Ala.1985).
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616031/ | 668 N.W.2d 245 (2003)
266 Neb. 641
STATE of Nebraska, Appellee,
v.
Billy Jack REED, Appellant.
No. S-02-839.
Supreme Court of Nebraska.
August 22, 2003.
*247 Robert P. Lindemeier, Lincoln County Public Defender, for appellant.
Jon Bruning, Attorney General, William L. Howland, and Lisa M. Hinrichsen, Senior Certified Law Student, for appellee.
HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
STEPHAN, J.
Billy Jack Reed appeals from an order of the district court for Lincoln County overruling his two motions to discharge. Reed contends that the court erred in interpreting specific provisions of the interstate Agreement on Detainers (Agreement), codified at Neb.Rev.Stat. § 29-759 (Reissue 1995). We affirm.
FACTS
On July 6, 2001, Reed was arrested in Illinois on charges of committing two murders in that state. He was initially held in Adams County, Illinois, awaiting trial. Various proceedings relating to the pending charges were held in Adams County beginning in July and continuing thereafter. On September 4, pursuant to an agreement of the State of Illinois and the *248 defense, Reed was transferred from Adams County to the Illinois Department of Corrections facility at Menard, Illinois, to serve a custodial sentence for a parole violation. Thereafter, the State of Illinois would "writ" Reed from the Menard facility for his scheduled court appearances in Adams County, and then remand him back to the Menard facility following each appearance. This process continued until approximately the beginning of October 2001, at which time Reed remained in Adams County to face the pending charges. Reed has not been back to the Menard facility since that time.
On or about September 12, 2001, while he was incarcerated in the Menard facility, Reed was notified of a detainer filed against him by Lincoln County, Nebraska, on pending charges of first degree murder and use of a firearm to commit a felony. Pursuant to the Agreement, Reed subsequently delivered his request for speedy disposition of the pending Nebraska charges to the warden at the Menard facility. On October 31, the Lincoln County Court in Nebraska acknowledged receipt of the request.
Reed's request for speedy disposition, prepared pursuant to the requirements of the Agreement, included a certificate of inmate status completed by the warden of the Menard facility indicating that Reed was not eligible for parole from that facility until July 2002 and that a detainer had also been lodged against him by Adams County, Illinois. Also pursuant to the Agreement, the request included the warden's offer to deliver temporary custody of Reed to Lincoln County officials in order that prosecution of the Nebraska charges could commence.
After Reed submitted his request for speedy disposition of the Nebraska charges, but before it was received by Nebraska authorities, Reed was removed from the Menard facility and returned to Adams County, Illinois, to await trial of the charges pending there. On October 25, 2001, the Lincoln County Attorney wrote letters to the Menard facility and to the Illinois prosecutor stating his understanding that Adams County was unwilling to allow Reed to be transferred to Nebraska pursuant to the detainer until resolution of the pending charges in Adams County. The Lincoln County Attorney nevertheless returned the necessary forms required by the Agreement to the Menard facility. The county attorney agreed to accept temporary custody of Reed, but specifically noted:
Inmate Billy J. Reed is currently facing charges of two (2) counts of First Degree Murder in Adams County, Illinois. State's attorney, Barney Bier, who is prosecuting ... Reed stated he would not release him to the State of Nebraska, Lincoln County, until the disposition of the Adams County, Illinois case. We will accept custody of ... Reed as soon as he is available to the State of Nebraska, Lincoln County.
On February 14, 2002, Reed appeared for a status hearing in Adams County. At this hearing, the prosecutor outlined a plea agreement which had been negotiated. Under the agreement, Reed would plead guilty in Adams County to one count of first degree murder and one count of arson, and the sentence for his crimes would be no more than 50 years' incarceration. The plea was further predicated upon Reed's being charged with and pleading guilty to "second degree aiding and abetting in Nebraska, as well as robbery." Under the proposed agreement, the Illinois and Nebraska sentences were to be concurrent and sentencing in Illinois was to be delayed in order to permit Reed's transfer to Nebraska for disposition of his case here. Reed was to serve his sentence *249 in Illinois. After discussion of the plea agreement during the status hearing, Reed entered guilty pleas to the two Illinois charges specified in the agreement. Sentencing was scheduled for March 25.
Reed subsequently waived extradition and was transported to Nebraska by the Lincoln County sheriff on March 7, 2002. On April 2, Reed was charged by information in Lincoln County with one count of first degree murder and one count of use of a firearm to commit a felony in connection with the death of Joyce Boyer on or about July 3, 2001. At his arraignment, Reed entered pleas of not guilty, and a jury trial was scheduled for July 16, 2002. In a letter to Reed's attorney dated April 30, 2002, the Lincoln County Attorney offered to amend the charges against Reed to aiding and abetting second degree murder and aiding and abetting robbery in exchange for a plea of guilty. On June 5, with Lincoln County's permission, Illinois officials transported Reed from Nebraska to Adams County, Illinois, to enable him to attend the previously scheduled sentencing hearing, which had apparently been postponed. Reed's Nebraska attorney objected to this transfer on grounds that it "makes communication with his attorney difficult" and causes an "undue hardship on him in trying to prepare for trial."
During the Adams County hearing on June 7, 2002, Reed informed the Illinois court that he had received an offer from Nebraska consistent with the negotiated plea agreement and wished to proceed with the agreement. He requested that he be returned to Nebraska, and the Illinois court authorized such return and set the Illinois sentencing for August 21. Reed was returned to Nebraska on June 13.
On June 19, 2002, Reed filed two separate motions to discharge the Lincoln County charges, both based upon alleged violations of the Agreement. One motion alleged that Nebraska failed to bring him to trial within the 180-day period mandated by the Agreement, and the other alleged that his return to Illinois for the sentencing hearing violated the antishuttling provisions of the Agreement. After conducting an evidentiary hearing, the district court entered an order denying both motions. The court held that Reed was "`unable to stand trial'" in Nebraska within the meaning of the Agreement during the period he was facing charges in Adams County, thereby tolling the 180-day period to bring Reed to trial in Nebraska. See § 29-759, art. VI(a). The court further found that Reed's return to Illinois for the sentencing hearing did not violate the antishuttling provisions of the Agreement, as Reed was never returned to the Menard facility, his place of original imprisonment. Reed filed this timely appeal, which we removed to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
ASSIGNMENTS OF ERROR
Reed assigns, restated, that the district court erred in (1) finding the time to bring him to trial was tolled while he was facing pending charges in Illinois, (2) not finding that Nebraska failed to accept temporary custody of him, and (3) finding that the antishuttling provisions of the Agreement were not violated by his return from Nebraska to Illinois.
STANDARD OF REVIEW
In a ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement, a trial court's pretrial factual findings regarding the application of provisions of the Agreement will not be disturbed on appeal unless clearly wrong. *250 See State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Interpretation of a statute presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002); State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
ANALYSIS
BACKGROUND
In order to avoid prolonged interference with rehabilitation programs, the Agreement provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences. § 29-759, art. I; Williams, supra. Because the Agreement is a congressionally sanctioned interstate compact, it is a federal law subject to federal construction. Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981); Williams, supra. U.S. Supreme Court interpretations of the Agreement are thus binding on state courts. Williams, supra.
Although the Agreement does not define detainer, we have noted that a detainer is "a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction." Williams, 253 Neb. at 626, 573 N.W.2d at 111. Accord State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). Because a detainer remains lodged against a prisoner without any action being taken on it, the Agreement sets forth two procedures designed to effectuate its purpose of expeditious prosecution. Reynolds, supra. The machinery of the Agreement may be activated by either the prisoner or the receiving state. Reynolds, supra.
Article III of the Agreement prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. Reynolds, supra. Specifically, article III(a) provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint.... The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
Article III(c) requires the warden or official having custody of the prisoner to promptly inform the prisoner of the source and contents of any untried complaint and of his right to request its final disposition. See Reynolds, supra. Upon receipt of a proper request for disposition under article *251 III, the receiving state must bring the prisoner to trial within 180 days. Reynolds, supra. Article III(d), commonly referred to as the antishuttling provision of the Agreement, provides that if trial is not had on any indictment or information prior to the return of the prisoner "to the original place of imprisonment," such indictment or information shall be dismissed with prejudice.
Article IV of the Agreement sets forth the procedures by which the authorities in the state where the charges are pending, the receiving state, may initiate the process whereby a prisoner is returned to that state for trial. Reynolds, supra. Under article IV(a), the appropriate officer of the receiving state must present a written request for temporary custody to the appropriate authorities of the custodial or sending state. Reynolds, supra. The sending state may not act on the request for a 30-day period, during which time the governor of the sending state may disapprove the request either on his or her own motion or upon motion of the prisoner. § 29-759, art. IV(a). If the proceedings are triggered under article IV, trial in the receiving state must be commenced 120 days after the arrival of the prisoner in that state. § 29-759, art. IV(c).
Article V(a) provides that in response to a request made under either article III or IV, "the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending." It further provides that if the request for final disposition is made by the prisoner under article III, then "the offer of temporary custody shall accompany the written notice provided for in Article III." § 29-759, art. V(a). If the appropriate authority refuses to accept temporary custody or if an action is not brought to trial within the time periods authorized by articles III and IV, then the action shall be dismissed with prejudice. § 29-759, art. V(c).
Article VI(a) provides:
In determining the duration and expiration dates of the time periods provided in Articles III and IV of this Agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
(Emphasis supplied.)
UNABLE TO STAND TRIAL
This case presents the unusual circumstance of a defendant whose incarceration status in the sending state alternated between that of a pretrial detainee and that of a prisoner serving a custodial sentence. As noted, Reed was facing pending charges in Adams County, Illinois, prior to his incarceration at the Menard, Illinois, facility. The record indicates that Reed was moved back and forth between Adams County and the Menard facility by agreement of the parties during the early stages of the Adams County proceedings so that he could serve time on a sentence of imprisonment in the Menard facility. No sentence of imprisonment had been entered in Adams County. The Nebraska detainer was lodged against Reed while he was at the Menard facility.
If the detainer had been lodged against Reed while he was being held in Adams County, the Agreement would not apply, as it is not applicable to pretrial detainers. See, e.g., U.S. v. Muniz, 1 F.3d 1018 (10th Cir.1993); U.S. v. Bayless, 940 F.2d 300 (8th Cir.1991); State v. Hargrove, 273 Kan. 314, 45 P.3d 376 (2002); State v. Smith, 115 N.M. 749, 858 P.2d 416 (N.M.App.1993); People v. Wilden, 197 Mich.App. 533, 496 N.W.2d 801 (1992). *252 The Agreement applies solely to persons who have entered upon a term of imprisonment and therefore does not include pretrial detainees. See, Muniz, supra; Bayless, supra; Hargrove, supra; Smith, supra; Wilden, supra. Pretrial detainees are not serving a sentence at the time the detainer is filed, and thus they have no vested interest in programs of treatment and rehabilitation available to prisoners who are serving sentences. Pretrial detainees are therefore not under the protection of the Agreement. See, Muniz, supra; Bayless, supra; Hargrove, supra; Smith, supra; Wilden, supra. However, because the Nebraska detainer was filed at a time that Reed happened to be lodged at the Menard facility where he was serving a sentence, the Agreement is applicable to this case.
In his first assignment of error, Reed contends that the district court erred in finding that the 180-day time period in which to try him in Nebraska did not expire because he was "unable to stand trial" in Nebraska while charges were pending against him in Adams County. In this respect, Reed does not challenge the factual findings of the district court, but merely its interpretation of the statutory language of the Agreement.
The parties agree that the 180-day period in which to bring Reed to trial in Nebraska began running on October 31, 2001, the day on which both the Lincoln County Attorney and the Lincoln County Court had received notice of Reed's request for final disposition of the pending Nebraska charges. See Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993) (holding 180-day period in article III(a) of Agreement commences when request for final disposition is received by prosecutor and appropriate court of jurisdiction that lodged detainer). The issue presented is whether the 180-day time period was tolled while the Adams County charges remained pending.
Reed argues in his brief that he was not "unable to stand trial" in Nebraska because "Nebraska could have taken custody of him at any time to meet their [sic] responsibilities under the [Agreement]." Brief for appellant at 13. He argues that his request for final disposition of the Nebraska charges is deemed a waiver of extradition and a consent to the production of his person in Nebraska pursuant to article III(e). He further argues that the warden at the Menard facility offered to deliver temporary custody of Reed to Nebraska and that although the Lincoln County Attorney had complete authorization thereafter to seek custody, he failed to do so simply because the Adams County Attorney expressed a preference that the charges against Reed in Illinois proceed first. Reed contends that pursuant to article IV(a), only the governor of a sending state, in this case Illinois, can refuse a transfer of a prisoner once a request for temporary custody is made by a receiving State and that therefore, the wishes of the Adams County Attorney were completely immaterial and did not affect Nebraska's right under the Agreement to take custody of him.
Reed's reliance on article IV(a) is misplaced. As noted, article IV provisions are invoked in situations in which the receiving state initiates the process of proceeding on a lodged detainer. In this case, Reed initiated the process by filing a request for final disposition under article III. As required by the Agreement, his request included an offer of temporary custody made by the Menard facility. Although Nebraska responded to this offer of temporary custody pursuant to article III, Nebraska did not initiate a request for temporary custody under article IV. Therefore, the provisions of article IV are not applicable *253 in this proceeding. Because the provision that only the governor of a sending state may deny a request for temporary custody is contained in article IV, there is no merit to Reed's contention that the wishes of Adams County officials to keep him in Illinois to face pending charges could not render him "unable to stand trial" in Nebraska. Moreover, because article V(a) requires that at the time a request for final disposition is made by a prisoner, the sending state shall offer to deliver temporary custody to the receiving state, Reed's reliance on the fact that the Menard facility offered temporary custody is also without significance.
In support of his argument that the 180-day period was not tolled, Reed relies on State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001), and State v. Meyer, 7 Neb.App. 963, 588 N.W.2d 200 (1998). We find these cases to be distinguishable. Steele does not address the "unable to stand trial" language of the Agreement. In Steele, the defendant was charged in Lancaster County on April 16, 1999, trial was set, and he was released on bond. Subsequently, Colorado filed a fugitive complaint against the defendant. On May 24, he waived extradition and was returned to Colorado. Nebraska authorities were aware of the extradition and took no steps to oppose it. The defendant subsequently brought a motion to discharge the Nebraska charges, alleging his statutory right to a speedy trial under Neb.Rev.Stat. § 29-1207 (Reissue 1995) had been violated. The State argued that the provisions of the Agreement were applicable and that under those provisions, the defendant's rights had not been violated.
We concluded that once Nebraska filed the information and charged the defendant with the crime in April 1999, his statutory speedy trial rights under § 29-1207 were invoked and the provisions of the Agreement were not applicable. We further held that the defendant's voluntary waiver of extradition did not prevent Nebraska from refusing to surrender him to Colorado when Nebraska charges remained pending. We therefore concluded that the time period during which the defendant was in Colorado was not excluded and that the defendant's right to a speedy trial was violated. Steele is factually distinguishable from the instant case and provides no guidance on the issue of interpreting the "unable to stand trial" language of the Agreement.
The only reported Nebraska appellate opinion interpreting the "unable to stand trial" language of the Agreement is Meyer, supra. In that case, the defendant was charged in Sarpy County on April 20, 1995, with burglary, theft by unlawful taking, and criminal mischief. At that time, the defendant was incarcerated in Iowa. On July 27, Sarpy County lodged a detainer against the defendant at the Iowa facility in which he was incarcerated. On March 24, 1997, the defendant filed an article III pro se notice of place of imprisonment and request for final disposition of the Sarpy County charges.
The very next day, the defendant was granted parole in Iowa and released to the custody of Sarpy County on the detainer. A preliminary hearing was set for April 10, 1997, and the defendant was released on bond. He failed to appear at the preliminary hearing because, unbeknownst to Sarpy County officials, he had been taken into custody in Iowa on new charges on March 28. The defendant was sentenced on the Iowa charges on October 15 and incarcerated in Oakdale, Iowa. The defendant remained incarcerated until February 3, 1998. On that date, he was then arrested by the Sarpy County sheriff and brought back to Nebraska for arraignment on the April 20, 1995, complaint. On April *254 8, 1998, the defendant filed a motion to dismiss the charges due to an alleged violation of the 180-day period in the Agreement.
The Nebraska Court of Appeals found that the 180-day period to bring the defendant to trial was triggered by his March 24, 1997, request for final disposition. Then, adopting the view of the majority of federal courts, it held that a defendant is "unable to stand trial" within the meaning of the Agreement during all those periods of delay occasioned by the defendant. State v. Meyer, 7 Neb.App. 963, 588 N.W.2d 200 (1998). The Court of Appeals determined that the defendant's reincarceration in Iowa was clearly a delay caused by him and that thus, the 180-day period was tolled either until he reappeared in Nebraska court or until he fully and completely advised Sarpy County of his exact whereabouts so that they could "`go get him'" pursuant to his request for final disposition. Id. at 971, 588 N.W.2d at 205. The court reasoned that a contrary holding would allow a defendant to seek final disposition of pending charges and then disappear for 180 days and cause the charges to be dismissed.
Relying on Meyer, Reed argues that as long as Nebraska officials were aware of Reed's whereabouts in Adams County, they could "go get him" and that thus, the 180-day time period was not tolled because he was not unable to stand trial. Meyer, however, did not address what effect pending charges in the other jurisdiction would have on the rule announced, as the defendant in that case was simply incarcerated and not facing new charges in Iowa. Therefore, Meyer is not instructive in this case.
Other state courts have addressed the "unable to stand trial" language of the Agreement in situations that are factually analogous to the instant case. In Johnson v. Commissioner of Correction, 60 Conn. App. 1, 758 A.2d 442 (2000), a prisoner filed a petition for a writ of habeas corpus in which he sought to quash a detainer lodged against him by Massachusetts. The detainer was lodged while the prisoner was serving a burglary sentence in Connecticut, and the prisoner requested final disposition of the charge on July 5, 1996. Pursuant to the provisions of article III of the Agreement, the prisoner's request included an offer by Connecticut authorities to deliver temporary custody of the prisoner to Massachusetts. This offer was received by Massachusetts authorities on August 8.
On August 16, 1996, however, while still incarcerated in Connecticut, the prisoner was charged with another Connecticut crime. Trial on this charge began on September 5, and the charge was finally resolved nearly a year later. In the meantime, however, on December 17, Massachusetts authorities had attempted to obtain temporary custody of the prisoner. Although it was not clear from the record, the district court found that it could be inferred that Massachusetts was denied custody at that time and that conversations between the respective prosecutors made it clear to Massachusetts officials that further efforts to obtain custody of the prisoner would not be fruitful until resolution of the new Connecticut charges. The court found that Connecticut's refusal to transfer the prisoner until the pending charges were resolved was justified and thus that while the prisoner was facing the pending charges in Connecticut, he was "unable to stand trial" in Massachusetts. It thus denied the prisoner's request for habeas relief.
In State v. Cook, 330 N.J.Super. 395, 750 A.2d 91 (2000), New Jersey lodged a detainer against a defendant incarcerated in Pennsylvania. On April 7, 1988, New *255 Jersey requested temporary custody of the defendant. At that time, the defendant had been sentenced on one of three Pennsylvania murder charges and was incarcerated pending disposition of the remaining charges. Pennsylvania authorities thus declined to offer temporary custody. On March 30, 1994, all proceedings in Pennsylvania concluded.
The defendant was finally transported to New Jersey on June 8, 1994, and filed a motion to dismiss the charges based on violation of the Agreement. The court held that the defendant was not entitled to a dismissal of the charges because "[o]utstanding charges pending in a sending state renders a defendant `unable to stand trial' in the receiving state under the [Agreement]." Cook, 330 N.J.Super. at 413, 750 A.2d at 101.
In People v. Whitely, 143 Misc.2d 83, 539 N.Y.S.2d 652 (1989), New York lodged a detainer against a defendant serving a 2-year prison term in Connecticut. The defendant was simultaneously facing four separate charges then pending in Connecticut. The court held that the defendant was unable to stand trial in New York during the proceedings on the pending Connecticut charges, reasoning that the Agreement was never intended to benefit one who still had outstanding charges against him in the sending state, and that pending proceedings in the sending state can therefore be the basis for a tolling of the 180-day requirement under article III.
In State v. Binn, 196 N.J.Super. 102, 481 A.2d 599 (1984), New Jersey filed a detainer against a prisoner incarcerated in New York. The prisoner requested speedy disposition of the New Jersey charges. New York, however, refused to offer temporary custody until pending charges in that state were resolved. The court rejected the prisoner's contention that "because New York was expeditiously moving other pending charges against him after he served his request for final disposition of the New Jersey charges that those New Jersey charges must be dismissed," finding that the Agreement "intended no such irrational result." Binn, 196 N.J.Super. at 108, 481 A.2d at 601-02. The court concluded that the prisoner was unable to stand trial in New Jersey because of the legitimate claim of New York to hold him to dispose of remaining New York charges.
We find these authorities persuasive. Moreover, we note that other courts have held that while a prisoner is in the custody of one jurisdiction facing charges which he requested be speedily resolved under the Agreement, he is unable to stand trial in another jurisdiction in which he has also requested speedy resolution of pending charges. See, United States v. Mason, 372 F.Supp. 651 (N.D.Ohio 1973); Vaden v. State, 712 N.E.2d 522 (Ind.App.1999); State v. Maggard, 16 Kan.App.2d 743, 829 P.2d 591 (1992); State v. Wood, 241 N.W.2d 8 (Iowa 1976). These jurisdictions reason that a prisoner should not be able to manipulate the detainer process to his advantage and that his own actions in this regard make him unable to stand trial in both jurisdictions at the same time. Id. Although the instant case does not involve a simultaneous request for speedy disposition of charges in two jurisdictions, we find that the rationale articulated by these cases is applicable to the unique circumstances of this case. Thus, if one jurisdiction is actively prosecuting a defendant on current and pending charges, a defendant cannot be allowed to avoid pending charges in another jurisdiction simply by filing a request for final disposition under the Agreement, as clearly the defendant cannot stand trial in both jurisdictions at the same time. In such a situation, the defendant is unable to stand trial in the state in which *256 he requested final disposition until resolution of the pending charges in the sending state.
Based upon the cases cited above, we conclude that the district court did not err in finding that Reed was unable to stand trial in Nebraska during the time period he was facing pending charges in Illinois.
"REFUSAL" OF TEMPORARY CUSTODY
In his second assignment of error, Reed argues that Nebraska's "conditional" acceptance of temporary custody amounted to a refusal of or a failure to accept temporary custody under the Agreement. Notably, this argument was not presented in either of Reed's motions to discharge that were filed with the district court. This argument was also not raised during the evidentiary hearing held on the motions. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003); State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002). We therefore decline to address this assignment in this appeal.
ANTISHUTTLING PROVISIONS
Reed asserts in his third assignment of error that the antishuttling provisions of the Agreement were violated in this case when he was transferred from Lincoln County, Nebraska, to Adams County, Illinois. In this respect, article III(d) provides in relevant part:
If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
(Emphasis supplied.) Similarly, article IV(e) provides:
If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
(Emphasis supplied.) Article V(e) provides: "At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state."
Reed argues that he was imprisoned in Illinois at the time he filed his request for speedy disposition and that he was transported back to Illinois on March 5, 2002, to attend the Illinois sentencing proceedings prior to trial on his Nebraska charges. He contends that such transport violates the antishuttling provisions of articles III and IV.
The district court found that "it could be argued" that by its "demand" on the State of Illinois and Reed's subsequent waiver of extradition, the State of Nebraska took steps under article IV to have Reed returned to Nebraska. Reed contends in his brief that Nebraska took such steps and that therefore, the provisions of both articles III and IV are applicable to this proceeding. However, the record reveals that all action taken under the Agreement was initiated by Reed. If article IV were invoked, Nebraska would have presented a written request for temporary custody to the appropriate Illinois authorities. See § 29-759, art. IV(a). No such request appears in the record. The only correspondence with respect to the issue *257 of temporary custody is Nebraska's acceptance of the Menard facility's offer of temporary custody that was made under article III. Therefore, only the antishuttling provisions of article III, and not the provisions of article IV, are applicable to our analysis of this issue.
Reed relies heavily upon Alabama v. Bozeman, 533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001). In that case, the defendant was serving a sentence at a federal prison in Florida when Alabama lodged a detainer against him. Alabama then invoked the provisions of article IV and sought temporary custody of the defendant. Temporary custody was granted, and the defendant was released to Alabama officials. The officials transported him approximately 80 miles to Alabama, where he spent the night in county jail, appeared in court the next morning, and was then transported back to the federal prison in Florida. Approximately 1 month later, the defendant was returned to Alabama to stand trial.
The defendant filed a motion to dismiss the Alabama charges, arguing that the antishuttling provision of article IV had been violated by his return to the federal prison prior to trial in Alabama. Alabama did not contest that the Agreement was literally violated, but argued that the violation was de minimus because it did not prejudice the defendant or affect his rehabilitation program. The U.S. Supreme Court, however, found that the terms of article IV had been violated, and dismissed the Alabama charges. Reed contends that Bozeman stands for the proposition that the antishuttling provisions of the Agreement must be strictly construed in favor of the prisoner.
Bozeman, supra, however, did not address the factual situation present in the instant case, because in that case, the prisoner was clearly returned to the original institution in which he was serving a validly imposed custodial sentence and was not returned to the sending state for the purpose of facing pending charges. Moreover, Bozeman clearly interpreted and applied the antishuttling provision in article IV of the Agreement. As noted, the State of Nebraska never invoked the provision of article IV in this case, and thus the only antishuttling provision at issue in this case is that of article III(d). Although the provisions in each article are similar, they contain one striking difference. Article III(d) provides that the prisoner may not be returned to the "original place of imprisonment," while article IV(e) provides that the prisoner may not be returned to the "original place of imprisonment pursuant to Article V(e) hereof." (Emphasis supplied.) Article V(e) provides: "At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state."
The difference in the statutory language of articles III(d) and IV(e) was addressed by the Supreme Court of Wyoming in Merchant v. State, 4 P.3d 184 (Wyo.2000). In that case, a prisoner was serving a sentence in Canon City, Colorado, when he requested final disposition of outstanding Wyoming charges. He was subsequently transferred to Wyoming, based on this request. However, prior to being tried in Wyoming, the prisoner was returned to Weld County, Colorado, on two occasions to face pending charges. The prisoner was never returned to Canon City. He contended that the returns to Colorado violated the antishuttling provisions of the Agreement and required dismissal of the Wyoming charges.
The Wyoming Supreme Court found that it was the prisoner who requested final disposition of the Wyoming charges and that thus, the remedy for a violation of the antishuttling provision was found only *258 in article III(d). The court noted the distinction between the language in articles III(d) and IV(e) and concluded:
Absent modifying language in Article III, similar to that in Article IV, Article III's definition of "original place of imprisonment" is more precise and restrictive than that of Article IV. Article III requires that the prisoner be returned to his "original place of imprisonment," the Colorado Territorial Correction Facility in Canon City, Colorado, while under Article IV, it appears to suffice if the prisoner is returned to the sending state.
Merchant, 4 P.3d at 189. The court concluded that because the prisoner was never returned to Canon City, even though he was returned to another location in Colorado, the antishuttling provision of article III was not violated.
As Reed correctly notes, Merchant was decided prior to Alabama v. Bozeman, 533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001). Bozeman, however, while holding that the provisions of article IV must be strictly applied, did not address the statutory language of article III. Literally interpreting the statutory language of the Agreement, as we must under Bozeman, we conclude that there is a difference between the "original place of imprisonment" language in article III and the "original place of imprisonment pursuant to Article V(e) hereof" language in article IV. Under the article III "original place of imprisonment" language, it is not enough that a prisoner is returned to the sending state simply to face pending charges. In the instant case, we deem it particularly significant that Reed was never returned to any facility in Illinois in order to serve a term of imprisonment, but, rather, was returned to Illinois only to face pending charges. He was therefore never returned to his "original place of imprisonment," and the district court did not err in concluding that the antishuttling provisions of the Agreement were not violated.
CONCLUSION
The district court properly determined that the 180-day period in which to bring Reed to trial under article III of the Agreement was tolled during the time Reed was in Adams County, Illinois, facing pending charges, as he was at that time "unable to stand trial" in Nebraska. Reed's contention that Nebraska failed to accept temporary custody is not properly before us in this appeal. Because Reed was never returned to Illinois to serve a sentence of imprisonment, the antishuttling provision of article III of the Agreement was not violated. The judgment of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615252/ | 23 So.3d 720 (2009)
HOWARD
v.
STATE.
No. 2D09-4781.
District Court of Appeal of Florida, Second District.
November 25, 2009.
Decision Without Published Opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697445/ | [Cite as State v. Leffingwell, 2013-Ohio-1421.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 12CA1
vs.
:
JEFFERY A. LEFFINGWELL, DECISION AND JUDGMENT ENTRY
:
Defendant-Appellant.
:
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Brian A. Smith, 503 West Park Avenue, Barberton, Ohio
442031
COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney,
and Jeffrey M. Smith, Lawrence County Assistant
Prosecuting Attorney , Lawrence County Courthouse, One
Veterans Square, Ironton, Ohio 45638
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-2-13
Abele, J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment of
conviction and sentence. A jury found Jeffery A. Leffingwell, defendant below and appellant
herein, guilty of burglary in violation of R.C. 2911.12(A)(1). Appellant assigns the following
errors for review:
FIRST ASSIGNMENT OF ERROR:
1
Different counsel represented appellant during the trial court proceedings.
[Cite as State v. Leffingwell, 2013-Ohio-1421.]
“APPELLANT’S CONVICTION FOR BURGLARY WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
OVERRULED THE OBJECTIONS OF APPELLANT TO THE
STATE’S QUESTIONING OF ITS WITNESS, CHELSA
WATKINS, AS LEADING.”
FOURTH ASSIGNMENT OF ERROR:
“APPELLANT’S SENTENCE WAS AN ABUSE OF
DISCRETION.”
FIFTH ASSIGNMENT OF ERROR:
“THE COURT ERRED WHEN IT FAILED TO IMPOSE
POST-RELEASE CONTROL AS REQUIRED BY THE OHIO
STATUTES.”
{¶ 2} On May 7, 2011, Kevin McWhorter went fishing and returned home around 2:30
AM on May 8th. McWhorter watched television for about half an hour, then went to bed.
When McWhorter awoke later that morning, he found that his home had been broken into and a
number of items had been stolen including, inter alia, an X Box game console, several X-Box
games, his wallet, a watch and a ring.
{¶ 3} Appellant, whose grandmother lives several houses away from the victim,
celebrated his twenty-fifth (25th) birthday on the day of the robbery. His on-again/off-again
girlfriend, Chelsa Watkins, characterized him that day as being particularly happy and, when
asked why, said it was because he had some money. Appellant also sold to Watkins a ring,
LAWRENCE, 12CA1 3
watch and an X-Box game console along with several games. Several days later, when Watkins
told appellant that she would rather be friends than engage in a dating relationship, appellant
telephoned her parents and told them that the X-Box console that she had purchased from
appellant had been stolen. Chelsa’s father then instructed his daughter to return the console to
appellant. The game system, however, was never recovered in the subsequent investigation.
Authorities did recover the stolen ring (with the victim’s name) and watch (that appellant had
sold to Chelsa for $25). During the investigation that followed, appellant denied burglarizing
the home and claimed that he obtained the stolen items from an individual that he identified as
“Little D.”
{¶ 4} On August 29, 2011, the Lawrence County Grand Jury returned an indictment that
charged appellant with burglary. Appellant pled not guilty and the matter proceeded to a jury
trial. Chelsa Watkins, the State’s primary witness, admitted at the outset that she was “not
happy” to be there. Nevertheless, she described how appellant sold to her the stolen goods and
that appellant admitted that he had entered the victim's home when the victim was asleep. A
recording of her statement further revealed that she was concerned that appellant might even
target her own family for theft offenses in the future.
{¶ 5} After hearing the evidence, the jury returned a guilty verdict. The next day, the
trial court sentenced appellant to serve a definite term of eight years in prison. This appeal
followed.
I
{¶ 6} We first consider, out of order, appellant's second assignment of error wherein he
LAWRENCE, 12CA1 4
argues that insufficient evidence supports his conviction. We disagree with appellant.
{¶ 7} Our analysis begins with the well-settled proposition that when reviewing for the
sufficiency of evidence, appellate courts look to the adequacy of the evidence and whether such
evidence, if believed by the trier of fact, supports a finding of guilt beyond a reasonable doubt.
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v. Jenks, 61 Ohio
St.3d 259, 273, 574 N.E.2d 492 (1991). In other words, after viewing the evidence, and each
inference that can reasonably drawn therefrom in a light most favorable to the prosecution, could
any rational trier of fact have found all essential elements of the offense beyond a reasonable
doubt? See State v. Were, 118 Ohio St.3d 448, 890 N.E.2d 263, 2008-Ohio-2762; at ¶132; State
v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, at ¶34.
{¶ 8} R.C. 2911.12(A)(1) prohibits the trespass in an occupied structure to commit a
criminal offense when someone else is present. Chelsa Watkins testified that appellant sold to
her, inter alia, the ring and the watch that had been taken from the victim’s home. A statement
Chelsea gave to the authorities indicated that appellant told her that he had entered the victim's
home when someone was there sleeping. This evidence, if believed, is sufficient to satisfy the
statute's elements beyond a reasonable doubt.
{¶ 9} Appellant counter-argues the State’s evidence “was limited primarily to
circumstantial evidence.” However, even if we accept appellant’s argument, we note that in a
criminal case no distinction is made between circumstantial evidence and direct evidence. State
v. Blackshear, 5th Dist. App. No. 2012–CA–84, 2013-Ohio-77, at ¶43; State v. DiBiase, 11th Dist.
No. No. 2011–L–124, 2012-Ohio-6125; State v. Moten, 2nd Dist. No. 2011CA37,
2012-Ohio-6046, at ¶43. In any event, whether the evidence adduced at trial was direct,
LAWRENCE, 12CA1 5
circumstantial, or a mixture of such evidence, we readily conclude that the evidence is sufficient
to prove each element of the offense beyond a reasonable doubt.
{¶ 10} Accordingly, we hereby overrule appellant's second assignment of error.
II
{¶ 11} We now turn to appellant's first assignment of error wherein appellant asserts that
his conviction is against the manifest weight of the evidence. Once again, we disagree with
appellant.
{¶ 12} Generally, a reviewing court will not reverse a criminal conviction on grounds
that the conviction is against manifest weight of the evidence unless it is obvious that the jury
clearly lost its way and created such a manifest miscarriage of justice that reversal of the
judgment and a new trial are required. See e.g. State v. Earle, 120 Ohio App.3d 457, 473, 698
N.E.2d 440 (11th Dist. 1997); State v. Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814
(4th Dist. 1995); State v. Daniels, 4th Dist. No. 11CA3423, 2011-Ohio-5603, at ¶22. If
substantial, competent, evidence is adduced at trial upon which a trier of fact could reasonably
conclude that all elements of the offense have been proven beyond a reasonable doubt, the
conviction is supported by the manifest weight of the evidence. State v. Johnson (1991), 58
Ohio St.3d 40, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d
304.
{¶ 13} The gist of appellant’s argument is that too many inconsistencies exist in Chelsa’s
testimony and in her statements for her to be considered a credible witness.2 It is axiomatic
2
We point out that several pages appear to be missing from the trial transcript. Page 186 contains the
cross-examination of Chelsa Watkins. The next page, rather than being page 187, is page 212 and contains a colloquy
LAWRENCE, 12CA1 6
that the weight and credibility of evidence are issues the trier of fact must determine. See e.g.
State v. Frazier, 115 Ohio St.3d 139, 873 N.E.2d 1263, 2007-Ohio-5048, at ¶106; State v. Dye,
82 Ohio St.3d 323, 329, 695 N.E.2d 763 (1998). The jury, sitting as the trier of fact, is free to
believe all, part or none of the testimony of any witness who appears before it. State v. Colquitt,
188 Ohio App.3d 509, 2010-Ohio- 2210, 936 N.E.2d 76, at ¶10, fn. 1 (2nd Dist.); State v. Nichols,
85 Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist. 1993). The rationale for deferring to the trier
of fact on weight and credibility issues is that the jury is best positioned to view the witnesses
and to observe their demeanor, gestures and voice inflections and to use those observations to
weigh witness credibility. See Myers v. Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993);
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 14} In the case sub judice, it is apparent that the jury, sitting as the trier of fact, found
Watkins' testimony, and her statements to authorities, to be credible. We recognize that some
inconsistencies exist with regard to Watkins' testimony and previous statements. Nevertheless,
the jury, sitting as the trier of fact, had to opportunity to take those matters into consideration
prior to reaching its verdict. We will not second-guess that determination on appeal.
{¶ 15} Accordingly, based upon the foregoing reasons, we hereby overrule appellant's
first assignment of error.
III
{¶ 16} In his third assignment of error, appellant asserts that the trial court erred when it
permitted the State to ask Chelsa “leading questions.” Our review of the transcript shows that
between appellant and a detective. The index to the transcript shows that this is a “recording” of appellant. We presume
this reference is to his taped statement to the authorities.
LAWRENCE, 12CA1 7
appellant objected several times to the manner in which Chelsa was questioned. The trial court,
by our count, failed to rule on one objection, sustained two and overruled another. Appellant’s
arguments do not cite any particular leading question, but rather protest about the overall general
leading nature of the State’s questioning.
{¶ 17} Our analysis begins by noting that generally leading questions should not be used
on the direct examination of a witness. Evid.R. 611(C). The decision to allow leading
questions on direct examination, however, is in the sound discretion of the trial court. State v.
Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038, 2006-Ohio-5084, ¶138. In addition, trial
court judges enjoy broad discretion in the manner by which they conduct proceedings in their
courtrooms. State v. Malloy, 2nd Dist. No. 11CA21, 2012-Ohio-2664, at ¶23; State v. Messer, 12th
Dist. No. CA2004-03-020, 2005-Ohio-2501, at ¶14. Similarly, trial courts have discretion in the
manner by which they allow the questioning of witnesses. See generally In re Kister, 194 Ohio
App.3d 270, 2011-Ohio-2678, 955 N.E.2d 1029, at ¶¶48-49; State v. Schandel, 7th Dist. No.
07-CA-848, 2008- Ohio-6359, at ¶71. Thus, a court’s decision on such matters will not be
reversed absent an abuse of that discretion. Generally, an abuse of discretion means more than
an error of law or judgment; rather, it implies that the trial court's attitude is unreasonable,
arbitrary or unconscionable. State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994);
State v. Moreland, 50 Ohio St.3d 58, 61, 552 N.E.2d 894 (1990). In reviewing for an abuse of
discretion, appellate courts must not substitute their judgment for that of the trial court. State ex
rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re
Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
{¶ 18} Chelsa Watkins admitted at the outset of her testimony that she was “not happy”
LAWRENCE, 12CA1 8
to testify for the prosecution. Her testimony established that she was, at the least, a continuing
friend of the appellant, if not his on-again/off-again girlfriend. Moreover, the majority of
Chelsea’s testimony was elicited through leading questions. Appellant, however, did not object
until well into her testimony and, even then, only after she had given statements that appellant (1)
sold her the X Box, (2) told her parents that the X Box was stolen, (3) stated that appellant, by
his admission, took the X Box from the home of a man that owed him money, and (4) also stated
that appellant took a ring and a watch from the burglarized home. All of this testimony was
elicited before any objection was lodged. Thus, we are not sure how appellant suffered
prejudice by having the trial court overrule a subsequent objection.
{¶ 19} Furthermore, even if we assume, arguendo, that the trial court erred by not ruling
on one objection, or in overruling another objection, we believe such alleged errors constitute
harmless error. See Crim.R. 52(A). Our review reveals that the remainder of Chelsa’s
testimony, as well as her audio taped statements to investigators, incriminated appellant and
provided details of the events.
{¶ 20} Accordingly, based upon the foregoing reasons we hereby overrule appellant's
third assignment of error.
IV
{¶ 21} In his fourth assignment of error, appellant asserts that the trial court abused its
discretion by sentencing him to serve eight years in prison.
{¶ 22} Appellate review of criminal sentences typically involves a two step process. State
v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State v. Pearson, 4th Dist. No.
10CA17, 2011-Ohio-5910, at ¶5. First, an appellate court will determine whether the trial court
LAWRENCE, 12CA1 9
complied with all the applicable rules and statutes. Kalish, supra, at ¶26; State v. Marino, 4th
Dist. No. 11CA36, 2013-Ohio-113, at ¶6. If so, the appellate court will review the trial court's
decision for an abuse of discretion. Kalish, supra, at ¶26; State v. Adams, 4th Dist. No.
10CA3391, 2012-Ohio-255, at ¶4.
{¶ 23} Appellant makes no argument under the first part of Kalish, but rather directs his
argument to the second step and argues that the trial court abused its discretion in meting out an
eight year term of imprisonment.
{¶ 24} Our review of the record in the case at bar indicates that appellant has a prior
criminal background. Moreover, the transcript of the December 21, 2011 sentencing hearing
reveals that appellant continued to deny that he was responsible for the burglary and a failed to
display “genuine remorse.” These are all factors that the trial court may consider for purposes of
gauging the likelihood of recidivism when considering what penalty to impose. R.C.
2929.12(D)(5). The trial transcript also reveals that the victim testified how “odd” it felt
knowing that an intruder had been in his home and that he had to install a “security system” to
recover “peace of mind.” Audio recordings of Chelsa Watkins' statements to investigators
indicated (1) a fear appellant might “rob [her] dad or something,” and (2) appellant tried to
convince her to change her version of events shortly before the trial.
{¶ 25} The trial court did not expressly cite any of these factors as justification for its
decision to impose the sentence, but then again, neither is it required to do so. Still, the court
may well have considered these factors when it determined the appropriate prison term to
impose. In any event, having reviewed the record ourselves, we cannot conclude that the prison
sentence the trial court imposed is arbitrary, unreasonable or unconscionable.
LAWRENCE, 12CA1 10
{¶ 26} Accordingly, based upon the foregoing reasons, we hereby overrule appellant's
fourth assignment of error.
V
{¶ 27} In his fifth assignment of error, appellant asserts that the trial court erred when it
imposed post-release control. In particular, appellant contends that the trial court did not inform
him at his sentencing hearing of the consequences should he violate post-release control. The
State offers no rebuttal to this argument and, after we reviewed the sentencing hearing transcript,
we agree that the trial court erred in this respect.
{¶ 2} Indeed, the transcript indicates that court held two separate hearings held on
December 21, 2011. No mention was made of post-release control during the first
hearing. A second hearing was apparently held shortly thereafter, wherein the court went
on the record to inform appellant that he would be subject to post-release control once out
of prison. The transcript does not show, however, that the court informed him of what
might happen should he violate that sanction.
{¶ 1} R.C. 2929.19(B)(2)(e) mandates, inter alia, that when post-release control is
imposed, the court must notify the defendant at the sentencing that, if such control is violated, “
the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated
prison term originally imposed upon the offender.” This notification is mandatory. When the
notification is not given, that portion of the sentence is void and the case must be remanded for a
new sentencing hearing in order to comply with the statute. State v. Qualls, 131 Ohio St.3d 499,
2012-Ohio-1111, 967 N.E.2d 718, at ¶¶18-19, 23; also see State v. Harris, 4th Dist. No. 11CA15,
LAWRENCE, 12CA1 11
2012-Ohio-2185, at ¶¶7&9.
{¶ 2} We parenthetically note that the sentencing entry does, in fact, provide notice of
the consequences for violating post-release control. But, as mentioned above, the warning must
also be given at the sentencing hearing. Accordingly, based upon the foregoing reasons we
sustain appellant's fifth assignment of error.
{¶ 3} Therefore, we hereby affirm the trial court’s judgment of conviction, but reverse
and remand for the limited purpose of correcting appellant's sentence.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND THE
CASE REMANDED FOR
FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
[Cite as State v. Leffingwell, 2013-Ohio-1421.]
JUDGMENT ENTRY
It is ordered the judgment be affirmed in part, reversed in part and the case be remanded
for further proceedings consistent with this opinion. Appellant to recover of appellee the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1615768/ | 215 S.W.3d 739 (2007)
STATE of Missouri, ex rel. MISSOURI DEPARTMENT OF SOCIAL SERVICES, DIVISION OF MEDICAL SERVICES, Relator,
v.
The Honorable Gary P. KRAMER, Circuit Judge, 23rd Judicial Circuit, Jefferson County, Respondent.
No. ED 88928.
Missouri Court of Appeals, Eastern District, Writ Division Three.
February 27, 2007.
*740 Elizabeth LaFlamme, Office of the Attorney General, St. Louis, MO, for relator.
Dennis H. Tesreau, Hillsboro, MO, for respondent.
ROBERT G. DOWD, JR., Judge.
Relator, the Missouri Department of Social Services, Division of Medical Services, filed its petition for writ of mandamus requesting that Respondent, the Honorable Gary P. Kramer, be directed to issue letters testamentary or supervised administration for the estate of Jeanette F. Parker. We issued a preliminary writ in mandamus. After briefing and argument, we now make the preliminary writ absolute.
Jeanette F. Parker died on June 20, 2005, while domiciled in Jefferson County. No estate was opened. On June 20, 2006, Relator filed a "Petition for Issuance of Letters Testamentary or of Administration" pursuant to Section 473.020, RSMo 2000.[1] Relator alleged it was a creditor of the estate as a result of aid provided to the decedent prior to her death. Relator claimed that the decedent's estate owed the State of Missouri $49,851.88 for Medicaid assistance paid by Relator. Relator's petition included the decedent's name and social security number, the date of her death, known information regarding the decedent's will, the address and value of real property in the decedent's estate, and the names and addresses of known heirs. Relator acknowledged in its petition that the real property in decedent's name at the time of her death was subject to a beneficiary deed.
Respondent denied Relator's petition on the basis that an accounting under Section 461.300 was the appropriate action, not an action for administration. Relator filed a petition for writ of mandamus requesting that Respondent be directed to open an estate for the decedent.
Mandamus is an extraordinary remedy and cannot compel a discretionary act. State ex rel. Sanders v. Kramer, 160 S.W.3d 822, 824 (Mo.App. W.D.2005). We issue the writ to prevent the exercise of powers exceeding judicial jurisdiction. Id. The writ is used both to compel a court to do what is required by law and to undo what is prohibited by law. Id.
Section 473.020 provides:
1. If no application for letters testamentary or of administration is filed by a person entitled to such letters pursuant to section 473.110 within twenty days after the death of a decedent, then any interested person may petition the probate division of the circuit court which would be the proper venue for the administration of the estate of such decedent for the issuance of letters testamentary or of administration. For purposes of this section, in addition to persons provided for in subdivision (15) of section 472.010, RSMo, any person who has attached a claim supported by an affidavit setting forth the basis upon which such person has a claim against *741 the decedent shall be an interested person.
2. The petition must be filed within one year after the date of death of the decedent and shall include the following:
(1) The decedent's name, the address of the decedent's last residence and the date of death of the decedent;
(2) If a written will of the decedent has been presented for probate, the names and addresses of the personal representatives designated in such will; and
(3) The names, addresses and relationships to the decedent of the decedent's heirs as is known to, or can be reasonably ascertained by, the petitioner.
3. Within fifteen days from the date of filing, the petition shall be set for hearing to determine who should be directed to apply for letters testamentary or of administration, and not to determine the validity of any claim. Notice of the hearing shall be served upon all interested persons in the manner and within such time as directed by the court. Upon hearing of the petition, the court shall enter such order or orders as it deems appropriate, including any of the following:
(1) An order directing the person found by the court to be entitled to the issuance of letters testamentary or of administration to apply for and qualify for such letters within such time as is allowed by the court, and in default of such timely application and qualification, upon application, the court shall issue letters of administration to some other person found suitable by the court;
(2) An order refusing letters on the estate; or
(3) An order dismissing the petition.
Here, Relator met the statutory requirements. Relator is an interested party under Section 473.020.1, and is authorized to petition for letters testamentary or of administration under the statute. Relator filed its petition on June 20, 2006, within one year of the decedent's death. The petition stated the decedent's name and that she died on June 20, 2005 while domiciled in Jefferson County. The petition alleged that the decedent had no will and listed the name and address of one heir of the decedent. The petition also contained a description of real property owned by the decedent at the time of her death, its approximate value, and that the property was subject to a beneficiary deed. Thus, Relator, an interested party, filed a petition containing all the statutorily required facts. Section 473.020 provides for the opening of an estate and the appointment of an administrator where an interested party has properly filed a petition. State ex rel. Missouri Dept. of Social Services, Div., of Medical Services v. Roper, 174 S.W.3d 563, 568 (Mo.App. W.D.2005). Because Relator was authorized by statute to file the petition prompting the opening of the estate and all the requisite facts were alleged in the petition, Respondent was required to open the estate. See Id.
Respondent contends that the opening of an estate is discretionary especially where it appears that there are no assets in the estate. However, Section 473.020 makes no provision for determining whether the estate of a decedent has property before opening an estate in probate court and appointing an administrator where an interested party as defined by Section 473.020.1 files application and satisfies the filing requirements of Section 473.020. Roper, 174 S.W.3d at 568. The determination of the assets is made as provided by law after the estate has been opened. Id. In addition, an estate can be *742 opened at a creditor's request even where the estate has no assets. In re Estate of Fischer, 901 S.W.2d 239, 240 (Mo.App. E.D.1995). Thus, under the law, Respondent was required to open the estate as requested by Relator in its petition.
Our preliminary writ of mandamus is hereby made absolute. Respondent is directed to issue letters testamentary or supervised administration for the estate of Jeanette F. Parker in accordance with the law and as requested by Relator's petition.
CLIFFORD H. AHRENS, P.J. and SHERRI B. SULLIVAN, J., concur.
NOTES
[1] All further statutory references are to RSMo 2000 unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615779/ | 425 So.2d 1114 (1983)
Marseille HOUSTON and Elaine Houston
v.
John T. McCLURE and Christine McClure.
81-652.
Supreme Court of Alabama.
January 28, 1983.
*1115 M.A. Marsal and George L. Simons, Mobile, for appellants.
John D. Richardson and David F. Daniell of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
FAULKNER, Justice.
Marseille and Elaine Houston appeal from a summary judgment granted in favor of John T. and Christine McClure and against them for specific performance of a contract to convey real property. We reverse.
Briefly, the facts are as follows: In July 1981, the McClures entered into several discussions with the Houstons concerning a waterfront lot located on Dauphin Island in Mobile County, Alabama. The lot is more specifically described as Lot 12, Block 1, Aloe Bay Addition. On July 9, the Houstons and the McClures agreed on the terms of the sale of the lot. The McClures were to pay the Houstons the sum of $10,000.00 at the time of the sale and an additional and final payment of $10,000.00 on December 15, 1981.
On July 10, the McClures delivered a cashier's check to the Houstons for the initial payment of $10,000.00. The Houstons accepted the check and executed a written document acknowledging the receipt of the check as a deposit from the McClures on the sale of the property. The text of this document appears in the record as follows:
"July 10, 1981
"Received from John T. and Christine McClure ten thousand dollars deposit on Lot 12 Block 1 Aloe Bay Addition balance due on December 15, 1981, Oil right not been sold."
During the next three days, July 11 through 13, 1981, the McClures went on the property, cut the grass, cleaned the grounds, and added onto an existing pier. The work on the pier consisted of the following: The McClures hired a Mr. Evans to drive two pilings and Mr. McClure added two stringers and some deck boards. The McClures paid Mr. Evans a total of $204.00 for one of the pilings and for his services. The other piling was already on the property. The McClures also placed two diesel fuel tanks on the property.
On July 14, 1981, Mr. Houston told Mr. McClure that he had changed his mind about selling the lot. Mr. Houston tried to return the cashier's check to the McClures, along with a check for the improvements, but the McClures refused to accept both *1116 checks. The Houstons then ordered the McClures to remove the fuel tanks and posted "no trespassing" signs on the property.
The McClures on August 3, 1981, filed a complaint seeking specific performance of the contract. The Houstons filed a motion to dismiss the complaint, but the motion was denied. The Houstons' filed their answer on January 26, 1982.
On January 27, 1982, the McClures filed a motion for summary judgment based upon the pleadings, the affidavits of John T. McClure and Christine McClure, and the deposition of Marseille Houston. The Houstons filed a motion in opposition to the McClures' motion for summary judgment. The Houstons' motion in opposition was based upon the pleadings, the affidavits of Marseille and Elaine Houston, and the deposition of John T. McClure.
On March 9, 1982, the trial court granted the McClures' motion for summary judgment and ordered the Houstons to convey the property to the McClures. The Houstons filed a motion to reconsider and set aside the order, but the motion was denied. On April 6, notice of appeal was filed. The trial court's order of March 26 was received in the register's office on May 3 and the judgment was entered and filed on that date. The Houstons refiled their notice of appeal on May 10, 1982.
The determinative issue raised on appeal is whether the circuit court exercised proper judgment in granting the McClures' motion for summary judgment. The summary judgment standard established in Rule 56 of the Alabama Rules of Civil Procedure has two parts: the trial court must determine (1) that there is no genuine issue of a material fact and (2) that the moving party is entitled to a judgment as a matter of law. Worley v. Worley, 388 So.2d 502, 505 (Ala.1980). This standard is conjunctive. McGuire v. Wilson, 372 So.2d 1297 (Ala.1979).
The burden of proving the non-existence of any genuine issue of material fact rests upon the moving party. City of Rainbow City v. South Hawk, Inc., 394 So.2d 10 (Ala.1981). In determining whether the moving party has met his burden of establishing the absence of any genuine issue of material fact, the trial court must view the evidentiary material offered in support of the motion in the light most favorable to the opposing party. Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).
The validity and enforceability of a contract for the sale of land is governed by § 8-9-2, Code 1975, the Statute of Frauds, which states in pertinent part:
"In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing.
"...
"Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller...."
Turning to the facts of the instant case, there are two documents in the record before this Court. The cashier's check does not comply with the Statute of Frauds, for it does not bear the signatures of Mr. and Mrs. Houston, the parties to be charged. Moss v. Cogle, 267 Ala. 208, 101 So.2d 314 (1958). The second document, the receipt, is also insufficient in that it does not express the consideration. Rains v. Patton, 191 Ala. 349, 67 So. 600 (1914). Even though the second document acknowledges the receipt of $10,000 and further provides for the payment of the "balance" on December 15, 1981, the document's failure to express the entire consideration renders it defective with regard to the requirements of § 8-9-2, Code 1975. This omission of the consideration cannot be supplied by parol evidence. Jones v. Pettus, 252 Ala. 12, 39 So.2d 12 (1949).
*1117 Turning to the evidence concerning the part performance exception of § 8-9-2, Code 1975, this Court finds that the McClures' acts of possession are not so clear and definite as to entitle them to a judgment as a matter of law. As this Court stated in Hagood v. Spinks, 219 Ala. 503, 122 So. 815, 816 (1929):
"To take a case out of the statute of frauds ... upon the ground of part performance, the acts of possession must be clear and definite, and referable exclusively to the contract, and by authority of the vendor. The existence of the contract and its terms should be established by competent proof to be clear, definite, and unequivocal in all its terms. If its terms, or the necessary acts of part performance, are not sustained by satisfactory proof, specific performance will not be decreed."
Mere possession of the land without proof that the seller consented to the possession is not sufficient. Danforth v. Laney, 28 Ala. 274 (1856).
The McClures submit that they meet the requirements of this exception. The record reveals that the McClures gave the Houstons a cashier's check for $10,000, for partial payment of the lot, on July 10, 1981. The McClures further argue that they were put in possession of the property at that time and there is testimony that the McClures cut the grass, cleaned the grounds, and added on to an existing pier between July 11 and July 13.
There is evidence, however, that the Houstons have allowed the McClures to use their lot free of charge during the Alabama Deep Sea Fishing Rodeo that is held each summer. During this time, the McClures were permitted to tie their boat at the Houstons' pier, cut the grass, clean the area, and hold fish fries on the property. The record reveals that the Houstons gave the McClures permission to go on the lot in July 1981, to cut grass and clear up in preparation for the Deep Sea Fishing Rodeo. There is testimony that the Houstons did not give the McClures exclusive and permanent possession of the property. Thus, there is conflicting evidence as to whether the McClures' acts of possession are referable exclusively to the contract.
In ruling on a motion for summary judgment the trial court cannot try issues of fact. Shades Ridge Holding Company, Inc. v. Cobbs, Allen & Hall Mortgage Company, Inc., 390 So.2d 601 (Ala.1980). A summary judgment is properly granted only if the pleadings, affidavits and other materials on file show that there is no genuine issue of material fact. Oliver v. Taylor, 394 So.2d 945 (Ala.1981).
This Court is of the opinion that there was an unresolved factual issue before the trial court as to whether the McClures' alleged acts of possession were referable exclusively to the contract. Therefore, the trial court erred in granting the McClures' motion for summary judgment.
REVERSED AND REMANDED.
ALMON, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619151/ | 615 So.2d 796 (1993)
Linda G. THOMPSON, Appellant,
v.
PUBLIX SUPERMARKETS, INC., a Florida corporation, Appellee.
No. 92-1183.
District Court of Appeal of Florida, First District.
March 16, 1993.
*797 Stephen J. Pajcic, III, and Robert J. Link of Pajcic & Pajcic, P.A., Jacksonville, for appellant.
Charles B. Carter of Jones, Carter, Singer & Cervone, P.A., Gainesville, for appellee.
PER CURIAM.
Appellant, plaintiff in the trial court, seeks review of an order which denied her motion for rehearing requesting that she be permitted to amend her complaint further. We conclude that the trial court abused its discretion and, accordingly, reverse.
Initially, appellant filed a complaint in which she alleged that she had been injured as the result of negligence on the part of the defendants. Appellee was not among the defendants named. Subsequently, appellant sought leave to file an amended complaint which, among other things, added a count against appellee. That motion was granted.
Appellee filed a motion to dismiss the count of the amended complaint naming it as a defendant on the ground that it failed to state a cause of action. The trial court granted appellee's motion to dismiss, noting what it believed to be the legal deficiencies of the claim. However, without explanation, the trial court dismissed the count against appellee with prejudice.
Appellant timely filed a motion for rehearing, in which she requested that the trial court amend the order granting appellee's motion to dismiss, so that the dismissal would be without prejudice. Appellant also requested that the trial court permit her to file a second amended complaint, a copy of which was attached to the motion. Again without explanation, the trial court denied the motion for rehearing. This was error.
Our rules of civil procedure evidence a clear policy that, absent exceptional circumstances, requests for leave to amend pleadings be granted. Fla.R.Civ.P. 1.190(a). "Although granting leave to amend rests within the sound discretion of the trial court, all doubts should be resolved in favor of allowing amendment. It is the public policy of this state to freely allow amendments to pleadings so that cases may be resolved upon their merits." Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla. 1st DCA 1983). "As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile." Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Cooperative Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991), review dismissed, 598 So.2d 76 (Fla. 1992).
The record does not reflect why the trial court refused to permit appellant to amend further. However, it is clear from the record that this was only appellant's first request to amend the count of her complaint which named appellee as a defendant. Moreover, our reading of the proposed amendment satisfies us that it is legally sufficient to state a cause of action against appellee. Finally, it is clear that permitting the amendment requested by appellant would not have prejudiced appellee.
Accordingly, we conclude that the trial court abused its discretion when it denied appellant's motion for rehearing. Therefore, we reverse and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
JOANOS, C.J., and ZEHMER and WEBSTER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619173/ | 615 So.2d 100 (1992)
A.A. CHANDLER
v.
STATE.
CR-90-1624.
Court of Criminal Appeals of Alabama.
August 21, 1992.
Rehearing Denied November 25, 1992.
*101 William H. Atkinson, Hamilton, and William A. Mills, Birmingham, for appellant.
James H. Evans, Atty. Gen., and J. Rance McNeill, Asst. Atty. Gen., for appellee.
McMILLAN, Judge.
The appellant was indicted and charged with two counts of theft by deception, and six counts of violations of the State Ethics Law, specifically that he used his official position to obtain for himself direct personal financial gain, in violation of § 36-25-5, Code of Alabama 1975. A mistrial was initially declared by the trial court on the grounds that the appellant had tampered with the jury panel, and the appellant was cited with contempt. Thereafter, following another trial, the jury found the appellant guilty on all counts. The appellant was sentenced to 10 years' imprisonment and was ordered to pay $50,000 restitution.
Because the issue of the sufficiency of the evidence to support the appellant's convictions of theft by deception and the violation of the State Ethics Law is raised by the appellant, a brief rendition of the facts must be recounted. The appellant took office as the mayor of the City of Vernon, Alabama, in October 1988, and continued in that office in 1989 and 1990. During that *102 period, agents with the Northwest Alabama Mental Health Center, Inc. (hereinafter the "Mental Health Center"), approached Banks Butler, a member of the Vernon Industrial Development Board and the owner of a retail business located on property adjacent to the Mental Health Center's office in Vernon, about the purchase of some property. The Mental Health Center is a public corporation that operates mental health facilities and provides mental health services in an area including Lamar County. The Mental Health Center was seeking property on which to construct certain residential facilities. Butler told one of the agents of the Mental Health Center about a vacant lot that he owned, and the agent looked at the property, indicating that it appeared suitable for the Mental Health Center's purposes. The agent told Butler that the project would be paid for with federal funds, and Butler told him that the property was available for $6,000. Some adjacent property, known as the Livingston estate, was discussed, and Butler informed the agent that this property had previously been offered for $32,000. The men discussed some work that would have to be done on the Livingston estate, in order to make it suitable, and the agent expressed some interest in purchasing that property. Thereafter, Butler spoke with the appellant concerning the work that needed to be done on the Livingston estate, and the appellant stated that the city would cooperate in any way that it could. When he heard nothing else about the purchase of the property, Butler called the agent, who informed him that the matter had been postponed, because the money for it had not been approved.
In early fall 1989, the head of the Mental Health Center attended a meeting of the Vernon City Council. During this meeting, the head of the Mental Health Center discussed the possibility of locating group homes in Vernon, and the possibility of purchasing the Livingston estate. Both the head of the Mental Health Center and the appellant informed the city council that the Mental Health Center would make the decision concerning the property it would purchase.
Thereafter, the head of the Mental Health Center discussed his interest in building the facility in Vernon with a probate judge from Lamar County. The judge thought the project sounded beneficial to the area, and the two men then met with the appellant on several occasions concerning the matter. The probate judge recommended to the Lamar County Commission that it appropriate $25,000 for the purchase of the property, if it was legal to do so. Although it is unclear whether the judge or Banks Butler contacted an attorney, a letter appears in the record in which an attorney states that it was legal for the county commission to appropriate funds for that purpose. Butler testified that he had told this attorney that the sale of the property would not include any local funds, and that all the money to be used for the purchase was to be provided by federal funds.
In the spring of 1990, Banks Butler was approached by the appellant, who told Butler that the Mental Health Center project had finally come through, but that there was one problem. The appellant told Butler that the property that the Mental Health Center was interested in purchasing was owned by the appellant. He then asked Butler if Butler would act as real estate agent for six percent commission. The appellant told Butler that he would sell the property to Butler and that Butler could then sell the property to the Mental Health Center. Butler testified that the appellant told him that the project was to be built with federal funds and that it would create approximately 43 jobs. The appellant also told Butler of a mortgage on the property secured by a $12,500 note and suggested that, upon payment by the Mental Health Center, Butler should pay off that note. Thereafter, a deed transferring the property from the appellant to Butler was prepared by Butler's daughter. The property was deeded to Butler in return for $10 and other valuable consideration. The price for the lot was set by the appellant at $50,000. The deed was backdated, and Butler's daughter testified that she backdated the deed at the appellant's request. *103 However, the appellant denied making this request.
On March 26, 1990, the Lamar County Commission adopted a resolution appropriating $25,000 to the Mental Health Center in order to help purchase land for a mental health facility in Vernon, Alabama. Apparently no particular land was mentioned at this meeting.
On April 2, 1990, the Vernon City Council voted to appropriate $25,000 to the Mental Health Center for acquisition of the land in Vernon, Alabama. During this meeting, the appellant told the council that the project would include the building of 2 homes for adults and 1 for children, and that these facilities would provide space for 44 people and would create that number of jobs. He further told the city council that the Mental Health Center was requesting a donation of $50,000 for the purchase of land and that the Lamar County Commission had already agreed to contribute $25,000. With the exception of one member who voted against the resolution and one member who abstained, every member of the city council voted for the appropriation of funds. The minutes, included in the record, indicate that the appellant also voted for the appropriation.[1] Each member of the city council testified that the appellant never informed the council that he owned the property being considered. On April 12, 1990, Butler met with the head of the Mental Health Center, who gave Butler a check for $50,000, and, in return, Butler delivered the deed to the property. Butler deposited the check into his business account and wrote a check for $13,100 to pay off the lien. He also paid off the note held by the Bank of Vernon for $12,500. He kept a six percent commission and paid the remainder, which was $21,163.10, to the appellant.
Every city council member testified at trial that, had they known that the property belonged to the appellant, they never would have voted to appropriate the funds, because the purchase violated the State Ethics Law in that the appellant realized personal gain from the purchase of the property. Evidence was also presented of the existence of a title opinion showing that the appellant's title to the property was good.
The appellant presented evidence that the Livingston estate was determined to be unsuitable for the Mental Health Center's purpose because it was located partially in a flood plain. During the cross-examination, the head of the Mental Health Center, who testified for the defense, stated that on March 22, 1990, when the appellant first told him of the availability of the property, he had told him that this property was owned by Banks Butler. The witness further testified that he was never given any indication that the land being considered belonged to anyone other than Banks Butler. The witness testified that after acquiring the deed, he had a survey done, which verified that he had received the land that he "had bargained for."
The appellant testified that after the Livingston estate was rejected as a location for the residential facility, the head of the Mental Health Center insisted on seeing some other property.[2] The appellant then took the head of the Mental Health Center to his property, and the head of the Center stated that the property was perfect for the Mental Health Center's needs. The appellant testified that he was never asked who owned the property and that he never informed the head of the Mental Health Center that he owned the property. He testified that he approached Butler about handling the sale of the property because the agents of the Mental Health Center had originally approached Butler. The appellant further testified that he talked to Butler about the arrangements for conveying his property to Butler and ultimately selling the property to the Mental Health Center. He suggested that Butler talk to his lawyer about the legality of doing this. He was later informed by Butler that he had *104 spoken to his attorney and that the process would be legal. The appellant testified that he had owned the property that was conveyed to the Mental Health Center since 1948, and that he did not gain anything from the sale. He testified that, based on sales within the last five years of land adjacent to this land, he had actually lost $28,000 on the sale.
I
The appellant argues that the evidence presented by the State to support his conviction for theft of property by deception was insufficient. The appellant argues that, although the State presented ample evidence to support the element of deception, the State has failed to prove any evidence of theft.
Theft of property is defined in § 13A-8-2, Code of Alabama 1975, as follows:
"A person commits the crime of theft of property if he:
"(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
"(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property."
Theft of property in the first degree involves property that exceeds $1,000 in value or property of any value taken from the person of another.
In the present case, the appellant was charged with theft by deception, as defined in § 13A-8-2(2). A number of means of deception, which are encompassed in offenses involving theft, are set out in § 13A-8-1, Code of Alabama 1975. Most of these definitions are applicable in the present case.[3] Those pertinent to this case are:
"a. Creates or confirms another's impression which is false and which the defendant does not believe to be true; or
"b. Fails to correct a false impression which the defendant previously has created or confirmed; or
"c. Fails to correct a false impression when the defendant is under a duty to do so; or
"d. Permits another from acquiring information pertinent to the disposition of the property involved; or
"e. Sells or otherwise transfers or encumbers property, failing to disclose a lien, adverse claim or other legal impediment to the enjoyment of the property when the defendant is under a duty to do so, whether that impediment is or is not valid, or is not a matter of official record." (Emphasis added.)
The appellant's deception was apparent by his conduct, which was in violation of the State Ethics Law, that is, by using his position as mayor to promote the appropriation of public funds for the purchase of his property, the purchase price of which was set by the appellant. This deception included failing to inform the city council and head of the Mental Health Center that the property in question was his own. He solicited and secured a straw man and had the deed backdated in order to give an air of legality to the transaction. Furthermore, he informed Banks Butler that the money that was being provided to the Mental Health Center to purchase the property was from federal funds, after this funding had been denied, before telling him to seek the advice of counsel as to the legality of the transaction. The appellant promoted the project and the appropriation of funds by the city for the project, without disclosing his position as owner of the property. All the city council members testified that they would not have voted for the appropriation of the funding had they known that the appellant owned the property.
"It is a well-settled principle of the law of fraud, applied particularly by courts of equitable jurisdiction, that it is the duty of a person in whom confidence is reposed by virtue of the situation of trust arising out of a confidential or fiduciary relationship, to make a full disclosure of any and all material facts within his knowledge relating to a contemplated transaction with the other party to such *105 relationship, and any concealment or failure to disclose such facts is fraud. While this principle was developed by the Chancellors in early cases, it is now universally recognized. Not only does the duty of disclosure arise where there is a fiduciary relationship in the strict sense of the term, but also where one person stands in a fiduciary capacity to another or is in a position to have and to exercise, and does actually exercise, influence over another who reposes confidence in him. Where a confidential relationship exists between the parties to a transaction, there is no privilege of nondisclosure, and if a party to the relationship fails to make full disclosure of all material facts, the nondisclosure has the affect of a material misrepresentation."
37 Am.Jur.2d Fraud and Deceit § 149.
However, while the appellant clearly "knowingly obtain[ed] by deception control over the property of another," there is no evidence that the appellant intended to deprive the owner of his property. The record indicates that, in return for the $50,000, the appellant's property was deeded over to the Mental Health Center. There was also evidence that the Mental Health Center received the property it bargained for and that the title to the property was good. There was evidence that the city council and county commission were aware that the Mental Health Center would make the decision as to what property it would purchase. The record also indicates that on July 6, 1990, two months after the appellant was arrested and pleaded not guilty to the present offense, the property was deeded from the Mental Health Center to the Lamar County district attorney, as trustee for the City of Vernon, Alabama, and Lamar County, Alabama, for $10 and other valuable consideration. The deed contains the following language:
"And said Northwest Alabama Mental Health Center, a Public Corporation, does for itself, its successors and assigns, covenant with P.M. Johnston, District Attorney of the 24th Judicial Circuit, as the Trustee for the City of Vernon, Alabama and Lamar County, Alabama, his successors and assigns, that it is lawfully seized in fee simple of said premises, that they are free from all encumbrances unless otherwise noted above, that it has a good right to sell and convey the same as aforesaid, and that it will, and its successors and assigns shall, warrant and defend the same to the said P.M. Johnston, District Attorney of the 24th Judicial Circuit, as the Trustee for the City of Vernon, Alabama and Lamar County, Alabama, his successors, executors, and assigns forever, against the lawful claims of all persons."
This deed was filed with the probate court on August 8, 1990. Thereafter, on June 17, 1991, a deed was executed transferring the property to the appellant in consideration for $50,000. The deed contained language stating on behalf of the district attorney, as grantor, "that I am lawfully seized in fee simple of said premises; that they are free from all encumbrances; that I have good right to sell and convey the same as aforesaid; that I will and my successors and assigns shall warrant and defend the same to the said grantee, his successors and assigns forever, against the lawful claims of all persons." Thus, the State's evidence proves that the sale of the property was lawful and that the Mental Health Center became the lawful owner of the property, which it purchased from the appellant.
In Evans v. State, 508 So.2d 1205 (Ala. Cr.App.1987), the defendant, a supervisor of a slaughterhouse at a prison, was convicted of theft by deception for having aided and abetted in the sale of inferior, ungraded beef to the prison. This court held that, although his conduct established deception by knowingly selling beef graded "Top No-Roll" instead of "Good," he was not shown to have deprived the State of the value of its contract because the evidence failed to establish that he had delivered a product that was not equivalent to the contract's specification. In Evans, this court concluded as follows:
"[The appellant's codefendant] contracted with the State to provide U.S.D.A. `Good' beef forequarters. His invoices to the State reflected that he *106 was supplying that particular meat, yet he undisputedly did not provide, and he knew that he was not providing, what the contract specified and what his invoices reflected. Under the circumstances, [the codefendant] deceived the State within the meaning of § 13A-81(1)(a)-(d). Yet, deception unaccompanied by an intent to deprive the owner of its property, is not theft. Ala.Code 1975, § 13A-8-2(2). The prosecution presented no evidence of [the codefendant's] intent to deprive the State of the value of its contract, but in fact proved that he did not have that intent.
"....
"....
"....
"The prosecution did present evidence that, after it came to the attention of State officials that [the meat packing company] had been supplying ungraded meat to the prison, [the codefendant] insisted that [the meat brokerage firm that actually purchased the meat] arrange to have graded meat on the next load. Six graded beef forequarters were on the rear of the next truckload of [this] supplied meat to Draper prison. The most that can be said of this evidence is that it highlights [the codefendant's] deception of the State, but it does not prove his intent to deprive the State of what he considered contract-equivalent quality meat. The prosecution fully proved [the codefendant's] deception from the fact of his misrepresenting the beef as graded when it was actually ungraded. The above evidence merely emphasizes [the codefendant's] deception regarding the ungraded nature of the beef but it does not prove [the codefendant's] intent to have supplied less than what he considered an equivalent quality beef.
"Thus, for purposes of the criminal prosecution of [the codefendant], evidence that the meat received by the State of Alabama was of quality inferior to that called for by contract does not settle the issue of [the codefendant's] criminal intent. Even assuming that the State received poor quality meat, the prosecution was still required to prove [that the codefendant] knew the meat was poor in order to convict him of theft. When the prosecution's own undisputed evidence established that [the codefendant] ordered, paid for, and had no reason to believe that the State did not receive a product equivalent to contract specifications, [the codefendant] was not shown to have had the intent to deprive the State of the value of its contract."
508 So.2d at 1207-09. (Emphasis in original.)
In the present case, although the appellant clearly knew that he was deceiving both the city and state governments, as well as the Mental Health Center, he testified, and attempted to prove, that not only was his property the equivalent of the purchase price, but it was worth $28,000 more than the purchase price. Therefore, the State failed to present a prima facie case of theft by deception against the appellant and a judgment in the appellant's favor must be rendered. Thus, the other issues raised by the appellant in his brief addressing the conviction on Counts I and II of the indictment will not be addressed.
II
The appellant argues that the evidence presented by the State was insufficient to prove that he violated the State Ethics Law, by violating § 36-25-5, Code of Alabama 1975. This statute provides:
"(a) No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
The appellant specifically argues that the State failed to provide sufficient evidence to support his conviction, in that they failed to prove the element of "gain." The definition section of this act, codified at § 36-25-1, contains no definition for the term "gain" or "personal financial gain." However, it is clear from the policy behind this statute, that the term "gain" is not intended to be a precise or comparative term, *107 because it is the appearance of impropriety that this statute seeks to avoid.
"A primary objective of the Code of Ethics is that governmental officials avoid recurring situations in which there is a temptation to place personal gain, economic or otherwise, above the discharge of their fiduciary duty to the public. There is nothing new or startling about this concept. The avoidance of the appearance of impropriety is an ethical norm which has governed the conduct of attorneys and judges for decades. Certainly, there is nothing to prevent the Legislature from extending the application of this norm to all branches of the government. Indeed, this is precisely what the Legislature intended...."
Zerweck v. State Commission on Ethics, 409 So.2d 57, 60-61 (Fla.Dist.Ct.App.1982). See also Leffingwell v. Lake City, 257 Iowa 1022, 135 N.W.2d 536, 539 (1965).
"... The mere fact that a governmental body may be interested in acquiring property in which a public official has a personal interest does not, by itself, invoke sanctions of such statutes. However, if the interest of the governmental body intensifies to the extent that serious negotiations and discussions regarding the property ensue and the public official has an opportunity to influence the negotiation in any way, the statute is violated. To claim that any violation of the law does not occur until a contract has been entered into would emaciate the statute and vitiate its legislative purpose. The law would no longer effectively deter a self-dealing official, in the capacity of his position, from engaging in negotiations with other parties for the purpose of purchasing property in which he also had a personal interest. This would permit that official to sell his interest at a time when making of the contract had advanced to a point where it assuredly would be executed."
63A Am.Jur.2d Public Officers and Employees § 411.
The appellant clearly realized personal financial gain, by receiving $50,000, some of which was used to pay off his liens or encumbrances on the property and Butler's commission. The remainder, less $2,000 he kept in cash, he deposited in the bank. Although the appellant argues that he did not receive "gain," meaning "profit," because, based on the sales of other adjoining property over the preceding five-year period, he could have sold the property for $28,000 more than he received, the State sufficiently proved gain. The appellant had owned the property since 1948 and, although how he acquired the property and what, if anything, he paid for it is not included in the record, he most likely received gain in terms of taxable income upon the sale of the property. The State also presented evidence that, approximately six days after he received the proceeds from the sale of the property, a judgment was entered against him by the Bank of Vernon for a substantial amount.[4]
III
The appellant argues that the indictment charging him with six counts of violating the State Ethics Law are void, because the indictment used the words "unlawfully" and "feloniously" to allege mens rea rather than "knowingly." The appellant cites the punishment section of this act, § 36-25-27, Code of Alabama 1975, which uses the terms "knowingly" and "wilfully" to define the requisite mens rea necessary to commit the offense, and he argues that those terms were therefore required in framing the indictment. His argument is based on Davis v. State, 68 Ala. 58 (1880), which involved an indictment charging a violation of a statute defining as unlawful the transportation of cotton after dark. A subsequent section of that statute made it a crime to "knowingly" violate any other section of that statute. The Court held that this element of knowledge must be included and charged in the indictment.
*108 "Sometimes statutes make it a criminal offense for a public officer to be directly or indirectly concerned in any agreement or contract for any improvement to be made at the public expense, or any other contract made by the officer in his official capacity. Even in the absence of an express statement that criminal intent is a necessary element of the statutory offense, the statutes, in the absence of a clear indication to the contrary, are construed as requiring that the officer's concern in the contract be corrupt."
63A Am.Jur.2d Public Officers and Employees § 411.
Thus, it is clear that in the State Ethics Law such a mens rea is impliedly included and, in the present case, was proved. According to § 13A-2-4(b), Code of Alabama 1975:
"Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability."
Clearly, this offense is not one involving strict liability.
Moreover, the record indicates that this issue was waived, although the appellant is claiming that the indictment fails to sufficiently charge an offense. In Ex parte Harper, 594 So.2d 1181 (Ala.1991), the Alabama Supreme Court addressed an allegation that an indictment was void for failing to charge an offense, specifically that the indictment failed to charge that the defendant "knowingly" unlawfully sold or distributed a controlled substance. The Alabama Supreme Court cited Rule 16.2(d), A.R.Cr.P.Temp. (now Rule 15.2(d), A.R.Cr. P.), and held that a defendant is required to raise a claim that an indictment fails to state an offense "`during the pendency of the proceeding.'" Id. at 1194. Because the appellant raises this claim for the first time on appeal, this objection is untimely.
IV
The appellant argues that there is a variance between the allegations in the indictment, concerning the allegations of violations of the State Ethics Law, and the proof at trial. Specifically, the appellant argues that, because the evidence presented at trial did not prove that the money he received was the money paid by the city and county, there was a fatal variance between the indictment and the proof. He argues that neither the city nor the county purchased land from, or paid money to, him. He submits that the evidence showed that he did not sell land to the Mental Health Center, but rather to Banks Butler. Thus, his argument hinges on the fact that Banks Butler was used as his straw man.
The proof at trial established that Banks Butler was acting at the appellant's direction and that the appellant ultimately received the majority of the proceeds from the sale of the property. Furthermore, the property was deeded to Butler by the appellant for nominal consideration and the deed was backdated to give the transaction an air of legitimacy. Because the proof showed that the appellant did realize personal gain from the sale of the property, see Part II, and because it was the appellant's property that was the subject of negotiation by, and ultimately sold to, the Mental Health Center, there was no variance between the indictment and proof. Cf. the case law pertaining to an indictment's failure to charge an accused as a conspirator or aider and abettor, at 11B Ala.Digest, Indictment, Key, # 174.
V
The appellant argues that a portion of the trial court's instruction to the jury was so confusing and prejudicial as to require reversal. The record indicates that the trial court instructed the jury as follows:
"The first two of those counts charged that the Defendant committed theft of property in the first degree by deception. *109 The counts three through eight charged that the Defendant used his office for personal gain in violation of the Code of Ethics that govern the conduct of public officials in the State of Alabama.
"Further, it's been pointed out to you that though this indictment contains eight counts, it effectively charges one offense. And in a finding of guilt as to one count, anyone of the counts would be no greater than finding guilt as to all of the counts. Finding innocence of one or all of the counts likewise would have the same effect. There will be only one punishment imposed by the Court under this indictment is the point that I am trying to make."
The appellant argues that this charge was confusing, because the trial court subsequently instructed the jury concerning each count of the indictment. He also alleges that he was prejudiced thereby because this instruction would cause the jury to find him guilty of all counts, if it found him guilty at all, because the jury would believe that an acquittal as to one of the counts would lead to an acquittal as to all counts.
However, the record indicates that the appellant failed to preserve this matter for review, because he failed to object on this ground at trial. Following the trial court's oral charge to the jury, although the appellant objected to the trial court's failure to give a charge relating to intent or mens rea, he did not raise this ground. Therefore, this issue is waived. Harrington v. State, 515 So.2d 53 (Ala.Cr.App.1986).
VI
The appellant argues that the trial court erred by failing to instruct the jury as to the mens rea or intent element of a violation of the State Ethics Law, § 36-25-5, Code of Alabama 1975. Although the appellant clearly objected on this ground following the trial court's oral charge, the record contains no ruling on this objection, or any further discussion, until the entry of the verdict. Thus, "this issue was not properly preserved for our review since the trial court never ruled on the request. `"The law in Alabama is well settled that a preliminary requirement in preserving appellate review consists of an objection and an adverse ruling." Pinkard v. State, 405 So.2d 411, 416-17 (Ala.Cr.App.1981) (emphasis added [in Garnett]).'" McLeod v. State, 581 So.2d 1144, 1158 (Ala.Cr.App. 1990) (wherein trial court failed to give adverse ruling on the record to the appellant's request that the jury be given an alibi charge) (quoting Garnett v. State, 555 So.2d 1153, 1156 (Ala.Cr.App.1989)).
VII
The appellant argues that the trial court erred in refusing to give his requested jury instructions regarding the defense of good faith. However, the record includes no adverse ruling by the trial court concerning its refusal to give these requested charges. Therefore, this matter is waived. Garnett v. State, 555 So.2d 1153 (Ala.Cr.App.1989); McLeod v. State, supra.
VIII
The appellant argues that the trial court erred in denying his motion to exclude or, alternatively, his motion for mistrial, based on the prosecutor's argument during closing concerning the appellant's possibility of probation. The prosecutor's comments in question are as follows:
"The sentence is imposed by the Judge if he's convicted. Within his authority, the Judge can do several things. He can set a punishment within the range of the statute in the penitentiary. He can grant Mayor Chandler probation. That would be done, if it is done, the sentencing and probation granted, at a hearing to determine whether or not Mr. Chandler's reputation, his past record, warrants him being placed on probation. There is also consideration given at that hearing as to the health of the Defendant if he's convicted.
"Judge Junkin has the authority to consider all of that and my recommendation, whatever it may be. At this point I'm not sure that I would recommend any penitentiary time to be served for the Mayor. I really don't think I would."
*110 The appellant's specific argument is that these comments called to the jury's attention the possibility that the appellant might be placed on probation. The State argues, citing many examples, that these comments by the prosecutor were made in reply to a number of appeals by defense counsel during his closing for sympathy and defense counsel's comment that the jury not "retire the most distinguished political figure that your county has produced to the penitentiary."
"The prosecutor has a right to comment on and answer statements made by defense counsel in argument to the jury. Dollar v. State, 26 Ala.App. 361, 159 So. 704 (1935); Moragne v. State, 16 Ala. App. 26, 28, 74 So. 862, 864, reversed on other grounds, 200 Ala. 689, 77 So. 322 (1917). Counsel should be afforded wide latitude in responding to assertions made by opposing counsel in previous argument. York v. State, 34 Ala.App. 188, 190, 39 So.2d 694, 696 (1948), cert. denied, 252 Ala. 158, 39 So.2d 697 (1949). `Wide latitude is given the solicitor in making reply to argument previously made by appellant's counsel.' Moody v. State, 40 Ala.App. 373, 374, 113 So.2d 787, 788 (1959). `Wide latitude is given a district attorney in making reply in kind,... and the propriety of argument of counsel is largely within the trial court's discretion.' Jetton v. State, 435 So.2d 167, 171 (Ala.Cr.App.1983)."
Dossey v. State, 489 So.2d 662, 665 (Ala.Cr. App.1986). "The trial judge can best determine when discussion by counsel is legitimate and when it degenerates into abuse." Anderson v. State, 469 So.2d 1362, 1364 (Ala.Cr.App.1985), and cases cited therein.
In the present case, after a review of the entire closing arguments, it is clear that the prosecutor's comments were made in response to the defense counsel's argument and, therefore, we find no abuse of discretion by the trial court.
IX
The appellant argues that the trial court erred to reversal by excluding evidence, which the appellant sought to admit, concerning the value of his property. The appellant argues that this evidence was relevant and necessary to refute the State's allegations that the appellant received a gain from the sale. However, during the cross-examination of the appellant, he was allowed to testify that he lost $28,000 on the sale and that he based his evaluation on the sale of other property adjacent to his property. Therefore, any error in excluding the evidence was harmless, because it was admitted during the appellant's crossexamination. Latimore v. State, 534 So.2d 665 (Ala.Cr.App.1988). Moreover, in light of this court's holding in Part II, i.e., that the evidence clearly established that the appellant realized gain, any error was harmless. Rule 45, A.R.App.P.
X
The appellant argues that the cumulative effect of all the errors resulting from the conduct of the prosecutor and/or the trial judge was to deny him a fair trial.
"Because we find no error in the specific instances alleged by the appellant, we find no cumulative error. `Where no single instance of alleged improper conduct constituted reversible error, we do not consider their cumulative effect to be any greater. Sprinkle v. State, 368 So.2d 554, writ. quashed, Ala., 368 So.2d 565 (1978).' Thomas v. State, 393 So.2d 504, 509 (Ala.Cr.App.1981)."
Fisher v. State, 587 So.2d 1027, 1039 (Ala. Cr.App.), (cert. denied, 587 So.2d 1039 (Ala. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992).
XI
Because the appellant's sentence was imposed as to all counts of the indictment and because we are reversing and rendering a judgment in the appellant's favor on two counts of the indictment, we are remanding the case to the trial court for resentencing on the six counts of the indictment judgment as to which we are affirming the trial court's judgment. A return is to be filed with this court within 45 days.
AFFIRMED AS TO CONVICTION ON COUNTS III, IV, V, VI, VII AND VIII; *111 REVERSED AND JUDGMENT RENDERED FOR APPELLANT AS TO CONVICTION ON COUNTS I AND II; AND REMANDED FOR RESENTENCING.
PATTERSON, P.J., and TAYLOR, J., concur.
BOWEN, J., concurs in the result only, without opinion.
MONTIEL, J., concurs in part and dissents in part, with opinion.
MONTIEL, Judge, concurring in part and dissenting in part.
I concur in the majority's affirmance of the appellant's convictions on Counts III, IV, V, VI, VII, and VIII, for violation of the State Ethics Law. Ala.Code § 36-25-5 (1975).
I respectfully dissent from the majority's conclusion that the appellant did not have the intent to deprive the owner of his property and I would vote to affirm the appellant's convictions on Counts I and II for the offenses of theft by deception in the first degree.
NOTES
[1] However, the appellant testified that the minutes would indicate that he had voted for the appropriation even if he had abstained from voting.
[2] The appellant stated that apparently, because of certain problems with the property ultimately purchased, the federal funding was denied.
[3] The trial court instructed the jury as to these statutory methods of deception.
[4] There is a conflict in the record as to whether this amount was $47,000 or $67,000. It is clear, however, that, had the appellant owned this property when the judgment was entered, the property would have been attached to secure all, or part of, that judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619193/ | 615 So.2d 1009 (1993)
STATE of Louisiana
v.
Bobby WILLIAMS.
No. 92 KA 0469.
Court of Appeal of Louisiana, First Circuit.
March 5, 1993.
Writ Denied June 4, 1993.
*1012 Mark Rhodes, Asst. Dist. Atty., Houma, for plaintiff and appelleeState.
Anthony P. Champagne, Office of Indigent Defenders, Houma, for defendant and appellant, Bobby Williams.
Before EDWARDS, SHORTESS and WHIPPLE, JJ.
SHORTESS, Judge.
Bobby Williams (defendant) was charged by grand jury indictment with the first degree murder of Daniel Kurt Anderson, LSA-R.S. 14:30. Defendant pled not guilty and, after trial by jury, was found guilty as charged.[1] At the sentencing hearing, the jury unanimously determined that defendant should be sentenced to imprisonment at hard labor for life without benefit of *1013 probation, parole, or suspension of sentence. The trial court sentenced defendant accordingly. Defendant appealed and urged 24 assignments of error. In brief, defendant abandoned several assignments of error, and the following remain for our consideration:
2. The trial court erred in denying defendant's motion to allow him to view the scene of the crime with his attorney.
3. The trial court erred in denying defendant's motions for funds for expert assistance and/or the appointment of experts.
10. The trial court erred in denying the request made by defendant in his motion in limine regarding references to "victim," "murder," and "murderer."
12. The trial court erred in denying defendant's motion for individual sequestered voir dire.
13. The trial court erred in denying relief sought by defendant in his motion in limine regarding gruesome photographs.
14. The trial court erred in denying defendant's objection to the prosecutor's remarks during voir dire.
15. The trial court erred in permitting the State to challenge for cause a potential juror, Darnell Williams.
16. The trial court erred in denying defendant's challenge for cause of potential jurors Marty Dupre and Chaudhry Billiot.
17. The trial court erred in denying defendant's objection to the introduction of State Exhibit S-1.
18. The trial court erred in denying defendant's objection to the testimony of Sue-Ellen Burgess relative to her thoughts and impressions.
19. The trial court erred in permitting the State to question Sue-Ellen Burgess on redirect examination.
20. The trial court erred in denying defendant's objection to the testimony of Dr. Rau relative to medical assistance rendered to Anderson.
21. The trial court erred in allowing Dr. Ledoux to testify concerning powder burns found on Anderson.
On March 23, 1989, Daniel Kurt Anderson and his neighbor, Sue-Ellen Burgess, went to the Fantasies Nightclub in Terrebonne Parish. Shortly before midnight, they walked to the parking lot where Anderson had parked his pickup truck. Anderson got very quiet, and shortly before they reached the truck, Burgess looked over her shoulder and saw two men following them very closely and quietly. Anderson told her to get inside the truck. Burgess got into the truck, reached for her seat belt, and immediately saw that Anderson had been attacked by one of the men.
The man pointed a gun at Anderson's stomach, but Anderson forced the man to drop the gun. A struggle ensued which progressed to the rear of the truck. The other man (whom Burgess positively identified at trial as defendant) remained standing near some shopping carts, watching the fight from that location. He made no move until the gun was dropped. Defendant walked over to the gun, picked it up, and walked toward the fight. Out of fear, Burgess ducked down inside the truck; she then heard two shots.
Anderson cried out to Burgess to get help because he had been shot twice. She ran across the street to a restaurant, told a security guard, and ran back to Anderson. Dr. David Rau, a general surgeon who was leaving the restaurant, ran to the scene. He and emergency medical personnel who arrived later attempted to resuscitate Anderson, but he died from his gunshot wounds. One of the wounds was to the left side at the base of his neck, and the other wound was in his right lower chest and upper abdomen area.
Within a matter of minutes, with the assistance of a tracking dog, the police apprehended defendant. Defendant was given his Miranda rights and handcuffed. In the area where defendant was apprehended, the police found a .22 caliber nine-shot magnum revolver. The gun had seven live bullets and two empty casings. Subsequent ballistics tests conducted by Patrick Lane, an expert in the field of firearms identification employed at the Louisiana *1014 State Police Crime Laboratory, determined this gun was the weapon which fired the fatal shots.
While Deputy Thomas J. Collins was transporting defendant to the Terrebonne Parish Sheriff's Office in his police unit, he heard defendant "rapping," i.e., repeating words and rhymes. According to Collins' testimony, the gist of the words and rhymes he overheard were: "Whitey's on the floor, I'm going to get some more."[2] Collins testified defendant repeatedly used these words and rhymes while he was being transported.
Later at the Sheriff's Office, Detective Terry Fanguy heard noises coming from the interrogation room. When Fanguy approached the room, Lieutenant Luke, who was outside the interrogation room, told Fanguy to listen. Fanguy heard defendant (who was alone in the interrogation room) say, "If I had [a] gun, I would kill that f___ bitch. I would also kill every f___ cop and when I got out of prison, I would kill again." According to Fanguy, defendant was yelling the statements. Fanguy and Luke entered the interrogation room. Fanguy then asked defendant if he understood his Miranda rights; defendant answered: "You're f___ right, yes." At that point, Fanguy and Luke escorted defendant to the jail, where he was booked.
ASSIGNMENT OF ERROR NUMBER TWO:[3]
Defendant contends the trial court committed reversible error in denying his pretrial motion to allow him to view the scene of the crime with his attorney. The motion was filed on June 23, 1989, and denied by the court on July 13, 1990, eight months prior to trial. Therein, defendant requested an order requiring he be taken to view the scene of the crime with his attorney at least one week before a hearing on pretrial motions or, in the alternative, before trial. The motion recited it was necessary for defendant to view the scene so his counsel could take pictures and measurements and otherwise properly investigate the scene with defendant's assistance.
Defendant argues he was entitled to view the crime scene pursuant to Louisiana Code of Criminal Procedure article 762(2). These provisions apply only to the trial court's discretion to hold sessions of court at places other than the courthouse to allow the jury or the court to view the crime scene or to view an object which is admissible in evidence but which is difficult to produce in court. Since defendant's motion asked for an order that he be taken to the crime scene prior to a hearing on motions or prior to trial and did not in any way relate to the trial court's discretion to hold sessions of court at a location other than the courthouse, the provisions of article 762(2) were inapplicable and did not serve as authority for the granting of defendant's motion.
Defendant also argues the motion should have been granted pursuant to Louisiana Code of Criminal Procedure article 718, which provides in part that on motion of a defendant the court shall order the district attorney to permit or authorize the defendant to inspect, examine, or photograph tangible objects, buildings, and places within the possession, custody, or control of the State which "are favorable to the defendant and which are material and relevant to the issue of guilt or punishment." The crime scene (the K-mart parking lot) was part of a business establishment open for business to the general public and not a place within the possession, custody, or control of the State. Accordingly, these premises were accessible to defense counsel for the purposes stated in the motion, i.e., to take pictures and measurements and otherwise properly investigate the scene.
The essence of defendant's contentions is that a court order should have been issued compelling his presence at the crime scene with his counsel for the purposes stated in the motion. However, defendant does not claim, nor does the record show, *1015 that he was prejudiced by the trial court's denial of the motion to compel his presence at the crime scene.
Under the circumstances present in this case, we do not find any abuse of discretion by the district court in denying the motion. This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER THREE:
Defendant contends the trial court committed reversible error in denying his motion to provide funds for expert assistance and a subsequent motion to reconsider and/or to appoint an expert. In support of this contention, defendant relies on the failure of the State to provide him funds for experts, particularly and for psychiatric evaluations and assistance.
The original motion seeking funds for expert assistance was filed on June 23, 1989, and denied on July 13, 1990. The second motion, which was filed on December 13, 1990, bears a notation indicating it was denied by the district court that same date. Defendant filed a writ application with this court, number KW 90 2248, seeking reversal of the lower court's denial of these motions. On December 15, 1990, we denied the application.
Thereafter, on December 17, 1990, defendant filed and was granted a motion to continue his trial until March 11, 1991. In the December 17, 1990, motion for continuance, defendant expressly stated that if granted the continuance, he would hire a psychiatrist through his own means and at no cost to the State. The record reflects the prosecutor informed the lower court at the hearing on the motion that the State did not object to this evaluation of the accused, and the record does not reflect defendant filed any additional motions seeking funds from the State for expert assistance. Under these circumstances, defendant's contention that he was entitled to and denied State funds for expert assistance is not only unsubstantiated but expressly contradicted by defendant's statement in the December 17 motion for continuance. Accordingly, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TEN:
Defendant contends the trial court committed reversible error in denying his pretrial motion in limine regarding references to "victim" and "murder." In said motion, defendant requested (1) the trial court issue an order and give instructions prior to trial that references to Daniel K. Anderson as the "victim," the investigation as pertaining to a "murder," and to defendant as the "murderer" not be made in front of the jury, and (2) documentary evidence bearing such references be inadmissible. Without citing any examples of such references during the trial, defendant argues any such references through testimony or documentary evidence introduced by the State had no probative value but, instead, were prejudicial and inflammatory and should have been restricted.
The indictment charged defendant with the first degree murder of Daniel Kurt Anderson. Accordingly, the jury was fully aware the charged offense was murder and Anderson was the alleged victim. In our view, the trial court did not err by denying the motion in regard to any references to "murder" and "victim." Even assuming, arguendo, the impropriety of these references, we cannot say they reasonably might have contributed to the conviction. Therefore, if there was error, it was harmless. Cf. State v. Ward, 483 So.2d 578, 584 (La.), cert denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 168 (1986).
Insofar as the motion sought to restrict the use of references to defendant as the "murderer," the motion should have been granted, since the ultimate issue to be determined by the jury was whether defendant was the murderer. Nevertheless, since defendant does not contend references to him as the murderer actually occurred through testimony or documentary evidence, nor does the record disclose any, the failure of the trial court to grant the motion insofar as it sought to restrict any reference to defendant as the murderer was harmless error.
This assignment lacks merit.
*1016 ASSIGNMENT OF ERROR NUMBER TWELVE:
Defendant contends the trial court erred in denying his motion for individual sequestered voir dire. Defendant argues his motion should have been granted on two bases: (1) he was charged with first degree murder and therefore exposed to the death penalty; and (2) the case had received extensive pretrial publicity.
There is no provision in our law which either prohibits or requires the sequestration of prospective jurors for an individual voir dire. The trial court has discretion to decide whether the jurors should be called singly or in groups. State v. Copeland, 530 So.2d 526, 535 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989). The defendant has the burden to show the court abused its discretion in refusing to sequester the venire during voir dire. State v. Vampran, 491 So.2d 1356, 1364 (La.App. 1st Cir.), writ denied, 496 So.2d 347 (La.1986). A trial court has the discretion to permit individual voir dire if a defendant can demonstrate that special circumstances are present. Absent special circumstances, the trial court does not err in refusing requests for individual voir dire. State v. Comeaux, 514 So.2d 84, 88 (La.1987).
The fact that defendant faced a possible death sentence if convicted did not establish a "special circumstance" requiring a variation from the general rule of trial court discretion. State v. Comeaux, 514 So.2d at 88. Regarding the other basis upon which defendant relies, at an earlier hearing on a motion for change of venue filed by defendant, the record reflects defendant moved to withdraw the motion and was permitted by the court to do so. Defendant failed to meet his burden of showing special circumstances to justify individual sequestered voir dire, and the trial court did not err in denying the motion therefor.
This assignment lacks merit.
ASSIGNMENTS OF ERROR NUMBERS THIRTEEN AND SEVENTEEN:
Defendant contends the trial court erred in allowing an autopsy photograph of Anderson into evidence. He essentially argues any probative value of the photograph was outweighed by its prejudicial and inflammatory effect.
Postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing the cause of death, and to provide positive identification of the victim. The admission of allegedly gruesome photographs will not be overturned unless it is clear the prejudicial effect of the photographs outweighs their probative value. State v. Jones, 593 So.2d 1301, 1308 (La. App. 1st Cir.1991). Although a stipulation to the matter sought to be proved by the photographs necessarily bears upon a balancing of the probative value of the photographs against their prejudicial effect, the State cannot be robbed of the fair and legitimate moral force of its case merely because the stipulation is offered. See State v. Watson, 449 So.2d 1321, 1326 (La. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985).
The exhibit is an enlarged, color photograph depicting the upper portion of Anderson's body, beginning at the upper chest. The photograph is not unduly prejudicial or so gruesome as to have overwhelmed the jurors' reason and led them to convict defendant without sufficient other evidence. See State v. Copeland, 530 So.2d at 543; State v. Watson, 449 So.2d at 1326. Although unpleasant, the photograph was relevant and probative in proving the State's case against defendant; it proved corpus delicti, helped identify the victim, and corroborated the cause of death, the type of weapon used, and the location and severity of the wounds. See State v. Perry, 502 So.2d 543, 559 (La. 1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987).
These assignments lack merit.
ASSIGNMENT OF ERROR NUMBER FOURTEEN:
Defendant contends the trial court committed reversible error in overruling defendant's objection to comments made by the *1017 prosecutor during voir dire examination. Defendant asserts the ruling resulted in prejudice to him since it in effect allowed the prosecutor to give two opening statements.
The alleged improper comments were made by the prosecutor during his voir dire examination of the initial panel of sixteen prospective jurors. The comments at issue are underscored in the following quoted excerpt, which discloses the context in which they were made:
There is a rule of law in our State, as in many states, that says, if you are a party to a crime, you are as guilty as everybody involved in that crime. It's the law of princip[als]. Mr. Womack [one of the prospective jurors] and I decide that we'[r]e going to rob his garden center. The deal is that I'm going to go in and I'm going to buy a lot of goods, bring them home and I'm going to come back and I'm only going to return half of them. Say my wife doesn't like them and he's going to give me a full refund. Then I'm going to take the other half that I left at my house and he and I are going to split them for our own personal use or we're going to sell them.
He's as guilty as I am of theft. Even though I'm the one that went [to] get them. I wrote the check. I went back. I got the refund. He's as guilty as me. He's guilty of the same thing. Okay? He is a princip[al] to theft. In Mr. William[s'] case, there is another individual, Tieski Ross. All right. We didn't ask you if you knew Tieski Ross. Tieski Ross was with Mr. Williams when this murder occurred.
The fact that Mr. Williams was with another person.
. . . . .
MR. CUNNINGHAM:
Your Honor, I'm going to interpose an objection at this point in time. I don't see that this is the proper focus of voir dire. Mr. Rhodes seems to be in an Opening Statement at this point in time. Unless there's some particular fact that he's trying to point out, I would interpose a serious objection at this point, Your Honor. This only serves a prejudicial effect, [a cumulative] prejudicial effect, because I can see an Opening Statement in the making at this point in time.
(Emphasis added.) The trial court overruled defendant's objection without giving any reasons for the ruling, and the prosecutor continued his voir dire examination of individual members of the panel regarding the law of principals.
The court, the State, and the defendant have the right to examine prospective jurors. The scope of examination is within the discretion of the court. La. C.Cr.P. art. 786. Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Bertrand, 381 So.2d 489, 491 (La.1980). It is well settled that the scope of voir dire examination is within the trial court's sound discretion, and its ruling will not be disturbed in the absence of a clear abuse of discretion. Finally, in evaluating the fairness of the ruling, the entire examination will be considered. State v. Kohler, 434 So.2d 1110, 1118 (La.App. 1st Cir.1983).
We find no abuse of discretion in the trial court's ruling in this case based on the objection articulated by defense counsel in the above-quoted excerpt. Clearly, the context in which the comments at issue were made disclose the prosecutor was explaining the law of principals to the prospective jurors and questioning them as to their understanding of the application of that law in an apparent effort to discover bases for challenges for cause and to secure information for the State's intelligent exercise of peremptory challenges. Although we are troubled by a portion of the comment, i.e., Ross having been with Williams when this murder occurred, the comments at issue are otherwise within the proper scope of voir dire. While this portion of the comment was ill-advised, we cannot say it reasonably might have contributed to the conviction. Accordingly, any error occasioned thereby is harmless. Cf. State v. Ward, 483 So.2d at 584.
This assignment lacks merit.
*1018 ASSIGNMENT OF ERROR NUMBER FIFTEEN:
Defendant contends the trial court erred when it sustained the state's challenge for cause of prospective juror Darnell Williams. Defendant essentially argues that, although Williams initially indicated during voir dire he could not impose the death penalty, he was subsequently "rehabilitated."
During his voir dire examination, Williams consistently responded no less than eight times that under no circumstances would he vote to impose the death penalty. However, Williams then indicated he would consider the death penalty in the hypothetical situation in which an offender had broken into a house, raped two children, and killed them by cutting their throats. Thereafter, the following colloquy occurred:
THE COURT: ...
Mr. Williams, Darnell Williams, when I talked to you earlier, I asked you the question if under any circumstances could you possibly give the death sentence and you said, "No." Is that correct?
MR. WILLIAMS:
Yes, sir.
THE COURT:
So under no circumstances would you give the death penalty, is that correct?
MR. WILLIAMS:
Yes, I do. When the lawyer said about Ms. Johnson would said (sic) she had two little kids, all right, and a[n] older person raped them. That would be the only way I sway for the death penalty because, you know, an adult hurting two little small kids....
THE COURT:
Okay, so you're saying when the rape of the children is involved like, but all other circumstances, "No"?
MR. WILLIAMS:
In the situation with the little kids, yes, the death penalty would be provided.
THE COURT:
Okay. In this case there are no little, there's no rape of any little kids.
MR. WILLIAMS:
It's more like in this case here, it's more equal. All right. You got two people that know better, you know, you got one person ...
THE COURT:
Okay, let's not go into the facts of the case. I'm just saying that in this particular case, the one that's before us now, you could not consider the death penalty, is that correct?
MR. WILLIAMS:
In the case, I'd have to see the facts just to know the evidence would be given.
THE COURT:
Okay, now, again, I asked you a little while ago and you said, "Under no circumstances would you consider it." Now, you tell me that you may be able to consider it. I need to get an answer from you, Mr. Williams. Can you consider, listen closely, can you consider the death penalty in this particular case? I'm not saying to give the death penalty or not to give it. I'm asking if you can consider to give the death penalty in this case? Yes or no?
MR. WILLIAMS:
Yes.
In granting the State's challenge for cause because of his opposition to the imposition of the death penalty, the trial court stated the following, "He said back and forth. I don't know what he believes. For that reason, I will strike him for cause."
Notwithstanding Williams' final response in the excerpt quoted above, our review of the entirety of Williams' responses during his voir dire leads us to conclude the total impression of his voir dire testimony was that his strong opposition to capital punishment would lead him to vote against the imposition of the death penalty. Cf. State v. Brown, 514 So.2d 99, 103-104 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988). We find no abuse of discretion by the trial court in granting the challenge for cause. Moreover, even assuming arguendo the challenge was erroneously granted, defendant does not have a *1019 valid complaint of a Witherspoon[4] violation because the jury did not recommend the death penalty. It has been expressly held a defendant insulated from the death penalty does not have a valid Witherspoon complaint. State v. Kohler, 434 So.2d at 1121.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER SIXTEEN:
Defendant contends the trial court committed reversible error in denying his challenges for cause of prospective jurors Marty Dupre and Chaudhry Billiot. Defendant argues his challenges of these prospective jurors should have been granted since their responses showed that each had a steadfast belief as to defendant's guilt and could not follow or accept the law as given by the trial court.
Louisiana Code of Criminal Procedure article 797 provides in pertinent part:
The state or the defendant may challenge a juror for cause on the ground that:
....
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
....
(4) The juror will not accept the law as given to him by the court....
However, a trial court has broad discretion in ruling on challenges for cause. State v. Welcome, 458 So.2d 1235, 1241 (La.1983), cert. denied, 105 S.Ct. 1856 (1985). A refusal by a trial court to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Copeland, 530 So.2d at 534.
Dupre testified that about a week after the incident in which Anderson was shot, he talked to Keith Henry, who is "like a brother" to him. Henry had tried to render assistance to Anderson after the shooting. According to Dupre, at the time they talked he had formed an opinion concerning guilt or innocence. Dupre had not otherwise read or heard anything about the matter. Dupre indicated in response to defense counsel's questioning that if he believed from the evidence presented defendant was innocent and the other jurors thought defendant was guilty, he was "pretty sure" he would not change his position because of his convictions. During this questioning, Dupre also indicated he understood the State had to prove defendant's guilt beyond a reasonable doubt. Thereafter, the trial court instructed Dupre, in connection with defendant's presumption of innocence, that as defendant presently stood before the court, defendant was not guilty. The court asked Dupre if he understood that instruction. Dupre responded in the affirmative. The court then asked Dupre how he could say defendant was not guilty in light of the opinion he had stated he had formed in connection with the prior discussion with the friend. Dupre answered that defendant was not guilty until proven otherwise. Dupre then reiterated his opinion that defendant was not guilty.
Billiot answered, in response to the trial court's questioning concerning whether she had an opinion regarding defendant's guilt, "If he was arrested, they must have some evidence against him." The court then admonished Billiot that defendant was innocent until proven guilty. Thereafter, the court asked Billiot if she could pledge to the court she could put her feelings aside and promise that, as defendant presently stood, without evidence, he was not guilty. She responded in the affirmative. However, when Billiot was asked during subsequent questioning by defense counsel, if she had an opinion about the case, she answered that, based on what she had read, she assumed defendant was guilty.
*1020 The trial court denied defendant's challenges for cause of Dupre and Billiot. Defendant exercised a peremptory challenge to excuse Dupre, and the State used one of its peremptory challenges to exclude Billiot from the jury.
Dupre was sufficiently rehabilitated; thus, the trial court did not abuse its discretion in denying the challenge. Billiot's last response was that she would assume defendant would be guilty. Because no rehabilitation followed this response, the trial court abused its discretion in denying the challenge of her for cause.
However, the erroneous denial of a challenge for cause is not automatically reversible error. To defeat application of the harmless error rule, the defendant must establish he was prejudiced by the court's ruling. State v. Vanderpool, 493 So.2d 574, 575 (La.1986); State v. Ross, 604 So.2d 1036, 1042 (La.App. 1st Cir.1992). In this case the State used one of its peremptory challenges to excuse Billiot. Defendant clearly was not prejudiced by the court's erroneous denial of the challenge; hence, the error was harmless.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER EIGHTEEN:
Defendant contends the trial court erred in overruling defense counsel's objection to testimony given by Sue-Ellen Burgess regarding her opinions and impressions.
Defendant's objection occurred during the following exchange, while the prosecutor was questioning Burgess on direct examination:
Q. When the man put the gun on Dan, let's back, what did you think was happening?
A. I thought it was a robbery. That was my first instinct.
MR. CUNNINGHAM:
Your Honor, I'm going to object to any impressions that the witness may have had. This is not an impressionable situation. You have to have facts.
MR. RHODES:
Judge, any lay witness can testify to what is patently obvious and give a [lay person's] impression. And I think it's certainly obvious that if you get into a truck and two guys jump upon you and pull a gun out in your chest, that it's a [logical] conclusion, whether or not a robbery took place is a matter for the jury to decide.
But she can give her impression as to what took place.
MR. CUNNINGHAM:
Your Honor, that is exactly the point. This is a legal question. This is the source of the whole issue. That is for the jury to decide. I mean I haven't heard any evidence about "stick it up." You know, "Stick `em up" or "Give me your wallet" or anything to indicate that this was a robbery.
MR. RHODES:
That implies that you have to say, "Stick `em up" to commit an armed robbery.
THE COURT:
Objection is overruled.
Thereafter, the prosecutor continued this line of questioning, eliciting the following testimony:
Q. What did you think was happening, Sue Ellen, when these two guys came up, what did you think was happening?
A. I thought that the[y] were robbing Dan.
Q. All right. When you put your head down on the front seat, what did you think about?
A. It was after, I was thinking the whole time, I was scared to death. I mean. And then after I heard the shots, I thought, I was so scared I thought to myself, "Well, they're not going to leave me because I saw them." I mean, I made contact with them. I saw him.
And I was basically crouched down waiting ... to get shot myself. I was horrified and all I could think of, I was never going to see my little babies again.
We note defendant argues in brief a ground not articulated to the trial court and argued for the first time on appeal, i.e., that the testimony at issue was irrelevant. *1021 It is well settled counsel must state the basis for his objection when making it and point out the specific error which the trial court is making. La.C.Cr.P. art. 841. A defendant is limited on appeal to grounds for objection articulated at trial. A new basis for objection cannot be raised for the first time on appeal. State v. Brown, 481 So.2d 679, 686-687 (La.App. 1st Cir.1985), writ denied, 486 So.2d 747 (La.1986). Because the relevancy ground was not raised at the time of objection, it is not properly before us. We now turn our attention to the issue properly before us.
To preserve the right to appeal an erroneous trial court ruling which admits evidence, the objecting party must make a "timely" objection. La.Code Evid. art. 103(A)(1). See also La.C.Cr.P. art. 841. Defendant did not object to the prosecutor's question as to what Burgess thought was happening (when the gun was put to Anderson's stomach) until after Burgess had answered she thought it was a robbery. Thus, the objection was untimely, since the question clearly sought to elicit the witness' response in the form of an opinion or inference. Nevertheless, pursuant to Louisiana Code of Evidence article 701, a witness who is not testifying as an expert (such as Burgess) may give testimony in the form of opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Burgess was an eyewitness. Her testimony concerning her opinions and inferences was admissible in accordance with the requirements of article 701. This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER NINETEEN:
Defendant contends the trial court erred in allowing the prosecutor to question Burgess on redirect examination as to a matter not brought out on cross-examination.
Louisiana Code of Evidence article 611(D) provides as follows:
D. Scope of redirect examination; recross examination. A witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to other matters in the case. When the court has allowed a party to bring out new matter on redirect, the other parties shall be provided an opportunity to recross on such matters.
On direct examination, Burgess positively identified defendant as the man who was standing near the shopping carts, picked up the gun, and walked toward the fight just before the shots were fired. She also identified a State exhibit as a photograph accurately depicting defendant. Although Burgess' cross-examination did not specifically and directly focus on the photograph, much of it was devoted to questions probing the accuracy of Burgess' identification of defendant and was designed to discredit her identification testimony. Thereafter, on redirect examination, the prosecutor asked Burgess whether the person depicted in the photograph resembled anyone in the courtroom. The witness answered in the affirmative. Over defendant's objection, the witness was permitted to testify that the individual depicted in the photograph appeared to be the defendant.
A trial court has wide discretion in controlling redirect and recross examinations, and its rulings are not to be disturbed in the absence of an abuse of that discretion. State v. Wright, 593 So.2d 759, 764 (La. App. 5th Cir.), writ denied, 599 So.2d 313 (La.), cert. denied, ___ U.S. ___, 113 S.Ct. 340, 121 L.Ed.2d 257 (1992). The testimony at issue related to matters dealt with on cross-examination concerning the witness' identification of defendant and was not a new matter. Thus, there was no abuse of discretion by the trial court.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER TWENTY:
Defendant contends the trial court committed reversible error in allowing Dr. David Rau to testify, over defendant's relevancy objection, as to his efforts to revive *1022 Anderson at the crime scene, in the ambulance, and at the hospital.
Relevant evidence is evidence which tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La.Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. La.Code Evid. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. La.Code Evid. art. 403. Under the jurisprudence prior to the enactment of the Louisiana Code of Evidence, the test for admissibility of relevant evidence was similar to that under Code of Evidence article 403, i.e., whether or not the prejudicial effect outweighs the probative value. State v. Ross, 572 So.2d 238, 241 (La.App. 1st Cir.1990).
The testimony of Rau was relevant to prove the corpus delicti and was used to corroborate other evidence of the manner in which death occurred. See State v. Ross, 572 So.2d at 241. After reviewing the doctor's testimony, we find its probative value outweighed any prejudicial effect. The admissibility of his testimony was within the trial court's discretion; consequently, this assignment is without merit.
ASSIGNMENT OF ERROR NUMBER TWENTY-ONE:
Defendant contends the trial court committed reversible error in allowing Dr. Charles Joseph Ledoux, a deputy coroner, to testify over defendant's objection in regard to gunpowder burns found on Anderson's body. Defendant argues this testimony was outside the doctor's field of expertise because the doctor was not qualified as an expert in ballistics or forensic science and was not otherwise qualified to testify as to the cause and effect of powder burns.
Louisiana Code of Evidence article 702 provides as follows:
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.
The trial court is vested with wide discretion in determining the competence of an expert witness, and its ruling on the qualification of the witness will not be disturbed absent an abuse of discretion. State v. Trahan, 576 So.2d 1, 8 (La.1990). However an expert witness may not give expert testimony beyond the scope of the field of expertise in which he is qualified. See State v. Bosworth, 593 So.2d 1356, 1360 (La.App. 4th Cir.), writ denied, 600 So.2d 658 (La.1992).
Ledoux, who performed the autopsy on Anderson, was accepted by the trial court as an expert in the field of cause of death. In qualifying as such an expert, the doctor testified that in his capacity as deputy coroner he had "probably" performed "a couple of hundred" autopsies.
In regard to the autopsy he performed on Anderson, the doctor testified it consisted of both external and internal examinations. Ledoux stated the external examination revealed two entrance wounds, one on the left side at the base of the neck and the other on the right side in the lower chest, and powder burns about the head, neck, and face on the left side. Using the autopsy photograph, Ledoux pointed out the powder burns and gunshot wound to the base of the neck. He testified without objection that the wound had been inflicted from a distance of 3 to 24 inches. Accordingly, because defendant made no contemporaneous objection to this testimony, he waived any objection. See La.Code Evid. art. 103(A)(1); La.C.Cr.P. art. 841. In any event, while the doctor had qualified in this case only as an expert in the cause of death and not in the area of ballistics, he could testify to the existence of powder burns, a matter of which he had gained personal knowledge through his observations during *1023 the autopsy. See La.Code Evid. arts. 602 and 703. On the other hand, the doctor's testimony concerning his approximation of the distance from which the gun was fired to produce the powder burns and the various factors related to the production of powder burns appears to exceed the scope of his field of expertise. Nevertheless, this testimony, relating to the approximate distance from which it might be inferred that either of the fatal shots were fired, was harmless beyond a reasonable doubt. See La.C.Cr.P. art. 921; State v. Henderson, 352 So.2d 206 (La.1977).
This assignment lacks merit.
For the reasons stated we affirm defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] Although the indictment jointly charged defendant and co-defendant Tyskie Tyrone Ross, defendant was tried alone on the charge. In a separate trial, Ross was found guilty of the first degree murder of Daniel Kurt Anderson and sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. See State v. Ross, 604 So.2d 1036 (La.App. 1st Cir.1992).
[2] The record reflects the victim was white.
[3] We will maintain the same sequential numbers used by defendant before he abandoned certain assignments of error.
[4] See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615357/ | 604 N.W.2d 847 (2000)
8 Neb. Ct. App. 946
Dean KELLER, appellant,
v.
Calvin R. BONES and Audrey J. Bones, Trustees of the Calvin R. and Audrey J. Bones Family Trust, appellees.
No. A-99-106.
Court of Appeals of Nebraska.
January 18, 2000.
*849 Mark R. McKeone and Robert D. Dawson, of Hart Law Office, P.C., Cozad, for appellant.
Claude E. Berreckman, Jr., and Kelly L. Sudbeck, of Berreckman & Berreckman, P.C., Cozad, for appellees.
HANNON and SIEVERS, Judges, and BLUE, District Judge, Retired.
HANNON, Judge.
INTRODUCTION
The buyer of real estate sued the sellers for specific performance of an alleged contract for sale of the real estate after the sellers failed to appear at the closing. The sellers asserted that no contract existed (1) because the sellers' acceptance was not communicated to the buyer within the time specified in the offer and the attempted acceptance thus became a counteroffer and (2) because the buyer did not communicate to the sellers that he accepted their counteroffer. Both parties moved for summary judgment, and the district court for Lincoln County granted the sellers' motion, *850 finding that no contract existed because no timely communication of acceptance by the sellers' agent to the buyer had occurred to create a binding contract. The buyer appeals, alleging that the trial court erred in (1) finding that the sellers' acceptance required communication of that acceptance to the buyer and (2) finding that the buyer did not waive the late communication of the acceptance. We hold that (1) communication of acceptance during the time limited by the offer is necessary to create a binding contract, (2) a late acceptance constitutes a counteroffer which must be accepted, (3) the buyer did not accept the sellers' counteroffer, and (4) the doctrine of waiver cannot apply in this case. Accordingly, we find that the trial court was correct in granting a summary judgment of dismissal in the sellers' favor, and we therefore affirm.
SUMMARY OF EVIDENCE
The material facts in this case are undisputed. Calvin R. Bones and Audrey J. Bones are the trustees of the Calvin R. and Audrey J. Bones Family Trust. The trust owns, inter alia, a ranch in Lincoln County, Nebraska, which is the subject of this dispute. On June 11, 1997, the Boneses listed the ranch for sale with a real estate agent in North Platte, Nebraska, called Agri Affiliates, Inc. (agent). According to the listing agreement between the Boneses and their agent, if the listing sold to the current tenants, Lydic Brothers, the agent would receive only a 1-percent commission. On the other hand, if the listing sold to anyone else, the agent would receive a 6-percent commission.
On July 17, 1997, Dean Keller submitted an offer to buy the ranch to the agent in the form of a "Real Estate Purchase Agreement" (offer) and made an earnest money deposit of $49,000 payable to the agent. The offer was for $490,000 and by its own terms would be withdrawn if not accepted by July 21 at 5 p.m. At 4:53 p.m. on July 21, the Boneses faxed a signed copy of the offer to their agent. Paragraph 15 of the offer states in part that "[u]pon execution by Seller, this agreement shall become a binding contract." Loren Johnson, the agent's representative, did not telephone Keller to inform him of the Boneses' acceptance until 5:12 p.m. on July 21 and did so by leaving a voice message on Keller's answering machine.
On July 22, 1997, Don Lydic, a representative of Lydic Brothers, informed the Boneses and the agent that Lydic Brothers would match Keller's offer for the ranch. The Boneses wanted to accept Don Lydic's offer and sell the ranch to Lydic Brothers. Later that same day, the agent asked Keller if he would be willing to release the Boneses from the agreement and "back out" of the deal. Keller refused and asserted that he wanted to go forward with the sale.
The Boneses unequivocally informed Keller on December 5, 1997, that they would not sell the ranch to him. After the Boneses failed to close on December 10, 1997the date set in the offerKeller brought suit against the Boneses seeking specific performance and other relief. Both parties made motions for summary judgment. On January 5, 1999, the district court for Lincoln County found in favor of the Boneses' motion and dismissed the case at Keller's cost. Keller now appeals.
ASSIGNMENTS OF ERROR
Specifically, Keller alleges that the trial court erred in (1) holding that acceptance of the offer required communication to Keller despite contrary language in the offer, (2) finding that a contract did not exist despite that Keller waived the late communication of the acceptance, (3) sustaining the Boneses' motion for summary judgment, and (4) overruling Keller's motion for summary judgment.
STANDARD OF REVIEW
Summary judgment is proper only when the pleadings, depositions, admissions, *851 stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Parker v. Lancaster Cty. Sch. Dist. No. 001, 256 Neb. 406, 591 N.W.2d 532 (1999). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).
ANALYSIS
Essentially, this case presents one questiondid a contract exist between Keller and the Boneses for the sale of the ranch?a question which depends on whether Keller's offer was validly accepted. If no contract existed, then granting the Boneses' summary judgment was proper, but if a contract did exist, then the district court committed error and its order must then be reversed. Keller's first two assignments of error relate to the question of whether a contract was created, and his second two assignments necessarily turn upon the answer to that question.
"A party who seeks to compel specific performance of a written contract has the burden of proving the contract." Pribil v. Ruther, 200 Neb. 161, 163, 262 N.W.2d 460, 462 (1978). Further, "[a]n express contract is proved by evidence of a definite offer and unconditional acceptance." Id. Accordingly, for the Boneses to be entitled to summary judgment, the evidence must show there is no material issue of fact on the issue of the existence of the contract. In this case, it was possible for a contract to have been formed (1) by the Boneses' timely acceptance of Keller's offer to buy or (2) by the Boneses' late acceptance constituting a counteroffer which Keller could then accept.
Possible Contract From Boneses' Acceptance of Keller's Offer.
Keller argues that the Boneses accepted his offer and that the contract became binding the moment the Boneses signed the offer due to the language in paragraph 15 as cited above.
"Where the offer requires a promise on the part of the offeree, a communicated acceptance is essential." Pribil, 200 Neb. at 163, 262 N.W.2d at 462. See, also, Wilkie v. Banse, 166 Neb. 138, 144, 88 N.W.2d 181, 185 (1958) ("[w]here the offer requires a promise on the part of the offeree, a communicated acceptance is essential"). In its most basic sense, the offer in this case was a buyer's promise to purchase real estate for a certain amount if the seller promised to sell. In this way, the present case falls under the rule articulated above so that the Boneses' acceptance must have been communicated to Keller in order for the acceptance to be valid.
We believe Pribil controls here because, as in Pribil, this case lacks an effective communication to the offeror to create a contract. In Pribil, the Nebraska Supreme Court addressed facts similar to this case and found that no contract existed between the seller of real estate and the buyer who made an offer like Keller's. Pribil turned on the timing of the seller's communication of the acceptance. The chronology of events in Pribil was that the seller signed and delivered the offer to the seller's agent, then the seller called the buyer and rejected the buyer's offer, and then the seller's agent mailed the buyer's offer, which had been signed by the seller, to the buyer. Pribil concluded that "[t]he signing of the acceptance of the Uniform Purchase Agreement by the defendant did not make the contract effective. It was necessary that there be some communication *852 of the acceptance to the plaintiff." 200 Neb. at 163, 262 N.W.2d at 462. Because the seller made the rejection first and before the signed offer left his control, no contract existed in that case.
The analysis in Pribil clearly controls the outcome of the issue in this case. Neither the Boneses' act of signing the offer, albeit before the offer expired, nor the Boneses' act of faxing a signed copy to their agent constituted the requisite "communication" to the buyer in order to form a binding contract. Pribil explains that acceptance cannot become effective to create a contract until some irrevocable element occurs which places the acceptance "beyond the power or control of the sender." 200 Neb. at 163, 262 N.W.2d at 462. Neither of the Boneses' actions described above fulfills this requirement, because the acceptance never left their control.
Keller argues that Pribil v. Ruther, 200 Neb. 161, 262 N.W.2d 460 (1978), is distinguishable, because Keller's offer included a clause which purported to make the contract binding at the moment the Boneses signed it. He also argues that parties are free to create their own terms of contracting as long as the terms do not violate public policy. In his brief, Keller spends considerable effort describing how paragraph 15 does not violate public policy. Irrespective of whether a similar clause existed in the Pribil offer and even in light of the parties' freedom to contract as they choose, Keller cannot escape the requirement in Nebraska contract law that acceptance must be communicated to the offeror. Furthermore, while we agree that the parties are free to create the terms of their own contract, we are considering not the terms of the parties' contract but whether the parties entered into one.
With respect to the voice message left on Keller's answering machine shortly after the deadline had passed, we find that the message could not constitute an acceptance of Keller's offer. In Kline v. Metcalfe Construction Co., 148 Neb. 357, 361-62, 27 N.W.2d 383, 386 (1947), the Nebraska Supreme Court stated:
"[T]he offerer has a right to prescribe in his offer any conditions as to time, place, quantity, mode of acceptance, or other matters which it may please him to insert in and make a part thereof, and the acceptance, to conclude the agreement, must in every respect meet and correspond with the offer, neither falling short of nor going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand, and, in the absence of such an acceptance, subsequent words or acts of the parties cannot create a contract."
In Wolf v. Tastee Freez Corp., 172 Neb. 430, 432, 109 N.W.2d 733, 735 (1961), the court stated:
That the acceptance of an offer must be made within the time specified in the offer is a general rule of law.... "The power to create a contract by acceptance of an offer terminates at the time specified in the offer...." We believe that under a provision specifically designating the time within which notice must be given, that time is of the essence, and such provision is to be strictly construed.
Keller's offer required that the Boneses accept in writing by 5 p.m. on July 21, 1997, through registered mail or delivering the acceptance to Keller personally. Additionally, paragraph 15 of the offer states in part, "Time is of the essence of this agreement and each and every provision hereof." The voice message left on Keller's answering machine was not in writing, occurred after the deadline, and was not delivered by the means specified in the offer; thus, it could not constitute an acceptance.
Possible Contract Resulting From Waiver From Keller.
The Boneses' late acceptance could constitute a counteroffer. A binding *853 contract can result from the oral acceptance of such a counteroffer. See Kline, supra (holding that acceptance which imposed conditions different from offer and which was acted upon by original offeror constituted counteroffer which was accepted); Reynolds & Maginn v. Omaha General Iron Works, 105 Neb. 361, 180 N.W. 584 (1920) (concluding that oral acceptance of written offer is sufficient to satisfy statute of frauds if person making offer is party charged). The Boneses' signing of the offer by Keller would constitute the written embodiment of the counteroffer, and its oral acceptance by Keller could have resulted in a contract. However, Keller does not rely upon this theory, and in any event, there was no communication from Keller to the Boneses or their agent which could be interpreted as an acceptance of any counteroffer from the Boneses.
Rather, Keller argues waiver, claiming that he was willing to go forward with the contract despite the Boneses' failure to accept within the specified time and in the specified manner. We note that in Kline, supra, the majority of the Nebraska Supreme Court chose to address this type of situation under an acceptance analysis rather than a waiver analysis, as the lone dissenter in that case chose. We are bound to and also agree with the majority's view that the acceptance approach is correct and that the waiver approach is not, and we add simply that in reality, the name attached to Keller's action or purported action is not significant in deciding this case. There was no communication from Keller to the Boneses or their agent which could be interpreted either as a waiver of the Boneses' failure to accept within the time specified or as an acceptance of a counteroffer.
Keller argues that he waived any objection to the timeliness of the Boneses' acceptance vis-a-vis the voice message. This result would lead to holding that the Boneses' counteroffer was deemed accepted because not specifically rejected by Keller. Notwithstanding its illogical conclusion, Keller's waiver argument cannot stand for other reasons as well.
Paragraph 3 of the offer states:
In the event any contingency to this contract has not been eliminated or satisfied within the time limits and pursuant to the provisions hereof, Buyer may elect to waive the specific contingency by written notice of such waiver to the Seller. In the event Buyer does not waive the contingency, the contract resulting from the Seller's acceptance hereof shall be deemed null and void and the earnest money deposit shall be returned to Buyer.
Even if Nebraska law allowed Keller to make a waiver, this provision shows that he did not even comply with the terms of his own offer in making such a waiver. The provision required Keller to notify the Boneses of any waiver in writing. The record shows no evidence of such a writing despite Keller's burden to produce one.
CONCLUSION
For the foregoing reasons, we affirm the district court's order granting summary judgment in favor of the Boneses because no contract existed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587781/ | 119 P.3d 790 (2005)
339 Or. 230
STATE v. VASQUEZ-VARGAS.
No. S52615.
Supreme Court of Oregon.
August 23, 2005.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615404/ | 23 So. 3d 119 (2009)
PSATHAS
v.
STATE.
No. 2D09-2836.
District Court of Appeal of Florida, Second District.
November 20, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2345679/ | 983 A.2d 1063 (2009)
WERT
v.
U.S.
No. 07-CM-1450.
District of Columbia Court of Appeals.
November 24, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1237697/ | 282 P.2d 255 (1955)
Chester Lee (Jim) GONZALIS, Petitioner,
v.
Joe M. LYNCH, County Judge of Adair County, Oklahoma, acting as examining magistrate in Cause No. 2772 in the County Court of Adair county, Oklahoma, Respondent.
No. A-12147.
Criminal Court of Appeals of Oklahoma.
March 30, 1955.
Joe Cannon, Muskogee, for petitioner.
G.O. Grant, County Atty., Adair County, Stilwell, Paul Gotcher, Asst. County Atty., Muskogee, for respondent, Joe M. Lynch, County Judge, Adair County.
BRETT, Judge.
This is an action brought by Chester Lee (Jim) Gonzalis, petitioner, for a writ of *256 prohibition praying the writ be directed to Joe M. Lynch, county judge of Adair county, Oklahoma, acting as examining magistrate in the case of State v. Gonzalis, No. 2772 pending in said county court, directing said judge to refrain from exercising further jurisdiction over said cause in the matter of a preliminary hearing.
It appears that the petitioner Chester Lee (Jim) Gonzalis was charged on June 14, 1954 by preliminary complaint, in the justice of the peace court, with the crime of murder. A plea of not guilty was entered and hearing thereon had on June 30, 1954, the said Gonzalis was bound over to the district court for trial without bail.
It further appears that on August 4, 1954, information was filed in the district court of Adair county, Oklahoma, charging said Gonzalis with the crime of murder, same being cause No. 1755. The defendant Gonzalis was arraigned on said information and entered a plea of not guilty and was committed to the county jail without bail. Thereafter a motion for change of venue was interposed on the ground that a fair and impartial trial could not be had in the county of Adair. The state did not contest such motion but agreed that the case could be transferred to the district court of Muskogee county for trial.
The case was set for trial on December 6, 1954, and on said date came on for hearing. The trial proceeded to the point of the selection of a jury. In seeking to empanel a jury the state had exhausted its nine peremptory challenges and the defendant eight peremptory challenges, whereupon the county attorney of Adair county, G.O. Grant, filed his written motion to dismiss said prosecution. The defendant objected to said motion on the ground it was an attempt to defeat the change of venue and jurisdiction of the district court of Muskogee county, Oklahoma, and with the intention of refiling a new charge in Adair county. The trial court declined to pass on the grounds alleged in the defendant's objection and holding the motion should be granted, for the reason the matter of dismissing the prosecution was within the county attorney's discretion, and entered an order of dismissal accordingly.
Thereafter on December 9, 1954 the county attorney of Adair county, Oklahoma, filed in the county court before Joe M. Lynch of Adair county, a new preliminary complaint charging the petitioner Gonzalis with the crime of murder, this being the proceeding in which the writ was sought to prohibit the preliminary hearing.
It is contended by the petitioner that the county of Adair lost jurisdiction to conduct any further proceeding when a change of venue was granted and the case ordered removed to Muskogee county, Oklahoma, for trial. It was further expressly contended that the county court of Adair county was without jurisdiction in said matter, and the receiving county of Muskogee alone has jurisdiction to do all things pertinent therein, including the matter of conducting the preliminary hearing in the newly instituted prosecution against Gonzalis.
We are of the opinion the county attorney may elect to move for the dismissal of a prosecution but the dismissal of the prosecution is a matter of judicial discretion. A dismissal of a criminal prosecution cannot be effected except by order of the trial court. Smallwood v. State, 14 Okl.Cr. 125, 167 P. 1154; Kerker v. Superior Court, 38 Okl.Cr. 111, 259 P. 146; Washington v. State, 80 Okl.Cr. 300, 159 P.2d 278; Perry v. State, 84 Okl.Cr. 211, 181 P.2d 280, 286. But since the county attorney "is the legal representative of the state charged with the responsibility of investigating and prosecuting all public offenses, the trial judge will ordinarily accept his recommendation and dismiss the action." Perry v. State, supra.
On the question of venue of a new preliminary hearing after the dismissal of the original prosecution removed by change of venue to another county, Title 22, § 817, O.S. 1951, provides:
"An order for the dismissal of the action, as provided in this Article, is *257 not a bar to any other prosecution for the same offense."
Washington v. State, supra; Ex parte Warrenburg, 63 Okl.Cr. 125, 73 P.2d 476.
Hence, the dismissal of the prosecution for murder pending in Muskogee county, the receiving county, on a change of venue is not a bar to a new prosecution. But the petitioner contends that any new prosecution which may be instituted, by reason of the change of venue, must be instituted in Muskogee county. The cases relied on by the petitioner to sustain this contention are not in point, since they do not involve the matter of a preliminary hearing but involve trials of cases on the merits after a change of venue. In McCurdy v. State, 39 Okl.Cr. 310, 264 P. 925, it was held that an investigation by a grand jury or preliminary examination by a magistrate is not a trial, and that under the provisions of § 17, Article 2 of the State Constitution, a preliminary hearing is analogous to an investigation by a grand jury. To the same effect is Inverarity v. Zumwalt, Okl.Cr., 279 P.2d 372. Herein, we are not confronted with a trial. Instead, we have a dismissal of an original prosecution which so far as that prosecution is concerned is at an end. The state and the accused are both back where they were before the original complaint was filed. Any prosecution must be brought in conformity with the provisions of Article 2, § 20 of the Constitution of Oklahoma, as follows:
"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the State, on the application of the accused, in such manner as may be prescribed by law."
Under the foregoing provision it is apparent that any prosecution must be brought where the crime was committed. State v. Bennett, 81 Okl.Cr. 206, 162 P.2d 581. A change of jurisdiction must come by reason of the accused's application for change of venue, after the issues are joined and the case ready for trial. It has been held that jurisdiction over the cause is one thing; the power and duty to find a new bill of indictment upon whose charges that cause shall be tried, is another and totally distinct and different thing. State v. Patterson, 73 Mo. 695. There is a dearth of authority on this question but the cases have been collected and discussed in 18 A.L.R. 706, Ex parte Lancaster, 206 Ala. 60, 89 So. 721, wherein the Alabama court said:
"The removal of an indictment to another county for trial does not deprive the grand jury of the county where the crime was committed of jurisdiction to find a new indictment in case the first one is dismissed for any cause."
The same rule would apply to a prosecution instituted by the county attorney through preliminary complaint. It therefore appears that the county court of Adair county has the venue under the law of the new prosecution, jurisdiction of the subject matter, of the person of the petitioner, and authority to act in the matter of a preliminary hearing.
But in the event the petitioner is bound over at the preliminary hearing to the district court and he is charged in a new information, and he still believes he cannot have a fair trial in Adair county, application for change of venue will be available to him under Article 2, § 20 of the Oklahoma Constitution, and the provisions of Title 22, § 561, O.S. 1951. The writ of prohibition is accordingly denied.
JONES, P.J., and POWELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/97568/ | 223 U.S. 512
32 S.Ct. 244
56 L.Ed. 531
UNITED STATES, Plff. in Err.,v.NORD DEUTSCHER LLOYD.
No. 611.
Argued January 12, 1912.
Decided February 19, 1912.
Writ of error to review a judgment sustaining a demurrer to an indictment charging the defendant with taking security and making charge for the return passage of aliens unlawfully brought into the United States, and ordered to be returned in pursuance of the immigration act of February, 1907 [34 Stat. at L. 898, chap. 1134, U. S. Comp. Stat. Supp. 1909, p. 447].
The indictment charges that the Nord Deutscher Lloyd, a German corporation, operated a line of steamers between Bremen and New York, maintaining an office and place of business in both cities. On November 25, 1910, in Bremen, it sold tickets to two aliens, entitling them to passage to New York and return. Before their embarkation the defendant collected from them 150 rubles for the return passage money in steerage. On arrival in New York the aliens were ordered to be deported to Germany, as likely to become public charges, because of senility and inability to make a living. On December 16, 1910, after the unlawful bringing into this country of said aliens, and while they were liable to deportation on the vessel by which they came, the said 150 rubles were still held and retained in possession of the defendant up to (April 3, 1911) the date of filing the indictment, 'the defendant so holding and retaining the same and making charge thereof for the return of such aliens, and being taken and continuously held by the said defendant, as security from the said aliens, for the payment of such charge for their return passage to Germany, aforesaid, in violation and evasion of § 19 of the immigration laws of the United States, approved February 20, 1907. The defendant . . . by the means aforesaid, at and within the southern district of New York, on December 16, 1910, unlawfully and wilfully did make charge for the return of aliens, so as aforesaid brought into this country in violation of law, and take security from them and keep and hold the same for the payment of such charge, then and there well knowing that such aliens had been brought to this country in violation of law.'
The court sustained the demurrer on the ground that the money was paid and received in Germany, and that the facts did not amount to a violation of § 19, which provides: 'That all aliens brought to this country in violation of law shall, if practicable, be immediately sent back to the country whence they respectively came, on the vessels bringing them. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessels on which they respectively came.' And if such owner shall refuse 'to pay the cost of their maintenance while on land, or shall make any charge for the return of any such alien, or shall take any security from him for the payment of such charge misdemeanor.
Assistant Attorney General Harr for plaintiff in error.
Mr. Joseph Larocque for defendant in error.
Statement by Mr. Justice Lamar: Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court:
1
Section 19 of the immigration act of 1907 (34 Stat. at L. 898, 904, chap. 1134, U. S. Comp. Stat. Supp. 1909, pp. 447, 458) is not aimed at the aliens of the excluded class, but at the owners of vessels unlawfully bringing them into this country. The government might in large measure protect itself by inspection, rejection, and order of deportation, but it is purposed, also, as far as possible, to protect the alien. He might be ignorant of our laws, and ought to be deterred from incurring the expense of making a passage which could only end in his being returned to the country from whence he came. This policy could best be subserved by securing the co-operation of the transportation companies, and to this end the statute required that they should not only maintain the aliens unlawfully brought by them into this country, but should take them back free of charge. In the absence of this last provision the company might well afford to accept as passengers those known or suspected to belong to the excluded class. It would receive from them their passage money from Europe to America. If they passed the inspection, the transaction was ended. If they were deported, the company would be at the trifling expense of maintaining them while here. But if it could charge and secure payment for the return passage, it would collect two fares instead of one. This would have made the transportation of an excluded alien more profitable than the carrying of one who could lawfully enter. This was so obvious that the statute not only required the cost of their passage to be borne by the transportation company, but prohibited the making of a charge, or the taking of security, for the return passage, which might be collected or enforced at the end of the journey.
2
It is said, however, that no such charge was made in New York; that the indictment shows only the case of an ordinary sale of a round-trip steerage ticket from Bremen to New York, and that what was lawfully done in Germany cannot be punished as a crime in New York.
3
The statute, of course, has no extraterritorial operation, and the defendant cannot be indicted here for what he did in a foreign country. American Banana Co. v. United Fruit Co. 213 U. S. 347, 53 L. ed. 826, 29 Sup. Ct. Rep. 511, 16 A. & E. Ann. Cas. 1047. But the parties in Germany could make a contract which would be of force in the United States. When, therefore, in Bremen the alien paid and the defendant received the 150 rubles for a return passage, they created a condition which was operative in New York. If, in that city, the company had refused to honor the ticket, the alien could there have enforced his rights. In like manner, if by reason of facts occurring in New York the statute operated to rescind the contract, the rights and duties of the parties could there be determined, and acts of commission or omission, which, as a result of the rescission, were there unlawful, could there be punished.
4
If, as argued, the company did nothing in New York except to retain money which had been lawfully paid in Germany, the result is not different, because, under the circumstances, nonaction was equivalent to action. The indictment charges that on December 16, 1910, it was found that the aliens had been unlawfully brought into this country. The company at once was under the duty of taking them back at its own cost. Instead of returning to them the money previously received for such transportation, the defendant retained it up to the date of the indictment, April 3, 1911, with intent to make charge and secure payment for their passage to Bremen. This retention of the money, with such intent, was an affirmative violation of the statute. The company could not take the aliens back free of charge, as required by law, and at the same time retain the fare covering the same trip.
5
The demurrer admits that, with knowledge that it was bound to carry the excluded aliens back at its own cost, the defendant in New York made a charge, and retained the 150 rubles, with intent to apply that money in satisfaction thereof. If that be true, the defendant violated the statute within the southern district of New York, and can there be indicted and tried.
6
The judgment must therefore be reversed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1615257/ | 502 So.2d 537 (1987)
STATE of Louisiana
v.
Nick TAYLOR.
No. 86-KK-0223.
Supreme Court of Louisiana.
February 23, 1987.
*538 William Giddens, Indigent Defender Office, Richard Hiller, Shreveport, for applicant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul Carmouche, Dist. Atty., Ansel Stroud, III, Scott Crichton, Asst. Dist. Attys., Shreveport, for respondent.
ON SECOND REHEARING
MARCUS, Justice.
We granted a second rehearing in this case to reconsider the circumstances under which the crime or fraud exception to the attorney-client privilege set forth in La.R.S. 15:475 is applicable and the procedure to be followed in order to determine whether those circumstances are present.
The pertinent facts of this case were set forth in detail in the first rehearing of this case, State v. Taylor, 502 So.2d 534 (La. 1986):
Apparently, Taylor was arrested after a confidential informant's tip implicated him in the shooting death of a 17-yearold Bossier City youth. The body of the victim was found on the west bank of the Red River. He had been shot once in the head and once in the abdomen with .380 caliber bullets. Police recovered from the scene four other spent bullets and casings, three pellets were .380 caliber and one was .25 caliber.
Taylor was arrested on February 12, 1984. [Footnote omitted.] Sometime subsequent to the arrest, police searched his home and truck turning up evidence which linked him to the crime.... A Bossier Parish Grand Jury returned a true bill indicting Taylor with first degree murder. Prior to the scheduled date of trial, the state amended the indictment to charge second degree murder.
On the day after his arrest, Taylor met with Attorney Randall Fish in the Bossier City Jail. It is not clear who initially contacted Fish. What is clear is at some time after the interview Fish went to Taylor's home and retrieved from the attic a Ceska CZ .380 pistol, later determined to be the murder weapon. Fish took the gun to his office and there it remained until January 20, 1986, approximately one week prior to trial. On that date, police, again tipped by an informant, confronted Fish and he surrendered the weapon.
The defense sought to exclude introduction of the gun as well as any and all testimony from Fish concerning the weapon, its location when retrieved or its subsequent discovery by authorities. A hearing was set and on January 22, 1986, a stipulation was entered establishing Fish was Taylor's attorney at the time of the jailhouse interview. It was agreed an evidentiary hearing was avoided thereby and the matter was submitted. The trial court refused to exclude either the gun or Fish's testimony. The court of appeal affirmed [denied writs]. State v. Taylor, 482 So.2d 210 (La.App. 2d Cir. 1986). Defendant applied for writs to this Court, see State v. Taylor, 483 So.2d 1007 (La.1986) and on original consideration, this Court granted partial relief ruling the "... former defense attorney may not be called as a witness concerning the gun...." Id. Following the state's request for reconsideration (rehearing), oral arguments and a full opinion, on March 27, 1986, we granted a rehearing and consolidated the case with *539 State v. Green, [493 So.2d 1178 (La. 1986)]. 485 So.2d 58 (La.1986).
At the first rehearing of this case, we held that the attorney-client privilege would not preclude the state from introducing in evidence the gun held by Fish in his office provided the state laid a proper foundation. We further held that the attorneyclient privilege would not preclude Fish from testifying about his retrieval of the gun from Taylor's attic if Fish and Taylor had conspired to secrete relevant evidence material to the charge pending. In order to determine whether such a conspiracy existed, thus invoking the crime or fraud exception to the attorney-client privilege, the case was remanded to the trial court for a hearing in accordance with a detailed procedure devised by this court pursuant to the authority of La. Code Crim. P. art. 3.[1]
Defendant applied for a second rehearing, questioning the court's rulings and requesting a clarification of the procedure for proving the crime or fraud exception to the attorney-client privilege.
ADMISSIBILITY OF THE GUN
Defendant first contends that this court erred in allowing the state to introduce in evidence the gun held by former defense attorney Fish. He argues that the physical evidence of the gun should be inadmissible because it would not exist for purposes of this trial if Fish had not recovered it from defendant's attic based upon privileged information obtained during the attorney-client interview between Fish and defendant. However, physical evidence connected to the commission of a crime which has been received or recovered by an attorney on account of his representation of a client is not excluded by virtue of the attorney-client privilege. State v. Green, 493 So.2d 1178 (La.1986). Fish was under an obligation to turn over evidence relevant to a criminal prosecution, and therefore an exception to the attorney-client privilege exists. Id. Thus, in accordance with our ruling in Green, the gun is admissible provided the state lays the proper foundation.
ADMISSIBILITY OF THE TESTIMONY OF FISH
Defendant next contends this court erred in refusing to hold as a matter of law that Fish was precluded by the attorneyclient privilege from being called to the stand and testifying as to the substance of the interview between defendant and him. Defendant argues that the crime or fraud exception to the attorney-client privilege is not applicable in the instant case.
In criminal cases, the scope of the attorney-client privilege is governed by the terms of La.R.S. 15:475,[2] and before a client may claim the benefit of the privilege, the prerequisites set forth in that section must be met. State v. Green, supra. However, the attorney-client privilege is not without exception. Even where a claim of privilege is established pursuant to La.R.S. 15:475, the privilege does not generally exist:
(2) Where the representation is sought to further criminal or fraudulent conduct either past, present or future. See e.g., In Re Grand Jury Proceeding, [663 F.2d 1057 (5th Cir.1981), vacated on other grounds, 680 F.2d 1026 (5th Cir.1982)]; In Re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (5th Cir. 1981); [State v.] Johns, [209 La. 244, 24 So.2d 462 (1946)]; State v. Childers, 196 La. 554, 199 So. 640 (1940); Succession of Bonner, 192 La. 299, 187 So. 801 (1939). Here the emphasis should be *540 placed on the client's actions, since it is the client's right which is prejudiced. McCormick on Evidence, § 89 (Cleary ed. 3rd). Unilateral acts by the attorney while perhaps constituting violations of criminal law and/or ethical canons generally cannot be held to abrogate the client's privilege.
State v. Green, supra, at 1182.
In order to understand the crime or fraud exception to the attorney-client privilege, it must be remembered that the purpose of the privilege is to encourage the client to make full disclosure to his counsel so as to ensure competent and ethical representation. In Re Berkley & Co., Inc., 629 F.2d 548, 554 (8th Cir.1980). However,
[t]he reasons for the privilege "all cease to operate ... where the desired [legal] advice refers not to prior wrongdoing, but to future wrongdoing." In Re Murphy, 560 F.2d [326,] 337 [(8th Cir.1977)], quoting 8 Wigmore [on Evidence, § 2298] at 573 [(McNaughton rev.1961)] (emphasis in original). When the attorney-client relationship has been thus abused [, there is] no justification for sustaining the privilege in any context.
Berkley & Co., supra, at 555. Hence, "attorney-client communications `in pursuit of a criminal or fraudulent act yet to be performed [are] not privileged in any judicial proceeding.'" Berkley & Co., supra, at 555, citing In re Sawyer's Petition, 229 F.2d 805, 808-09 (7th Cir.), cert. denied sub nom. Sawyer v. Barczak, 351 U.S. 966, 76 S.Ct. 1025, 100 L.Ed. 1486 (1956) (emphasis added by court in Berkley & Co.)[3] Therefore, if the communications between Fish and defendant were made in pursuit of a criminal or fraudulent act yet to be performed (such as conspiracy to secrete relevant evidence), then those communications are not protected by the attorney-client privilege.
PROCEDURE FOR PROVING THE CRIME OR FRAUD EXCEPTION
Having concluded that the attorney-client privilege is vitiated where the attorneyclient relationship is used to further an ongoing or a future crime or fraud, we must now reconsider the procedure for making that determination as detailed on the first rehearing. While it is true that the attorney-client privilege is not itself constitutionally guaranteed, nevertheless it is closely linked to the federal and state constitutional guarantees of effective assistance of counsel. U.S. Const. amend. VI; La. Const. art. 1, § 13. Because of the constitutional interest implicated in the attorney-client privilege, that privilege should not be easily derogated. For this reason, upon reconsideration, we conclude that the procedure set forth on the first rehearing does not afford adequate safeguards to the attorney-client privilege, and, in its stead, *541 the following procedure should be utilized to evaluate whether the crime or fraud exception to the privilege is present.
Generally, questions of admissibility, relevance, and weight of evidence are properly raised at trial on the merits, not by pretrial motions. State v. Tanner, 457 So.2d 1172 (La.1984). In the instant case, defendant challenges the admissibility of communications with his lawyer on the ground that those communications are privileged. However, because of the strong constitutional implications of the attorneyclient privilege, "it would serve the orderly administration of justice and further insure the defendant a fair trial if the admissibility of the [attorney-client communications] could be determined in a pretrial proceeding." State v. Tanner, supra, at 1174.
La. Code Crim. P. art. 703 provides that a defendant adversely affected may move to suppress any evidence from use at trial on the ground that it was unconstitutionally obtained. There is no contention that the evidence of the communications between Fish and defendant in the present case was unconstitutionally obtained. Therefore, a literal reading of art. 703 would seem to exclude the use of a motion to suppress to test admissibility of allegedly privileged attorney-client communications. Nevertheless, for the reasons set forth above, we believe that the importance of the attorney-client privilege justifies the use of the motion to suppress to test the admissibility of such communications prior to trial. Thus, pursuant to our authority under La. Code Crim. P. art. 3[4] to establish procedural guidelines in the absence of specific legislative procedural rules, we hold that a motion to suppress is available to question the admissibility of allegedly privileged attorney-client communications.
Once a defendant has made out a claim that certain communications are subject to the attorney-client privilege pursuant to La.R.S. 15:475,[5] the trial court shall hold an evidentiary hearing, see La.Code Crim.P. art. 703(E), in which the burden of proving the admissibility of those communications under an exception to the privilege is on the state as in the case of a confession or evidence seized without a warrant. See La.Code Crim.P. art. 703(D). The question of the standard of proof the state must meet in order to prove the crime or fraud exception to the attorney-client privilege is more problematic. In the instant case, where the controverted communications were allegedly in furtherance of a conspiracy to secrete material evidence, the state urges that it should be required to establish only a prima facie case of the underlying conspiracy in order to vitiate the attorney-client privilege, by analogy to La.R.S. 15:455, the co-conspirator exception to the hearsay rule.[6] Federal courts have similarly held that where the government makes a prima facie showing that the attorneyclient relationship was intended to further continuing or future criminal or fraudulent activity, the privilege does not exist. United States v. Dyer, 722 F.2d 174, 177 (5th Cir.1983), and cases cited therein.
Nevertheless, we feel that the prima facie standard of proof does not afford adequate protection to the attorney-client privilege in criminal cases. Because of the importance of the privilege, therefore, we hold that the state must prove by a preponderance of the evidence that the attorneyclient relationship was intended to further continuing or future criminal or fraudulent activity in order to vitiate the attorneyclient privilege. Our holding is supported by Comment (e) to Article 801 D(3)(b) of the *542 Proposed Evidence Code,[7] which suggests that the appropriate standard of proof to invoke the co-conspirators exception to the rule against hearsay is a preponderance of the evidence. Furthermore, the criminal or fraudulent activity in question must be proved by substantial, independent evidence without considering the allegedly privileged communications. United States v. Shewfelt, 455 F.2d 836, 840 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972); cf. State v. Carter, 326 So.2d 848 (La.1975); also Comment (f) to Article 801 D(3)(b) of the Proposed Code of Evidence.
At the hearing on the admissibility of the attorney-client communications, neither the defendant nor the attorney to whom the allegedly privileged communications were made may be compelled to testify. However, both the defendant and the attorney may testify in support of a motion to exclude privileged attorney-client communications without being subject to examination on other matters. See La.Code Crim.P. art. 703(E). If the defendant does so testify, his testimony cannot be used by the state except for the purpose of impeaching the defendant's testimony at the trial on the merits. Id. Similarly, if after the hearing the trial judge sustains defendant's claim of privilege, the attorney may not be called to the stand at trial, and his testimony at the hearing may not be used for any purpose. However, if the attorneyclient privilege is denied at the hearing, the state may call the attorney to the stand at trial, and his testimony at the hearing may be fully used.
As previously stated, if the communications between Fish and defendant were made in pursuit of a criminal or fraudulent act yet to be performed (such as conspiracy to secrete relevant evidence), then those communications are not protected by the attorney-client privilege of La.R.S. 15:475. However, based on the record before us, we cannot make a determination as to the merits of the claim; therefore, we must remand this case to the trial court for further proceedings in accordance with the views expressed herein.
DECREE
For the reasons assigned, that portion of the ruling of the trial judge denying defendant's motion to disallow introduction of the gun at trial is affirmed; however, that portion of the ruling denying defendant's motion to exclude the testimony of Randall Fish concerning the gun is vacated and set aside. The case is remanded to the trial court for further proceedings in accordance with the views expressed herein.
LEMMON, J., concurs in remanding the case for a hearing and dissents in part from the supervisory procedure adopted for the hearing.
COLE, J., concurs in part and dissents in part, with reasons assigned.
COLE, Justice, dissenting in part.
My learned brothers in the majority have found, in the context of an ongoing or a future crime or fraud, the attorney-client privilege is "closely linked to the federal and state constitutional guarantees of effective assistance of counsel." To the contrary, the privilege does not exist in such circumstances and the concept has nothing to do with effective assistance of counsel. There are, therefore, no constitutional underpinnings which justify the use of article 703 of the Louisiana Code of Criminal Procedure as a procedural device to test the admissibility of allegedly privileged attorney-client communications. This motion to suppress article speaks to any evidence unconstitutionally *543 obtained and to constitutional grounds for the suppression of a confession or statement of any nature made by the defendant. Absent constitutional implications, which is here the case, article 703 is inapplicable by its very language and does not support the use of a motion to suppress attorney-client communications.
The majority deems it best to require proof of the alleged conspiracy by a "preponderance of the evidence." I adhere to the belief the state need only establish a "prima facie" case of the underlying conspiracy in order to vitiate the attorneyclient privilege pending final resolution of the merits of the claimed privilege. Our brothers on the federal bench agree. United States v. Dyer, 722 F.2d 174, 177 (5th Cir.1983), and cases cited therein. Adequate safeguard is provided by the constitutional constraint against being compelled to give testimony against oneself.
In all other respects, I agree with the majority.
NOTES
[1] La.Code Crim.P. art. 3 provides:
Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.
[2] La.R.S. 15:475 provides:
No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client's express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may have gotten by reason of his being such legal adviser.
[3] In Alexander v. United States, 138 U.S. 353, 360, 11 S.Ct. 350, 352, 34 L.Ed. 954 (1891), the Supreme Court suggested that the crime or fraud exception will overcome a claim of attorney-client privilege only at trial for the specific crime in furtherance of which the allegedly privileged communication was made. In Alexander, the defendant was convicted of the murder of his business partner. At trial, apparently for impeachment purposes, an attorney was permitted to testify that sometime between the disappearance of the partner and discovery of his body, the defendant contacted the attorney, advised him that the partner was missing along with some partnership money, and inquired whether he could hold some horses owned by the partnership to secure his share of the missing money. The Supreme Court held the communication privileged and reversed the conviction, stating that because defendant was not being tried for the fraudulent disposition of his partner's property, the crime or fraud exception to the attorney-client privilege was not applicable.
This suggestion has been explicitly rejected by several federal courts (see, e.g., In re Berkley & Co., Inc., 629 F.2d 548 (8th Cir.1980); see also, In re Sawyer's Petition, 229 F.2d 805 (7th Cir.), cert. denied sub nom. Sawyer v. Barczak, 351 U.S. 966, 76 S.Ct. 1025, 100 L.Ed. 1486 (1956)) and has been criticized by commentators. See, e.g., 8 Wigmore on Evidence, § 2298 at 573 n. 1 (McNaughton rev. 1961). Moreover, where a client abuses the attorney-client relationship by seeking legal advice for the purposes of future wrongdoing, there is no reason to accord that relationship a privilege in any context. See Berkley & Co., supra, at 555. We agree with the view expressed by the subsequent federal court decisions rejecting the suggestion advanced in Alexander.
[4] See footnote 1, supra.
[5] See footnote 2, supra.
[6] La.R.S. 15:455 provides:
Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established. [Emphasis added.]
[7] Article 801 D(3)(b) of the Proposed Evidence Code provides:
A statement is not hearsay if:
(3) ... The statement is offered against a party, and the circumstances under which it was made are not shown by an objecting party to create a substantial risk of untrustworthiness such that it would be unfair to admit it, and the statement is:
(6) A statement by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy[.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615268/ | 23 So.3d 122 (2009)
J.D.
v.
STATE.
No. 3D09-3039.
District Court of Appeal of Florida, Third District.
November 18, 2009.
Decision Without Published Opinion Belated Appeal granted. | 01-03-2023 | 10-30-2013 |
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