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https://www.courtlistener.com/api/rest/v3/opinions/2587892/ | 205 P.3d 131 (2009)
STATE
v.
SHCHERENKOV.
No. 82206-9.
Supreme Court of Washington, Department I.
March 31, 2009.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616221/ | 668 N.W.2d 488 (2003)
266 Neb. 715
STATE of Nebraska, Appellee,
v.
Donna McPHERSON, Appellant.
No. S-02-186.
Supreme Court of Nebraska.
September 12, 2003.
*493 Mary C. Wickenkamp, Lincoln, for appellant.
Don Stenberg, Attorney General, and Mark D. Raffety for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
McCORMACK, J.
NATURE OF CASE
Donna McPherson appeals her convictions and sentences of the Lancaster County District Court. In a joint trial with her husband, Roger McPherson, Donna was convicted of one count of aiding and abetting first degree sexual assault on a child and two counts of child abuse. She was sentenced to an aggregate term of 12 to 20 years' imprisonment. Roger was convicted of two counts of first degree sexual assault on a child and two counts of child abuse. He was sentenced to 25 to 40 years' imprisonment for each sexual assault conviction and 5 years' imprisonment for each child abuse conviction. Roger also appealed his convictions and sentences. The opinion in Roger's appeal can be found at State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003). The victims *494 in both cases are the two minor daughters of Roger and Donna, S.M. and M.M., ages 12 and 11 respectively at the time of the joint trial.
BACKGROUND
Some background is useful for context. Roger, Donna, and the two girls lived in a house consisting of two bedroomsone for Roger and Donna and one for the girls. Roger and Donna's bedroom and main bathroom did not have doors. Donna was not home on most weekday evenings because she usually worked from 4 to 11 o'clock. Roger is disabled and was unemployed at the time the offenses took place.
In February 2001, M.M. approached school officials concerning her situation at home. She told officials that Roger had recently announced a new rule which would require the girls to "go around the house" naked on the weekends. She also alleged that Roger made her engage in fellatio with him. After talking with both girls, officials called the police to report the incidents of sexual abuse. The police took the girls to the Child Advocacy Center to be interviewed. The girls were placed in protective custody after the interviews.
As part of the investigation, the police went to the McPherson home where they obtained consent from the McPhersons to search their home. Upon obtaining a warrant, a subsequent search was conducted. Among other items, the police seized sexual devices and numerous sexually explicit videos. The sexual devices were found in the girls' bedroom and Roger and Donna's bedroom. Roger and Donna were subsequently arrested.
Following his arrest, Roger agreed to speak with the police. Before making his statement, Roger was read his Miranda rights and subsequently signed a Miranda warning and waiver form. Roger admitted he had "inspected" the girls' vaginas for hygienic purposes, but denied touching the girls in a sexual manner. Roger also admitted that on at least one occasion, the girls witnessed Roger and Donna having oral sex. He also admitted to knowing that sexual devices were kept in the home, but denied ever using the devices on the girls or ever showing the girls how to use the devices. The statement was tape-recorded and later transcribed.
PRIOR TO TRIAL
The State filed a motion to consolidate Roger's and Donna's cases for trial. The State alleged that the offenses were of the same or similar character; that the offenses were based on the same act or transaction; and that the same witnesses, evidence, and testimony would be offered against each defendant with one exception: Roger's statement. Roger did not oppose consolidation, but Donna opposed it on two grounds. First, she alleged that Roger's statement to the police contained incriminating statements about Donna and, if introduced at trial, would abridge her right of confrontation. Donna also alleged that she would be prejudiced at trial by association with Roger. In granting the State's motion to consolidate, the district court determined that all the charges arose from a factually related transaction or series of events in which both defendants participated. The court further determined that those portions of Roger's statement implicating Donna could be addressed by a motion in limine to test whether the confrontation issue could be overcome by the State. The court factored into account the girls' ages and possible psychological damage to them if they were required to testify at separate trials. Based on the evidence presented on the motion to consolidate, the court ultimately concluded that Donna failed in her requisite *495 burden to establish that she would be prejudiced in a joint trial with Roger.
Donna filed three motions in limine. She objected, inter alia, to the admissibility of the sexual devices and sexually explicit videos seized at the McPherson home. Donna also filed a motion to redact, alleging that portions of Roger's statement violated her right of confrontation. She also claimed that some portions of the statement violated the rules of evidence.
We limit our review of the court's order on the admissibility of evidence to the evidence at issue in Donna's appeal. The district court found that Donna's motions presented two issues: (1) whether the evidence of sexual devices and sexually explicit videos were prohibited as rule 404(2) character evidence, see Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1995), and (2) whether Roger's statement was admissible at trial. In reviewing the first issue, the court divided the evidence at issue into two categories: (1) material seized which included the sexual devices and sexually explicit videos and (2) Roger's conduct which included Roger's viewing a sexually explicit film with the girls on New Year's Eve (New Year's Eve video).
As to the child abuse charges, the district court determined that the evidence of sexual devices, sexually explicit videos, and the New Year's Eve video were direct evidence of child abuse and not rule 404(2) evidence. As to aiding and abetting first degree sexual assault on a child, the district court determined that the evidence of sexual devices and sexually explicit videos were direct evidence of aiding and abetting first degree sexual assault on a child. The court also determined that the evidence of the New Year's Eve video was not evidence of any element of aiding and abetting unless the State could first establish that Donna had knowledge of the video. The court concluded that the New Year's Eve video was inadmissible rule 404(2) evidence and that if offered at trial for other purposes, a limiting instruction to the jury would be required.
As to the admissibility of Roger's statement, the court granted Donna's motion to redact in part, listing the portions to be redacted in its order. The court overruled the motion to redact as to all other portions not listed in its order.
After the court's ruling on the evidentiary issues, Donna filed a motion to sever her trial from that of Roger. She claimed that a joint trial violated her due process rights and that a joint trial would confuse the jury. In overruling the motion to sever, the court determined that limiting instructions given to the jury during the joint trial would address the issues raised by the motion to sever.
TRIAL
Both girls testified at trial. Each testified that they had engaged in fellatio with Roger and that Donna had watched and participated on some occasions. They also testified that Roger sexually touched their vaginas. According to S.M., on at least one occasion, Donna actively participated in the sexual activity when Roger sexually touched S.M.'s vagina. Both girls further testified that they had watched Donna engage in fellatio with Roger. According to the girls, Donna often went about the house nude and Roger went about the house partially nude. Their testimony also revealed that Roger took nude photographs of both girls.
Each girl testified about the material seized from the home, including the sexual devices and sexually explicit videos. S.M. testified that she had taken two sexual devices from her parents' bedroom without her parents' knowledge, but she also remembered asking Donna how to use them. *496 Both girls testified that they had used the sexual devices. M.M. kept her device under her pillow, and S.M. kept her device on top of her dresser next to the bed.
As to the sexually explicit videos found in the house, each girl testified that the videos were stored in an unlocked video cabinet near the television. They testified that they had watched some of the videos. According to M.M., Donna had caught them watching a sexually explicit video and had told them not to watch it again.
Both girls also testified about Roger's conduct. They each testified that they watched the New Year's Eve video with Roger, but said that Donna was not home when they watched it. In addition, the girls testified concerning the new rule announced by Roger which would have required them to go around the house naked on the weekends.
Also called to testify were the two police officers who took Roger's statement at the police station. Both officers testified about portions of the statement, but the statement itself was not admitted into evidence. According to the officers, Roger admitted to knowing that the girls had watched some adult videos. Roger further admitted that due to his disability, he required assistance in using the bathroom, and that the girls, in assisting him, had seen him nude on occasion. The officers also testified that Roger admitted to inspecting the girls' vaginas for hygienic purposes, but denied ever touching the girls in a sexual manner. No reference was made to Donna by either officer while testifying about Roger's statement.
At the conclusion of the trial, the jury found Donna guilty of all charges.
ASSIGNMENTS OF ERROR
Donna assigns, rephrased and renumbered, that (1) the district court erred in joining Roger's case and her case for trial, (2) the district court erred in admitting the statement of Roger at trial, (3) the district court erred in admitting evidence of sexual devices at trial, (4) the district court erred in admitting sexually explicit videos at trial, and (5) the evidence was insufficient to sustain the verdicts.
STANDARD OF REVIEW
A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995). Judicial abuse of discretion means that the reasons or rulings of the trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998). The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced. State v. Brunzo, supra.
Because the exercise of judicial discretion is implicit in Neb. Evid. R. 401, Neb.Rev.Stat. § 27-401 (Reissue 1995), it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1995), and rule 404(2), and the trial court's decision will not be reversed absent an abuse of discretion. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).
In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed *497 most favorably to the State, is sufficient to support the conviction. State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
ANALYSIS
CONSOLIDATION
In her first assignment of error, Donna alleges that it was error to consolidate Roger's case and her case for trial. The consolidation of separate cases is governed by Neb.Rev.Stat. § 29-2002 (Reissue 1995), which provides:
(2) The court may order two or more indictments, informations, or complaints... if the defendants, if there is more than one, are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The procedure shall be the same as if the prosecution were under such single indictment, information, or complaint.
(Emphasis supplied.)
There is no constitutional right to a separate trial. The right is statutory and depends upon a showing that prejudice will result from a joint trial. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995). The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced. Id. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. Id. The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. Id.
We first consider whether consolidation was proper. Consolidation is proper if the offenses are part of a factually related transaction or series of events in which both of the defendants participated. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982). Joinder was proper in the present case. The information against Roger and Donna charged both of them with child abuse and with related offenses; Roger with first degree sexual assault on a child, and Donna with aiding and abetting first degree sexual assault on a child. All of the charges arose out of the incidents and environment at the home in which Roger and Donna placed the girls and, therefore, are part of a factually related transaction or series of events in which both Roger and Donna participated.
Next, we consider whether Donna was prejudiced by the otherwise proper consolidation. Donna's first claim of prejudice is that the joint trial violated her right to confrontation. She contends that portions of Roger's statement admitted at trial inculpated her and that she was unable to cross-examine Roger because he did not testify at trial. In claiming that she was prejudiced, Donna relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the codefendant's confession expressly implicated the defendant as his accomplice. The U.S. Supreme Court held that the admission of a codefendant's statement inculpating another defendant at a joint trial constitutes error where the declarant codefendant does not testify in the trial, regardless of the fact that the trial court gave instructions that the incriminating statement could be considered only against the declarant codefendant. The scope of Bruton was limited by Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). The U.S. Supreme Court in Richardson determined that the *498 Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence. Such confession does not violate the right to confrontation because it is not incriminating on its face, but becomes so only when linked with evidence introduced later at trial. Id.
Prior to trial, the court redacted 26 of the 28 portions of Roger's statement which Donna requested in her motion to redact. We also note that Roger's statement was not admitted into evidence, nor was the tape played for the jury. However, two police officers who were present during Roger's statement did testify about portions of Roger's statement. We, therefore, consider whether Donna's right to confrontation was violated.
Prior to each officer's testifying about the statement, the court gave the following limiting instruction: "Ladies and Gentlemen of the Jury, you are about to hear evidence of a statement made by Roger McPherson. You may consider the statement only regarding the charges pending against Roger McPherson and you may not consider it in connection with any charges pending against Donna McPherson." No objection was made to the limiting instruction. The only portions of the statement which the officers testified about included Roger's knowledge that the girls had watched some sexually explicit videos, that the girls had seen him nude when they helped him to the bathroom because of his disability, and that he had inspected the girls' vaginas for hygienic purposes. The officers' testimony did not inculpate Donna. Donna's name was not used, nor was any reference made to Donna by counsel or the officers while they testified about portions of Roger's statement. No reference was made to the two portions of the statement not redacted by the court but requested in Donna's motion to redact. The prosecution, in its closing argument, reiterated that Roger's statement could not be considered in Donna's case. Because the statement was not incriminating on its face, as required by the Bruton rule, we determine that Donna's right to confrontation was not violated. The record establishes that the district court adhered to the safeguards established in Richardson v. Marsh, supra.
Donna's second claim of prejudice is that the joint trial violated her due process rights. She asserts that the complexity of the evidence confused the jury despite the court's limiting instructions. We disagree. Donna's counsel conceded at oral argument that the overwhelming majority of evidence introduced at the joint trial would have been used to prove the charges against Donna in a separate trial. Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990), disapproved on other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991). Moreover, the jury was cautioned about using evidence, specifically Roger's statement and the New Year's Eve video, against one defendant or offense and not against the other defendant or offense. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict. State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999); State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). For these reasons, we determine that Donna has failed in her *499 burden to establish that the joint trial violated her due process rights.
Donna also claims that she was prejudiced by the joint trial because the trial strategy and tactics of Roger's counsel conflicted with the trial strategy and tactics of Donna's counsel. This claim is not supported by the facts. Roger and Donna maintained their innocence throughout the proceedings. Furthermore, this issue was not presented to the district court. The different strategies used by Roger's counsel, including not opposing the prosecution's motion for joinder, his motion to sequester the jurors, and his objection to Donna's motion to allow jury note-taking, were all considered and ruled upon by the court prior to trial. The court's order on the motion to consolidate was filed July 9, 2001, and the court's order on the other pretrial motions at issue was filed September 24. Donna did not claim that she would be prejudiced by these different strategies in her opposition to the prosecution's motion to consolidate. She also did not raise this issue in her motion to sever filed on September 28, which was after the court's order on the pretrial motions. Donna did not file a motion for new trial, whereby she could have raised this issue. Because Donna did not present this issue before the district court, we do not consider it on appeal. 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).
Donna also claims that she was prejudiced by the cross-examination of S.M. by Roger's counsel because Roger's counsel elicited more damaging testimony against Donna than was elicited by the prosecution on direct examination. "In one poorly executed and senseless question, co-defendant's counsel managed to do what the prosecution could notplace [Donna] as a witness to first degree sexual assault of the alleged victim [S.M.] in Count One of the Information." Brief for appellant at 12. This claim is contrary to the evidence adduced at trial and therefore is without merit. As the following testimony reveals, S.M. did testify on direct examination that Donna was a participant on at least one occasion when Roger sexually penetrated her, which is sufficient evidence that Donna aided and abetted the first degree sexual assault on a child.
Q. [Direct examination by prosecution] Why would you jump?
A. [S.M.] Because my nerves would jiggle and that would cause me to jump.
Q. Well, what made your nerves jiggle?
A. My dad playing around with my button [vagina] with his finger.
Q. And was that happening while your mom [performed fellatio] on your dad's penis?
A. Yes.
Q. And after that happened did, ah, anybody do anything else?
A. I cannot remember.
Q. And did your mom say anything to you while this was going on?
A. I think she might have, but I can't recall it.
Q. Okay. Do you think she knew you were there?
A. Yes.
Q. You were all [Roger, Donna, M.M., and S.M.] on the bed together?
A. Yes.
For the above-stated reasons, we conclude that the district court did not abuse its discretion in consolidating the cases for trial. Donna has failed in her requisite burden to establish that she was prejudiced *500 by the joint trial. Her first assignment of error is without merit.
ROGER'S STATEMENT
In her second assigned error, Donna alleges that it was error to admit Roger's statement into evidence at trial because it violated her right of confrontation. We addressed this assigned error in the preceding section and concluded that Donna's right of confrontation was not violated. This assigned error is without merit.
EVIDENCE
In her third and fourth assignments of error, Donna alleges it was error to admit the evidence of sexual devices and sexually explicit videos at trial. Donna claims that this evidence is irrelevant to the crimes charged (rule 401 objection) and that even if this evidence is relevant, its probative value is outweighed by its prejudicial effect (rule 403 objection). She also claims that its admissibility is prohibited as character evidence pursuant to rule 404(2). She contends that such erroneous admission necessitates a new trial.
In all proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002). Because the exercise of judicial discretion is implicit in rule 401, it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under rules 401, 403, and 404(2), and the trial court's decision will not be reversed absent an abuse of discretion. State v. Aguilar, supra.
As to the child abuse charges, the district court, in its ruling on the admissibility of evidence, determined that the evidence of sexual devices and sexually explicit videos was direct evidence of child abuse and not rule 404(2) evidence. Implicit in the court's finding as to the sexual devices and sexually explicit videos is a finding that the evidence was relevant under rule 401, and further that its probative value was not outweighed by the danger of unfair prejudice under rule 403. The court found that this evidence tended to prove Donna's knowledge of the situation in which she placed the girls and that Donna intentionally placed or permitted the girls to be in a situation that endangered their physical or mental health. The court also determined the New Year's Eve video was direct evidence of child abuse even though there was no evidence that Donna knew of this specific event. The court held that it was for the jury to determine whether a particular danger was within the scope of possible dangers which could be reasonably presented by Donna's placing or permitting her girls to be in a situation, given the knowledge Donna did have.
As to aiding and abetting first degree sexual assault on a child, the district court determined that the evidence of sexual devices and sexually explicit videos was direct evidence of aiding and abetting first degree sexual assault on a child. The court also determined that the evidence of the New Year's Eve video was not evidence of any element of aiding and abetting unless the State could first establish that Donna had knowledge of it. The court concluded that the New Year's Eve video was inadmissible rule 404(2) evidence and, if offered at trial for other purposes, a limiting instruction to the jury would be required.
On appeal, Donna asserts that the testimony given at trial does not support the district court's ruling on the admissibility of evidence. She claims that M.M.'s testimony regarding possession and use of *501 a sexual device was irrelevant to the aiding and abetting charge because there was no testimony that Donna knew M.M. had a sexual device and that the victim of the offense was S.M. and not M.M. She further contends that the sexual devices constitute inadmissible character evidence under rule 404(2). The State argues that the sexual devices and sexually explicit videos are direct evidence of the crimes charged. It contends that this evidence is intertwined with the charged crimes and is not extrinsic evidence as defined under rule 404(2).
In this case, Donna was charged with two counts of child abuse, which requires the State to prove that Donna knowingly, intentionally, or negligently caused or permitted the girls to be placed in a situation that endangered their physical or mental health. See Neb.Rev. Stat. § 28-707 (Cum.Supp.2002). Donna was also charged with aiding and abetting first degree sexual assault on a child. First degree sexual assault on a child is committed by "[a]ny person who subjects another person to sexual penetration ... when the actor is nineteen years of age or older and the victim is less than sixteen years of age." Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1995). Pursuant to Neb.Rev.Stat. § 28-318(6) (Reissue 1995), sexual penetration means
sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's or victim's body or any object manipulated by the actor into the genital or anal openings of the victim's body which can be reasonably construed as being for nonmedical or nonhealth purposes.
Aiding and abetting requires some participation in a criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime. Mere encouragement or assistance is sufficient. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
We first consider whether evidence of sexual devices and sexually explicit videos is relevant. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Miner, 265 Neb. 778, 659 N.W.2d 331 (2003). We determine that sexual devices and sexually explicit videos, which were in the home and accessible to the girls, are relevant evidence of child abuse. This evidence would have some tendency to prove a pattern of child abuse regardless of whether Donna did or did not have knowledge of certain facts.
We next consider whether the evidence is prohibited by rule 404(2). Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she 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.
Stated another way, rule 404(2) prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under rule 404(2). State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002); State v. Sanchez, supra. In deciding *502 whether evidence under rule 404(2) is evidence of the crime charged, we have determined that bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not part of the rule 404(2) coverage. State v. Aguilar, supra.
We conclude that the evidence of sexual devices and sexually explicit videos is not evidence of prior unrelated bad acts under rule 404(2), but is relevant evidence that forms the factual setting of the crimes charged. The State is allowed to present a coherent picture of the facts of the crimes charged. The State did not introduce the evidence to prove that Donna had the propensity or the character to act in a certain way. Instead, the evidence explains the circumstances of the McPherson home where the alleged crimes took place. The sexual devices were found in Roger and Donna's bedroom and in the girls' bedroom. S.M. kept her sexual device in plain view on her dresser. The sexually explicit videos were stored in an unlocked video cabinet near the television, which was easily accessible by the girls. There is testimony that Donna knew that the girls had watched at least one of the sexually explicit videos. The evidence is so closely intertwined with both crimes charged that it cannot be considered extrinsic and therefore is not governed by rule 404(2). The evidence tends to prove Donna's knowledge of the situation in which she placed the girls. It also proves that a situation existed that endangered the girls' physical or mental health. Because the evidence is so closely intertwined with the crimes charged, we determine that evidence of sexual devices and other sexually explicit videos was properly admitted at trial. The evidence is not rule 404(2) evidence. We also conclude that the sexual devices and sexually explicit videos do not violate rule 403 because the probative value of describing the McPherson home and living conditions is not substantially outweighed by any prejudice to Donna. The trial testimony establishes that the sexual devices and sexually explicit videos were easily accessible to the girls and were often kept in plain view of Roger and Donna. From this record, it can be inferred that Donna had knowledge of the situation in which she placed the girls, and thus Donna is precluded from claiming that this evidence is unduly prejudicial.
Donna also alleges that it was error for the court to admit evidence of Roger's conduct. Donna specifically contends that the New Year's Eve video was not direct evidence of child abuse against Donna because there was no evidence establishing that Donna had knowledge of the event. We agree and conclude that the district court abused its discretion in admitting the New Year's Eve video as direct evidence of child abuse against Donna. At trial, both girls testified about watching the New Year's Eve video. Roger's and Donna's counsel timely objected on the grounds of relevancy, improper uncharged misconduct, and as being unduly prejudicial. The State argued that it was offering the evidence in accordance with the court's order on the motions in limine. The State claimed that the New Year's Eve video was direct evidence of child abuse against both Roger and Donna. It also claimed it was evidence of planned preparation for rule 404(2) purposes of the first degree sexual assault charges against Roger. The court overruled counsels' objections, but prior to the girls' testimony, gave the following limiting instruction:
Ladies and Gentlemen of the Jury, you are about to hear evidence that Roger McPherson viewed a sexually explicit film with his daughters.... Any evidence relating to these matters will be received regarding:
*503 One, the two charges of child abuse against Roger and Donna McPherson; and
Two, you may consider this evidence for the limited purpose of addressing the issues of plan and preparation regarding the two charges of [first degree] sexual assault o[n] a child pending against Roger McPherson.
It is not to be considered by you with regard to the charge of aiding and abetting pending against Donna McPherson.
It is not to be used by you as proof of character of either Roger or Donna McPherson or to prove the propensity of either of them to act in a certain way.
There is no evidence in the record to support that Donna had any knowledge of the New Year's Eve event. If Donna did not have knowledge of the event, the evidence cannot be direct evidence of child abuse because that would require that she knowingly or intentionally placed the girls in a situation to be sexually abused. Although we conclude that the district court abused its discretion in admitting the New Year's Eve video in violation of rule 401 as direct evidence of child abuse against Donna, we consider this error harmless. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003). Based upon our review of the entire record, including the undisputed testimony that Donna knew that the girls had performed fellatio on Roger, we have no difficulty in concluding that the guilty verdict was surely unattributable to the admission of the New Year's Eve event.
SUFFICIENCY OF EVIDENCE
In her final assignment of error, Donna alleges that there is insufficient evidence to support the convictions for child abuse and aiding and abetting first degree sexual assault on a child. Donna bases this argument on the girls' inconsistent testimony at trial which she claims make the allegations unbelievable. In essence, Donna's assignment of error attacks the credibility of the witnesses. Witness credibility, however, is not to be reassessed on appellate review. State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002). In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003). The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Jackson, supra.
Viewed in a light most favorable to the State, we determine that there is sufficient evidence beyond a reasonable doubt to support the convictions for child abuse. Both girls testified that they performed fellatio on Roger while Donna was present. It is also uncontroverted that the girls had access to sexual devices and sexually explicit videos. Some of this evidence was kept in plain view of Roger and Donna. It is also undisputed that Roger and Donna often went around the house nude. Although the girls' testimony was *504 inconsistent at times, it was rational for the trier of fact to have concluded that Donna knowingly and intentionally permitted the girls to be placed in a situation that endangered their physical or mental health.
There is also sufficient evidence in the record to support Donna's conviction for aiding and abetting first degree sexual assault on a child. There is evidence in the record that Roger digitally penetrated S.M. while simultaneously having Donna perform fellatio on him. There is also evidence in the record that Roger had the girls perform fellatio on him. This evidence is sufficient to sustain a finding that Donna aided and abetted the first degree sexual assault on S.M. This assigned error is without merit.
CONCLUSION
The district court did not abuse its discretion in consolidating the cases for trial. In addition, we conclude that it was not error to admit evidence of sexual devices and sexually explicit videos, and we also conclude that it was harmless error to admit evidence of the New Year's Eve video. Furthermore, there is sufficient evidence in the record to support the convictions. Therefore, the judgment of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697565/ | [Cite as State v. Topping, 2012-Ohio-5617.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 11CA6
vs. :
FLINT E. TOPPING, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Timothy Young, Ohio State Public Defender, and Stephen A.
Goldmeier, Ohio State Assistant Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and
Robert C. Anderson, Lawrence County Assistant Prosecuting
Attorney, Lawrence County Court House, One Veteran’s
Square, Ironton, Ohio 45638
CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-19-12
ABELE, P.J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment of
conviction and sentence. A jury found Flint Topping, defendant below and appellant herein, guilty
of (1) felonious assault in violation of R.C. 2903.11(A)(1), and (2) kidnapping in violation of R.C.
2905.01(A)(3). The trial court sentenced appellant to serve concurrent prison terms of eight years
for the felonious assault conviction and ten years for the kidnapping conviction.
{¶ 2} Appellant assigns the following errors for review:
LAWRENCE, 11CA6 2
FIRST ASSIGNMENT OF ERROR:
“THE COURT ERRED IN ALLOWING THE STATE TO ADMIT
MR. TOPPING’S PREVIOUS CONVICTION FOR RAPE OR ANY
DETAILS OF THAT CONVICTION UNDER EVIDENCE RULE
609, BECAUSE THE EVIDENCE’S PROBATIVE VALUE WAS
OUTWEIGHED BY ITS PREJUDICIAL EFFECT, IN VIOLATION
OF MR. TOPPING’S DUE PROCESS RIGHTS.”
SECOND ASSIGNMENT OF ERROR:
“THE CONVICTIONS OF MR. TOPPING FOR KIDNAPPING AND
FELONIOUS ASSAULT, COUNTS ONE AND TWO, ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND
ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I
OF THE OHIO CONSTITUTION.”
THIRD ASSIGNMENT OF ERROR:
“MR. TOPPING WAS DENIED THE RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL DID
NOT OBJECT TO THE PROSECUTION’S MISCONDUCT
DURING CLOSING ARGUMENT, WHICH VIOLATED MR.
TOPPING’S RIGHT TO DUE PROCESS AND TO EFFECTIVE
ASSISTANCE OF COUNSEL.”
{¶ 3} On the morning of December 11, 2011, Tom Snyder encountered appellant’s stalled
white truck along Big Branch Road. He asked appellant if he needed assistance and while doing so,
he noticed a woman holding a child. The woman had swollen eyes and silently indicated to Snyder
that she needed help. Snyder gathered that the woman was in distress and called 911.
{¶ 4} Lawrence County Sheriff’s Deputy Darren Hamilin responded to the 911 dispatch.
LAWRENCE, 11CA6 3
He photographed the female occupant, Patricia Cogan. Deputy Hamilin’s photographs reveal that
Cogan sustained several injuries: (1) a swollen left eye; (2) a damaged lip; (3) a red face; (4)
scraping and abrasions on her right hand; (5) bruises on her legs; and (6) a snowball-size chunk of
her hair removed from her head. Throughout the encounter with Deputy Hamilin, Cogan
continually repeated to the deputy that “[appellant] was going to kill me thank God you saved my
life [sic].” Deputy Hamilin subsequently arrested appellant. On February 7, 2011, a Lawrence
County Grand Jury returned an indictment that charged appellant with felonious assault and
kidnapping.
{¶ 5} At trial, the parties presented conflicting evidence. The state’s primary witness,
Cogan, stated that appellant removed her from a party, forced her into his truck, and drove around
throughout the night and into the morning. She testified that appellant stopped the truck several
times, dragged her from the car, and beat her. Cogan more particularly explained that on
December 10, 2010, she had agreed to accompany appellant to Vanessa Dixon’s birthday party.
Cogan stated that she told appellant that after the party, she wanted to go to her sister’s house,
which was about a five-minute walk from Dixon’s house. Cogan stated that she consumed
alcoholic beverages at the party and that later in the evening, she fell and hit the floor. Cogan
testified that she put her hands down to break her fall and stated that she did not hit her head when
she fell. Cogan explained that she eventually fell asleep with her approximately two-year old son.
She testified that she awoke to appellant slapping her in the face. She got out of bed and sat in
Dixon’s living room and heard appellant and Dixon arguing. She asked another party-goer,
apparently Dixon’s boyfriend, if he would walk her to her sister’s house. Dixon called Cogan “a
bitch and she said my boyfriend is not going anywhere with you.” Cogan stated that Dixon “just
LAWRENCE, 11CA6 4
wanted us out of there.” She explained that she, her child, appellant, and Dixon continued the
argument outside and Dixon put her child in the car seat that was inside appellant’s truck. As
Cogan climbed in the truck, appellant grabbed her by her hair and yanked her out of the truck.
Dixon and appellant continued arguing, so Cogan removed her child from the car seat and intended
to walk to her sister’s house. Appellant yelled at her to get back in the truck and Dixon took the
child and put him back in the car seat. Cogan told appellant that she was not going to get in the
truck and that she was going to go to her sister’s house. Dixon told Cogan that appellant would
take her to her sister’s house, but Cogan stated that she would not return to the truck. Cogan
testified that appellant and Dixon eventually pushed her in the truck.
{¶ 6} Cogan explained that appellant drove the truck towards her sister’s house, but
turned around and did not take her there. She then realized that her wallet and pocket knife were
missing. She told appellant “to turn around because his friends stole [her] wallet.” Cogan stated
that appellant stopped the truck and then hit her four or five times. Appellant started driving
again, but a short time later, he stopped the vehicle, dragged Cogan out of the truck by her hair, and
hit her in the face. When he finished hitting her, he pushed her back into the truck. They
continued driving and appellant stopped the vehicle another three or four times and again hit
Cogan each time. Throughout the encounter, appellant “kept telling [Cogan] that he was going to
kill [her].” At one point, Cogan hit appellant in the head with a full can of beer. Appellant
removed the beer can from her hand and hit her with it until she was unconscious. When she
awoke, she discovered that they were parked at a Lowe’s store parking lot. Appellant was still
sleeping and she woke him to request that he start the car to warm it up inside. Cogan stated that
she did not consider trying to sneak out of the truck and escape because she was afraid. She
LAWRENCE, 11CA6 5
testified that she “was scared to death, and * * * [appellant] kept telling [her] throughout the night
he was going to kill me, he’s going to kill me, he’s going to kill me, he’s going to kill me, it was on
and on.”
{¶ 7} They subsequently left the Lowe’s parking lot and drove to a secluded house, which
Cogan learned belonged to appellant’s mother. Cogan stated that appellant told her that “if [she]
tried to make a run for it that he would run [her] down.”
{¶ 8} Shortly after leaving his mother’s house, appellant’s truck stalled. Cogan stated
that two people approached the car and she “was like mouthing to them to call 911.” Once
Deputy Hamilin arrived, she was still so “scared to death [that she] couldn’t even talk.” She “was
just mouthing to him to please help [her].”
{¶ 9} Appellant’s defense theory was that Cogan’s injuries resulted when she became so
drunk at Dixon’s party that she fell face forward into the floor, into an end table, into a coffee
table, and into an exercise machine. Dixon, appellant’s life-long friend and former romantic
partner, testified that Cogan “was completely out of her mind. She was falling everywhere [and]
staggering.” Dixon stated that another party-goer helped Cogan sit on a love seat, but Cogan
stood up and fell “face first” into the hardwood floor. Dixon testified that Cogan “was falling and
staggering” and that she fell into a coffee table and an end table. Dixon also stated that Cogan had
“[q]uite a few” encounters with an exercise machine. Dixon explained that she and her boyfriend
took Cogan to a bedroom and Dixon encouraged her to sleep. Dixon stated that after she placed
Cogan on the bed, Cogan “stood up and fell backwards over” the exercise machine. Dixon further
explained Cogan’s fall into the exercise machine as follows: “I don’t [know] if you’ve seen [a Bow
Flex] or not but the arms are like this and they are metal she hit face first on that and just dropped.
LAWRENCE, 11CA6 6
[sic]” Dixon stated that she again placed Cogan in bed and after she left the room, Dixon heard
Dixon’s grandmother yelling for help. Dixon testified that Cogan was laying on the floor in the
hallway. She stated that she then told appellant that he needed to take Cogan out of her house.
{¶ 10} Dixon explained that Cogan picked up her son and fell “with him and busts his head
off of the floor.” Dixon stated that Dixon’s seventeen-year old daughter, Rebecca, assisted Cogan
with the child.
{¶ 11} Dixon continued to tell appellant that he needed to take Cogan home. Appellant
stated that he would, but Cogan stated that she wanted to go to her sister’s house. Dixon
explained: “She’s like take me to my sisters [sic], take me to my sisters [sic], she’s like and your
[sic] going to take me. I’m like I’m not taking you no where [sic].” Dixon told Cogan, “you
came with [appellant] you are leaving with him [sic]. [Cogan]’s like well just fine, fine, fine.
Just give me my kid, give me my kid.” Dixon stated that Cogan “grab[bed]” the child and placed
him in the car seat in appellant’s truck.
{¶ 12} Dixon explained that appellant exited the house and Dixon told appellant: “let me
just take her up there, he’s like go ahead and drive and I’m like, no, no, no, wait it’s my dad’s
truck, it’s my dad’s truck, it’s my dad’s truck. It ain’t got insurance on it, it won’t cover you I will
just go ahead and take her. [sic]” Dixon stated that appellant entered the truck and Cogan “starts
just way laying [sic] him. I mean beating him like she’s in the back. He’s trying to get in the
front to drive and she’s just beating on him. He’s like no I’m not doing this, I’m not doing this.
So he gets out of the truck and he says get out of my truck, get out of my truck.” Dixon explained
that Cogan would not exit the truck, so appellant “reaches over” and “grabs her by the hair of the
head to go to pull her out,” but she still did not exit the truck. Dixon stated that Cogan did not tell
LAWRENCE, 11CA6 7
appellant to take her to her sister’s house, but she told Dixon. Dixon testified that appellant left
with Cogan and “just drove off” because “he had no[] other choice.” Dixon stated that before
Cogan left the party, Cogan’s nose already was swollen, her eyes had started to turn purple, and her
lip was busted. She testified that appellant did not pull Cogan “out of the truck backwards on to
the ground.” Dixon also stated that appellant did not cause any of Cogan’s injuries.
{¶ 13} On cross-examination, Dixon stated that although she has known appellant all of
her life and once had a romantic relationship with him, she would not lie for him. Dixon testified
that even though appellant pulled Cogan by her hair, he did not “pull it hard enough at that time to
pull it out.” She also stated that appellant did not pull Cogan from the truck. The prosecutor
presented Dixon with a written statement that she gave to law enforcement officers shortly after the
incident in which she stated that “when he pulled [Cogan] out he pulled her by her hair out of the
truck.” At trial, however, Dixon stated that “[a]s far as [she] remember[s appellant] didn’t pull
her out.” Dixon further admitted, however, that she “could be wrong.” The prosecutor further
pressed Dixon to explain her inability to state whether appellant pulled Cogan from the truck, and
Dixon stated that she “could have been wrong now or [when she gave the statement].” She agreed
with the prosecutor that her memory probably was better shortly after the incident than it was at
trial. The prosecutor then asked her if “it would be fair to say it is more likely that, that statement
[is] correct, that he did grab her by the hair and he pulled her out of the truck.” Dixon responded,
“Yes.”
{¶ 14} Rebecca Dixon, Vanessa’s daughter, likewise stated that Cogan was drunk and
falling. Rebecca testified that Cogan “started acting very drunk and she started falling over stuff
like the couch and the table and she was sitting on the couch[;] she leaned up and when she did she
LAWRENCE, 11CA6 8
fell face first onto the floor and bust her nose. Then she went to pick up her child cause he was
going mom, mom, mom. When she did she fell with the child and he hit his head off of the floor
the same time she did. Then she turned around after I took the child away from her and she um,
hit her face off of the coffee table. She could barely stand.” Rebecca further stated that Cogan
fell into an exercise machine “[a]bout three” times. Rebecca explained that after her mother told
Cogan she had to leave, Cogan entered appellant’s truck then attempted to exit, but she fell out of
the truck. Rebecca stated that she and her mother helped Cogan re-enter the truck and she left
with appellant. Rebecca testified that she did not see appellant hit Cogan.
{¶ 15} On cross-examination, the prosecutor questioned Rebecca as to the manner in which
Cogan fell. Rebecca agreed with the prosecutor’s description that Cogan falling was “just like a
tree falling,” meaning that Cogan did not have any balance and could not control her arms to
prevent her fall. Rebecca also agreed that a person’s instinct when falling would be to put one’s
arms out to break the fall, rather than falling face first. Rebecca explained, however, that Cogan
apparently was so drunk she was unable to break her fall with her arms.
{¶ 16} Rebecca testified that she was outside with Cogan, Dixon, and appellant when
Cogan and appellant were leaving. She stated that appellant did not hit Cogan but “stood by the
driver’s side door.” Rebecca testified that she was unaware that her mother stated that appellant
pulled Cogan’s hair. She explained that she must have missed that incident because she had to
take Cogan’s child inside the house. The prosecutor asked Rebecca whether she thought “that [it]
was important to tell us earlier that [she] w[as]n’t out there the whole time.” Rebecca stated,
“Yes.”
{¶ 17} The prosecutor asked Rebecca why the child was not in the car seat, as Dixon’s
LAWRENCE, 11CA6 9
mother had stated. Rebecca explained that the child had been in the car seat, but “we had to take
him back in because [Cogan] was trying to get out of the truck[;] that’s when she fell.” The
prosecutor asked Rebecca to explain why her mother testified at trial that appellant pulled Cogan
by her hair, but did not pull her out of the truck, yet in her written statement to law enforcement
shortly after the incident stated that appellant did pull Cogan out of the truck. Rebecca stated that
she did not “understand why she would put that in there because [Cogan] was trying to get out and
when she did, she fell over the seat belt and I thought she fell out of the truck cause she was in the
back.”
{¶ 18} Rosa Britt, appellant’s mother, testified that appellant stopped by her house before
8:00 a.m. on December 11, 2010. She stated that “as soon as [appellant] walked through the
kitchen door [she] said who’ve you been into a fight with?” Britt explained that appellant “had
blood trickling down the side of his face,” so she “assumed he had probably been in a fight.”
Appellant told him that he had been in a fight with “some bitch.” After further discussion,
appellant told her that “some girl hit [him] in the head with a full beer.” Britt stated that she
observed “a big knot” and a cut on the left side of appellant’s face. She explained that appellant
appeared calm, but maybe “a little hung over and tired.”
{¶ 19} Britt stated that when appellant entered the house, he left his truck running with the
keys in the ignition. She testified that he remained at her house for approximately twenty minutes.
When she walked outside with him, he asked her for money because he needed to buy gas to get
home. She then observed Cogan in the truck, sitting in the front driver’s seat. Cogan yelled
“hey” at appellant and appellant told her to “shut up a minute[;] I am trying to talk to my mother.”
As Britt said goodbye to appellant, Cogan yelled, “let’s go, let’s go.” Britt stated that Cogan
LAWRENCE, 11CA6 10
appeared “out of it” and drunk or “on drugs or something.”
{¶ 20} On cross-examination, the prosecutor asked Britt why her first assumption when she
noticed blood on her son was that he had been in a fight, rather than he had been injured by
accident. She stated, “Well I just kind of assumed that it might have been a fight. Because of the
way the blood was trickling down his face.” She stated that she did not assume he accidentally
injured himself because if he had, she believes “he would have said something about it as soon as
he come [sic] through the door[;] he would have said look what I just did, knocked myself in the
head or whatever or can I have paper towel and some water to wash my face off or whatever.”
The prosecutor asked Britt whether she was surprised that appellant stated he had been in a fight.
She stated “no * * * [b]ecause he has been in fights before.”
{¶ 21} The prosecutor questioned Britt about the knot she observed on appellant’s head.
She stated that it was on his forehead and was easily visible. The prosecutor then presented her
with appellant’s booking photograph that was taken about an hour or two later and asked her to
point to the knot on his head. Britt stated that it was not visible in the photograph because it was
behind “hairs [sic] hanging down.”
{¶ 22} The prosecutor asked Britt how many beers appellant would need to consume to be
“hung over.” Britt stated that she did not know but that “[i]t doesn’t take very much for him any
more.” She did not believe that it would have taken more than three or four. The prosecutor
questioned Britt whether she loved appellant “like a mother.” She stated yes but further stated that
she would not lie for him. He asked her whether she loves appellant “no matter what he does,”
and she stated, “No I don’t love him no matter what he does.” The prosecutor then asked her
whether she “quit loving him because he does certain thing,” to which Britt responded, “You know
LAWRENCE, 11CA6 11
what I mean.”
{¶ 23} Appellant testified he was with Cogan on December 10, 2011 at the tattoo shop he
was getting ready to open. He stated that while there, Cogan crushed a “zanny” and snorted it
through a tube. Appellant explained that Cogan agreed to stop by Dixon’s birthday party. He
stated that he did not plan to take Cogan to her sister’s house and that Cogan did not plan and did
not want to go to her sister’s house. Appellant stated that Cogan did not want to go to her sister’s
house because Cogan does not have a good relationship with one of the individuals currently living
with her sister.
{¶ 24} After they had been at Dixon’s party for a while, Dixon “came running into the
kitchen and she told [appellant] she said you need to get [Cogan] out of here.” Appellant asked
Dixon what had happened, and Dixon told him that Cogan “is falling every where.” Appellant
went to the bedroom and saw Cogan fall into an exercise machine. Appellant explained that
Cogan may have believed that he hit her because after she fell into the exercise machine, appellant
“ran to her” and “picked her up.” He stated that “[w]hen she opened her eyes [he] was the first
person she seen[;] [sic] I was picking her up and she said get your fucking hands off me.” Cogan
asked him why he had hit her. Appellant informed her that no one had hit her.
{¶ 25} Appellant stated that he said goodbye to his friends and then went outside, by which
point Dixon had placed Cogan’s child in the truck and Cogan was sitting in the truck. Appellant
overheard Cogan and Dixon talking and he stated that Cogan asked Dixon why appellant had hit
her and claimed that someone had stolen her money.
{¶ 26} When appellant arrived at the truck, Cogan began arguing with him and asking him
LAWRENCE, 11CA6 12
why he hit her and who had stolen her money. Appellant told her that no one had hit her. He told
Cogan to return to the truck. Appellant testified that Cogan “started swinging at me” and
“screaming at me[,] why did you hit me.” Appellant explained that he tried to calm down Cogan
and told her to “chill out.” He stated that Cogan’s behavior was erratic, “like one minute she
would calm down and the next minute she’d be going off again.” Appellant decided to tell Cogan
to get out of his truck if she believed that he had hit her or that he or someone else had stolen her
money. He stated that he would not “want to take her home” when she was “acting crazy and
thinking that I hit her.” Appellant testified that Cogan continued “ranting and raving,” so he
grabbed her, pulled her out of the truck, and told her to get out of the truck. Appellant believes he
may have unintentionally pulled Cogan by the hair. Appellant stated that he did not hit her and
“never laid a hand on her.”
{¶ 27} Appellant stated that Dixon tried to calm down Cogan and that Cogan climbed back
in the truck, at which point she started to relax. Appellant testified that once he entered the truck,
Cogan pushed his seat forward and tried to crawl out but her foot became stuck in the seat belt and
she fell out of the truck. Once Cogan re-entered the truck, he left and intended to drive her home.
While driving, Cogan again yelled at appellant about hitting her and about someone stealing her
money. Appellant testified that as Cogan continued yelling at him, she grabbed a full can of beer
and hit him on the side of the head. He stated that the beer can exploded, spilling beer all over
appellant and the truck. Appellant testified that Cogan then “comes up over the seat attacking
[him],” which made it difficult for appellant to retain control of the truck. Appellant stopped the
truck because Cogan was attacking him. He exited the truck and asked Cogan “what the hell’s
wrong with you? You know are you trying to get us killed. You know there is a two year old
LAWRENCE, 11CA6 13
baby in the truck and she just w[h]acks me in the back of the head with a beer.” Appellant stated
that Cogan continued yelling at him while she attempted to exit the truck, but she fell out of the
truck and onto the gravel. He testified that he picked her up, but Cogan continued to be “irrate.”
Appellant stated that Cogan started to remove the child from the car seat, but he prevented her
from doing so because she was “not in any shape to be carrying this baby.” Appellant explained
that Cogan told him to give her the child but appellant refused. He told Cogan that she was
“messed up” and could not “even walk.” Appellant claimed that Cogan “pulled out a knife” and
attempted to open it, but he took it from her. Appellant stated that he tried to calm her down and
“actually * * * hugged her.” He stated that Cogan “started chilling out” and climbed back in the
truck, but as she did so, she grabbed a coffee cup and hit him on the left side of the head.
Appellant testified that she hit him so hard that it “knocked [him] out.” He stated that when he
awoke, Cogan was “over top of [him]” and stated that she was sorry. They both returned to the
truck and at some point, appellant felt like he was “getting sick to [his] stomach.” Appellant
stopped the truck and waited until he felt better. He stated that when he returned to the truck, he
could hear Cogan snoring. He testified that he continued to sit for a while because he still did not
feel quite well. He eventually “realized” that he “need[ed] to talk to somebody[;] get you know,
get in touch with someone and let them know what’s going on.” Appellant explained that he
decided to go to his mother’s house so that he could explain the events to her. As he drove
towards his mother’s house, he believed he “possibly dozed off,” so he decided to stop at a Lowe’s
parking lot to sleep. Cogan awoke him and asked him to start the truck and turn on the heat. He
agreed and told her that he needed to stop by his mother’s house.
{¶ 28} Appellant testified that when he arrived at his mother’s house, he left Cogan in the
LAWRENCE, 11CA6 14
truck with the truck’s keys in the ignition. He went inside and told his mother that he “need[ed] to
talk to [her].” She asked him with whom he had fought. Appellant explained that he did not
“even know how to approach this conversation.” He eventually told her that “this crazy bitch hit
[him] with a beer and she hit [him] with a coffee cup.” After approximately twenty minutes, he
left with Cogan and her child. He started driving and wanted to take Cogan back to Dixon’s house
so that Dixon and the other party-goers could “explain to [Cogan] what had happened the night
before and give her the option now that she’s more coherent and, and, and more able to care for her
child. To either go to her sisters [sic] or go you know where ever or I would even take her back to
Kentucky where I got her.” Appellant explained, however, that he never reached Dixon’s house
because as he was driving, his truck “just totally lost power.”
{¶ 29} Appellant’s counsel showed him the photographs of Cogan’s injuries. Appellant
denied hitting her or taking her anywhere against her will. Appellant stated that he informed
Cogan that he was going to his mother’s house “[t]o talk to [his] daughter and tell her we wasn’t
[sic] going shopping. [Cogan] didn’t know that I was trying to brief my mom on what happened.”
Appellant testified that Cogan stated that it was “okay” to go to his mother’s house.
{¶ 30} On cross-examination, the prosecutor asked appellant whether he was a convicted
felon. Appellant responded “yes.” The prosecutor then stated, “And do you want to tell me about
it or you want me to tell you?” Appellant’s counsel objected in a general fashion, and the court
overruled his objection. Appellant responded that he did not care to discuss his “past criminal
record” because he did not believe that it “appl[ied] in this case.” The following colloquy ensued:
“Q. You, in 2001 you pled guilty of raping a child under thirteen years of
age in this court, didn’t you?
A. I pled Alford plea sir.
LAWRENCE, 11CA6 15
Q. Well that’s a plea of guilty. I’ve got your Judgment Entry here[;] we
can look at it together. But you were found guilty after that plea[,] weren’t you?
A. Yes sir.
Q. And it was, the charge was raping a child under thirteen years of age.
A. That’s what the charge was yes sir.
Q. And as a result of that guilty plea you served seven years in the
penitentiary?
A. Yes sir I did.”
a. The prosecutor next asked appellant whether his conviction required that he
register as a sex offender. Appellant responded affirmatively and then agreed
“last year,” he entered a guilty plea to “a second degree felony of attempted
failure to provide notice of change of address.”
{¶ 31} Appellant stated that he was not drinking at Dixon’s party and that the witnesses
who stated he had were incorrect. He explained that his mother may have thought he was hung
over because she smelled the beer that had exploded on him after Cogan hit him with the beer can.
{¶ 32} Appellant explained that once Cogan finally fell asleep, he felt his option “was to sit
still because * * * I was nauseated and I was dizzy and I felt ill.” The prosecutor asked him why
he did not think an option was to take Cogan to the hospital. Appellant stated that he “was injured
as well” and could not drive at the time. The prosecutor asked appellant why he did not take
Cogan to the police station to file a report that she assaulted him. Appellant stated that he “could
have but [he] didn’t want her to lose her child.”
{¶ 33} In attempting to further discredit appellant’s testimony, the prosecutor questioned
him why he left the truck running for twenty minutes while he visited with his mother if he knew
he was about to run out of gas. Appellant stated, “That’s why I needed gas money.”
{¶ 34} The prosecutor asked appellant if he knew how a large chunk of Cogan’s hair fell
LAWRENCE, 11CA6 16
out. Appellant stated that he did not know. The prosecutor explained that someone obviously
removed the chunk of hair before Deputy Hamilin discovered Cogan and that the evidence pointed
to appellant. The prosecutor asked appellant whether he thought Cogan did it to herself.
Appellant stated he did not know. Appellant explained that he did not think the missing chunk of
hair was possible. He stated: “That much hair, jerking that much hair out. I would think that it
would, there would be torn tissue and blood and everything if you tore that much hair out of your
head at one time.”
{¶ 35} On re-direct, appellant explained that he had heard that as a result of the December
10-11, 2010 incident, Cogan’s hair was tangled and matted and that she had to cut some of it. He
thought that perhaps Cogan cut the chunk of hair out or she pulled it out while trying to untangle it.
On re-cross examination, the prosecutor questioned appellant how he could believe that if the
picture showing the chunk of her hair missing was taken shortly after his arrest on December 11,
2010, before Cogan ever tried to fix her tangled and matted hair. Appellant stated that he was not
certain when the picture showing the missing chunk of hair had been taken. When the prosecutor
advised him that Deputy Hamilin testified that he took the photographs on December 11, 2010,
appellant stated that he did not “think anyone really knows when they was [sic] taken.”
{¶ 36} The prosecutor further questioned appellant how he believes Cogan may have
pulled the hair out when she attempted to comb out the tangles, yet he also testified that he did not
believe it was possible to remove that amount of hair by someone pulling on it. Appellant
explained: “Maybe a person could set [sic] and pull it out a little bit at a time. I don’t think, I
don’t think if you grabbed a handful of hair, it’s like a bundle of sticks, you take one stick you can
break it real easy. You take a bundle of sticks you can’t break it.”
LAWRENCE, 11CA6 17
{¶ 37} During closing arguments, the prosecutor suggested that appellant’s evidence was
“not worthy of belief.” The prosecutor pointed out the discrepancies between the defense
witnesses’ testimony, such as Dixon’s testimony that appellant pulled Cogan by the hair and
appellant’s testimony that he may have accidentally grabbed part of her hair. The prosecutor then
argued that Dixon was not “creditable” [sic]. The prosecutor also suggested that Dixon’s daughter
was not a credible witness because she initially stated that she did not see appellant pull Cogan’s
hair but then later explained that the reason she did not see it was because she had taken Cogan’s
child into the house, a fact Dixon had never revealed. The prosecutor further argued that
appellant was not a credible witness due to his prior felony conviction. He suggested that
someone with a felony record “might be considered less believable than someone like [Cogan] who
is 44 years old and never had a record.” The prosecutor suggested that the defense witnesses’
stories were not credible because they embellished the facts. For instance, they all stated that
Cogan fell face first, like a tree. Appellant never admitted that he caused any injuries to Cogan
and never stated that perhaps he accidentally injured her. Instead, he stated that he never “la[id] a
hand on her that whole time.” The prosecutor argued that appellant’s testimony was “just
preposterous” and “[y]ou would have to be a fool to believe it.” The prosecutor stated that he was
“on the right side of the case” and that the defense case “is incredible.”
{¶ 38} On March 14, 2011, the jury found appellant guilty of felonious assault and
kidnapping. On March 21, 2011, the court sentenced appellant. This appeal followed.
I
{¶ 39} In his first assignment of error, appellant asserts that the trial court abused its
LAWRENCE, 11CA6 18
discretion by permitting the state to introduce evidence, under Evid.R. 609(A)(2), regarding
appellant’s prior rape conviction when the prejudicial effect outweighed the probative value of the
evidence. He contends that the evidence bore no probative value regarding his credibility because
the conviction occurred ten years ago and did not involve his character for truthfulness. Appellant
additionally suggests that the evidence was prejudicial because both the prior rape conviction and
the kidnapping charge contain an element of force, which then leads to an impermissible character
inference that because appellant acted with force in regards to the rape conviction, he also must
have acted with force in regards to the kidnapping charge.
{¶ 40} Appellant further argues that the trial court abused its discretion by allowing the
state to refer to the crime as “raping a child under thirteen years of age.” He contends that
referring to the crime as “raping a child” violated Evid.R. 609 because this reference did more than
name the offense, the date, and the punishment. Appellant additionally asserts that referring to the
conviction as rape of a child constituted an impermissible character attack instead of a credibility
attack.
A
STANDARD OF REVIEW
{¶ 41} The admission or exclusion of evidence generally rests within the sound discretion
of the trial court. E.g., State v. Robb, 88 Ohio St.3d 59, 68, 723 N.E.2d 1019 (2000). Absent an
abuse of discretion, an appellate court will not disturb a trial court’s ruling regarding the
admissibility of evidence. E.g., State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d 1157 (1985).
An abuse of discretion connotes more than an error of law or judgment; it implies that the court’s
LAWRENCE, 11CA6 19
attitude was unreasonable, arbitrary, or unconscionable. E.g., State v. Adams, 62 Ohio St.2d 151,
157, 404 N.E.2d 144 (1980).
B
EVID.R. 609
Evid.R. 609 states:
(A) General rule
For the purpose of attacking the credibility of a witness:
****
(2) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence
that the accused has been convicted of a crime is admissible if the crime was
punishable by death or imprisonment in excess of one year pursuant to the law
under which the accused was convicted and if the court determines that the
probative value of the evidence outweighs the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.
****
{¶ 42} Appellant raises two issues under this rule: (1) whether the trial court abused its
discretion by admitting evidence of his prior conviction; and (2) whether the state exceeded the
permissible scope of examination when inquiring into his prior conviction, i.e., whether the rule
permitted the state to refer to the crime as “raping a child under thirteen years of age.”
1
Principles Governing Admission of Prior Conviction Evidence
{¶ 43} “When an accused testifies at trial, Evid.R. 609(A)(2) allows the state to impeach
the accused’s credibility with evidence that the accused was convicted of an offense punishable by
imprisonment in excess of one year and if the court determines that the probative value of the
evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the
LAWRENCE, 11CA6 20
jury.” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶132; State v.
Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, 102 (4th Dist. 2008), ¶38. “The
existence of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to
the jury unless specifically permitted under statute or rule. The undeniable effect of such
information is to incite the jury to convict based on past misconduct rather than restrict their
attention to the offense at hand.” State v. Allen, 29 Ohio St.3d 53, 55, 506 N.E.2d 199 (1987).
Even when such evidence is properly before the jury, the trial court must consider its prejudicial
effect. Evid.R. 609(A)(2). When the prior conviction is for the same crime with which a
defendant is presently charged, the risk of unfair prejudice is greater. The natural tendency of
prior conviction evidence in this situation is to instill in the minds of the jurors the idea that “‘if he
did it before, he probably did it this time.’” State v. Goney, 87 Ohio App.3d 497, 502, 622 N.E.2d
688 (2nd Dist. 1993), quoting Gordon v. United States, 383 F.2d 936, 940 (C.A.D.C.1967).
Therefore, “‘those convictions which are for the same crime should be admitted sparingly.’” Id.
{¶ 44} In the case at bar, we do not believe that the trial court abused its discretion by
admitting appellant’s prior conviction into evidence. The trial court could have reasonably
determined that the prior conviction was relevant and probative evidence to impeach appellant’s
credibility and that its probative value outweighed its prejudicial effect.
{¶ 45} While we agree with appellant that the crime of rape generally does not involve
untruthfulness, we do not agree that this fact renders a prior rape conviction inadmissible in a
criminal trial. Courts routinely allow prior conviction evidence under Evid.R. 609(A)(2) even if
the prior conviction did not contain an element of untruthfulness. E.g., State v. Brown, 100 Ohio
St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶27 (holding that trial court did not abuse its
LAWRENCE, 11CA6 21
discretion by allowing state to impeach aggravated murder defendant’s credibility by introducing
evidence of prior drug convictions); State v. Benitez, 8th Dist. No. 96257, 2011-Ohio-5498, ¶66
(determining that prosecutor did not engage in misconduct by introducing evidence regarding
accused’s prior felonious assault conviction); State v. Sailor, 8th Dist. No. 83552, 2004-Ohio-5207,
¶39 (concluding that trial court did not abuse its discretion by permitting evidence of accused’s
prior drug related convictions in aggravated murder trial). Moreover, requiring a prior conviction
to be specifically probative of truthfulness would defeat the purpose of Evid.R. 609(A)(2) and
render Evid.R. 609(A)(3)1 meaningless.
{¶ 46} Second, we do not agree with appellant that the nearly ten-year time period that
elapsed between his prior rape conviction and the current charges renders the prior rape conviction
irrelevant or lacking in probative value. Even though the conviction occurred slightly less than ten
years prior to appellant’s current charges, it occurred within the Evid.R. 609(B) ten year time limit.
Thus, under the rule, the prior rape conviction is permissible as evidence. Moreover, in between,
appellant had been convicted of failing to register as a sex offender. Thus, this intervening crime
diminishes any alleged prejudicial effect of allowing an almost ten-year old conviction into
evidence.
{¶ 47} We further disagree with appellant that evidence of the prior rape conviction
unfairly prejudiced him because the crime of rape, like kidnapping, contains an element of force.
1
Evid.R. 609(A)(3) specifically permits a trial to admit evidence that a witness or an accused has been convicted of a
crime involving dishonesty or false statement. The rule states:
(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness,
including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false
statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.
LAWRENCE, 11CA6 22
Both offenses, as well as felonious assault, may be generally thought of as offenses of violence,
and thus, admitting appellant’s rape conviction bears some prejudice. In the case sub judice,
however, appellant’s R.C. 2907.02(A)(1)(b) rape conviction did not contain force as an element.
Instead, R.C. 2907.02(A)(1)(b) only required that appellant engage in sexual conduct with another
person who is not his spouse when the other person is under thirteen years of age. We do note,
however, that rape typically is perceived as using force or violence for sexual pleasure. Thus,
while admitting evidence of his prior rape conviction contained some degree of prejudice, we
cannot state that the trial court abused its discretion by determining that the probative value of the
evidence outweighed any prejudice that may have resulted due to the common force or violence
element among the crimes.
{¶ 48} Additionally, even if the trial court somehow abused its discretion by admitting the
evidence, we observe that following the line of questioning regarding appellant’s rape conviction,
the prosecutor inquired into his more recent conviction for failing to register as a sex offender.
Appellant did not object to the prosecutor’s use of the term “sex offender” or to this line of
questioning. Thus, even without evidence of appellant’s prior rape conviction, the jury heard
evidence that appellant was a sex offender. The natural inference is that he must have committed
a sex crime.
{¶ 49} In consideration of the foregoing factors, we cannot state that the trial court abused
its discretion by determining that the probative value of appellant’s prior conviction outweighed
the prejudicial effect. The court determined that appellant’s prior conviction would help the jury
to evaluate appellant's credibility, despite any prejudice that resulted to appellant.
2
LAWRENCE, 11CA6 23
Scope of Examination
{¶ 50} Appellant next asserts that even if the court did not abuse its discretion when it
admitted his prior conviction, the court abused its discretion by permitting the state to refer to the
crime as “raping a child under thirteen years of age.”
{¶ 51} Under Evid.R. 609(A)(2), a prosecutor can cross-examine as to “‘the name of the
crime, the time and place of conviction, and sometimes the punishment.’” However, “‘details
such as the victim’s name and the aggravating circumstances’” are not permissible. 1 Giannelli &
Snyder, Evidence (2d Ed.2001) 473, Section 609.15, quoting 1 McCormick on Evidence (5th
Ed.1999) 167, Section 42. Nevertheless, the trial court “has broad discretion in determining the
extent to which testimony will be admitted under Evid.R. 609.” State v. Wright, 48 Ohio St.3d 5,
548 N.E.2d 923 (1990), syllabus; see, also, State v. Amburgey, 33 Ohio St.3d 115, 117, 515
N.E.2d 925 (1987).
{¶ 52} McCormick explains the scope of cross-examination as follows:
“[The cross-examiner] may ask about the name of the crime committed, i.e.,
murder or embezzlement. It will certainly add to the pungency of the impeachment
where the crime was an aggravated one if he may ask about the circumstances, for
example, whether the murder victim was a baby, the niece of the witness. And it
has been suggested by a few courts that since proof by record is allowable, and the
record might show some of these circumstances, the cross-examination should at
least be permitted to touch all the facts that the record would. On the whole,
however, the more reasonable practice, minimizing prejudice and distraction from
the issues, is the generally prevailing one that beyond the name of the crime, the
time and place of conviction, and sometimes the punishment; further details such as
the name of the victim and the aggravating circumstances may not be inquired into.”
McCormick on Evidence (4th Ed. 1992 Strong) 57, Section 42.
{¶ 53} In the case sub judice, appellant’s prior judgment entry of conviction states that he
was convicted of rape under R.C. 2907.02(A)(1)(b), which prohibits a person from engaging in
LAWRENCE, 11CA6 24
sexual conduct with another person who is not his or her spouse when the other person is less than
thirteen years of age. R.C. 2907.02(B) states that “[w]hoever violates this section is guilty of rape,
a felony of the first degree.” The statute thus refers to the name of the crime generically, rather
than particularly with respect to which subdivision the defendant violated. The judgment entry
does not include any of the elements of the offense, but it does recite the particular statute and
subdivision. No other facts of the crime appear in the judgment entry.
{¶ 54} The question presented, then, is whether referring to the name of the crime by
reference to its elements exceeds the scope of cross-examination. More specifically, the issue is
whether naming the crime by reference to its elements constitutes a detail of the crime, an
aggravating circumstance of the crime, or merely the name of the crime. To our knowledge, no
other Ohio court has examined this precise issue. We do find it difficult to conceive that merely
referring to the crime's elements, without delving into specific details related to that offense, would
run afoul of the prohibition. In the case at bar, however, we find it unnecessary to determine
whether the prosecutor exceeded the scope of cross-examination by referring to the crime as raping
a child under the age of thirteen. Instead, we believe that any error that may have occurred
constitutes harmless error.
{¶ 55} “Error in the admission of evidence is harmless if there is no reasonable possibility
that the evidence may have contributed to the accused’s conviction.” State v. Bayless, 48 Ohio
St.2d 73, 106, 357 N.E.2d 1035 (1976), vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct.
3135, 57 L.Ed.2d 1155. As we explain in our discussion of appellant’s second assignment of error
overwhelming evidence supports his conviction. Thus, we see no danger that the jury convicted
appellant because the state referred to appellant’s prior conviction as raping a child under the age
LAWRENCE, 11CA6 25
of thirteen. Consequently, we do not believe that a reasonable possibility exists that this evidence,
even if improperly admitted, contributed to appellant’s conviction.
{¶ 56} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
II
{¶ 57} In his second assignment of error, appellant argues that his convictions are against
the manifest weight of the evidence and that sufficient evidence does not support them. He
contends that the state’s allegedly improper reference to his prior conviction as raping a child under
thirteen years of age caused the jury to discredit his testimony. Appellant claims that if the
evidence had been excluded, the jury would have determined that appellant’s testimony–and the
testimony of his corroborating witnesses–was more believable than the victim’s “unsupported
testimony.” Appellant further argues that the victim’s testimony was not as trustworthy because
the state did not present any witnesses who corroborated the victim’s testimony, while appellant
presented his mother’s, his former romantic partner’s, and his former partner’s daughter’s
testimony, all of which largely corroborated his testimony.
{¶ 58} Initially, we observe that although appellant combines the sufficiency and manifest
weight of the evidence arguments, “sufficiency” and “manifest weight” present two distinct legal
concepts. See State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, syllabus (1997). When
reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the
evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt
beyond a reasonable doubt. See Thompkins, 78 Ohio St.3d at 386 (“sufficiency is a test of
adequacy”); State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991). The standard of
LAWRENCE, 11CA6 26
review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom
in the light most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jenks, 61 Ohio St.3d at 273. Furthermore, a reviewing
court is not to assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d at 390
(Cook, J., concurring).
{¶ 59} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must
construe the evidence in a light most favorable to the prosecution. See State v. Hill, 75 Ohio St.3d
195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993).
A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim unless
reasonable minds could not reach the conclusion that the trier of fact did. See State v. Tibbetts, 92
Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d
749 (2001).
{¶ 60} “Although a court of appeals may determine that a judgment of a trial court is
sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against
the weight of the evidence.” Thompkins, 78 Ohio St.3d at 387. When an appellate court
considers a claim that a conviction is against the manifest weight of the evidence, the court must
dutifully examine the entire record, weigh the evidence, and consider the credibility of witnesses.
The reviewing court must bear in mind, however, that credibility generally is an issue for the trier
of fact to resolve. See State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.
DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
LAWRENCE, 11CA6 27
Once the reviewing court finishes its examination, the court may reverse the judgment of
conviction only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dis. 1983).
{¶ 61} If the prosecution presented substantial evidence upon which the trier of fact
reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense
had been established, the judgment of conviction is not against the manifest weight of the
evidence. See State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978), syllabus. A reviewing
court should find a conviction against the manifest weight of the evidence only in the “‘exceptional
case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at
387, quoting Martin, 20 Ohio App.3d at 175; see also State v. Lindsey, 87 Ohio St.3d 479, 483,
721 N.E.2d 995 (2000).
{¶ 62} When reviewing evidence under the manifest weight of the evidence standard, an
appellate court will generally defer to the fact-finder’s credibility determinations. As we stated in
State v. Murphy, Ross App. No. 07CA2953, 2008–Ohio–1744, ¶31:
{¶ 63} “It is the trier of fact’s role to determine what evidence is the most credible
and convincing. The fact finder is charged with the duty of choosing between two
competing versions of events, both of which are plausible and have some factual support.
Our role is simply to insure the decision is based upon reason and fact. We do not second
guess a decision that has some basis in these two factors, even if we might see matters
differently.”
LAWRENCE, 11CA6 28
Accord Bugg v. Fancher, Highland App. No. 06CA12, 2007–Ohio–2019, ¶9. In line with this
same reasoning, the Second District Court of Appeals explained:
“‘Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to
find that a judgment is against the manifest weight of the evidence requires that
substantial deference be extended to the fact finder’s determinations of credibility.
The decision whether, and to what extent, to credit the testimony of particular
witnesses is within the peculiar competence of the fact finder, who has seen and
heard the witness.’”
State v. Cunningham, 2nd Dist. No. 11CA0032, 2012-Ohio-2333, ¶18, quoting State v. Lawson, 2nd
Dist. No. 16288 (Aug. 22, 1997). Accordingly, a reviewing court “will not substitute its judgment
for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the
trier of facts lost its way in arriving at its verdict.” Cunningham, at ¶19, citing State v. Bradley,
2nd Dist. No. 97–CA–03 (Oct. 24, 1997). Merely arguing, therefore, that the jury’s verdict is
against the manifest weight of the evidence because it believed the state’s witnesses over a
defendant’s ordinarily will not be a basis for reversing a conviction. State v. Fell, 6th Dist. No.
L-10-1162, 2012-Ohio-616, 2012 WL 525517, *4 (“That the jury heard conflicting accounts is not
alone a basis for reversal. It is not against the ‘manifest weight’ of testimonial evidence for the
jury to choose to believe the victim over defense witnesses where it could reasonably make that
choice.”); State v. McDowell, 10th Dist. No. 10AP-509, 2011-Ohio-6815, ¶62 (“A conviction is not
against the manifest weight of the evidence merely because the jury believed the prosecution
testimony.”).
{¶ 64} When an appellate court concludes that the weight of the evidence supports a
defendant’s conviction, this conclusion necessarily includes a finding that sufficient evidence
LAWRENCE, 11CA6 29
supports the conviction. See State v. Pollitt, 4th Dist. No. 08CA3263, 2010-Ohio-2556, ¶15.
“‘Thus, a determination that [a] conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency.’” State v. Lombardi, 9th Dist. No. 22435, 2005-Ohio-4942,
¶9, quoting State v. Roberts, 9th Dist. No. 96CA006462 (Sept. 17, 1997). In the case sub judice,
therefore, we first consider whether appellant’s conviction is against the manifest weight of the
evidence.
{¶ 65} In the case at bar, we believe that the record contains ample competent and credible
evidence to support appellant’s felonious assault and kidnapping convictions. In other words, the
jury did not commit a manifest miscarriage of justice by believing the state’s evidence over
appellant’s.
{¶ 66} The felonious assault statute prohibits a person from knowingly causing serious
physical harm to another. R.C. 2903.11(A)(1). The kidnapping statute, under which appellant
was convicted, provides:
(A) No person, by force, threat, or deception, * * * by any means, shall
remove another from the place where the other person is found or restrain the liberty
of the other person, for any of the following purposes:
****
(3) To terrorize, or to inflict serious physical harm on the victim or another.
R.C. 2905.01(A)(3).
{¶ 67} Appellant does not dispute whether the state presented evidence regarding each one
of the elements. Instead, he disputes whether the state presented trustworthy evidence to prove the
elements. Basically, he argues that because he presented three witnesses to corroborate his
testimony and the state presented no witness to corroborate the victim’s testimony, the state’s
LAWRENCE, 11CA6 30
evidence cannot be considered trustworthy. Appellant’s argument, in essence, requests us to
conclude that a victim’s uncorroborated testimony is not sufficient to support a conviction and that
reliance upon such uncorroborated testimony to convict a defendant would result in a conviction
that is not supported by the manifest weight of the evidence.
{¶ 68} Unfortunately for appellant, credibility is not a numbers game. Testimony does not
become credible simply because multiple witnesses support a defendant’s theory. Those
witnesses may have significant biases or their testimony may lack credibility.
{¶ 69} In the case sub judice, the defense witnesses had possible biases. For instance,
Britt, appellant’s mother, may have been biased. Her testimony that she would not lie for
appellant became suspect when she denied that she “love[s] him no matter what he does.” The
prosecutor asked Britt whether her statement meant that she “quit loving [appellant] because he
does certain things,” and she stated, “You know what I mean.” Moreover, Dixon, his life-long
friend and former romantic partner, also may have been biased. Although she denied that she
would lie for appellant, the jury was wholly entitled to find her claim specious.
{¶ 70} Additionally, the state undermined the credibility of each witness during
cross-examination. For instance, appellant’s two witnesses who observed the victim at Dixon’s
party claimed that the victim fell flat on her face, without attempting to break her fall with her
arms. On cross-examination, the prosecutor suggested that it is highly unusual for a person to fall
in that manner, “like a tree,” without any attempt to break the fall. The jury could have employed
its collective common sense to decide that the witnesses who claimed the victim fell face first into
the floor, “like a tree,” were exaggerating or outright lying.
{¶ 71} Dixon testified at trial that appellant did not actually pull the victim from the truck,
LAWRENCE, 11CA6 31
yet in a written statement she gave police days after the incident, she stated that appellant had
pulled the victim from the truck. On cross-examination, Dixon stated that she “could have been
wrong now or then.” The prosecutor then obtain Dixon’s admission’s that her written statement
likely contained the accurate version of the incident. Thus, Dixon discredited herself by giving
contrary testimony.
{¶ 72} When the prosecutor cross-examined appellant regarding the manner by which the
victim’s hair was removed, appellant had no viable explanation. He simply did not believe it was
possible. The undisputed facts, however, show that the hair was removed while the victim was
with appellant. Deputy Hamilin stated that when he took photographs of the victim shortly after
appellant’s arrest, the chunk of hair had already been removed. Not one of appellant’s witnesses
stated that they saw the victim with a chunk of missing hair on her head. The jury’s only logical
inference was that someone caused the chunk of hair to be removed from the victim’s head and the
only someone who was with the victim was appellant. Although appellant claimed that he did not
know when Deputy Hamilin took the victim’s photograph and thus implied that the victim could
have removed the hair on her own after the December 10-11 events, the prosecutor pointed out to
appellant that the deputy testified that the photographs were taken shortly after appellant’s arrest on
the morning of December 11. Thus, the jury could have decided appellant’s entire story lacked
any credibility due to his inability to state how the victim’s hair was removed. His explanation
that he did not think it was possible obviously did not satisfy the jury.
{¶ 73} In the end, the jury had the opportunity to see and to hear appellant and his
witnesses and apparently determined that none provided a credible account of the victim’s injuries.
Furthermore, our review of the record fails to reveal that the jury was patently wrong to credit the
LAWRENCE, 11CA6 32
state’s evidence over appellant’s. The jury could have reasonably determined that appellant and
his witnesses did not present credible testimony.
{¶ 74} The victim’s testimony, if believed, establishes the elements of both crimes.
Moreover, two totally disinterested witnesses supported the state’s theory of the case. Snyder, the
driver who stopped to inquire whether appellant needed assistance with his stalled vehicle, testified
that the victim appeared to be in distress. The responding deputy likewise stated that the victim
appeared to be in distress. He stated that she had difficulty explaining what had happened to her.
Moreover, the photographs that the state submitted speak volumes. They depict serious injuries to
the victim’s head. Upon reviewing the photographs, the jury reasonably could have concluded
that the victim’s injuries did not occur by falling into a bow-flex machine, as appellant and his
witnesses claimed. One of the photographs shows a “snowball” size chunk of hair missing from
the victim’s hair. The jury apparently concluded that appellant failed to offer a sufficient rationale
as to how this injury could have occurred if someone had not intentionally ripped it from her head.
Appellant’s claim that he did not believe this type of injury was possible apparently did not sway
the jury to credit his story. We do not believe that the jury committed a manifest miscarriage of
justice by crediting the victim’s testimony and the state’s other witnesses’ testimony over
appellant’s and his corroborating witnesses’ testimony.
{¶ 75} Appellant nevertheless asserts that the jury improperly discredited his and his
witnesses’ testimony due to the state’s improper reference to his prior conviction as raping a child
under thirteen years of age. Even if, for purposes of argument, that we assume that this reference
was improper, our analysis set forth above sufficiently explains why the jury may have disbelieved
appellant’s and his witnesses’ testimony. Even had the jury heard nothing about appellant’s prior
LAWRENCE, 11CA6 33
conviction, the state pointed out sufficient questions and inconsistencies about appellant’s and his
witnesses’ testimony.
{¶ 76} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
second assignment of error.
III
{¶ 77} In his third assignment of error, appellant asserts that trial counsel's failure to object
to the prosecutor’s alleged misconduct during closing argument constitutes ineffective assistance
of counsel. Appellant contends that the prosecutor improperly commented on the state’s
witnesses’ credibility and disparaged appellant’s witnesses’ credibility. Specifically, he complains
that the prosecutor improperly asserted: (1) Dixon’s and Rebecca’s testimony was not “creditable”
[sic]; (2) “you’d have to be a fool” to believe appellant’s story; (3) the state’s case was credible and
appellant’s incredible; and (4) appellant “made the State’s case look so good because he is so
‘increditable’ [sic].” He argues that a reasonable probability exists that the prosecutor’s
comments persuaded the jury to believe the state’s evidence over appellant’s. Appellant thus
argues that his counsel’s ineffective assistance of counsel in failing to object to the prosecutor’s
statements entitles him to a new trial.
A
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 78} Criminal defendants have a right to counsel, including a right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763
(1970); State v. Stout, Gallia App. No. 07CA5, 2008–Ohio–1366, ¶21. To establish
constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel’s
LAWRENCE, 11CA6 34
performance was deficient and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Issa, 93 Ohio St.3d at 67, 752 N.E.2d 904; State v. Goff, 82 Ohio St.3d 123,
139, 694 N.E.2d 916 (1998).
“In order to show deficient performance, the defendant must prove that
counsel’s performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.”
State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶95 (citations omitted).
“Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,
2008–Ohio–968, ¶14. Therefore, if one element is dispositive, a court need not analyze both.
State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant’s failure
to satisfy one of the elements “negates a court’s need to consider the other”).
{¶ 79} When considering whether trial counsel’s representation amounts to deficient
performance, “a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, “the
defendant must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. “A properly licensed attorney is presumed to
execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist. No. 07CA11,
2008–Ohio–482, ¶10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel’s
errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth
Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio–6679, 860 N.E.2d 77, ¶62; State
LAWRENCE, 11CA6 35
v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶ 80} Trial counsel’s failure to object to alleged instances of prosecutorial misconduct
“does not necessarily constitute ineffective assistance” of counsel. State v. Perez, 124 Ohio St.3d
122, 2009-Ohio-6179, 920 N.E.2d 104, ¶230; State v. Tenace, 109 Ohio St.3d 255,
2006–Ohio–2417, 847 N.E.2d 386, ¶62. That is, a failure to object does not necessarily fall below
an objective standard of reasonableness. Instead, a failure to object to alleged instances of
prosecutorial misconduct may be considered sound trial strategy. State v. Brown, 5th Dist. No.
2007CA15, 2008-Ohio-3118, ¶58 (stating that failure to object to prosecutor’s statements during
closing arguments may have been trial strategy and thus did not constitute deficient performance).
“‘A competent trial attorney might well eschew objecting * * * in order to minimize jury attention
to the damaging material.’” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d
828, ¶90, quoting United States v. Payne, 741 F.2d 887, 891 (C.A.7, 1984). Accord State v.
Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶42 (stating that “[a] reasonable
attorney may decide not to interrupt his adversary’s argument as a matter of strategy”); State v.
Clay, 7th Dist. No. 08MA2, 2009-Ohio-1204, ¶141 (stating that “[l]imiting objection during closing
is a trial tactic to avoid trying to draw attention to statements”). Thus, in order to establish that
trial counsel performed deficiently by failing to object to error at trial, the defendant ordinarily
must demonstrate that the error “is so compelling that competent counsel would have been
obligated to object to [it] at trial.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶233. Additionally, counsel’s performance cannot be deemed deficient for failing to
raise non-meritorious objections. Mundt at ¶119.
{¶ 81} If a defendant shows that trial counsel performed deficiently by failing to object to
LAWRENCE, 11CA6 36
error at trial, the defendant then must demonstrate that the failure to object prejudiced the defense.
To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but
for counsel’s errors, the result of the trial would have been different. State v. Short, 129 Ohio
St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶113; State v. White, 82 Ohio St.3d 16, 23, 693
N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three
of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but must
require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. No. 02CA684,
2003–Ohio–1707, ¶22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr. 2, 2002).
{¶ 82} In the case at bar, we believe that appellant is unable to establish that trial counsel’s
failure to object to the alleged instances of prosecutorial misconduct constituted deficient
performance. Appellant’s trial counsel rationally could have decided that objecting to the
prosecutor’s alleged instances of misconduct would further focus the jury’s attention on appellant’s
and his witnesses’ credibility. Moreover, trial counsel rationally could have determined that the
better strategy was to allow the prosecutor to continue his closing argument without interruption.
Furthermore, as we explain below, counsel’s objections would have been non-meritorious. Thus,
trial counsel’s performance was not deficient. Even if we were to assume that trial counsel’s
failure to object in the case sub judice amounted to deficient performance, appellant cannot
demonstrate that counsel’s allegedly deficient performance prejudiced the defense. As we explain
below, had counsel objected, there is no reasonable possibility that the result of the trial would
have been different. That is, had counsel objected, there is no reasonable possibility that the trial
court would have sustained counsel’s objection and determined that the prosecutor’s alleged
misconduct was so pervasive as to deprive appellant of a fair trial.
LAWRENCE, 11CA6 37
{¶ 83} In order for a defendant to establish prosecutorial misconduct during closing
argument, the defendant must show that (1) the remarks were improper, and (2) these improper
remarks prejudicially affected the defendant’s substantial rights. State v. Powell, 132 Ohio St.3d
233, 2012-Ohio-2577, 971 N.E.2d 865, ¶149; State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–2,
880 N.E.2d 31, ¶231; State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). To establish
prejudice, a defendant must show that a reasonable probability exists that, but for the prosecutor’s
improper remarks, the result of the proceeding would have been different. State v. Moore,
2012-Ohio-1958, 970 N.E.2d 1098, ¶76 (8th Dist.); State v. Porter, 4th Dist. No. 10CA15,
2012-Ohio-1526, ¶20; State v. Morgan, 9th Dist. No. 07CA0124-M, 2008-Ohio-5530, ¶21. Thus,
“[n]ot every intemperate remark by counsel can be a basis for reversal.” State v. Landrum, 53
Ohio St.3d 107, 112, 559 N.E.2d 710 (1990). “The touchstone of the analysis ‘is the fairness of
the trial, not the culpability of the prosecutor.’” State v. Lang, 129 Ohio St.3d 512,
2011-Ohio-4215, 954 N.E.2d 596, ¶155, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct.
940, 71 L.Ed.2d 78 (1982).
{¶ 84} During closing arguments, the prosecution is generally given wide latitude to
convincingly advance its strongest arguments and positions. Powell at ¶149; State v. Phillips, 74
Ohio St.3d 72, 90, 656 N.E.2d 643 (1995); Treesh, 90 Ohio St.3d 466, 739 N.E.2d 749.
Nevertheless, a prosecutor must avoid going beyond the evidence presented to the jury to obtain a
conviction. Smith, 14 Ohio St.3d at 14. “[P]rosecutors must be diligent in their efforts to stay
within the boundaries of acceptable argument and must refrain from the desire to make outlandish
remarks, misstate evidence, or confuse legal concepts.” State v. Fears, 86 Ohio St.3d 329, 332, 715
N.E.2d 136 (1999). Further, an appellate court must not focus on isolated comments but must
LAWRENCE, 11CA6 38
examine the prosecution’s closing argument in its entirety to determine whether the prosecutor’s
comments prejudiced the defendant. Treesh, 90 Ohio St.3d at 466; State v. Keenan, 66 Ohio St.3d
402, 410, 613 N.E.2d 203 (1993).
{¶ 85} During closing argument, prosecutors “may not express their personal beliefs or
opinions regarding the guilt of the accused.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d
293 (1990). They also may not express their personal beliefs or opinions regarding a witness’s
credibility. State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). “Vouching occurs
when the prosecutor implies knowledge of facts outside the record or places his or her personal
credibility in issue.” Davis, 116 Ohio St.3d 404, ¶232, citing State v. Jackson, 107 Ohio St.3d 53,
2005-Ohio-5981, 836 N.E.2d 1173, ¶117. The prosecutor is, however, permitted to fairly
comment upon the testimony and evidence. Mundt at ¶119; State v. Dovala, 9th Dist. No.
05CA8767, 2007-Ohio-4914, ¶20; State v. McGlothin, 1st Dist. No. C-060145, 2007-Ohio-4707,
¶23. “The prosecution is certainly free to point out discrepancies in the evidence and flaws in a
defendant’s version of evidence and evidence, but should refrain from using harsh terms or labels
that may tend to limit or discourage the actual focus on the evidence.” State v. Conley, 4th Dist.
No. 08CA784, 2009-Ohio-1848, ¶30.
{¶ 86} Thus, a closing argument that sets forth reasons “to deem * * * testimony * * *
unreliable does not amount to the prosecutor giving a[ personal] opinion.” State v. Williams, 8th
Dist. No. 97039, 2012-Ohio-1741, ¶19. Instead, “it merely invites the jury to weigh the
credibility.” Id. at ¶19. Moreover, a prosecutor does not express an opinion when a prosecutor
asks “the jurors to decide for themselves whether the[] witnesses were being truthful.” Davis, 116
Ohio St.3d 404, ¶235; State v. Green, 90 Ohio St.3d 352, 374, 738 N.E.2d 1208 (2000) (finding
LAWRENCE, 11CA6 39
that the prosecution did not vouch for a witness in closing arguments but instead “argued facts to
support [the witness’s] credibility”). A prosecutor may comment in closing argument on what the
evidence has shown and what reasonable inferences the prosecutor believes may be drawn from it.
State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). A prosecutor does not improperly
vouch for a witness’s credibility by arguing, based upon the evidence, that a witness was “a reliable
witness to the simple events she witnessed, that she lacked any motive to lie, [or] that her
testimony was not contradictory.” Green, 90 Ohio St.3d at 373-374 (2000).
{¶ 87} In the case sub judice, we do not agree with appellant that the prosecutor improperly
vouched for any witness or improperly commented on appellants’ or his witnesses’ credibility.
Rather, the prosecutor reminded the jury that the jurors were to decide whether the witnesses were
being truthful. He informed the jury that it must “decide who to believe” and then set forth the
basic instructions that the court would give the jury regarding its role in evaluating the credibility
of the witnesses. Following these statements, the prosecutor stated: “I submit to you that the
evidence presented by the defense * * * is not worthy of belief. The evidence presented on behalf
of the State in this case is quite worthy of belief. Let’s talk about it a little bit.” The prosecutor
then argued that among the defense witnesses, “there seemed to be some lack of memory and there
was discrepancies.” He pointed out more specifically the defense witnesses’ testimony and the
discrepancies and inconsistencies. For example, he argued that Dixon’s testimony regarding
whether appellant pulled the victim from the truck was inconsistent with an earlier statement that
she gave to law enforcement officers. The prosecutor also suggested that Dixon’s testimony that
appellant intentionally pulled the victim’s hair contradicted appellant’s testimony that he might
have accidentally pulled it.
LAWRENCE, 11CA6 40
{¶ 88} The prosecutor also pointed out the defense witnesses’ biases. He further asserted
that some of the defense witnesses’ testimony did not make sense. The prosecutor did not imply
that he possessed knowledge of facts outside the record or placed his own personal credibility at
issue. Instead, the prosecutor argued that based upon the evidence presented at trial, the state’s
witnesses presented the more credible account of the events. Furthermore, the prosecutor argued
that the defense witnesses’ accounts were not credible based upon the evidence presented at trial
and the reasonable inferences that could be drawn from it. The prosecutor’s comments constituted
fair comment on the witnesses’ credibility based upon their testimony. The prosecutor’s closing
argument presented the reasons why appellant’s and his witnesses’ testimony was not reliable or
credible and thus did not amount to the prosecutor giving a personal opinion regarding credibility.
Instead, the argument pointed out the discrepancies, inconsistencies, and lack of reasonable
explanations among the defense witnesses and invited the jury to weigh the witnesses’ credibility.
Thus, the comments were not improper.
{¶ 89} Moreover, even if some of the prosecutor’s comments could be considered to be
improper, appellant cannot show that those allegedly improper comments affected the outcome of
the trial. As we explained in our discussion of appellant’s second assignment of error,
overwhelming competent and credible evidence supports appellant’s convictions. If the jury had
been instructed to disregard the prosecutor’s alleged instances of misconduct during closing
argument, we find it extremely unlikely that the jury would have acquitted appellant or would have
been unable to reach a verdict. As we explained in our discussion of appellant’s second
assignment of error, the jury was well-within its fact-finding role to completely discredit
appellant’s and his witnesses’ testimony. Appellant’s testimony, even if the prosecutor had not
LAWRENCE, 11CA6 41
highlighted the inconsistencies in his and his witnesses’ testimony, bore scant indicia of credibility.
Additionally, the allegedly improper comments did no so pervade the closing argument such that
appellant was denied a fair trial. Thus, we cannot state that trial counsel’s failure to object to the
prosecutor’s alleged instances of misconduct impacted the result of the trial. Consequently,
appellant is unable to show that any improper comments deprived him of a fair trial. As a result,
he also is unable to demonstrate that trial counsel’s alleged deficient performance in failing to
object to the alleged instances of prosecutorial misconduct prejudiced his defense. Consequently,
appellant cannot establish an ineffective assistance of counsel claim.
{¶ 90} Accordingly, based upon the foregoing reasons, we overrule appellant’s third
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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 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.
LAWRENCE, 11CA6 42
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1616132/ | 668 N.W.2d 892 (2003)
In re The Honorable Thomas S. GILBERT, Judge, 86th District Court.
Docket No. 123270.
Supreme Court of Michigan.
September 25, 2003.
The Judicial Tenure Commission has filed a Decision and Recommendation for Order of Discipline. It is accompanied by a Waiver and Consent from the respondent judge, the Honorable Thomas S. Gilbert, who consents to the Commissions findings of fact and conclusions of law, and to the Commissions recommendation that he be suspended without pay for 90 days, but with credit for 28 days of paid leave time that Judge Gilbert had already taken. Following our de novo review, we adopt the following findings of fact and conclusions of law as our own:
1. Respondent is, and at all material times was, a judge of the 86th District Court for Antrim, Grand Traverse, and Leelanau Counties, Michigan.
2. As a judge, he is subject to all the duties and responsibilities imposed on him by the Michigan Supreme Court, and is subject to the standards for discipline set forth in MCR 9.104 and MCR 9.205.
3. The Commission has conducted an investigation of Grievance No. 02-14294 against Respondent.
4. On December 13, 2002, the Commission provided notice to Respondent of the charges being made in Grievance No. 02-14294 pursuant to MCR 9.207(C), in what is commonly referred to as a 28-day letter.
5. At the conclusion of its investigation, the Commission and Respondent engaged in negotiations to resolve this matter short of conducting formal proceedings. As a result of those negotiations, the Commission *893 and Respondent stipulated to certain facts concerning the allegations, and entered into a Settlement Agreement as set forth below.
6. Respondent admits that the following acts occurred:
A. On October 12, 2002, Respondent attended a Rolling Stones concert at Ford Field in Detroit, Michigan.
B. During the concert, an unknown individual passed a marijuana cigarette, which is a controlled substance under Michigan law, down the aisle in which Respondent was sitting.
C. Respondent took the marijuana cigarette, puffed it, and then passed it down the aisle.
D. The marijuana cigarette was then returned back down the aisle in the opposite direction, again passing Respondent, who puffed on the cigarette a second time, and passed it along.
E. On November 6, 2002, Respondent took a voluntary leave of absence.
F. On November 7, 2002, Respondent reported his conduct to the Judicial Tenure Commission.
G. Respondents actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by comedian Jay Leno on The Tonight Show.
H. Respondent obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, and subsequently completed an in-patient substance abuse treatment program at Hazelden Foundation in Center City, Minnesota, between November 17 and December 14, 2002.
I. Respondent further acknowledges that he used marijuana approximately twice per year, and that he has continued to do so since becoming a judge.
J. After successful completion of the in-patient substance abuse program, Respondent has continued treatment including attendance at Alcoholics Anonymous meetings, has consulted with others facing abuse problems to form a support network, and has entered into a Judicial Monitoring Participation Agreement with the State Bar Lawyers and Judges Assistance Program.
K. There is no evidence that Respondent has ever purchased marijuana or any other controlled substance.
L. Respondent returned to the bench on December 16, 2002, and since that date has been limited to either a civil docket, or a mixed civil/criminal docket excluding cases involving defendants who are accused of abusing controlled or intoxicating substances.
7. In consideration of Respondent's consent to discipline and his promises as to future conduct, the Commission agrees to dismiss all allegations of misconduct in the pending grievance.
8. By consenting to this recommendation for discipline, Respondent expresses his deep remorse and regret for his conduct as set forth above, and for the resulting negative impact on the public perception of judges, the institutional integrity of the judiciary, and the administration of justice.
9. Respondents conduct as admitted and described above constitutes:
(a) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205;
(b) Conduct clearly prejudicial to the administration of justice, as defined by the *894 Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205;
(c) Failure to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1;
(d) Irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A;
(e) Conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, Canon 2A;
(f) Failure to conduct oneself at all times in a manner which would enhance the public's confidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B;
(g) Conduct which is prejudicial to the proper administration of justice, in violation of MCR 9.104(A)(1);
(h) Conduct which exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(A)(2);
(i) Conduct which is contrary to justice, ethics, honesty or good morals, in violation of MCR 9.104(A)(3); and
(j) Conduct that violates the criminal law of a state, contrary to MCR 9.104(A)(5).
As we conduct our de novo review of this matter, we are mindful of the criteria stated in In re Brown, 461 Mich. 1291, 1292-1293, 625 N.W.2d 744 (1999):
"[E]verything else being equal:
"(1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;
"(2) misconduct on the bench is usually more serious than the same misconduct off the bench;
"(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety;
"(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;
"(5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated;
"(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
"(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.
"The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations."
Applying those criteria to the present case, while mindful of the agreement between the Commission and the respondent, we have concluded that the recommended 90-day suspension is insufficient in light of the stipulated facts, Respondent admits that his use of marijuana constituted judicial misconduct. During the period that respondent was a judge and was using marijuana he was trying convicting, and sentencing individuals in his court who had been charged with marijuana offenses. We therefore order the following public censure and suspension:
*895 For the reasons set forth in this order, we ORDER that the Honorable Thomas S. Gilbert, Judge of the 86th District Court, be publicly censured. This order stands as our censure. We further ORDER that the Honorable Thomas S. Gilbert, Judge of the 86th District Court, be suspended without pay from the performance of his judicial duties for a period of 6 months, effective September 25, 2003, without credit for the earlier leave of absence.
In addition, we observe that the recommendation of the Commission includes the respondent's agreement to take additional steps as set forth below. These are not encompassed within our order, since they are not judicial discipline. However, in accordance with rules governing judicial discipline, the Commission may recommend further discipline if the respondent fails to
"[A]bide by the terms of the Judicial Monitoring Participation Agreement he made with the State Bar of Michigan Lawyers and Judges Assistance Program. Respondent has further agreed to advise a representative of the Assistance Program of this condition of the dismissal, and to instruct the representative that if any terms of the Monitoring Participation Agreement are violated, the representative shall provide a general notice to the Executive Director that a violation has occurred. Respondent has also agreed to continuing monitoring by the Commission, and to follow any directives of the Commission and/or the State Court Administrative Office."
TAYLOR, J., concurs and states as follows:
Justice Weaver is very critical of our "suppression" of her written opinion in this matter until the Court's final order was ready for issuance. Yet, it must not be forgotten that this settlement and consent process involving Judge Gilbert, the Judicial Tenure Commission, and this Court, was understood by all to be entered into on the condition of confidentiality.
I thought we could not violate that understanding. Nor do I understand why it would have been a good idea to be public throughout. The reason is that this process, which has resulted in Judge Gilbert's acceptance of the recommended discipline, could have required the Judicial Tenure Commission to adjudicate this matter had Judge Gilbert rejected the recommended discipline. Had the commission done so, it would have eventually made a discipline recommendation to this Court. If our views had been published, that would undoubtedly prejudice the commission proceedings and, importantly, be unfair to Judge Gilbert.
While Justice Weaver would dismiss that concern, I cannot. Judge Gilbert has behaved unwisely and that has brought him before us, but he, even as any other litigant who seeks justice before this Court, is entitled to a Court that calmly, deliberately, and fairly decides his case. We have, to the best of our ability, done that. To have allowed Justice Weaver midstream in this process to announce her opinion would have compromised these judicial values. While some in the public may question as unnecessarily tedious the efforts of six members of this Court to be judicious, I believe that when looked at from a longer perspective, as it, of course, some day will be, it will be seen as a situation in which mature guidance prevailed.
CORRIGAN, C.J., YOUNG, and MARKMAN, JJ., join in the concurrence of TAYLOR, J.
YOUNG, J., concurs and states as follows:
I write in concurrence because of the extraordinary character of the dissent.
*896 While I do not doubt the sincerity of my dissenting colleague's passionate feelings about this matter, I do believe that her statement, if left unanswered, is calculated to, and will, mislead the public about the nature of the judicial discipline process generally and the seriousness with which this Court addressed the concerns of judicial misconduct raised in this case.
Contrary to what some members of the public may believe, the Michigan Constitution places in the hands of the Judicial Tenure Commission (JTC) the initial responsibility for investigating allegations of judicial misconduct and for recommending to this Court a proposed sanction when misconduct has been established. Then, and only then, is this Court authorized to act by accepting, rejecting, or modifying the JTC recommendation.
As happened in this case, in some cases of alleged judicial misconduct, rather than conducting a contested hearing to establish the misconduct, the accused judge and the JTC will negotiate a "consent agreement," which is akin to a plea agreement in the criminal system. Typically, in these consent agreements, the accused judge admits to some form of unethical conduct in exchange for a negotiated and specific sanction. This Court is not bound by such a consent agreement, but our rules permit them and the parties at the JTC level negotiate them with the knowledge that, until this Court makes a final determination, these negotiated consent agreements will remain confidential. This is in recognition that no trial on the merits of the accusations has occurred. Also, because no trial has occurred, our rules permit an accused judge to withdraw from a consent agreement and proceed to trial if this Court declines to accept the consent agreement.
As in this case, when this Court renders a final determination, it publishes its decision and the sanction it has imposed.
Until this case, our dissenting colleague has respected the confidentiality of this process and has seen no need to publish to the world her final judgment on the matter until the normal process had concluded. Consequently, I am shocked that our colleague has suggested that her fellow justices have engaged in a "cover up" when our suppression orders were necessary to prevent her from issuing a public denunciation of Judge Gilbert before the process outlined in our rules had been completed.
Even a judge who has failed to live up to the responsibilities of office is entitled to a fair process. Justice Weaver stands alone in her position that she is entitled to publish her conclusions in a case before the Court itself has acted. In Michigan, an accused still has a right to a trial before an execution, not the other way around.
CORRIGAN, C.J., MICHAEL F. CAVANAGH, MARILYN J. KELLY, TAYLOR, and MARKMAN, JJ., join in the concurrence of YOUNG, J.
WEAVER, J., dissents and states as follows:
I would remove Judge Thomas Gilbert from the bench for the remainder of his term, so I respectfully dissent from the majority's six-month unpaid suspension.
While sitting in judgment of othersfining and jailing them for their violations of marijuana lawsJudge Gilbert has admitted that he repeatedly used marijuana. In addition to the obvious hypocrisy of this conduct, Judge Gilbert has misled the public in his voluntary statements to the press by actively minimizing and mischaracterizing the extent of his marijuana use. Thus, this case is not about marijuana policy or drug laws. At its core, it is about the *897 serious harm done to the public's trust and confidence in the judiciary by Judge Gilbert's misconduct.
The public is well aware that Judge Gilbert admits that he smoked marijuana at a rock concert in Detroit. In an interview with the press, Judge Gilbert publicly explained, "If I hadn't been drinking alcohol that night I wouldn't have done the most stupid thing I've done in my life, which was taking a couple of hits off a marijuana cigarette."[1]
Because Judge Gilbert has publicly portrayed that incident as a one-time indiscretion and because a six-justice majority over my dissent has suppressed two decisions in this matter, the public has not been aware that Judge Gilbert has admitted in written stipulated facts to this Court and the Judicial Tenure Commission that he has used marijuana "approximately two times per year and has continued to do so since becoming a judge."[2]
It is my intention to fully and accurately inform the public regarding the history of this case and the rules pertaining to judicial disciplinary proceedings. The history of this case before this Court is as follows:
On February 12, 2003, the Judicial Tenure Commission's recommendation of a 90-day unpaid suspension with 28 days credit for time spent in drug treatment (effectively a 62-day unpaid suspension) first came to this Court in the form of a settlement and consent agreement reached by the commission and Judge Gilbert pursuant to MCR 9.220(C). The recommended order of discipline was accompanied by stipulated facts agreed to as true by Judge Gilbert and by Judge Gilbert's verified waiver, consent and agreement.
On April 14, 2003, this Court decided as follows: two justicesMICHAEL F. CAVANAGH and MARILYN J. KELLYdetermined they would accept the Commission's recommended discipline of a 62day suspension. A majority of four justicesCORRIGAN, TAYLOR, YOUNG, and MARKMANrejected the recommended discipline as "insufficient" but failed to determine what discipline they would impose, remanded to the Commission pursuant to MCR 9.225 and requested a new recommendation or status report. I, Justice WEAVER, also rejected the recommended discipline as "insufficient," but determined that I would impose the discipline of removal of the judge for the remainder of his term and remand pursuant to MCR 9.225. I stated my reasons in a dissent. Six justicesCORRIGAN, MICHAEL F. CAVANAGH, MARILYN J. KELLY, TAYLOR, YOUNG, and MARKMANsuppressed the order of decision and the file "until further order of the Court" over my dissent objecting to the suppression.
On May 21, 2003, the Judicial Tenure Commission resubmitted the same 62day recommendation with a status report stating that Judge Gilbert offered to consent to a public censure and a six-month suspension with credit for the 28 days he spent in drug treatment. The Commission, however, declined to increase the discipline. The Commission resubmitted the same recommended 62day suspension to the Court leaving the Court to again decide whether to accept, modify, or reject it.
On September 11, 2003, the Court unanimously rejected the Commission's recommendation as "insufficient." A majority of six justicesCORRIGAN, MICHAEL *898 F. CAVANAGH, MARILYN J. KELLY, TAYLOR, YOUNG, AND MARKMANagreed that a six-month unpaid suspension would be appropriate and gave Judge Gilbert ten days to withdraw pursuant to MCR 9.225, or an order imposing a six-month unpaid suspension would enter on September 25. I, Justice WEAVER, dissented and voted for the sanction of removal. A majority of six justices CORRIGAN, MICHAEL F. CAVANAGH, MARILYN J. KELLY, TAYLOR, YOUNG, and, MARKMANagain suppressed the order of decision and the file "until entry of an order of discipline or until further order of the Court" over my dissent again objecting to the suppression.
Finally, seven months and two suppressed decisions after this case was submitted by the Judicial Tenure Commission for a decision by this Court, the public will know what this Court has known all along regarding the full extent of Judge Gilbert's admitted criminal misconduct, and he will be disciplined.
"A judge should respect and observe the law."[3] This certainly means a judge should not repeatedly violate the criminal laws. The primary purpose of judicial discipline is to help repair the damage done to the public's trust and confidence in the judicial system by judicial misconduct. To that end, the orders and decisions of this Court must appropriately sanction and attempt to correct a judge's misconduct.
Judge Gilbert's one well-publicized incident of marijuana use eroded the public's trust and confidence that judges and citizens will be treated equally and fairly. The now-revealed fact that Judge Gilbert has repeatedly used marijuana since becoming a judge will further erode the public's trust and confidence in the judiciary and judicial system. While Judge Gilbert repeatedly smoked marijuana, he sat in judgment of others for their marijuana use, fining and jailing them for their violations of the same laws he himself was violating. Such hypocrisy requires more than a six-month unpaid suspension. Only this Court's removal of Judge Gilbert from the bench would begin to repair the damage to the public's trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.
The necessity and appropriateness of the sanction of removal is underscored when one contrasts Judge Gilbert's public statements to the press and his admissions to this Court and the Judicial Tenure Commission regarding the extent of his substance abuse.[4] In comments to the press, Judge Gilbert explained that his marijuana use was "one momentary bad decision" and stated that a "professional assessment" did not find him to be an "alcoholic."[5] Yet Judge Gilbert admitted to this Court and the Judicial Tenure Commission that he repeatedly used marijuana and that he was "diagnosed with the disease of addiction."[6]
The disparity between Judge Gilbert's public statements and his admissions to this Court and the Judicial Tenure Commission suggests an assumption that this Court would keep the further admitted illegal drug use secret from the public. For seven months, and by two suppressed decisions over my dissent, a six-justice majority did just that.
*899 What needs to be clear to all is that when this Court makes a decision to accept, reject, or modify a Judicial Tenure Commission recommendation under the court rule,[7] the Michigan Constitution requires that the decision of this Court "... shall be in writing...."[8] The Constitution provides:
Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a judge dissents in whole or in part he shall give in writing the reasons for his dissents. [Const. 1963, art. 6, § 6.]
A fundamental reason for this requirement is to allow the people of this state to know and assess the decisions and dissents of the Supreme Court and its justices. The publication of the decisions and dissents is absolutely necessary for the people to know them and to be able to assess the Court's performance of its duties.
This Court is empowered by the Constitution to make rules that provide for "confidentiality and privilege of proceedings" within the judicial disciplinary process.[9] The current court rules do provide that if the Judicial Tenure Commission does not file a formal complaint, its members and staff "may not disclose the existence or contents" of a judicial disciplinary investigation.[10] But that confidentiality provision does not apply to the decisions of the Supreme Court. Thus, on April 14 and September 11, 2003, when each justice decided whether to accept, reject, or modify the recommended discipline, those decisions should not have been secreted from the public.
Plainly, "confidentiality and privilege" of judicial disciplinary proceedings does not mean suppression of the decisions of the Supreme Court. The Supreme Court has a constitutional duty to provide the public its decisions and dissents in writing. What the majority, the Judicial Tenure Commission, and every judge needs to understand is that the Supreme Court neither should be nor is under any obligation to keep its decisions regarding a judge's confessions of criminal activity secret just because those confessions were made in the Judicial Tenure Commission's process of achieving a consent agreement.
Once a recommendation for judicial discipline is before this Court and this Court renders its decision, the public needs, and has a constitutional right, to know the whole truth about a judge's wrongdoing. This information is especially vital to the public because judges are elected and may run for election again.
In addition to the above, I offer the following specific responses to the concurrence of Justice TAYLOR, joined by 3 justicesCORRIGAN, YOUNG, and MARKMANand to the concurrence of Justice YOUNG, joined by 5 justicesCORRIGAN, MICHAEL F. CAVANAGH, MARILYN J. KELLY, TAYLOR, and MARKMAN.
First, I was not silent, as suggested by Justice YOUNG, out of respect for the alleged "confidentiality of the process." I did not publish my April and September dissents or publicly discuss my position in this case because I knew that I was bound by the majority's orders of suppression.
*900 Second, there is not now nor has there ever been a court rule providing for the suppression of this Court's decisions regarding recommended public censures.[11] Moreover, in light of the constitutional requirement that decisions be in writing,[12] there can be no justifiable assumption that this Court's decisions will be confidential. As the record demonstrates, the Judicial Tenure Commission submitted this case to the Court on February 12, 2003, for a decision on its recommendation. On April 14 and September 11, a majority of this Court decided that the recommended discipline was "insufficient." Nonetheless, six justices read a confidentiality requirement into the court rules and suppressed their decisions in a case involving a recommended public censure.
The source of my colleagues' confusion may be that this is the first judicial disciplinary case to proceed under revised court rule MCR 9.225. Prior to the revision of MCR 9.225, a judge who consented to recommended discipline was bound to accept whatever discipline this Court deemed appropriate, and this Court published its decision, including the facts regarding the judge's misconduct.[13] Under the revised MCR 9.225, a judge must now be allowed to withdraw his consent if this Court rejects or modifies the recommended discipline. If the judge withdraws his consent, the court rule now provides that the case must be remanded to the Commission for "further proceedings." This cannot mean, however, that if the Court rejects or modifies the recommended discipline that the Court's decision can be suppressed because a court rule does not override the constitutional obligation of this Court to make its decisions and dissents accessible for public review.
Moreover, there was no guarantee that the Judicial Tenure Commission will further adjudicate the matter as suggested by Justice TAYLOR. Even if this Court decides and states that a recommended discipline is insufficient, as it did in this case, the Commission can decide to dismiss the case or issue a private admonishment. Indeed, the Commission conceivably could have dismissed this case following this Court's April 14 decision and remand, which would have left the public not ever knowing the full extent of Judge Gilbert's criminal misconduct.
Third, matters involving judicial discipline are not "akin to a plea agreement in the criminal system." Judicial disciplinary proceedings are neither criminal nor quasicriminal in nature.[14] Judicial disciplinary proceedings are civil matters designed to serve an entirely different purpose than the criminal justice system. The purpose of judicial disciplinary proceedings is to preserve "an independent and honorable judiciary" because "an independent and honorable judiciary is indispensable to justice in our society."[15] Judges are instructed that they must "expect to be the subject of constant public scrutiny" and must, therefore, *901 "accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."[16] Judge Gilbert had no right to have his admissions kept secret when this Court rendered its decisions in this matter, nor any justifiable reason to assume that they would be.
It thus would not have been "unfair" to Judge Gilbert to have made his admitted criminal misconduct public on April 14 or on September 11. Any concern that the publication of this Court's decisions would have "prejudiced" the further Commission proceedings is also unfounded. The Commission obviously felt no pressure or obligation to increase its recommended discipline despite a majority's decision that 62 days was insufficient. The fairness argument falls especially flat in this case given Judge Gilbert's efforts to publicly mischaracterize the extent of his misconduct and mislead the public.
In conclusion, Judge Gilbert has failed to live up to the high standards of conduct required of his office as judge. His hypocrisy and his misleading public portrayals of his misconduct reflect his failure to accept full responsibility for his actions.
There is no logical or justifiable sanction other than Judge Gilbert's removal from office for the remainder of his term, that being through noon January 1, 2005.
NOTES
[1] Traverse City Record Eagle, November 8, 2002 and November 17, 2002.
[2] Stipulated Facts, Grievance No. 02-14294, dated February 4, 2003.
[3] Canon 2(B) of the Michigan Code of Judicial Conduct.
[4] Stipulated Facts, Grievance No. 02-14294, dated February 4, 2003.
[5] Traverse City Record Eagle, November, 17, 2002, p. 3A.
[6] Stipulated Facts, Grievance No. 02-14294, dated February 4, 2003.
[7] MCR 9.225.
[8] Const. 1963, art. 6, § 6.
[9] Const. 1963, art. 6, § 30, ¶ 2.
[10] MCR 9.221(A).
[11] Only when a recommendation was for a private censure did the court rules at one time provide that this Court's decisions were confidential. Interestingly, the revised court rules no longer specify that this Court's orders of private censure must be confidential. While it seems logical that private censures would be confidential, it must be questioned whether any decision of this Court imposing an order of discipline can constitutionally be kept secret.
[12] Const. 1963, art. 6, § 6.
[13] See, e.g., In re Halloran, 466 Mich. 1219, 647 N.W.2d 505 (2002).
[14] In re Mikesell, 396 Mich. 517, 527, 243 N.W.2d 86 (1976).
[15] Michigan Code of Judicial Conduct, Canon 1.
[16] Michigan Code of Judicial Conduct, Canon 2(A). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616141/ | 668 N.W.2d 685 (2003)
Dorthy JACKEL, et al., Respondents,
v.
Jon W. BROWER, Appellant,
County of Steele, et al, Defendants.
No. C2-03-231.
Court of Appeals of Minnesota.
September 16, 2003.
James P. Peters, Karna M. Peters, Peters & Peters, P.L.C., Alexandria, for respondents.
*686 Gary W. Koch, Dustan J. Cross, Sara N. Wilson, Gislason & Hunter, L.L.P., New Ulm, for appellant.
Considered and decided by HARTEN, Presiding Judge, and STONEBURNER, Judge, and PARKER, Judge.[*]
OPINION
STONEBURNER, Judge.
Respondents Dorthy and David Jackel sued appellant Jon W. Brower, Steele County, and Steele County's planning director asserting numerous claims arising out of Brower's construction of hog-confinement barns, including a claim that the facility built in 1996 violates the county's setback requirements. Brower filed this interlocutory appeal from the district court's issuance of an injunction compelling the county to enforce the setback requirement and compelling Brower to "permanently abate the violation" of the setback requirement. Because the district court abused its discretion by granting an injunction without determining that there is no adequate legal remedy and that an injunction is necessary to prevent great harm and irreparable injury, we reverse and remand.
FACTS
In 1996, appellant Jon W. Brower applied to Steele County for a building permit to construct an 800-animal-unit confinement facility.[1] Steele County's zoning ordinance provides that "no new animal feedlots or manure storage facilities shall be located closer than 1,000 feet from a neighboring residence." Brower "stepped-off" what he considered to be the distance between his proposed facility and respondents Dorthy and David Jackel's residence and submitted a handwritten drawing to the county showing that the facility would be located 1,065 feet from the Jackels' residence. The county issued the building permit.
By affidavit, Brower asserts that before construction of the facility in 1996, he spoke to David Jackel, who did not oppose the facility or its location. David Jackel's affidavit denies that such a conversation occurred. Dorthy Jackel's affidavit states that she knew nothing about Brower's plans until she noticed "digging" on his property in 1996, whereupon she called a person in the county planning and zoning department and asked "what's up?" Dorthy Jackel states that she was told that Brower had a permit to build the facility and that "there is nothing you can do; it's a done-deal."
In 1998, Brower obtained a conditional-use permit[2] allowing him to construct a second 800-animal-unit facility on his property. The record does not contain any evidence that the Jackels objected to this facility. But in July 2001, the Jackels complained to Steele County Planning Director Dale Oolman about odors from Brower's property and indicated their concern that the 1996 facility is too close to their residence. Oolman concluded that the 1996 facility is 52 feet inside the setback, *687 but he also concluded that requiring Brower to move the facility to comply with the 1,000-foot-setback requirement will not address the Jackels' concerns about odor. Oolman recommended that Brower agree to additional odor-control measures, and the Steele County Board of Adjustment supported additional odor mitigation rather than strict enforcement of the 1,000-foot-setback requirement.
In June 2002, the Jackels sued Brower, the county, and Oolman, requesting, among other relief, that a writ of mandamus be issued by the district court compelling the county to enforce the setback requirement. The district court granted summary judgment to the Jackels on the setback claim and issued an injunction compelling the county to enforce the setback requirement and compelling Brower to abate the violation. All claims except the Jackels' claim of nuisance have been disposed of in pretrial motions. Brower filed this interlocutory appeal from the injunction, arguing that the district court abused its discretion by summarily issuing an injunction because the county acted reasonably by attempting to address the purposes underlying the ordinance without strictly enforcing the setback requirement and because injunctive relief is not necessary. Brower also argues that the district court abused its discretion by concluding that the doctrine of laches does not bar the Jackels' claims.
ISSUES
I. Did the district court abuse its discretion by ordering injunctive relief to address a zoning-ordinance violation without determining that there is no appropriate legal remedy and that an injunction is necessary to prevent great and irreparable harm?
II. Did the district court abuse its discretion by determining that "unclean hands" prevents appellant from asserting the doctrine of laches?
ANALYSIS
On appeal from summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A court shall grant a motion for summary judgment
when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). An appellate court "must view the evidence in the light most favorable to the party against who judgment was granted." Id. No genuine issue of material fact exists where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." DLH, Inc., v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted).
On review of a district court's determination regarding the validity of a zoning decision, the appellate court makes an independent examination of the county's decision without according any special deference to the same review conducted by the district court. See Hay v. City of Andover, 436 N.W.2d 800, 803 (Minn.App. 1989).
An appellate court examines the action of the [county] to determine whether it was arbitrary or capricious, or whether the reasons articulated by the [county] do not have the "slightest validity *688 or bearing on the general welfare," or whether the reasons were "legally sufficient and had a factual basis."
Mohler v. City of St. Louis Park, 643 N.W.2d 623, 630 (Minn.App.2002) (citing VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.1983)).
I.
This court reviews orders granting permanent injunctions under an abuse-of-discretion standard. Cherne Indus., Inc., v. Grounds & Assocs., Inc., 278 N.W.2d 81, 91 (Minn.1979). A party seeking an injunction must establish that there is no adequate legal remedy and that an "injunction is necessary to prevent great and irreparable injury." Id. at 92.
Brower does not dispute that the 1996 facility violates the setback requirement. A survey in the record shows that the building is only 948 feet from the Jackels' residence rather than the 1,000 feet required by Steele County's zoning ordinance. Nevertheless, Brower argues that the district court abused its discretion by granting injunctive relief compelling enforcement of the setback requirement without finding that there is no adequate legal remedy for the violation or that an injunction is necessary to prevent great and irreparable injury. Brower also argues that the Jackels have failed to prove, as a matter of law, that the injuries they complain of are caused by the setback violation.
The district court summarily concluded that the Jackels are "directly injured" by the violation of the 1,000-foot-setback requirement and rejected the county's argument that it has discretion in enforcement of a setback requirement. The district court concluded that a property owner injured by the violation of a zoning ordinance is entitled to injunctive relief, citing Mohler, 643 N.W.2d at 634, and Lowry v. City of Mankato, 231 Minn. 108, 117, 42 N.W.2d 553, 560 (1950). Although both of those cases resulted in injunctive relief to enforce a zoning ordinance, neither case stands for the proposition that injunctive relief is mandatory or automatic.
Mohler involved an action against the city and a property owner by a neighbor who overturned a variance that the city had granted for the construction of a two-story garage. 643 N.W.2d at 627. The opinion focuses primarily on whether the property owners met the requirements under Minn.Stat. § 462.357, subd. 6(2) (2000), for granting a variance under the undue-hardship standard. Id. at 631. The opinion notes the difference between a "use" variance (permitting a use prohibited under the zoning ordinance) and a "nonuse" variance (controlling area, height, setback, density, and parking for permitted uses). Statutes prohibit most use variances, but nonuse variances may be granted where the character of the zoned district is not changed. Id. at 631-32. The garage in Mohler constituted both a use and a nonuse violation of the city's ordinance. In Mohler, we determined that because the nonuse violation at issue made the structure inconsistent with the surrounding neighborhood, the spirit and intent of the ordinance could not be met by granting the variance. Id. at 632.
Mohler cites Lowry, 231 Minn. at 117, 42 N.W.2d at 560, and McCavic v. De Luca, 233 Minn. 372, 379, 46 N.W.2d 873, 877 (1951), for the proposition that a property owner injured by a zoning violation is entitled to injunctive relief. Mohler, 643 N.W.2d at 634. But implicit in the decision is the converse: if the violations had not been inconsistent with the spirit and intent of the ordinance, the neighboring property owners would not have been injured, a variance could have been granted, *689 and the plaintiff would not have been entitled to injunctive relief.
Lowry involved a use violation. The action was against the city to compel revocation of an illegally issued building permit. The court followed the rule that a
building permit issued in violation of a zoning ordinance by an official lacking power to alter or vary the ordinance is void, and the zoning regulation may be enforced notwithstanding the fact that the permittee may have commenced building operations.
Lowry, 231 Minn. at 117, 42 N.W.2d at 559 (citations omitted). The supreme court concluded that the permit issued for the nonconforming use "was absolutely void and that plaintiff is entitled to an injunction for enforcement of the zoning ordinance restrictions." Id. at 117, 42 N.W.2d at 560. In Lowry, the focus was on the legality of the permit issued and no argument was made that the use, despite a technical violation, conformed to the spirit and intent of the ordinance in question.
In McCavic, however, the offending property owner specifically asserted that his 7-foot violation of a 15-foot-setback requirement was so trivial that injunctive relief should not be granted, and that plaintiffs should be left to their legal remedy in an action for money damages. McCavic, 233 Minn. at 379, 46 N.W.2d at 877. The supreme court disagreed, stating:
The houses of plaintiffs are close to the building of defendant. It is not trivial to have a concrete-block building setting some seven feet out in front of a residence in such close proximity to it. Under these circumstances, plaintiffs are not required to accept money damages, nor should they be denied equitable relief to compel compliance with an ordinance operating so clearly in their favor if enforced.
Id.
The supreme court addressed the exercise of a government entity's power to regulate nonuse zoning requirements, such as signs and setbacks, in Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 125 N.W.2d 846 (1964). In that case, a property owner sued the city to compel it to issue a permit to build a freestanding sign notwithstanding that the sign would violate the terms of a city ordinance. Arcadia argued that denial of the permit was arbitrary, capricious, and a manifest abuse of discretion because the sign it sought to build was inoffensive and preferable to the type of sign permitted by the ordinance. Affirming the district court's order directing the city to issue the permit, the supreme court stated:
As a useful rule it has long been stated that a city must act "reasonably," otherwise, its ordinances could not have the effect of overcoming the property rights of others. Its acts must be calculated to effect its legitimate purposes and goals without going beyond the demands of the occasion.... Further, ordinances and actions taken thereunder must be reasonable when applied to individual cases.... [T]here is a strong presumption, although a rebuttable one, favoring action taken by a city. Nor does a court inspect the motives which impel a city council to act.... If the reasonableness of the action of the city council is at least doubtful, or fairly debatable, a court will not interject its own conclusions as to more preferable actions....
... Unreasonableness is a legal conclusion, made upon examination of the circumstances. If the unreasonableness of an action is plain, clear, manifest, and undoubted, it is a proper subject for *690 restraint by the court providing it violates substantial rights of others.
Id. at 225-26, 125 N.W.2d at 850-51. The court noted that regulations, as applied, must bear a reasonable relation to the purposes they are meant to attain. Id. at 226, 125 N.W.2d at 851. "To apply them without proper regard for individual circumstances would clearly risk imposing a useless, and therefore unreasonable and unnecessary, substantial hardship upon individual landowners." Id.
Brower argues that his facility is distinguishable from Mohler and Lowry, because (1) Brower's facility does not constitute a use violation, (2) the facility is not out of character with the surrounding uses, (3) the county did not illegally issue the building permit, and (4) Brower's building does not constitute the kind of harm to the neighbors caused by the building in McCavic. We agree that these factors distinguish this case from Mohler and Lowry. In this case it was error for the district court to have presumed on a motion for summary judgment that the Jackels have suffered great and irreparable injury that requires the issuance of injunctive relief. There is nothing in the record to support such a presumption, aside from the Jackels' mere assertion that they are injured by the setback violation. There is no evidence that the setback violation is the cause of any of their specific complaints, which have mostly to do with odor. In addition, we agree that the district court abused its discretion by summarily issuing injunctive relief without any analysis of whether Brower's violation can first be addressed by a legal remedy.
We conclude that the district court must engage in an analysis of the harm caused by the violation, whether there is an adequate legal remedy, and whether an injunction is necessary, giving consideration to the reasonableness of the county's proposals to address the violation. Because there are insufficient facts in the record to support summary issuance of injunctive relief, we reverse the order for injunctive relief and remand for consideration of this issue on the record that will be fully developed at trial. By this decision, we do not mean to indicate whether or not injunctive relief is the appropriate remedy in this case.
II.
Brower also argues that the district court abused its discretion by concluding that the doctrine of laches does not bar the Jackels' claim for injunctive relief. Brower points to the six-year delay after construction of the offending facility before the Jackels' complained and correctly notes that removing the building will constitute a hardship for him, although there appears to be a question of fact about the extent of the hardship.
A district court's decision to apply the doctrine of laches is not a decision on the merits. See Melendez v. O'Connor, 654 N.W.2d 114, 117 (Minn.2002) (reaching merits only after deciding as a preliminary matter whether suit should be dismissed for laches). Therefore, even at summary judgment, the decision whether to apply laches lies within the district court's discretion and will be reversed only for an abuse of that discretion. See Opp v. LaBine, 516 N.W.2d 193, 196 (Minn.App. 1994), review denied (Minn. Aug. 24, 1994). The question in applying the doctrine of laches is "whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant" the requested relief. Harr v. City of Edina, 541 N.W.2d 603, 606 (Minn.App.1996) (quotation omitted). "Mere delay does not constitute laches, unless the circumstances were such as to make the delay blamable." *691 Elsen v. State Farmers Mut. Ins. Co., 219 Minn. 315, 321, 17 N.W.2d 652, 656 (1945) (quotation omitted). A person has knowledge of the right to make a claim when he or she has actual notice of the claim or, in the exercise of proper diligence, ought to have discovered it. Steenberg v. Kaysen, 229 Minn. 300, 309, 39 N.W.2d 18, 23 (1949).
The district court determined that the doctrine of laches does not apply because the Jackels did not know about the violation when the facility was built and exercised due diligence to discover the violation. The district court found that the Jackels immediately called the county when they saw the beginning of construction and were told that there was nothing they could do. Brower claims that there is a material fact question about the Jackels' diligence because the county has no record of them expressing any concern about the facility until six years after its construction. In addition, there is an admitted fact dispute about whether Brower and David Jackel discussed the location of the barn before construction. Because there is a question of material fact regarding whether the Jackels acted with due diligence in prosecuting their claims, the district court abused its discretion by rejecting application of laches based on due diligence.
But the district court also relied on the fact that Brower had unclean hands and is therefore barred from asserting the equitable defense of laches. Brower assured the county that the setback requirement would be complied with when he submitted a drawing, with his application for the building permit, that showed the facility as being 1,065 feet from the Jackels' residence. Brower, however, used a highly inaccurate method to measure the setback, purporting to have "stepped off" the distance on property the Jackels assert is wholly unsuited to this type of measurement. Brower was 117 feet off of his promise to place the building 1,065 feet from the Jackels' property and violated the setback requirement by 52 feet. A party seeking laches must come with clean hands in order to obtain the benefit of the balancing of the equities. See Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999). Given the cavalier method by which Brower located this facility, which, the record demonstrates he knew could be objectionable to neighbors, we conclude that the district court did not abuse its discretion by disqualifying Brower from asserting the defense of laches.
DECISION
The district court did not abuse its discretion by precluding appellant from asserting laches to bar respondents' claim for injunctive relief. But the court erred by viewing evidence in the light most favorable to respondents and abused its discretion by summarily granting injunctive relief absent a finding that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury.
Reversed and remanded.
HARTEN, Judge (concurring specially).
Given the court's indication that, "[b]y this decision, we do not mean to indicate whether or not injunctive relief is the appropriate remedy in this case[,]" I concur in the result.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1] An animal unit is defined in the county's zoning ordinance as "[a] unit of measure used to compare differences in the production of animal manure that employs as a standard the amount of manure produced on a regular basis by a slaughter steer or heifer." The ordinance provides that one swine over 55 pounds equals 0.4 animal units.
[2] Under the county's zoning ordinance, a conditional-use permit was not required for the first facility, and is only required for feedlots with more than 1,000 animal units in an "A-1" Agricultural District. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616187/ | 104 S.W.3d 661 (2003)
Donovan Keith WAPPLER, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-01-00389-CR.
Court of Appeals of Texas, Houston (1st Dist.).
March 13, 2003.
*663 Donovan Wappler, Mark R. Yanis, Grant Matthew Scheiner, Houston, TX, for appellant.
Lori Deangelo Fix, Assistant District Attorney, Houston, TX, for the State.
Panel consists of Justices HEDGES, KEYES, and DUGGAN.[*]
OPINION ON MOTION FOR REHEARING
EVELYN V. KEYES, Justice.
On this day, the Court considered appellant's motion for rehearing. The motion is *664 denied. However, we withdraw our opinion of January 9, 2003, and issue this opinion in its stead.
A jury convicted appellant, Donovan Keith Wappler, of the misdemeanor offense of driving while intoxicated, and the trial court, in accordance with an agreement between appellant and the State, assessed punishment at 42 days in jail. We affirm.
BACKGROUND
On December 2, 2000, Mary Chang was on her way from work when she stopped at a yield sign. Appellant, driving a Ford Taurus, hit her car from the rear. Chang got out of her car and saw that appellant was the only person in the Taurus. As Chang approached appellant to ask him what had happened, she could smell alcohol on his breath.
Chang called 911 from her cell phone and then called her husband. Chang noticed that appellant was "unbalanced" when he got out of his car, and that he had to hold onto his car to walk. Chang testified that appellant was "completely drunk." When Chang asked appellant for his insurance information, he handed her three cards, but he did not say anything. Appellant said that he wanted to go to a gas station to make a phone call. Chang was afraid that appellant would have an accident if he left, so she handed him her cell phone. Appellant was unable to dial the phone, so he handed it back to Chang and she dialed the number for him. While they were waiting for EMS, appellant got inside the car. Chang noticed that appellant appeared to be cleaning the inside of his car.
Chang's husband, Steve Fargo, arrived at the scene within 10 to 15 minutes after the accident. Fargo smelled alcohol on appellant's breath and noticed that appellant was disoriented and seemed to be "meandering" around. Fargo called the police from the scene and again told them where the accident was located. Appellant interrupted and insisted that they were on Highway 249, rather than the Sam Houston Parkway at Bammel North Houston.
Harris County Constable Steven Romero arrived at the scene at about 7:50 p.m. He noticed that appellant had alcohol on his breath, that his speech was "kind of slurred," and that he had bloodshot eyes. Fargo told the officer that he had seen appellant wiping his dashboard with a rag before Romero arrived. Romero testified at trial that he told appellant to pick up a rag that was on the ground and that it smelled like alcohol.
Romero performed a horizontal gaze nystagmus test, on which appellant exhibited all six clues.[1] He then asked appellant to perform several field sobriety tests, but appellant refused. Appellant was uncooperative and insisted that he had done nothing wrong. When appellant refused to put his hands on the car, Romero grabbed appellant's sleeve, put his hands on the car, handcuffed him and patted him down. Romero testified that appellant's pants were wet and that, after he patted appellant down, Romero's hand smelled like urine. Appellant was placed in the back of the patrol car. Romero gave appellant no statutory warnings at the scene.
At some point during the investigation, Romero asked appellant whether he had been drinking. Appellant stated that he had been drinking at a casino in Louisiana, *665 but that he had taken his last drink two hours earlier.
Romero took appellant to the police station, where he was read his statutory rights. Romero offered appellant a breath test, which he refused. Appellant also refused to perform any field sobriety tests. Appellant's refusals were videotaped and showed appellant to be very belligerent.
LIMITATION OF VOIR DIRE
In point of error one, appellant contends the trial court erred by giving him only 15 minutes to conduct voir dire. Appellant contends that, because of the excessive time limitation, he was unable to ask relevant questions of the voir dire, including: (1) whether the venire could consider the full range of punishment; (2) whether any venire members were members of Mothers Against Drunk Driving; (3) whether any of the venire members' experiences with alcohol would cause them to favor the State; (4) whether any of the venire members would believe a police officer simply because of his occupation; (5) whether the venire members could disregard incriminating, but illegally obtained statements; and (6) whether the venire members would find appellant guilty simply because he had been in an accident. Appellant argues that, because he was not able to explore these issues with the venire, he could not intelligently exercise his peremptory strikes.
However, the State argues, and we agree, that appellant is estopped from complaining about any inadequate opportunity to voir dire the venire because he affirmatively requested that the trial court attempt to seat a panel from the venire. The record shows that the venire initially included 20 members. After preliminary voir dire questions by the court, only 14 venire members remained. The parties then had 15 minutes each to question the remaining 14 members.
After the voir dire, an additional three venire members were excused for cause, bringing the number of remaining venire members to 11. The trial court then indicated her intention to release the remaining venire members because, once each side exercised its three peremptory strikes, there would not be enough venire members remaining to constitute a six person jury. Defense counsel objected to excusing the venire, arguing that there was "no legal reason" to do so. Defense counsel believed that a jury could be seated if he and the State exercised a peremptory strike on the same venire member. After peremptory strikes were exercised, a six member jury was seated.
We hold that because he objected to the dismissal of the venire and affirmatively stated that there "was no legal reason" to dismiss the panel, appellant is estopped from complaining that he had been given an inadequate amount of time to voir dire the panel. Appellant affirmatively asked the court to attempt to seat a jury from this venire, which, according to him, he had not had an adequate opportunity to voir dire. Had appellant not insisted that the trial court seat a panel from this venire, the court would have dismissed the allegedly inadequately-questioned panel, and the trial court's error in limiting voir dire, if any, would have been cured. Thus, we believe that by insisting that a jury be seated from this venire, appellant was affirmatively endorsing this jury. One cannot ask a trial court to act in a specified way, and then object when the trial court grants the request. See Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999) (stating that if party, by requesting a ruling, leads a court into error, he is precluded from claiming a reversal of the judgment by reason of the error so committed); *666 see also Tucker v. State, 990 S.W.2d 261, 263 (Tex.Crim.App.1999) ("It is, of course, possible for a party, who at one time in the trial preserves a complaint for appellate review, to waive or forfeit the complaint at another time.")
Accordingly, we overrule point of error one.
DENIAL OF MOTION TO EXCUSE VENIRE MEMBER FOR CAUSE
In point of error two, appellant contends the trial court erred by refusing to excuse venire member number three, Stephen Feil, for cause after Feil indicated that he would "probably" give police officers more credibility than other witnesses. The record shows that appellant exhausted his peremptory challenges, that he asked for more, which the trial court denied, and that he identified one objectionable juror on whom he would have exercised a peremptory challenge. Therefore, if we determine that appellant's challenge for cause should have been granted, reversible error would be shown. Martinez v. State, 763 S.W.2d 413, 415 (Tex.Crim.App.1988).
Appellant argues that the trial court erred in denying his challenge of venire member Feil for cause based on the following exchange:
[Prosecutor]: We have and you saw the officer. We got one officer and two civilian witnesses. The officer is going to come up here and give his perception of what happened. Now, anyone over here just because there's going to be an officer, who would give the person more or less weight? Who here would give, just because the person is in uniform, say he's probably telling the truth more so than anybody else?
(Venire member 18 raises hand).
[Prosecutor]: You would?
[Venire member 18]: Uh-huh. I'm related to two police officers, and I hear stories about what they have to go through time and time again.
[Prosecutor]: What do you mean, ma'am?
[Venire member 18]: About what they have to go through to catch criminals and then they're let loose and have to catch them over and over and over.
[Prosecutor]: For that reason you would give them more credibility?
[Venire member 18]: I certainly would.
[Prosecutor]: Thank you very much, ma'am.
[Venire Member Feil]: I probably would too.
The trial court then instructed the venire as follows:
Let's [sic] me just interrupt, [Prosecutor], here a moment. Ladies and gentlemen, when a witness testified, if you're sitting for the jury, I'll give you criteria ... for evaluating witnesses. And, of course, obviously one of them would be the witness' occupation or line of work and so one. But on the other hand, you are not allowed to use that as the sole factor, the only factor for determining a witness' credibility or lack of credibility.
For instance, if someone is a priest, rabbi, or Methodist minister, police officer, judge, doctor, whatever. Of course you can take that into consideration but it can't be your only factor, the only thing you use, if they're a police officer, rabbi, Methodist minister, priest, judge, whatever. That's it. You know, you not going to consider anything else.
Does everybody understand that? Is there anybody who can't follow that?
(No response from panel).
A venire member is challengeable for cause if he cannot impartially judge *667 the credibility of witnesses. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App.1998). However, this means only that jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness. Id. Venire members are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility, because "[c]omplete impartiality cannot be realized as long as human beings are called upon to be jurors." Id. Thus, Feil was not challengeable for cause simply because he stated that he would "probably" believe policemen and doctors more than others. Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App.1999); Smith v. State, 907 S.W.2d 522, 531 (Tex.Crim.App.1995).
Venire member Feil's response does not show any "absolute or extreme" position regarding the credibility of police officers. Unlike venire member 18, Feil does not state that he would "certainly" give more credibility to the police officer; he is much more equivocal and uses the term "probably." Venire member 18, who was excused for cause, related her favoring the credibility of police officers to the fact that she had two relatives who were police officers and that she knew the difficulties they faced in apprehending criminals. Feil gave no explanation for his statement that he would "probably" give more credibility to police officers and was asked for none.
Furthermore, the trial court instructed the venire that they could consider a person's occupation as a factor in determining his credibility, but that a person's occupation alone could not be the sole factor considered. When the trial court asked the venire if it could follow her instruction, Feil, who had spoken up earlier, made no verbal response.
Under these circumstances, we cannot say that the trial court erred by refusing to excuse venire member Feil for cause.[2]
Accordingly, we overrule point of error two.
MOTION TO SUPPRESS ORAL STATEMENTS
In point of error three, appellant contends the trial court erred by denying his motion to suppress the oral statements he made to Romero at the scene of the accident. Specifically, appellant contends that Romero's questioning constituted custodial interrogation and was taken in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) and article 38.22 of the Texas Code of Criminal Procedure.
The record is unclear about when, exactly, Romero questioned appellant. The record from the motion to suppress hearing seems to indicate that it occurred after the field sobriety tests and after Romero placed appellant in handcuffs. However, at another pretrial hearing, appellant represented to the court that the first question (have you been drinking?) was asked before Romero administered the HGN test and that the second question (when was your last drink?) was asked right after the *668 pat down search, when Romero noticed appellant's pants were wet. Unquestionably, both questions were asked and answered at the scene of the accident, either shortly before or after Romero gave appellant the HGN test. Romero testified that he asked the questions "[d]uring the investigation phase" of the detention, not during the arrest phase.
No custodial interrogation
This Court has recently held that questioning a DWI suspect during a roadside investigation was not custodial interrogation, even if the questioning occurred after the defendant had failed several field sobriety tests. See Shpikula v. State, 68 S.W.3d 212, 217 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); see also Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) ("[A] single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of a formal arrest.").
Even if we assume that appellant had already been handcuffed at the time Romero asked his questions, we would not conclude that appellant had been formally arrested. Handcuffing alone will not necessarily convert a temporary detention into an arrest. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.1997); Burkes v. State, 830 S.W.2d 922, 924 (Tex.Crim.App.1991). Whether an officer believes a suspect is detained or arrested is not determinative of the issue. Amores v. State, 816 S.W.2d 407, 412 (Tex.Crim.App.1991). Rather, we look to the reasonableness of the officer's actions, which is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118. Police may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. Id. at 117.
The record in this case shows that, after the HGN test, appellant refused to perform any more field sobriety tests. Romero testified that he then "grabbed [appellant's] shoulder, his sleeve and, you know, I put him on the car for my safety because he was starting to get a little irate. And I handcuffed and searched him for any weapons or things of that nature." Romero further testified that once he had appellant handcuffed and placed in the backseat of the patrol car, he "continued to get information on the accident, and when [Romero] finished working the accident, [he] transported [appellant] to Cypresswood."
Therefore, based on the record before us, we conclude that, given appellant's uncooperativeness and belligerence at the scene, it was reasonable for Romero to secure appellant in handcuffs so that Romero could complete his investigation. The act of handcuffing appellant did not turn the roadside detention into a full blown arrest; thus, Romero's questions to appellant were not custodial interrogation.
No harm
Furthermore, even if the trial court erred in admitting appellant's inculpatory statements to Romero, the error is harmless in light of all the other evidence admitted on the issue of intoxication. See Tex.R.App. P. 44.2. Chang, Fargo, and Romero all testified that appellant appeared intoxicated. There was evidence that appellant was unsteady on his feet, that his eyes were bloodshot, and that his speech was slurred. Chang testified that he could not dial the cell phone. Appellant was seen using a rag to clean the inside of his car, and the rag smelled of alcohol. *669 Finally, there was evidence that appellant had lost control of his physical faculties by urinating in his pants and that he was belligerent. Therefore, the inculpatory statements by appellant were cumulative of other evidence of intoxication presented by the State.
Accordingly, we overrule point of error three.
JURY CHARGE ERROR
In point of error four, appellant contends the trial court erred by submitting the following charge to the jury:
Nothing in the law prohibits the admission of a statement made by the accused that is the res geste of the arrest or of the offense.
Appellant argues that the charge was improper because it was not raised by the evidence. The State concedes that the charge was not raised by the evidence, but argues that no reversible error is presented because the charge was a correct statement of the law, was given to the jury only in the abstract jury instructions, and was not applied to the specific facts of the case. We agree. When an abstract charge is erroneously given on a theory of law that was not raised by the evidence, but the theory is not applied to the facts of the case in the abstract or application paragraph, then the overruling of an objection to the abstract charge is not error. See Hughes v. State, 897 S.W.2d 285, 297 (Tex.Crim.App.1994).
In this case, the abstract instruction complained of is a correct statement of the law. See Texas Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon Supp.2003). More importantly, there was no statement in the abstract or application paragraph applying the instruction to the facts of this case. Therefore, the instruction was not erroneous.
Accordingly, we overrule appellant's fourth point of error.
LIMITATION OF CROSS-EXAMINATION
In point of error five, appellant contends his rights under the Confrontation Clause of the United States Constitution[3] were violated because he was not permitted to question the complainant regarding bias. Specifically, appellant contends he should have been permitted to ask Mary Chang about her financial interest in a possible civil suit arising out of the accident.
The fact that a witness has a pending civil suit against the defendant arising out of the same incident is admissible to show the pecuniary interest and bias of the witness. See Cox v. State, 523 S.W.2d 695, 700 (Tex.Crim.App.1975). A trial court may properly permit inquiry into the basis of the civil suit and the witness's pecuniary interest in the suit. Bigby v. State, 892 S.W.2d 864, 887 (Tex.Crim.App.1994). However, it is not an abuse of discretion for a trial court to prohibit questions that delve into the intricate details of a civil suit. Id.
In this case, the trial court permitted appellant to ask whether Mary Chang had consulted an attorney (which she had) and whether she had filed suit against appellant (which she had not). However, the trial court did not allow appellant to ask Chang whether the attorney had recommended that she see a doctor or chiropractor.
We review the trial court's limitation of cross-examination for an abuse of discretion. See Matchett v. State, 941 *670 S.W.2d 922, 940 (Tex.Crim.App.1996); Knox v. State, 31 S.W.3d 700, 702 (Tex.App.-Houston [1st Dist.] 2000, no pet.). A trial court may permissibly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.1996). In this case, once Chang admitted that she had consulted a lawyer, but denied having filed a civil suit, the evidence of bias that appellant sought to admit was before the jury. Therefore, the trial court did not abuse its discretion by limiting appellant's cross-examination of Chang regarding bias.
Accordingly, we overrule point of error five.
CUMULATIVE ERROR
In point of error four, appellant contends that the cumulative effect of the errors alleged in points of error one through five was such that he was deprived of due process under the federal and state constitutions. However, we have found no error in appellant's prior arguments. Non-errors, in their cumulative effect, do not amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999); Melancon v. State, 66 S.W.3d 375, 381 (Tex.App.-Houston [14th Dist.] 2001., no pet.).
Accordingly, we overrule point of error six.
FACTUAL SUFFICIENCY
In point of error seven, appellant contends the evidence is factually insufficient because (1) the videotape taken at the station "is simply bereft of evidence from which a jury could permissibly infer that [appellant] was intoxicated"; (2) photographs of appellant taken at the scene do not show bloodshot eyes; (3) appellant's expert witness, Dr. Joseph Citron, testified that appellant's ability to walk steadily was hindered by the facts that his big toe had been amputated, and that he had chronic arthritis in his knee, hypertension and diabetes, and chronic disc problems; and (4) appellant's girlfriend, who arrived at the scene of the accident before appellant was arrested, testified that he was not intoxicated.
We follow the usual standard of review for factual sufficiency, Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000), giving deference to the jury on weight and credibility determinations. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). In this case, the jury saw the videotape, heard Dr. Citron's testimony, and, nonetheless, concluded that appellant was guilty of driving while intoxicated. The jury's verdict is supported by the testimony of all three witnesses at the scene of the accident, as well as evidence that defendant had urinated in his pants and was seen cleaning the inside of his car with rags that smelled of alcohol. We cannot conclude that the jury's verdict is against the great weight and preponderance of the evidence.
Accordingly, we overrule point of error seven.
CONCLUSION
We affirm the judgment.
NOTES
[*] The Honorable Lee Duggan, Jr., retired justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
[1] Evidence of the HGN test was admitted at the pretrial hearing on the motion to suppress, but was not admitted at trial because the State had failed to designate the testifying police officer as an expert witness.
[2] Appellant argues that the State is estopped from contending that Feil was properly excused because it took an inconsistent position at trial. However, the issue before this Court is whether the trial court erred by refusing to exclude Feil and we are not bound by any position taken by the State, either at trial or on appeal. Unlike point of error one, this is not an invited error situation in which the State is seeking to reverse the trial court based on an error that it invited. Rather, the State is attempting to uphold the trial court's ruling, despite any contrary position it may have taken at trial. As such, the "invited error" doctrine of Prystash, 3 S.W.3d at 531, and Davidson v. State, 737 S.W.2d 942, 948 (Tex.App.-Amarillo 1987, pet. ref'd) is inapplicable.
[3] See U.S. Const. amend. VI. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616131/ | 38 So. 3d 779 (2010)
ROBINSON
v.
STATE.
No. 2D10-2859.
District Court of Appeal of Florida, Second District.
June 26, 2010.
Decision Without Published Opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616162/ | 425 So. 2d 333 (1982)
Wilmer JORDAN, Plaintiff-Appellee,
v.
SECURITY COMPANY, Defendant-Appellant.
No. 82-376.
Court of Appeal of Louisiana, Third Circuit.
December 22, 1982.
*334 Gus Voltz, Jr. of Voltz & Ware, Alexandria, for defendant-appellant.
Kenneth Ray Rush, Oakdale, for plaintiff-appellee.
Before DOMENGEAUX, FORET and LABORDE, JJ.
LABORDE, Judge.
This appeal involves an action in redhibition filed by Wilmer Jordan against Harold Katz, d/b/a Security Company, seeking to rescind the sale of a Remington Model 1100 L.W. .410 automatic shotgun. The trial court granted judgment in favor of Jordan and against Security Company rescinding the $331.75 sale with legal interest from judicial demand, plus an attorney's fee of $300.00 and all costs of court. Security appeals. We conclude that Jordan failed to prove that the shotgun suffered from redhibitory defects within the contemplation of Louisiana Civil Code Article 2520, et seq. Hence, we reverse.
Jordan purchased the automatic shotgun from Security Company on October 2, 1980. In January, 1981, he brought the gun back to Security complaining that it was "hanging up". Security sent the gun to a gunsmith, Lee Stagg, in Pineville, Louisiana, who disassembled the gun for a visual inspection, reassembled it, test fired it, and returned it to Security finding "nothing wrong with it". The gun was returned to Jordan. Jordan returned the gun to Security three (3) or four (4) months later again complaining it was "hanging up". Security sent the gun to Jack Alexander, an authorized Remington gunsmith in Shreveport, Louisiana. Alexander examined the gun and found it to be in satisfactory working condition and returned it to Security. When Jordan came to Security to pick up his gun he refused to accept delivery claiming there were scratches on the trigger guard. In addition to refusing to accept delivery, Jordan refused to have the gun sent back to Alexander, the Remington gunsmith, and refused Security's offer to replace the trigger guard. A few weeks later Jordan picked up the shotgun and no further complaints were registered with Security until July 2, 1981, the day this suit was filed.
Judgment was rendered by the trial court in favor of Jordan rescinding the sale, and for $331.75 with legal interest thereon from date of judicial demand until paid, plus an attorney's fee of $300.00 and all costs of court.
Security advances seven (7) trial court errors. Since we are convinced that Jordan failed to carry his burden of proof as required by LSA-C.C. Art. 2520 et seq., we will address only that assignment of error.
The applicable law regarding actions in redhibition and vices of things sold is found in Section 3 of the Louisiana Civil Code beginning with Article 2520 which defines redhibition.
"Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so *335 inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice."
Article 2520 is limited by Article 2530 which provides:
"Art. 2530. The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale."
It is well settled that the plaintiff need not necessarily introduce expert testimony. As quoted with approval in Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871 (La.1924):
"`It is not incumbent upon the buyer to seek out, allege and prove the particular and underlying cause of the defects which make the thing sold unfit for the purpose intended, particularly when the thing is a complicated piece of machinery; but it suffices if he alleges and afterward proves as a fact that such defects exist.'" (101 So. at 872)
While he need not prove the underlying cause of the defect, it is still necessary that he prove the existence of the defect at the time of the sale. Edelman Systems Inc. v. Capital GMC., Inc., 345 So. 2d 99, (La.App. 1st Cir.1977). "Vice or defect" as used in Article 2520 contemplated a physical imperfection or deformity; a lacking of necessary component or level of quality. Williams v. Louisiana Machinery Co., Inc., 387 So. 2d 8 (La.App. 3rd Cir.1980).
We hold that Jordan did not establish a prima facie case of a redhibitory defect, and our decision is premised on the following reasons.
Jordan's proof consisted of his own testimony and the testimony of his hunting partner, Porter L. Johnson. Jordan testified that he fired the gun one time and that it malfunctioned, i.e., "hung up" so he brought it back to Security. On the second occasion he used the gun, it fired three (3) times and "hung up" on the fourth shot. This testimony was confirmed by Porter L. Johnson. At the trial, an expert witness for Security testified that the gun was not defective solely because the gun "hung up". In his testimony he explained many ways in which the gun could malfunction in this manner without the gun being defective. He included in this list: operator error, short loading, improper maintenance and care, and intentional jamming. Therefore, the malfunctioning of the gun, i.e. "hanging up" in itself does not establish that the gun is defective.
Because the burden is on the plaintiff initially to establish a prima facie case, the failure to establish such a case defeats his cause of action. The burden does not shift to the defendant until a prima facie case has been established by the plaintiff by a preponderance of the evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So. 2d 151, (La.1971). The testimony of Jordan and Johnson merely establish that the gun "hung up". Within the factual context of this case, fair inferences may be drawn from such malfunctions other than that the gun is defective. For example, the gun becoming "hung up" could have resulted from improper loading. To allow Jordan to establish a prima facie case on such evidence places an undue burden on Security who has no personal knowledge as to the acts preceding the malfunction. Hence, we find that the proof offered was insufficient to sustain Jordan's burden of proving that a redhibitory defect existed at the time of the sale.
For the foregoing reasons, the judgment of the trial court is reversed, at appellee's, Wilmer Jordan, cost.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616499/ | 425 So. 2d 198 (1983)
Edwin G. DAVIS, III, Appellant,
v.
UNEMPLOYMENT APPEALS COMMISSION, Appellee.
No. 81-811.
District Court of Appeal of Florida, Fifth District.
January 19, 1983.
*199 Edwin G. Davis, III, pro se.
James R. Parks and Norman A. Blessing of the Unemployment Appeals Com'n, Tallahassee, for appellee.
PER CURIAM.
Appellant appeals from an order of the Unemployment Appeals Commission which denied him unemployment compensation benefits based on a finding that he had been discharged for misconduct. We affirm.
Section 443.101(1)(a), Florida Statutes (1981), provides that no unemployment benefits may be received if an employee is discharged for misconduct. "Misconduct" is defined in section 443.036(24), Florida Statutes (1981), as follows:
"Misconduct" includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.
Various cases have noted that "mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion" do not constitute "misconduct" under the statute. Tucker v. Florida Department of Commerce, 366 So. 2d 845, 847 (Fla. 1st DCA 1979); Fredericks v. Florida Department of Commerce, 323 So. 2d 286, 288 (Fla. 2d DCA *200 1975); Spaulding v. Florida Industrial Commission, 154 So. 2d 334, 337 (Fla. 3d DCA 1963).
In the instant case, the appeals referee concluded that two incidents justified a finding of misconduct. He found:
On February 12, 1981, the claimant walked off the job and deprived the employer of his services. The work that the claimant was asked to perform on the morning of February 17, 1981, was proscribed by the employer's policy but was permitted in times of emergency or when the workload was heavy. The workload was heavy at the time the waitress asked the claimant to move the container of dirty dishes. The claimant's walking off the job on February 12, 1981, combined with his failure to give reasonable assistance to one of the employer's waitresses during a time when business was heavy establishes an intentional and substantial disregard of his duties and obligations to his employer.
Appellant, a restaurant dishwasher, walked off the job on February 12, 1981, because of a dispute which arose after he had requested to train as a cook. When appellant observed a less senior dishwasher training as a cook, appellant became upset and left his job because he thought the trainee was working without pay.
Appellant was allowed to return to work on February 15, 1981, but on February 17, 1981, while working the graveyard shift, he refused the request of a waitress to carry bus pans (containing dirty dishes) from the dining room area. The record reveals that while it was generally against company policy to use bus pans in the dining room, they were permitted when the workload was heavy. It is undisputed that the workload at the restaurant was heavy at the time in question. There was also evidence that appellant had helped with the bus pans on past occasions and that on the night in question, appellant's employer was short of help due to an employee's sickness.
We agree with the appeals referee and the Commission that appellant's conduct established an intentional and substantial disregard of his employer's interests and of his own duties, so as to amount to misconduct. Therefore, appellant was disqualified from receiving unemployment benefits.
AFFIRMED.
FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.
SHARP, J., dissents with opinion.
SHARP, Judge, dissenting.
I disagree that Davis's two incidents of misbehavior reach the degree of willfulness or wantoness required by the Unemployment Compensation Statute's definition of misconduct, for which compensation payments may be denied. The statute defines misconduct as:
(a) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.
§§ 443.036(24)(a) & (b), Fla. Stat. (1981). (Emphasis supplied).
The first incident relied upon by the referee was that Davis walked off his job on February 12, 1981, because of a labor dispute or misunderstanding. But because Davis had been a hardworking, conscientious employee, he was allowed to return to work on February 15, 1981, after tempers cooled respectively. Using this incident, which was apparently forgiven and forgotten, to buttress the second strikes me as patently unfair.
The second incident, the real crux of the firing, arose when Davis refused the request of a waitress, who was not his supervisor, to carry bus pans from the dining room. The referee found that it was against company policy to use bus pans in *201 the dining room. Furthermore, carrying them out was not part of Davis's assigned tasks. The waitress admitted that although Davis had on previous occasions helped with the pans, he had also refused on other occasions to help with them. He had never been warned or disciplined for his refusal in the past.
Thus, I cannot agree there is any support in this record to find that Davis deliberately violated any rule or standard of behavior of his employer. In the first place, it is not clear that he breached any duty of his job as a dishwasher, nor any order of his supervisor. Secondly, there is no basis to conclude Davis's actions were taken with the degree of culpability or evil design required in order to sustain a finding of "misconduct" under the statute. Erber v. Federal Express Corporation, 409 So. 2d 522 (Fla. 5th DCA 1982); Spaulding v. Florida Industrial Commission, 154 So. 2d 334 (Fla. 3d DCA 1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616496/ | 425 So. 2d 115 (1982)
FAIR-WAY RESTAURANT and Aetna Insurance Company, Appellants,
v.
Harold D. FAIR, Appellee.
No. AL-177.
District Court of Appeal of Florida, First District.
December 28, 1982.
Rehearing Denied February 3, 1983.
Mark E. Hungate of Fowler, White, Gillen, Boggs, Vilareal & Banker, St. Petersburg, for appellants.
*116 William D. Douglas of Hamilton & Douglas, Tampa, for appellee.
BOOTH, Judge.
This cause is before us on appeal from an order of the deputy commissioner in a workers' compensation proceeding awarding temporary total disability benefits. Also at issue is the deputy's inclusion of the value of meals provided claimant's children in the calculation of the average weekly wage and his finding that claimant is permanently totally disabled (PTD), notwithstanding the employer/carrier's stipulation to that fact before the hearing. We affirm in part and reverse in part.
On December 2, 1975, claimant Harold Fair fell at his restaurant, injuring his knee. Prior to the accident, he and his wife had operated the restaurant, claimant receiving $175 a week, his wife receiving no wages. Most of the meals for the family, which included six children, were provided by the restaurant. We affirm the deputy's inclusion of the value of meals provided claimant's children in his calculation of the average weekly wage, upon which benefits were based. See, Jess Parrish Memorial Hospital v. Ansell, 390 So. 2d 1201 (Fla. 1st DCA 1980). Any benefit which helps an employee meet his personal expenses should be included in the calculation of average weekly wage. Layne Atlantic Company v. Scott, 415 So. 2d 837 (Fla. 1st DCA 1982). The ultimate test for determining whether a fringe benefit, such as meals, must be included is whether the employee receives a tangible benefit of a real, present-day value. State of Florida, Department of Health and Rehabilitative Services v. Ryan, 381 So. 2d 269 (Fla. 1st DCA 1980). This court has held that the value of included meals must be based on their fair market value, determined in accordance with Internal Revenue Service regulations. Rhaney v. Dobbs House, Inc., 415 So. 2d 1277 (Fla. 1st DCA 1982).
The employer/carrier accepted claimant as PTD before the hearing and claims on appeal that this stipulation precluded the deputy commissioner from adjudicating claimant as PTD. Although this court's opinion in Sperry Remington Office Machines v. Stelling, 383 So. 2d 1150 (Fla. 1st DCA 1980), indicates that it is at least a "technical error" for the deputy commissioner to adjudicate claimant PTD where the employer/carrier has accepted him as PTD before the hearing, the language of the Florida Supreme Court in Andrews v. Strecker Body Builders, 92 So. 2d 521 (Fla. 1957), seems to imply that such stipulations by the employer/carrier do not deprive the deputy of jurisdiction, but that the inclusion in his order of such matters is within the discretion of the deputy. We therefore affirm the deputy commissioner's adjudication of claimant as PTD.
Soon after claimant's accident, his restaurant burned down. Claimant underwent two operations to remove torn medial meniscus from his knee and returned to work at his regular salary when a new restaurant was opened a year later in December, 1976. He continued to have problems with his knee. In October, 1977, Dr. Jones, a physician to whom claimant was referred, performed an arthrogram which was "non-diagnostic" and encouraged claimant to return to normal activities. In December, 1977, claimant's wife "fired" him from his employment in the restaurant due to his inability to perform the work. Thereafter, claimant remained unemployed and, in February, 1979, filed a claim for temporary total disability benefits from the date of the accident.
In April, 1980, claimant's attorney arranged for him to see Dr. Baker, who performed surgery to remove retained medial meniscus and declared claimant to have reached maximum medical improvement on October 10, 1980, with a 40 percent disability. Benefits were paid from July 6, 1980 to December 4, 1980, at which time the employer/carrier ceased payments because of a social security off-set. The deputy commissioner awarded claimant temporary total disability benefits from the date of the accident through November 30, 1976, and from January 1, 1978 through October 10, 1980, with credit for compensation paid during that period.
*117 We find that the deputy's award of temporary total disability benefits for the period from January 1, 1978 to July 5, 1980 was in error since it was based upon claimant's testimony of pain and inability to work, without a work search or medical evidence that claimant was in fact totally disabled. In Ken Lones Landscaping v. Tucker, 395 So. 2d 272, 274 (Fla. 1st DCA 1981), this court defined temporary total disability as "a period during which a claimant is totally incapacitated due to a compensable injury," noting that there is no automatic entitlement to temporary total disability benefits until maximum medical improvement is reached, but that the ability to return to work, as opposed to the actual securing of employment, marks the termination of temporary total disability. In order to be entitled to temporary total disability benefits, the burden is on the claimant to show lack of capacity to work. A claimant who fails to produce medical evidence that he was unable to work and who does not test his ability to work by an adequate work search has failed to meet this burden. McKenney v. School Board of Palm Beach County, 408 So. 2d 655 (Fla. 1st DCA 1981). While, in proper circumstances, temporary medical or functional disability may be proven by lay testimony, Square G. Construction Company v. Grace, 412 So. 2d 397 (Fla. 1st DCA 1982), the case at issue does not come within the parameters of that rule.
Square G. Construction Company v. Grace, supra, involved an award of six-weeks temporary partial disability benefits based solely upon claimant's testimony at the hearing that his medication made him drowsy and would prevent him from operating the heavy equipment used in his pre-accident job. The court noted that the work-search requirements of Exxon Company U.S.A. v. Alexis, 370 So. 2d 1128 (Fla. 1978), requiring good faith in testing work capability after medical release, is subject to qualification with respect to short periods or particular circumstances, including a claimant's testimony as to physical symptoms involving ordinary evidentiary credibility standards.[1]
At issue here is a two and one-half year period. None of the medical testimony supported claimant's assertion that he was totally unable to work during that period of time; in fact, Dr. Jones encouraged him in 1978 to return to normal activity. For more than two years after seeing Dr. Jones, claimant did not seek medical treatment, nor did he make a good-faith attempt to return to work. His employment at the restaurant for one full year after the accident disproves his claim that he was totally unable to work. Since claimant has not met his burden of showing total inability to work during the period from January 1, 1978 through July 5, 1980, the deputy's award of temporary total disability benefits for that period is in error.
We affirm the deputy's finding of permanent total disability and his inclusion of the value of meals provided claimant's children in his calculation of the average weekly wage, but reverse the award of temporary total disability benefits for the period from January 1, 1978 through July 5, 1980 and remand for further proceedings consistent herewith. See, Duro Paperbag Manufacturing Company v. Graham, 415 So. 2d 809 (Fla. 1st DCA 1982), and State of Florida, Sunland Center v. Campbell, 417 So. 2d 1156 (Fla. 1st DCA 1982).
McCORD and WENTWORTH, JJ., concur.
NOTES
[1] In Square G. Construction Company v. Grace, 412 So. 2d 397 (Fla. 1st DCA 1982), the court distinguished: Commercial Carrier Corporation v. Bennett, 396 So. 2d 847 (Fla. 1st DCA 1981), in which a claimant's bare complaints were dismissed as insufficient to excuse lack of work effort, by the fact that it involved a six-month period after the claimant's release for work, without evidence that he had sought either further medical attention or a return to employment; Cardinal Industries, Inc. v. Dawkins, 392 So. 2d 368 (Fla. 1st DCA 1981), by the fact that there the claimant failed to follow recommendations by three treating physicians that he should attempt to return to work; Walter Glades Condominium v. Morris, 393 So. 2d 664 (Fla. 1st DCA 1981), by the fact that it involved an 18-month period after discharge, without evidence of any effort by the claimant to seek employment or medical attention during that period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616542/ | 201 So. 2d 51 (1967)
Martin BLOCK
v.
Joyce BLOCK.
6 Div. 455.
Supreme Court of Alabama.
June 22, 1967.
*52 Bill Fite, Hamilton, for appellant.
No attorney for appellee.
MERRILL, Justice.
This appeal is by the ex-husband from a decree of modification rendered September 30, 1966, which increased his alimony payments to his ex-wife to the sum of $250.00 per month, and ordered him to pay the sum of $500.00, the amount he was in arrears in alimony payments. We have been notified by the ex-wife, appellee, that she will not be represented by counsel on appeal.
The parties were divorced by a decree of the Marion County Superior Court, in Equity, on October 28, 1960. This decree stated that an agreement between the parties dated October 15, 1960, relative to the care, custody, control, maintenance and support of their minor child be incorporated therein by reference. There was no specific mention of alimony in the decree.
On April 2, 1965, the appellee, complainant in the original divorce action, filed a petition requesting the court to modify the decree of October 28, 1960, so as to require appellant to pay her $200.00 per month alimony. In April, she amended her petition by raising the requested amount to $300.00 per month. On October 29, 1965, she again amended her petition by making the agreement, dated October 15, 1960, an exhibit thereto. This agreement required the appellant to pay to the appellee alimony in the sum of $100.00 per week. However, the parties had executed an agreement of modification on April 12, 1962. This agreement provided that appellant's alimony payments to appellee should not be reduced below $35.00 per week as long as appellant was earning in excess of $500.00 per week, and the agreement further provided that the weekly payment for alimony should be reduced in the same ratio or proportion that the gross income of the appellant was reduced below that of his gross income in 1960.
Appellant lays much stress on the following provision in the agreement:
"NINTH: In the event that at any time hereafter a judgment or decree of divorce or separation shall be entered in favor of either party in any court of competent jurisdiction, the provisions of this agreement for the support and maintenance of the Wife and for the support and maintenance of the child of said marriage, shall be embodied in any such judgment or decree or may be adopted by reference and shall survive any such decree or judgment but no such judgment or decree so obtained by either party shall in any way affect this agreement or any of its terms, covenants and conditions, or its validity, it being intended that this agreement or any of its terms, covenants and conditions, shall be absolute, unconditional and irrevocable, and that both parties shall forever be legally bound thereby."
With this we cannot agree. It is well settled that an agreement of the parties fixing the amount of alimony becomes merged into the decree, and thereby loses the contractual nature at least to the extent that the court has the power to modify the decree when changed conditions so justify. Garlington v. Garlington, 246 Ala. 665, 22 So. 2d 89; Worthington v. Worthington, 224 Ala. 237, 139 So. 334; Adams v. Adams, 229 Ala. 588, 159 So. 80. The equity court which granted the original divorce had the authority to consider a modification of the
*53 amount of alimony irrespective of the terms of the agreement.
It is equally well settled that where a decree for permanent alimony is not for a lump sum, nor otherwise indicative of a division of property merely, but a monthly allowance for the wife's maintenance, running into the indefinite future, and payable if need be from the future earnings of the husband, the court has the power to modify the same because of changed conditions of the parties, whether such power be expressly reserved or not in the decree. Garlington v. Garlington, supra; Epps v. Epps, 218 Ala. 667, 120 So. 150.
That brings us to the question of whether there has been a substantial change of conditions to support the decree of the trial court in increasing the monthly alimony payments. The ex-wife, appellee, was the only witness to testify. She testified that she was thirty-five years of age, in good health and not employed; that appellant is sixty-three years of age and that her sole and only ground for seeking modification of the alimony payments is that the cost of living has increased. She testified that her rent, groceries, clothing, automobile and entertainment expenses had increased since 1960, but she produced no records showing an increase in grocery expenses, clothing expenses, utility bills or automobile expenses. The amount of increase which she did testify to were guesses or approximations. She also admitted that appellant's payments for the support of their child, born April 20, 1960, has been reduced by court order from $150.00 per week to $100.00 per week. She said she had no idea as to whether appellant's income had increased or decreased since 1960. An example of her uncertainty is that on direct and cross-examination, she testified that her husband was in arrears in his alimony payments by $7,000 or $8,000, but she admitted on cross-examination that he was only $500.00 behind and that figure was shown in the last pleading that she had filed.
Where a decree of divorce has adopted an agreement with respect to alimony and maintenance, the court will not modify such agreed decree except on proof of changed conditions which justify the modification and only to the extent of such changed conditions. Callen v. Callen, 257 Ala. 226, 58 So. 2d 462, and cases there cited.
Also, the court may and should inquire into the earning ability of the parties and their probable future prospects, their age, sex, health and station in life; the duration of the marriage, the conduct of the parties with particular reference to the cause of the divorce. Davis v. Davis, 274 Ala. 277, 147 So. 2d 828, 1 A.L.R. 2d 1; Garlington v. Garlington, 246 Ala. 665, 22 So. 2d 89.
It is common knowledge that the cost of living has risen since 1960, but due to the uncertainty and vagueness of appellee's testimony and the absence of any evidence of the financial status of appellant and the admission that another court had, since the rendition of the original decree of divorce, reduced the support and maintenance payments for the child from $150.00 per week to $100.00 per week, we are not convinced that the finding of the court was supported by the evidence. It follows that the part of the decree setting the alimony payment at $250.00 per month is reversed.
No point or assignment of error is directed at that part of the decree which orders appellant to pay appellee "the sum of $500.00, the amount he is in arrears in alimony payments." It follows that that portion of the decree is affirmed.
Affirmed in part, reversed in part and remanded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616547/ | 201 So. 2d 379 (1967)
Edward BAUDIN, Plaintiff and Appellant,
v.
TRADERS & GENERAL INSURANCE COMPANY et al., Defendants and Appellees.
No. 2029.
Court of Appeal of Louisiana, Third Circuit.
June 29, 1967.
Rehearing Denied July 27, 1967.
*380 Simon, Trice & Mouton, by J. Minos Simon, Lafayette, for plaintiff-appellant.
Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, Jr., Lafayette, Earl H. Willis, St. Martinville, for defendants-appellees.
Before FRUGE SAVOY and CULPEPPER, Judge.
CULPEPPER, Judge.
The plaintiff, Edward Baudin, seeks damages for personal injuries to his 3 year old child, Keith A. Baudin, who ran across a street, from behind a parked automobile, and was struck by an approaching vehicle. Named as defendants are Mrs. Laurie M. Agnelle, mother of Joseph B. Angelle, the minor driver of the approaching automobile; and Traders & General Insurance Company, the liability insurer of the parked vehicle.
By strange coincidence, the parked vehicle was owned by the plaintiff himself and was being driven with his permission by Jesse Paul Theriot, an omnibus insured under the policy. Recovery is sought from Traders & General Insurance Company under two different policy coverages: (1) The Uninsured Motorist clause, since Angelle was not insured; (2) the so-called "Omnibus Insured" clause, on the theory that the liability is one "arising out of the * * * use" of the Baudin vehicle by the permittee, Theriot.
The defendant insurer filed an answer denying any negligence on the part of the uninsured motorist, Angelle. This portion of the case is still pending in the district court and is not before us on appeal.
As to the omnibus insured, the insurer filed an exception of no cause of action and, alternatively, a motion for summary judgment, seeking dismissal of plaintiff's suit. The district judge granted summary judgment. Plaintiff appealed.
There is no genuine issue of material fact. For purposes of its motion for summary judgment, the defendant insurer has admitted all of the facts alleged in plaintiff's *381 original and supplemental petitions and has filed in the record a copy of the insurance policy in question. On the basis of these facts, the defendant contends it is entitled to judgment as a matter of law.[1]
Plaintiff alleges that he resides on the north side of St. Charles Street, in Breaux Bridge, Louisiana, directly across the street from the dwelling of Robert Erwin. On the day in question, several small children, including plaintiff's 3 year old son, were playing in the Erwin's front yard a short distance from the street.
The omnibus insured, Jesse Theriot, drove in an easterly direction along St. Charles Street and stopped in front of the Erwin home. He saw plaintiff's son and instructed him "to go home", but the boy did not at first obey. Kathy Erwin then came out and stood in the street at the left side of the car. Shortly thereafter, the Baudin child started toward his home. The Angelle vehicle was approaching in a westerly direction on the street, at a speed of about 30 miles per hour. The child ran behind the parked automobile directly into the path of the approaching car, where he was struck and seriously injured.
Plaintiff alleges the omnibus insured was negligent in the following respects: (1) By parking in front of the Erwin house and instructing the boy to "go home", knowing that the boy had to pass either in front of or behind the parked vehicle and that motorists approaching from either direction might not see him. (2) Having undertaken to tell the child to "go home", he failed to take reasonable precautions for his safety in doing so, by remaining in this parked position, knowing the parked vehicle constituted a "perilous entrapment" for the child as to approaching motorists. (3) Continuing to remain in this parked position when he knew, or should have known, the child was running behind the car as the Angelle vehicle was approaching on a collision course.
In the following pertinent portion of the policy the insurer agrees:
"Part ILiability
"Coverage ABodily Injury; * * * To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: A. Bodily injury, * * *
arising out of the ownership, maintenance or use of the owned automobile. * * *"
Under these policy provisions, the insurer agrees to pay if: (1) the insured is "legally obligated" to pay damages; (2) "arising out of"; (3) the "use" of the automobile.
As counsel for defendant has stated in his brief, we can, for purposes of this motion for summary judgment, assume the first of these three requirements is met, i. e. that the omnibus insured is legally obligated to pay damages because of actionable negligence. In this appeal, the issue is not whether the insured is liable, but whether his liability arose out of the use of the vehicle.
Furthermore, requirement number (3) is satisfied because the insured was clearly using the automobile. There is considerable authority that the term "use" is a broad catch-all designed to include all proper uses of the vehicle not falling within the terms "ownership" or "maintenance". Bolton v. North River Insurance Company, 102 So. 2d 544 (La.App. 1st Cir. 1958); Tucker v. State Farm Mutual Automobile Insurance Company, 154 So. 2d 226 (La.App. 2d Cir. 1963); Appleman's Insurance Law & Practice, Vol. 7, Section 4316(e); Annotation, 89 A.L.R. 2d 150, at pages 163-172. The term "use" involves simply employment for the purpose of the user and is broader than the term "operation" which involves direction and control of the mechanism such as by a driver. Maryland Casualty Company v. Marshbank, 226 F.2d 637 (U.S.C.A. 3d 1955); Liberty Mutual Insurance Company v. Steenberg Construction, 225 F.2d 294 *382 (U.S.C.A. 8th 1955). In the present case, it is clear that Theriot's actions in parking and remaining seated in the automobile constituted "use".
The principal issue in this case is whether the liability was one "arising out of" the use of the vehicle by the omnibus insured. The Annotation in 89 A.L.R. 2d 150 (1950) has as its purpose a consideration of all of the cases construing the policy provision "arising out of the ownership, maintenance or use" of the automobile.[2] Summarizing the cases cited (pages 152-153) the Annotation reaches these general conclusions: (1) The courts recognize that if a policy is susceptible of more than one construction it will be construed in the manner most favorable to the insured; (2) The cases generally agree that in order for the accident to "arise out of the * * * use" of a vehicle there must be some causal relationship between the accident and the use; (3) The issue in most cases is whether there was, under the particular facts, the necessary causal relationship; (4) Although many cases do not attempt to construe the specific clause, "arising out of", those which do hold this clause to mean "originating from", "growing out of", "flowing from", or "having its source in".[3]
We will not attempt to discuss all of the cases found in the cited annotations, but will use a few for illustrative purposes. Among those holding there was a sufficient causal relationship between the accident and the use is Merchants Company v. Hartford Accident & Indemnity Company, 187 Miss. 301, 188 So. 571, 192 So. 566 (1939) in which a truck became stuck in a highway ditch. The operator used several large poles to extricate the truck and then drove away, leaving the poles on the road, where they were struck that night by the automobile in which plaintiff was a passenger. The court noted particularly that the policy did not require the accident to be the "proximate result" of, but only that it "arise out of", the use of the truck. In discussing causation the court said:
"[W]here a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation,which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation; and until an event of the latter nature transpires the liability under the policy exists."
In Schmidt v. Utilities Insurance Company, 353 Mo. 213, 182 S.W.2d 181, 154 A.L.R. 1088 (1944) the operator of a coal truck used wooden blocks as a ramp to drive the truck up the curb to a coalhole. After unloading, the driver left the blocks on the sidewalk where plaintiff fell over them and was injured. The court held the accident arose out of the use of the truck, declaring that the policy did not require the injury to be the proximate result, in a strict legal sense of that term, of the use of the vehicle, but only that the injury arise out of the use. The test of causation was expressed as follows:
"Whether or not plaintiff's injury, and the negligent act which caused it, arose out of the use of the trucks covered by the policy depends upon the general circumstances of the case as shown by the evidence, the nature of the use of the automobile trucks, as shown by the declarations *383 in the policy, the connection or relationship between the negligent act, which produced the injury, and the intended use of the trucks. We must consider whether the negligent act and resulting injury was a natural and reasonable incident or consequence of the use of the trucks for the purposes shown by the declarations, though not foreseen or expected; and whether, after the negligent acts and injury were complete, it was possible to trace the negligent acts and resulting injury as reasonably incident to, and closely connected with, the use of the trucks for the purposes shown in the declarations in the policy."
Counsel for both plaintiff and defendant in the present case have cited Tucker v. State Farm Mutual Insurance Company, 154 So. 2d 226 (La.App. 2d Cir. 1963), in which plaintiff's wife parked the insured automobile on an inclined driveway and went into her home. Shortly thereafter, a 7 year old child was playing in the vehicle and apparently disengaged the gears or the brake and it began to roll down the incline. Plaintiff's wife came out and attempted to stop the automobile and was struck and fatally injured. The court's decision turned on its construction of the word "use", holding that the automobile was not being used by the child as this term was intended by the parties to the policy.[4] However, in the course of its decision the court quoted the following with reference to causation, from 7 Am. Jur.2d, Section 82:
"`In determining whether the negligent act that caused a bodily injury arose out of the "use" of a motor vehicle within the coverage of a motor vehicle liability policy, the court must consider whether it was a natural and reasonable incident or the consequence of the use of the vehicle for the purposes shown by the declarations, though not foreseen or expected.'"
Illustrative of cases holding there was no causal relationship between the accident and the use of the vehicle is Kienstra v. Madison County Mutual Automobile Insurance Company, 316 Ill.App. 238, 44 N.E.2d 944 (1942), in which the operator of an ice truck was carrying a 50 pound cake of ice from the truck to the house of a customer, when he negligently allowed the ice to fall on plaintiff's child, who was playing in the yard. Noting that the accident occurred after the operator had removed the ice from the truck, and was carrying it through the customer's yard, the court held there was no causal relationship between the accident and the use of the truck.
In Zurich General Accident & Liability Insurance Company v. American Mutual Liability Insurance Company, 118 N.J.L. 317, 192 A. 387 (1937) the driver of an ice truck was placing ice in the refrigerator of a business establishment and, while doing so, negligently stabbed the proprietor's wrist. The court held the contracting parties contemplated only accidents "immediately identified" with the use of the vehicle and that this injury was too remote from the use of the truck.
Defendant cites and quotes at length from Handley v. Oakley, 10 Wash.2d 396, 116 P.2d 833 (1941) where an ice cream truck was parked 25 feet outside the foul line near third base of a baseball diamond. Plaintiff's minor child was purchasing ice cream from the truck when he was struck by a sharply hit foul ball. The court held the primary cause of the accident was the baseball game; that the truck was being used only as a place to store ice cream for sale; that the accident would have happened regardless of the truck; hence the use of the truck was not a cause of the accident within the contemplation of the policy. We express no opinion as to the correctness as to this decision, but will state only that the rationale appears to be *384 that being struck by a baseball is not the type of accident contemplated by the parties to the policy as arising from the use of the truck.[5]
In National Union Fire Insurance Company of Pittsburgh, Pa. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966), a minor passenger in an automobile returning from a hunting trip negligently discharged a gun and shot the driver. The court held the passenger was using the vehicle but the accident was not "immediately identifiable" with the use of the vehicle as contemplated by the contracting parties.
There are several other Louisiana cases worthy of mention. In Bolton v. North River Insurance Company, 102 So. 2d 544 (La.App. 1st Cir. 1958, certiorari refused) the plaintiff was standing beside a parked automobile talking to the occupants when a passenger on the rear seat slammed the door shut on plaintiff's hand. The court held the passenger was an omnibus insured using the automobile; that the term "use" in the policy is a catch-all designed to include all proper uses of the vehicle not falling within one of the previous terms, i. e. ownership or maintenance; and that the insurer was liable for the negligence of the omnibus insured. The specific term, "arising out of" is not discussed but it is implicit in the decision that the court found the accident did arise out of the use of the automobile. Comparing this case with the present one, what is the difference in theory, between slamming a door on a person's hand, and parking and telling a toddling 3 year old to cross the street, knowing that the child might pass behind the parked automobile and be struck by an oncoming motorist who is in full view?
In Vogt v. Hotard, 144 So. 2d 714 (La. App. 4th Cir. 1962, certiorari denied) plaintiff and defendant were cutting down a tree. They used ropes attached to the insured automobile to pull the tree down in the proper direction. Defendant drove and plaintiff stood nearby. The tree fell in the wrong direction and struck plaintiff. The court held the driver negligent in the use of the insured vehicle and awarded judgment against the insurer. Apparently no issue was raised as to whether the accident "arose out of" the use.
There are 3 Louisiana cases which distinguish between "maintenance" and "use" to hold the insurer free of liability. In Knight v. Thomas, 141 So. 2d 134 (La.App. 1st Cir. 1962), plaintiff was helping defendant dislodge a bearing from the axle of the insured automobile when a sliver of steel flew out and hit plaintiff in the eye. In Wall v. Windmann, 142 So. 2d 537 (La.App. 4th Cir. 1962), a mechanic was in front of a new truck adjusting the engine when a fellow employee started it forward and crushed his leg. Chase v. Dunbar, 185 So. 2d 563 (La.App. 1st Cir. 1966), involved a situation where an alleged mechanic was helping to refill the insured vehicle with gasoline, by pouring gas in the carburetor, when the gas ignited and the mechanic threw the burning can aside where it hit plaintiff, who was a janitor working in the yard of a church. In all three of these cases the court held that the negligent parties were involved in "maintenance" and not "use" of the insured vehicles and that, under the policies, an omnibus insured is covered only for use and not maintenance. Of course, these cases are readily distinguishable from the present matter.
It is not our purpose here to establish a required list of tests of causation for holding that the accident is one "arising out of" the use of the automobile. Each case must be decided under its own particular facts. However, we note that the following tests have been used in the cited cases: (1) The dangerous situation causing injury must have its source in the use of the *385 automobile; (2) The chain of events resulting in the accident must originate in the use of the automobile and be unbroken by the intervention of any event which has no direct or substantial relation to the use of the vehicle; (3) The accident must be a natural and reasonable incident or consequence of the use of the vehicle for the purposes contemplated by the policy, although not necessarily foreseen or expected; (4) The accident must be one which can be "immediately identified" with the use of the automobile as contemplated by the parties to the policy; (5) The accident must be of a type reasonably associated with the use of the automobile as contemplated by the contracting parties; (6) The accident must be one which would not have happened "but for" the use of the automobile.
In the present case all of these tests are satisfied: (1) The injury to the child clearly had its source in the parking of the insured vehicle and its remaining parked in a position which obscured the vision of the approaching motorist; (2) The chain of circumstances originating in the parking of the vehicle was not broken by any event having no substantial relation to the use of the automobile, the closest thing to such an event perhaps being the insured omnibus driver telling the child to "go home", but that event occurred while the insured was still using the vehicle to sit in and at a time when he knew or should have known that a very hazardous situation was developing; (3) There can be little question that the accident was a natural and reasonable consequence of the use of the automobile for a purpose contemplated by the policy, for the parking of an automobile is a contemplated use and injury resulting from parking is natural and reasonable; (4) Construing "immediately identified" to mean "closely associated with, as to both time and causation", the injury to the child occurred very soon after the parking and, actually, while the vehicle was still being used by the omnibus insured, and the injury was very closely associated with this use of the vehicle; (5) The type of accident, i. e. being struck by a vehicle in the street, is clearly one contemplated by the parties to the policy; (6) The child would not have been injured "but for" the fact that the parked vehicle obscured the vision of the approaching motorist.
It is our conclusion that under the facts as alleged in plaintiff's petition, the accident was one "arising out of the * * * use" of the insured automobile within the contemplation of the policy.
For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that this case be remanded to the district court for further proceedings in accordance with law and the views expressed therein. All costs of this appeal are assessed against the defendant appellee.
Reversed and remanded.
On Application for Rehearing.
En Banc. Rehearing denied.
HOOD, J., is of the opinion that a rehearing should be granted.
NOTES
[1] See LSA-C.C.P. Art. 966-969 for the law on summary judgments.
[2] See also Risjord-Austin, Automobile Liability Insurance Cases, Chapter 16 for another annotation; Words and Phrases, Vol. 4, page 206 and Pocket Parts.
[3] However we note that in most cases this is not the sole test of causal relationship used.
[4] This holding is criticized in Risjord-Austin, Automobile Liability Insurance Cases, Vol. 3, page 3652, Case No. 2843.
[5] This decision also is criticized by Risjord-Austin, Automobile Liability Insurance Cases, Vol. 1, page 167, Case No. 155. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737519/ | 727 N.W.2d 373 (2006)
2007 WI App 19
STATE
v.
SANCHEZ.
No. 2005AP809-CR.
Wisconsin Court of Appeals.
December 27, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2861683/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00726-CR
Kenneth Jackson, a/k/a Frank Dixon, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0961225, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
A jury found appellant Kenneth Jackson, who had been charged with the offense of
murder, guilty of the lesser included offense of manslaughter. See Tex. Penal Code Ann. § 19.04 (West
1994). Appellant's punishment was assessed by the jury at imprisonment for twenty years. In two points
of error, appellant asserts that the trial court erred in admitting evidence of unadjudicated extraneous
offenses at the punishment phase of trial and requests a new punishment hearing. We will overrule
appellant's points of error and affirm the trial court's judgment. At the punishment phase of trial
evidence may be offered by the state and the defendant as to any matter the court deems
relevant to sentencing, including but not limited to the prior criminal record of the
defendant, his general reputation, his character, and opinion regarding his character, the
circumstances of the offense for which he is being tried, and, notwithstanding Rules 404
and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or
bad act that is shown beyond a reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally responsible, regardless of whether
he has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. art. 37.07, § 3(a) (West Supp. 1998). Appellant's specific complaint is that: "The
trial court erred in admitting extraneous offense evidence of social security fraud at the punishment phase
of trial where the evidence was insufficient to demonstrate appellant committed the extraneous act."
After appellant's arrest on the murder charge and while he was in jail, he was interrogated
by, and made a statement to, Nancy Grinell, a Special Agent of the Inspector General's Office of
Investigation, United States Social Security Administration. Special Agent Grinell advised appellant of his
Miranda rights, and appellant waived the presence of his attorney. In his own handwriting, appellant made
the statement which was read to the jury at the punishment phase of trial. The statement reads:
My name is Kenneth Byron Jackson. My social security number is XXX-XX-XXXX.
My date of birth is 6/19/49. My place of birth is Detroit, Michigan. I am currently in the
Travis County Jail. I have been here since 1/13/96. I have used the alias of Frank B.
Dixon, SSN XXX-XX-XXXX, DOB 3/26/43. I left Detroit in about 1980 and moved to
California sometime in 1984 or 1985. I bought false birth certificates -- a false birth
certificate off the street from someone I didn't know. I took this false birth certificate and
went to Social Security and filled out an application for a Social Security card. I also got
a California driver's license using this identity.
I did it because I was an embarrassment to my family, then I got addicted to the
money. In California I was receiving AFDC benefits under Kenneth Jackson. My credit
was messed up under Kenneth Jackson so I used Frank Dixon to get credit. I also
worked under Frank Dixon so I could continue getting AFDC under Kenneth Jackson.
Under Frank Dixon I worked commercial building maintenance doing maintenance. I also
worked in California selling telemarketing siding under either Frank Dixon or Kenneth
Jackson. I worked for Guardian Plans Insurance under Frank Dixon. I hurt my back at
this job. As a result, I received worker's compensation under this identity for one to one
and a half years. I received $15,000 to $18,000 settlement for worker's comp, which
does not include advances or medical benefits. I received through worker's comp --
medical benefits I received through worker's comp.
After this I worked for Sears under Frank Dixon. I was still receiving AFDC
under Kenneth Jackson for one child. I also received food stamps in California under
Kenneth Jackson. I applied for SSI in Sacramento, but Social Security denied my claims.
I don't remember how much I was getting from AFDC or food stamps. When my oldest
was 16 she went to live with her mother. I reported this to AFDC and this reduced my
benefits.
Then when my youngest daughter graduated, I reported this to AFDC and
stopped receiving benefits. I left California in approximately 1992 or 1993 to move to
Detroit. I stayed there for about a week and moved to Davenport, Iowa. I started job
hunting and got a telemarketing doing tobacco surveys under Kenneth Jackson. I worked
three months and was laid off. I never got unemployment benefits. I worked for Midwest
Janitorial Services under Kenneth Jackson for nine months to one year.
I was walking down the street in Davenport and saw a sign on a bus bench saying
we win 100 percent of SSI cases and call this number. I called the number saying I was
Frank Dixon. I went for an interview and said wait for second denial. Then I will take the
case. I don't remember the name of the guy that handled the case.
Social Security denied my SSI and I appealed. My case went to hearing after four
to six months. I got a letter saying I was entitled to SSI benefits. I was still working under
Kenneth B. Jackson. I decided to move in November '94. I lived at 2101 Burton Drive,
apartment 1060. I move in May of 1995 to 2124 Burton Drive, apartment 259. When
I first came to Texas in November of '94, I worked for MCI for a couple of months under
Kenneth Jackson. Under Kenneth Jackson I worked for the Statesman for a couple of
months, Dillard's for a month, then worked for Wal-Mart since June of '95.
On July 7, 1995, I reinjured myself at Wal-Mart. I applied for worker's comp
under Kenneth Jackson and had been receiving benefits -- and have been receiving
benefits. In Iowa I was receiving food stamps under either Kenneth Jackson or Frank
Dixon. In Texas I received food stamps under Frank Dixon. I knew it was wrong to do
it, but I was -- it was like every time I wanted to stop, there was another opportunity to
continue.
I am very relieved it is over. I am just glad the kids were grown and they could
handle better what I have done. I was shown a copy of my application for SSI dated
4/12/93 and I did sign Frank B. Dixon. I made a false statement on application by saying
I didn't use any other name or Social Security number. I was shown a copy of my
application for SSI dated 10/19/94. I did make a false statement on this application by
indicating I did not use any other name or SSN. I agree to let Social Security intercept my
SSI check and to terminate SSI payments under Frank Dixon.
I do understand I will owe Social Security for benefits I wrongly received under
Frank Dixon. No one else is responsible, not my kids nor common-law wife. This is the
end of my statement, and then there is a paragraph that is typed that says I have read this
handwritten statement consisting of this and six other pages. It is a true and correct -- it
is true and correct to the best of my knowledge and belief. I have initialed or signed each
page. All corrections or additions -- and was given an opportunity to make any
corrections or additions. Signed Kenneth B. Jackson.
The judges of the Texas Court of Criminal Appeals have disagreed on whether a trial judge
before admitting evidence of extraneous crimes or bad acts must himself first find beyond a reasonable
doubt that appellant committed the extraneous offenses or bad acts. See Mitchell v. State, 931 S.W.2d
950, 955 (Tex. Crim. App. 1996) (Clinton, J. concurring). However, the judges agree that, if requested
to do so, the trial court should charge the jury that before considering evidence of extraneous crimes or bad
acts the jury must find beyond a reasonable doubt that the defendant committed the extraneous crimes or
bad acts. Id. at 954. See also George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994); Harrell
v. State, 886 S.W.2d 154, 160 (Tex. Crim. App. 1994). The provision requiring that unadjudicated
extraneous offenses be shown beyond a reasonable doubt has been referred to as "easily the most
perplexing part of the 1993 amendment." 42 George E. Dix and Robert O. Dawson, Texas Practice:
Criminal Practice and Procedure 631 (1995); see Caldron v. State, 950 S.W.2d 121, 133 (Tex.
App.--El Paso 1997, no pet. h.).
Here, the trial court conducted a hearing out of the presence of the jury and concluded that
appellant's statement was admissible. The trial court properly charged the jury that before it could consider
evidence of extraneous offenses and bad acts it must first find beyond a reasonable doubt that appellant
committed the extraneous offenses or bad acts. The trial court also included in the jury charge a definition
of reasonable doubt. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991); Splawn v.
State, 949 S.W.2d 867, 872-74 (Tex. App.--Dallas 1997, no pet. h.); Avery v. State, 941 S.W.2d 221,
222-23 (Tex. App.--Corpus Christi 1996, no pet. h.). The trial court properly admitted and charged the
jury on its consideration of the extraneous offenses and bad acts evidence. However, appellant's argument
is also concerned with the sufficiency of the evidence to show he committed the extraneous offenses or bad
acts. Without citing authority, appellant argues that his extrajudicial statement alone is legally and factually
insufficient to prove beyond a reasonable doubt that he committed the extraneous offenses or bad acts
referred to in his extrajudicial statement.
In reviewing the legal sufficiency of the evidence, the test is whether, after viewing the
evidence in this light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994); Moreno v. State, 755 S.W.2d
866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and circumstantial
evidence. See Geesa, 820 S.W.2d at 162; Mack v. State, 859 S.W.2d 526, 527 (Tex. App.--Houston
[1st Dist.] 1993, no pet.). Proof of the corpus delicti--the body of the crime--may not be made by an
extrajudicial confession alone, but proof of the corpus delicti need not be made independent of the
extrajudicial statement. See Self v. State, 513 S.W.2d 832, 835 (Tex. Crim. App. 1974). "If there is
some evidence corroborating the confession, the confession may be used to aid in the establishment of the
corpus delicti. The corroborating evidence is sufficient if it permits a rational finding of guilt, beyond a
reasonable doubt, when joined with the extrajudicial admission" Folk v. State, 797 S.W.2d 141, 144
(Tex. App.--Austin 1990, pet. ref'd). When a confession is made, and the circumstances therein related
correspond in some points with those proven to exist, the evidence may be sufficient to support a jury's
verdict of guilt. See Wooldridge v. State, 653 S.W.2d 811, 816 (Tex. Crim App. 1983); Thomas v.
State, 299 S.W. 408, 410 (Tex. Crim. App. 1927); Kugadt v. State, 44 S.W. 989, 996 (Tex. Crim.
App. 1898); Hough v. State, 929 S.W.2d 484, 486-87 (Tex. App.--Texarkana 1996, pet. ref'd).
In his extrajudicial statement, appellant said he created and used the false identity of Frank
B. Dixon. Using that false identity he made false statements to fraudulently obtain a number of social
security benefits. The record includes certified copies of the California Department of Motor Vehicles
records. These records show that: (1) an identification card was issued to Frank B. Dixon on April 10,
1986; (2) a driver's license was issued to Frank B. Dixon, on March 22, 1989 and renewed on April 6,
1993; and, (3) a driver's license was issued to Kenneth Byron Jackson on April 10, 1984, renewed on
March 18, 1988, and again renewed on June 20, 1991. On the face of each of these six cards was a
photograph and physical description. The trial judge and the jury could compare the pictures on each card
with the other cards and with the appellant as he sat in the courtroom during his trial. See Gollin v. State,
554 S.W.2d, 683, 686-87 (Tex. Crim. App. 1977); Spaulding v. State, 896 S.W.2d 587, 591 (Tex.
App.--Houston [1st Dist.] 1995 no pet.); Harper v. State, 696 S.W.2d 463, 464 (Tex. App.--Houston
[14th Dist.] 1985, no pet.).
The photographs and physical descriptions on the identification card and the drivers license
are sufficient to corroborate appellant's extrajudicial statement. The extrajudicial statement and the
corroborative evidence taken together are legally sufficient to support the trial court's and the jury's finding
that appellant beyond a reasonable doubt committed the unadjudicated extraneous offenses and bad acts
that he referred to in his extrajudicial statement.
We have not been cited any authority and we have found none requiring the application
of a factual sufficiency test to evidence of unadjudicated extraneous offenses and bad acts admitted at the
punishment phase of trial. The standard of review for factual sufficiency of evidence has been recently
restated by the Court of Criminal Appeals. "We emphasize that in performing a factual sufficiency review,
the courts of appeals are required to give deference to the jury verdict, examine all of the evidence
impartially, and set aside the jury verdict 'only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust'." Cain v. State, No. 1525-9, slip op. at 14-15, (Tex. Crim. App. Dec.
18, 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). See Stone v. State,
823 S.W.2d 375, 377-81 (Tex. App.--Austin 1992, pet. ref'd untimely filed). If a factual sufficiency test
is applicable, we hold that the requirements of Cain, Clewis, and Stone have been met.
Appellants points of error are overruled. The judgment is affirmed.
Carl E. F. Dally, Justice
Before Justices Powers, Jones and Dally*
Affirmed
Filed: January 23, 1998
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.
Gov't Code Ann. § 74.003(b) (West 1988).
ent if it permits a rational finding of guilt, beyond a
reasonable doubt, when joined with the extrajudicial admission" Folk v. State, 797 S.W.2d 141, 144
(Tex. App.--Austin 1990, pet. ref'd). When a confession is made, and the circumstances therein related
correspond in some points with those proven to exist, the evidence may be sufficient to support a jury's
verdict of guilt. See Wooldridge v. State, 653 S.W.2d 811, 816 (Tex. Crim App. 1983); Thomas v.
State, 299 S.W. 408, 410 (Tex. Crim. App. 1927); Kugadt v. State, 44 S.W. 989, 996 (Tex. Crim.
App. 1898); Hough v. State, 929 S.W.2d 484, 486-87 (Tex. App.--Texarkana 1996, pet. ref'd).
In his extrajudicial statement, appellant said he created and used the false identity of Frank
B. Dixon. Using that false identity he made false statements to fraudulently obtain a number of social
security benefits. The record includes certified copies of the California Department of Motor Vehicles
records. These records show that: (1) an identification card was issued to Frank B. Dixon on April 10,
1986; (2) a driver's license was issued to Frank B. Dixon, on March 22, 1989 and renewed on April 6,
1993; and, (3) a driver's license was issued to Kenneth Byron Jackson on April 10, 1984, renewed on
March 18, 1988, and again renewed on June 20, 1991. On the face of each of these six cards was a
photograph and physical description. The trial judge and the jury could compare the pictures on each card
with the other cards and with the appellant as he sat in the courtroom during his trial. See Gollin v. State,
554 S.W.2d, 683, 686-87 (Tex. Crim. App. 1977); Spaulding v. State, 896 S.W.2d 587, 591 (Tex.
App.--Houston [1st Dist.] 1995 no pet.); Harper v. State, 696 S.W.2d 463, 464 (Tex. App.--Houston
[14th Dist.] 1985, no pet.).
The photographs and physical descriptions on the identification card and the drivers license
are sufficient to corroborate appellant's extrajudicial statement. The extrajudicial statement and the
corroborative evidence taken together are legally sufficient to support the trial court's and the jury's finding
that appellant beyond a reasonable doubt committed the unadjudicated extraneous offenses and bad acts
that he r | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1616249/ | 266 Wis.2d 549 (2003)
2003 WI App 177
668 N.W.2d 810
STATE of Wisconsin, Plaintiff-Respondent,
v.
Thomas M. STOCKLAND, Defendant-Appellant.
No. 02-2129-CR.
Court of Appeals of Wisconsin.
Submitted on briefs May 8, 2003.
Decided July 16, 2003.
*551 On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates, Monona.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before Nettesheim, P.J., Brown and Anderson, JJ.
¶ 1. ANDERSON, J.
Thomas M. Stockland appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), fifth offense, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(e) (2001-02).[1] Stockland collaterally attacks[2] his second offense OWI conviction, arguing that it was obtained without a constitutionally valid waiver of the right to *552 counsel and that it therefore should not be constitutionally counted in terms of penalty enhancement. We do not reach the merits in this case because Stockland has failed to make a prima facie showing that he was denied his right to counsel. We therefore affirm.
Facts
¶ 2. Stockland entered a no contest plea to a charge of OWI, with a minor passenger under the age of sixteen years, stipulating that he did, in fact, have four prior convictions counted as penalty enhancers under WIS. STAT. 343.307. However, Stockland contended that one of these prior convictions, a second offense OWI conviction occurring on January 30, 1995, could not properly be counted constitutionally because the conviction was obtained in violation of his Sixth Amendment right to counsel.
¶ 3. At a hearing on March 29, 2002, Stockland submitted to the court an eight-page transcript from his 1995 plea hearing, which is the basis for the challenged conviction. Stockland did not submit any other transcripts from this plea date. Stockland argued that the transcript proved that the court conducted an inadequate plea colloquy resulting in a violation of his right to counsel and, therefore, his second offense OWI conviction should not be counted against him for sentencing purposes. The relevant portion of the submitted transcript reads:
THE CLERK: 94-CT-235, State of Wisconsin versus Thomas M. Stockland.
*553 MS. KRAUSE: The State appears by Assistant D.A. Heather Krause. The defendant appears in person without an attorney. Your Honor, I had a pre-trial conference with the defendant, and we have reached a plea agreement, as follows: With a guilty plea to the charge of OWI second, the State will move to merge and dismiss the charge of operating with a prohibited alcohol concentration. The defendant had a BAC of .13 at the time of the incident. The State is recommending the minimum penalties, which would be a fine of $300, plus court costs, for a total of $696; five days in the county jail; and revocation of his drivers license for 12 months.
THE COURT: Okay. You are Thomas Stockland; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Stockland, you have heard the statements of the Assistant District Attorney; is that correct?
THE DEFENDANT: Yes.
THE COURT: All right. Is that, in fact, the agreement that you have reached?
THE DEFENDANT: Yes.
THE COURT: And you are here without an attorney today. Is it your intent to proceed without a lawyer?
THE DEFENDANT: Yes.
THE COURT: What plea do you want to enter to the charge of drunken driving as a second offense within a five-year period?
....
THE DEFENDANT: "Guilty."
*554 MS. KRAUSE: Your Honor, I just inquired of the defendant whether he filled out a guilty plea questionnaire. He indicated that he did not have a chance to do that.
THE DEFENDANT: Okay. Sorry about that.
THE COURT: Okay. You have been in court all afternoon, Mr. Stockland?
THE DEFENDANT: Yes.
THE COURT: You have heard me ask people about their rights, and their understanding of their rights, and their waiver of their rights, all afternoon, have you not?
THE DEFENDANT: Yes.
THE COURT: Would you like me to repeat them for you at all?
THE DEFENDANT: No, that's all right. I understand.
THE COURT: Okay. And no one made any threats or promises to you, to encourage you to give up your rights, have they?
THE DEFENDANT: No.
THE COURT: Do you understand that at a jury trial, the State would have to prove your guilt beyond a reasonable doubt, before you could be found guilty?
THE DEFENDANT: Yes.
THE COURT: How far have you gone in school, Mr. Stockland?
THE DEFENDANT: Eleventh grade.
*555 THE COURT: And have you consumed any alcohol or any other intoxicants in the last 24 hours?
THE DEFENDANT: No.
THE COURT: Okay. So, nobody had a Super Bowl party last night that you were attending then apparently?
THE DEFENDANT: I was sleeping.
THE COURT: Okay. If you wanted a lawyer, could you afford to hire one?
THE DEFENDANT: No.
THE COURT: Do you understand your right to have a Public Defender representation?
THE DEFENDANT: Yes.
THE COURT: Do you wish to waive that right also?
THE DEFENDANT: Sure.
THE COURT: Okay. I am satisfied that Mr. Stockland has freely, voluntarily, and intelligently waived his right to a trial, and a trial by jury. Likewise, he has entered his plea of "guilty" to the charge. Are the facts as reported here in the criminal complaint, Ms. Krause?
MS. KRAUSE: That's correct, your Honor. Also, your Honor, the defendant was arrested for OWI the first time on October ninth of 1993, and was sentenced and convicted of that on October 19th of 1993, making this a second violation within five years.
THE COURT: Okay. On the facts recited in the complaint, the Court will find the defendant guilty, and finds that it is a second such conviction within a *556 five-year period. Is there anything further from the State by way of a sentencing recommendation, Ms. Krause?
MS. KRAUSE: No, nothing further, your Honor.
THE COURT: Mr. Stockland, is there anything that you wish to tell the Court?
THE DEFENDANT: No.
¶ 4. As he does on appeal, Stockland argued to the circuit court that the above colloquy was deficient because it did not touch on whether he made a deliberate choice to proceed without counsel and it did not touch on whether he was aware of the disadvantages of self-representation.
¶ 5. The court pointed out to Stockland's attorney that this colloquy reveals that Stockland acknowledged that he was in court during the other proceedings that day when other defendants were advised of those rights and that he acknowledged hearing the other defendants being advised of those rights. The court then opined to Stockland's attorney:
For whatever reason ... you have elected not to request the court reporter to transcribe the transcripts of all of the other proceedings that Mr. Stockland listened to that afternoon, while he was in court. You have not presented any testimony from Mr. Stockland as to what he knew or didn't know.
¶ 6. Stockland's attorney admitted that he did not request the other transcripts but argued that "any statements that the Court might have made prior to Mr. Stockland's case being called, I don't think, quite candidly, any of that is relevant to the issue."
*557 ¶ 7. The State disagreed and argued that the partial transcript
itself supports a finding that the waiver [of Stockland's right to counsel] was deliberate. Mr. Stockland was asked on two separate occasions whether or not he wanted ... a public defender to be appointed on his behalf, because he didn't think he could afford an attorney, and he made that statement twice.
And I do believe that the colloquy about the other cases that Mr. Stockland had watched earlier that evening, or on that day, does strike on whether or not the Court questioned him about his understanding of the difficulties of self-representation. And based on the fact that he was made aware of the penalties, and of the State's recommendation, that he waived his right to an attorney, and waived his right to a public defender.
He stated that he was working at that time ... and, presumably, he would have had some resources to hire an attorney. The fact that he sat through a number of different hearings, and had a discussion with the Court concerning his understanding of what had happened in the other hearings, concerning alcohol-type offenses, and the fact that he received the sentence for which he had bargained, supports that fact that there was a knowing and intelligent waiver of his right to counsel.
If the Court is going to make a finding that [the defense] has met the initial burden, the State would be more than happy to pursue the other cases that were on the calendar on that date, and the particular discussions that were had on the record.
¶ 8. After this, the court determined that because a transcript of the other hearings had not been ordered, "we will have to set this hearing aside for a greater and more fully explored evidentiary hearing."
*558 ¶ 9. Two months later, on May 23, 2002, the subsequent hearing occurred. Stockland did not present any further evidence and simply restated his reliance on the previously submitted transcript to prove his prima facie case. The State responded by reiterating its argument as to why Stockland's request should be denied. The court then rendered its decision on the issue:
[D]o you know what you failed to do [defense attorney]? I'm going to make some findings here. The Court finds that defense counsel has failed to provide a transcript of all of the court proceedings that were held earlier that afternoon when Mr. Stockland appeared, which he indicated he had listened to all afternoon, and that he understood his rights.
By failing to provide these transcripts, the Court infers that they were not favorable to the position argued by the defendant, since the defense has the burden of going forward here. So, the Court is satisfied that somewhere in the earlier proceedings, that Mr. Stockland was advised of his rights, to which he made these acknowledgments that he understood his rights.
Certainly, every time someone appears in traffic court, or at an initial appearance, the Court reads the statement of rights to all of those who appear, advising them of their right to be represented by counsel, and also advising them of their right to have counsel appointed, if they cannot afford counsel. Also in criminal traffic court cases, the Court does that. The Court does that for everyone when they appear, and the Court assumes that it did it for him.
The reason you didn't provide those transcripts, since it seems to be a candor issue here, I assume that you would have those transcripts here ... unless they wouldn't be helpful to you ....
*559 ....
[D]efense counsel failed to get transcripts of all of the other hearings where Mr. Stockland was present when he was in court that afternoon. Mr. Stockland told the Court, and made a representation to the Court, and the Court assumes Mr. Stockland was an honest person.
He said that he understood all of his rights, that he heard them, and that he didn't want them repeated. The Court offered to repeat them, and go over them with him. He declined.
....
[A]dditionally, Mr. Stockland received a copy of the criminal complaint in his prior case, and he certainly knew what the maximum penalties were, because he told us in this case that he can read and write the English language ....
So, taking a look at all of these things then, the Court would point out that the defendant made a plea bargain with the District Attorney's office for the minimum mandatory penalties. That is exactly what he got. He got what he bargained for. He got the minimum penalties.
....
So, the motion is denied. The Court finds this is a fifth offense, and he is going to be sentenced on that.[3]
*560 ¶ 10. Stockland was sentenced to five years probation with the condition that he spend one year in the county jail with work release privileges. Stockland appeals.
Law and Discussion
¶ 11. In State v. Hahn, 2000 WI 118, 28-29, 238 Wis. 2d 889, 618 N.W.2d 528, the Wisconsin Supreme Court, citing to Custis v. United States, 511 U.S. 485 (1994), held that a defendant generally may not collaterally attack a prior conviction in a subsequent criminal case where the prior conviction enhances the subsequent sentence.
¶ 12. However, the Hahn court also noted the exception to the rule against collateral attacks: a collateral attack based upon an alleged violation of the defendant's right to counsel. Hahn, 238 Wis. 2d 889, 28-29. Stockland collaterally attacks his prior conviction under the right-to-counsel exception.
[1, 2]
¶ 13. When "collaterally attacking" a prior conviction under this exception, the defendant has the initial burden of coming forward with evidence to make a *561 prima facie showing of a deprivation of his or her constitutional right at the prior proceeding. State v. Baker, 169 Wis. 2d 49, 77, 485 N.W.2d 237 (1992). If the defendant makes a prima facie showing, "the state must overcome the presumption against waiver of counsel and prove that the defendant knowingly, voluntarily, and intelligently waived the right to counsel in the prior proceeding." Id. Whether a party has met its burden of establishing a prima facie case is a question of law that we decide de novo. State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992). Nonetheless, we value the opinion of the circuit court, particularly where, as here, the court has provided a thorough and well-reasoned decision. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475-76, 507 N.W.2d 163 (Ct. App. 1993).
¶ 14. The validity of Stockland's waiver of counsel must be examined under the law prevailing at the time which was explained by the supreme court in Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), overruled by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997):
[I]n order for an accused's waiver of his right to counsel to be valid, the record must reflect not only his deliberate choice to proceed without counsel, but also his awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges he is facing and the general range of possible penalties that may be imposed if he is found guilty. Unless the record reveals the defendant's deliberate choice and his awareness of these facts, a knowing and voluntary waiver [of counsel] will not be found.
[3]
¶ 15. In addition to the law of Pickens, our review will keep in mind the reality that in high volume traffic *562 and misdemeanor courts it is common practice to give the recitation of constitutional rights at the start of proceedings and then incorporate that recitation by reference as each individual defendant's case is called. We approve of the circuit courts' employment of this efficiency measure.
[4]
¶ 16. Given the law under Pickens, our approval of the efficiency measure practiced in high volume traffic and misdemeanor courts and our examination of the record, we hold that Stockland failed to meet his prima facie burden because he has failed to provide, as he failed at the circuit court level to provide, all of the relevant transcript information on the issue. Stockland provided what amounts to a partial transcript because the transcript he provided picks up at the point his individual case was called. That partial transcript reveals that there is, in fact, other potentially available, relevant and important information as to whether Stockland was properly advised of the advantages and disadvantages of pro se representation under Pickens.
¶ 17. The partial transcript indicates that the circuit court delivered Stockland his rights "en masse" (i.e., explained to all the defendants assembled in the courtroom that day their rights), and included the drawbacks of waiving those rights. It further indicates that Stockland verbally acknowledged a receipt and understanding of those rights and, in the face of this understanding, it indicates that he chose to proceed without a lawyer.
¶ 18. Our approval of a circuit court's en masse delivery of rights is based not only on the need to promote the policy of efficiency but also on our determination that it is in compliance with the requirements of State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 *563 (1986).[4] Here, we are guided by our decision in State v. Moederndorfer, 141 Wis. 2d 823, 416 N.W.2d 627 (Ct. App. 1987).
*564 ¶ 19. In Moederndorfer, the defendant was charged with, inter alia, aiding and abetting a burglary. Id. at 825. Pursuant to a plea bargain, he agreed to plead guilty to this charge; the State agreed to remain silent at sentencing. Id. Within fifteen minutes prior to the change of plea hearing, Moederndorfer completed a three-page document entitled "waiver of rights." Id. The court proceeding then took place, the plea bargain was placed on the record, the defendant pled guilty, and he was later sentenced. Id. at 825-26. Moederndorfer subsequently moved to withdraw his plea. Id. at 826. The circuit court ruled that while a prima facie case had been made by the defendant that he did not understand the constitutional rights he was waiving by pleading guilty, the State had met its burden of proving a knowing and voluntary waiver. Id. The circuit court also ruled that the defendant understood the nature of the charge against him and admitted the elements of the charge. Id. Further, the circuit court ruled that the prosecution did not breach the plea bargain agreement. Id.
*565 ¶ 20. The relevant issue in Moederndorfer, for our purposes, was whether the defendant understood he was giving up certain constitutional rights by pleading guilty. See id. In particular, the defendant faulted the circuit court's use of a waiver of rights form in lieu of a personal colloquy between the judge and the defendant. Id. After noting that Moederndorfer relied on Bangert, 131 Wis. 2d at 270, for the proposition that defense counsel may not speak for the defendant and that the defendant must be personally addressed to determine his or her understanding of the rights waived by a guilty plea, we held the following:
Our reading of Bangert, however, is that the supreme court does not require the trial court to personally address the defendant regarding waiver of constitutional rights.
Moederndorfer, 141 Wis. 2d at 826. We emphasized the supreme court's language in Bangert, which sanctions a circuit court's colloquy if the colloquy demonstrates that the circuit court did
specifically refer to some portion of the record or communication between defense counsel and defendant which affirmatively exhibits defendant's knowledge of the constitutional rights he will be waiving. The court must then ... ascertain whether the defendant understands he will be waiving certain constitutional rights by virtue of his guilty or no contest plea. Id., 131 Wis. 2d at 270-72, 389 N.W.2d at 24-25 (footnote and emphasis omitted).
Moederndorfer, 141 Wis. 2d at 827. We then stated:
Personal colloquy by verbally following the provisions of SM-32 is not mandatory. The trial court may instead refer to some portion of the record or some communication between defense counsel and defendant. Any one of *566 these alternatives is proper so long as the alternative used exhibits defendant's knowledge of the constitutional rights waived.
Id. (emphasis added). Finally, we went on to approve the use of a written plea questionnaire as a means of fulfilling the mandatory plea colloquy. Id. at 827-28. Specifically, we approved of the process where
[a] trial court ... accurately assess[es] a defendant's understanding ... by making a record....
The trial court made that kind of record in this case. The trial court personally questioned the defendant concerning the form. It asked the defendant if he had signed the form, if his attorney had assisted him in understanding the rights being waived and if he understood each of the paragraphs he had initialed. The defendant replied affirmatively to each question.
Id. at 828 (footnote omitted).
¶ 21. The transcript Stockland submitted shows that like Moederndorfer, Stockland was asked if he understood his rights as they were presented to him Moederndorfer's rights were presented via plea questionnaire and Stockland's were presented via en masse oral delivery. Like Moederndorfer, Stockland replied affirmatively to each of the circuit court's questions.
¶ 22. Today, we take the logical step of adapting the Moederndorfer language to situations such as Stockland's where the court delivers rights to the defendant en masse. This reasoning flows from what we explicitly approved in Moederndorfer: Those colloquys that "specifically refer to some portion of the record or communication between defense counsel and defendant which affirmatively exhibits defendant's knowledge of the constitutional rights he will be waiving." Id. at 827 (emphasis and citation omitted).
*567 ¶ 23. Here, the court specifically referred to some portion of the record it had made that day when it referenced its earlier en masse delivery of rights. Thus, just as the circuit court accurately assessed the defendant's understanding of the rights he would be waiving in Moederndorfer, the record implies that the circuit court accurately assessed Stockland's understanding of the rights he would be waiving.
[5]
¶ 24. There is compliance with Bangert as long as there is a record that the defendant was present when rights were given en masse and was personally questioned by the court to establish that he or she understood the rights, had no questions about the rights and waived the rights. Here, the court complied with Bangert when it made a record of Stockland's presence during the earlier en masse delivery of rights that same day and made a record of Stockland's verbal acknowledgement that he understood the rights he was waiving and he did not need any of these rights repeated.
¶ 25. However, we do not reach the ultimate question on the merits: whether, in its delivery of rights en masse, the circuit court failed to properly instruct Stockland on his right to counsel and the consequences of waiving this right. We cannot reach the merits because Stockland did not submit to the circuit court, nor did he submit on appeal, the relevant transcripts from the other proceedings held on January 30, 1995.
¶ 26. We agree with the circuit court that to make a prima facie case, Stockland needed to present all of the relevant transcripts from the January 30, 1995 plea date, beginning with the first transcript that dealt with delivery of rights through the transcript of his appearance. Stockland has failed to make a prima facie showing that he was denied his right to counsel because he *568 has not presented enough of the record to establish that the circuit court ignored mandatory procedures while delivering rights en masse. Furthermore, the circuit court's en masse delivery and subsequent personal colloquy with Stockland are typical of how rights are delivered in high volume traffic and misdemeanor courts. We approve of this practice because it allows such courts to function efficiently while still ensuring that defendants are informed of their rights.
By the Court.Judgment affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] "Collateral attack" is an attempt to avoid, evade or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing or annulling it. Zrimsek v. Am. Auto. Ins. Co., 8 Wis. 2d 1, 3, 98 N.W.2d 383 (1959). The general rule is stated as follows:
A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except ... for fraud in its procurement.
Id. (citation omitted).
[3] We briefly note that the parties also dispute the second basis for the circuit court's rulingjudicial estoppel. The court pointed out that after Stockland's second conviction, he was convicted of third offense OWI and fourth offense OWI. The court noted that although Stockland was subject to the minimum mandatory penalties for those offenses, he did not challenge the validity of his second offense conviction in either of those proceedings. The court then found that Stockland is estopped from raising this challenge now because he acknowledged that his second conviction was valid in the third and fourth offense proceedings.
We do not address the estoppel issue because we can dispose of the case on other grounds. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983). However, we note that the supreme court in State v. Peters, 2001 WI 74, ¶ 4, 244 Wis. 2d 470, 628 N.W.2d 797, did not appear to be concerned by the issue of estoppel when it allowed the defendant, in the context of his prosecution for fifth offense OWI, to collaterally challenge his second OWI conviction because the no contest plea upon which it was based was entered without counsel.
[4] State v. Bangert, 131 Wis. 2d 246, 260-61, 389 N.W.2d 12 (1986), requires in pertinent part:
The Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, voluntary, and intelligent....
We do not discard the mandatory requirement that trial judges undertake a personal colloquy with the defendant to ascertain his understanding of the nature of the charge, however. We merely determine that such communication is a statutory requirement, pursuant to sec. 971.08(1), Stats. That subsection reads:
"971.08 Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea of guilty or no contest, it shall:
"(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted; and
"(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged."
We note that sec. 971.08 is modeled after the former Fed. R. Crim. Proc. 11. See, Comment to 1969 Wis. Laws 255. McCarthy [v. United States, 394 U.S. 459 (1969)] discussed Rule 11 as it existed at the time sec. 971.08 was enacted. The Supreme Court stated that Rule 11 "expressly directs the district judge to inquire whether a defendant ... understands the nature of the charge against him and whether he is aware of the consequences of his plea." McCarthy, 394 U.S. at 464. Although sec. 971.08 is not a constitutional imperative, the procedure of the statute nevertheless is designed to assist the trial court in making the constitutionally required determination that a defendant's plea is voluntary. Cf., id. at 465.
Nor do we discard the general duties of the trial court prior to accepting a plea of guilty or no contest. Those duties are:
(1) To determine the extent of the defendant's education and general comprehension;
(2) To establish the accused's understanding of the nature of the crime with which he is charged and the range of punishments which it carries;
(3) To ascertain whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty;
(4) To alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to a layman such as the accused;
(5) To make sure that the defendant understands that if a pauper, counsel will be provided at no expense to him ... and
(6) To personally ascertain whether a factual basis exists to support the plea. (Citations and footnotes omitted.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616254/ | 266 Wis.2d 719 (2003)
2003 WI App 164
668 N.W.2d 760
STATE of Wisconsin, Plaintiff-Respondent,
v.
John Lee SCHAEFER, Defendant-Appellant.[]
No. 01-2691-CR.
Court of Appeals of Wisconsin.
Oral argument January 28, 2003.
Decided July 24, 2003.
*728 On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Jefren E. Olsen, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief and oral argument of Sandra L. Nowack, assistant attorney general, and James E. Doyle, attorney general.
Before Dykman, Roggensack and Lundsten, JJ.
¶ 1. DYKMAN, J.
John Lee Schaefer appeals from a judgment convicting him of eighteen counts of possession of child pornography, contrary to WIS. STAT. § 948.12 (2001-02).[1] He contends that the warrant issued for the search of his home and personal computer was not based upon probable cause and was vague and overbroad. In addition, Schaefer argues that § 948.12, Wisconsin's child pornography statute, is devoid *729 of a scienter element and therefore unconstitutional. Finally, Schaefer asserts that charging and convicting him of several counts of possession of child pornography violates the double jeopardy prohibitions of the Fifth Amendment of the United States Constitution and article I, section 8 of the Wisconsin Constitution. We reject Schaefer's arguments and affirm.
BACKGROUND
¶ 2. On July 20, 1998, Special Agent Michael Vendola applied to Judge Murach for a warrant to search Schaefer's home for evidence of child pornography, sexual exploitation of a child and child enticement. Judge Murach authorized the warrant and the police executed a search, seizing Schaefer's computer and Zip disks.[2] Based on material found on one of the Zip disks, the district attorney charged Schaefer with thirty-nine counts of possession of child pornography. Schaefer moved to suppress the results of the search, arguing that the search warrant was defective. In addition, he moved to dismiss the complaint, alleging that WIS. STAT. § 948.12 is unconstitutional. Finally, he sought dismissal of all charges but one on multiplicity grounds. The trial court denied these motions. Schaefer pleaded no contest to eighteen counts of possession of child pornography and the State dismissed the other counts. Schaefer appeals.
*730 DISCUSSION
I. Probable Cause
[1]
¶ 3. Schaefer contends that the affidavit in support of the search warrant does not provide probable cause to search his home because the information in the affidavit was either stale or failed to indicate current possession of child pornography. We conclude that the warrant-issuing judge had a substantial basis for concluding that there was probable cause to issue the warrant to search Schaefer's residence and further, the warrant was not overbroad.
[2-4]
¶ 4. When considering an application for a search warrant, the issuing magistrate is
to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238 (1983). We give great deference to the magistrate's determination that probable cause supports issuing a search warrant. State v. Ward, 2000 WI 3, ¶ 21, 231 Wis. 2d 723, 604 N.W.2d 517. We will uphold the determination of probable cause if there is a substantial basis for the warrant-issuing magistrate's decision. Id. This deferential standard of review "further[s] the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d 586 (1994) (citations omitted).
*731 [5-7]
¶ 5. Before issuing a warrant, a magistrate must be "apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched." State v. Starke, 81 Wis. 2d 399, 408, 260 N.W.2d 739 (1978). While the warrant judge may draw reasonable inferences from the evidence presented in the affidavit, State v. Benoit, 83 Wis. 2d 389, 399, 265 N.W.2d 298 (1978), an affidavit in support of a warrant that contains nothing but the legal conclusions of the affiant is insufficient to establish probable cause. State v. Higginbotham, 162 Wis. 2d 978, 992, 471 N.W.2d 24 (1991). "The defendant bears the burden of proving insufficient probable cause when challenging a search warrant." State v. Jones, 2002 WI App 196, ¶ 11, 257 Wis. 2d 319, 651 N.W.2d 305.
[8]
¶ 6. We are limited to the record that was before the warrant-issuing magistrate. Higginbotham, 162 Wis. 2d at 989; Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964) ("It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrates attention."), abrogated by Gates, 462 U.S. 238 (1983). Thus we confine our review to the search warrant and Officer Vendola's supporting affidavit, submitted to the issuing judge on July 20, 1998. Attached to Officer Vendola's affidavit are two additional documents: a listing of his qualifications in the area of child sexual abuse/exploitation and an eighteen-point summary, based on his training and experience, of the traits exhibited by preferential child molesters.
*732 ¶ 7. Vendola defines "preferential child molesters" as "persons whose sexual objects are children. They receive sexual gratification and satisfaction from actual, physical contact with children and from fantasy involving use of pictures or other photographic or art mediums." Typical characteristics of preferential child molesters are: collecting sexually explicit materials such as photographs, magazines, motion pictures, videos and books in which children are sexual objects; corresponding with other preferential child molesters to share information about victims and to gain psychological support; collecting photographs, not necessarily sexually explicit, of children with whom they are or have been involved; using sexual aids and sexually explicit materials in the seduction of their victims; and maintaining diaries of their sexual encounters with children. In order to gain access to their desired victims, preferential child molesters engage in activities and programs of interest to children. Further, "[p]referential child molesters rarely, if ever, dispose of their sexually explicit materials, especially when [they are] used in the seduction of their victims, and those materials are treated as prize possessions." Thus, "[p]referential child molesters go to great lengths to conceal and protect from discovery, theft and damage, their collections of illicit materials." Finally, "[p]referential child molesters will not stop or remain with one victim, but will constantly seek out new victims."
¶ 8. Vendola's affidavit sets forth the facts supporting his application for the search warrant for Schaefer's residence. First, Vendola described the numerous sexually explicit materials featuring juvenile males that the Outagamie County Sheriff's Department seized in February 1990 from a storage facility rented by Schaefer and from Schaefer's home. Schaefer ultimately *733 pleaded no contest to one charge of possession of child pornography and received a stayed two-year prison sentence and three years' probation. At that time, Vendola interviewed Daniel, age seventeen, and William, age sixteen, Schaefer's adopted sons. Both boys denied having any sexual contact with Schaefer.
¶ 9. In 1996, however, Daniel Schaefer made a statement to the City of Menasha Police in which he stated that Schaefer had molested him and his brother beginning when Daniel was twelve years old and continuing until 1989, when Daniel was seventeen. In addition to forcing Daniel to have oral sex, Schaefer would film him in various stages of dress and undress. Schaefer threatened to kill Daniel if Daniel told anyone about the sexual abuse. Daniel stated that he and his brother denied any sexual abuse in 1990 because they were afraid of Schaefer. Daniel added that when police executed the search warrant for Schaefer's home in 1990, they missed a large metal box containing nude and sexually explicit images of Schaefer, Daniel and William in the form of Polaroid photographs, videotapes and reel-to-reel movies. To establish the truth of his statements, Daniel displayed a Polaroid photo, taken by Schaefer and showing Daniel dressed only in boxer shorts. Daniel appeared to be between ten and twelve years old in the picture. Also in 1996, Daniel informed the police officer that about two-and-one-half weeks previously he had broken into Schaefer's home in Appleton and "observed several (about 10) Polaroid snapshots of nude boys (holding their penises) in a medium-sized shoe box in dad's closet . . . ."
¶ 10. In response to Daniel's statements, the sheriff's department, having received the information from the Menasha Police, notified the Outagamie County Department of Human Services and began an *734 investigation of Schaefer's contacts with children. Schaefer became aware of the investigation and informed the Department of Human Services that he was innocent and that in the future he would be careful to make sure there were witnesses around when he was with children. Interviews by Sergeant Kobiske of the Outagamie County Sheriff's Department with juvenile males who knew Schaefer revealed that Schaefer had a "cool" computer system with video games and internet access. Schaefer allowed these teenagers to use his computer to play games or to do schoolwork, but part of his computer was security locked because it had "adult stuff" on it. Schaefer also had a swimming pool that children used during the summer.
¶ 11. Schaefer moved from Appleton to Freemont, Wisconsin, in 1997. In 1998 the Freemont Police Department conducted a number of examinations of Schaefer's trash. Among the items seized were: papers showing that Schaefer had an email account and internet access, a printout of a story in which the author describes being sexually abused by an adult male when the author was twelve years old, including acts of fellatio and fondling of genitalia, and another sexually explicit narrative involving juvenile and adult males that had been downloaded from an internet news group. Vendola knew that a year earlier, in a separate child pornography investigation, the evidence included a sexually explicit photograph of two adult males engaging in sodomy and fellatio with a twelve- to fourteen-year-old juvenile male. The image had been downloaded from the same news group as the story found in Schaefer's trash.
¶ 12. In addition to numerous photofinishing envelopes, Schaefer's refuse contained twenty-three shredded and cut-up photographs. When reassembled, *735 several of the photographs depicted juvenile males wearing only underwear. Eighteen of the photographs were Polaroids that had been destroyed in a particular fashion: the outer edges of the photographs were cut into five or six fairly large pieces, but the centers of the photographs, depicting the juvenile males, "appear[ed] deliberately cut with a sharp instrument into many tiny pieces." One of the Polaroids showed Daniel Schaefer, at the age of eleven or twelve, standing in his underwear near a Christmas tree. This and other Polaroid photographs bore dates from the early- and mid-1980's and were very similar to the photographs seized in the 1990 searches of Schaefer's storage shed.
¶ 13. In July 1998, Schaefer moved from Freemont to Pine River. Vendola obtained and executed the search warrant for Schaefer's new home that same month.
¶ 14. Vendola's affidavit asserted that Schaefer's activities "are consistent with that of a preferential child molester . . . sexually attracted to juvenile males, whose sexual preference extends to a minimum, in the age range of 9 years old to eighteen years of age." He further asserted that the facts documented that Schaefer had a twenty-four-year history of receiving sexually oriented material in which boys are sex objects, based on the materials dated from 1974 onwards that were seized in the 1990 investigation.
¶ 15. Vendola opined that Schaefer's discarding of the Polaroid photographs of juvenile males in their underwear was consistent with the behavior of a preferential child molester, although in general, those individuals "rarely, if ever" dispose of their sexually explicit materials. Vendola speculated that the computer-generated images now available are of better quality than the Polaroids, and thus the older, less detailed *736 photographs were no longer as desirable. Moreover, Vendola stated that, in his experience, the small volume of discarded items represented only "a very tiny fraction of the material currently possessed" by the typical child pornography collector. And, based upon Schaefer's internet access and the fact that he had downloaded a narrative from a news group from which child pornography was available, it was likely that Schaefer's personal computer contained pornographic material that he had downloaded from the internet. For these reasons, Vendola concluded that juveniles in Schaefer's company were at risk of being sexually exploited or being exposed to sexual materials.
¶ 16. Schaefer raises several challenges to the probable cause for the search warrant. First, he asserts that the finding of probable cause rests solely upon his status as a convicted possessor of child pornography. Second, while he does not contend that Vendola's description of the general characteristics of preferential child molesters is inaccurate in any way, Schaefer disputes that his actions, as described in the affidavit, establish that he acted in a manner consistent with the profile. He argues that Vendola's affidavit does not provide a substantial basis for the warrant because none of the materials retrieved from Schaefer's trash were illegal. He also contends that Daniel's accusations of sexual abuse are not credible, and at any rate, Daniel's descriptions of the photographs he saw in 1996 are conclusory and therefore do not support the conclusion that the photographs showed sexually explicit conduct. Schaefer also claims that there is no evidence of recent illegal activity. Without such evidence, Schaefer submits that the probable cause determination impermissibly relied upon stale information and *737 there was not a substantial basis for the issuance of the search warrant. We disagree.
[9-11]
¶ 17. "[E]very probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances." State v. Multaler, 2002 WI 35, ¶ 34, 252 Wis. 2d 54, 643 N.W.2d 437. Schaefer's approach would have us focus on individual parts of Vendola's affidavit, and ignore the statements viewed in their entirety, and the reasonable inferences that may be drawn from those facts. Schaefer's assertion that because none of the items recovered from his trash were illegal to possess, the evidence does not add to probable cause, is incorrect. It is well settled that otherwise innocent conduct can supply the required link in the chain to establish probable cause that a crime has or is about to be committed. See Kerr, 181 Wis. 2d at 380-83. Although an individual fact in a series may be innocent in itself, when considered as a whole, the facts may warrant further investigation. United States v. Arvizu, 534 U.S. 266, 277-78 (2002) (holding that facts, which by themselves suggested a "family in a minivan on a holiday outing," when viewed collectively with other facts amounted to reasonable suspicion).
¶ 18. The cut-up pictures found in Schaefer's trash established that he retained his interest in juvenile males as sex objects. Common sense tells us that most people do not maintain photographs of juveniles clad in their underwear, nor do people meticulously cut up photographs about to be discarded. Further, Schaefer had internet access and had visited an internet site where visual child pornography was available for downloading. The narratives he printed out explicitly described sexual encounters between adults and juvenile males. Daniel's statement that at Schaefer's *738 home in 1996 he saw Polaroids of boys "holding their penises," suggests that Schaefer's interest in child pornography did not end after his 1992 conviction for possession of child pornography. Daniel's description is sufficient to infer that sexual conduct, and not mere nudity, was portrayed in the pictures. And, although Daniel's denial in 1990 that Schaefer sexually abused him raises some doubts regarding his 1996 allegations, Daniel's statements that Schaefer repeatedly threatened to kill him if he told anyone about the assaults weighs in favor of finding Daniel to be credible.
[12, 13]
¶ 19. Nor are we persuaded that the warrant was supported by stale information and thus lacked reasonable evidence that Schaefer would possess unlawful materials in 1998. "When the activity is of a protracted and continuous nature, the passage of time diminishes in significance." State v. Ehnert, 160 Wis. 2d 464, 469-70, 466 N.W.2d 237 (Ct. App. 1991). "[T]he nature of the criminal activity under investigation and the nature of [the objects] being sought have a bearing on where the line between stale and fresh information should be drawn in a particular case." Id. at 470. Schaefer does not contest Vendola's description of the habits of preferential child molesters. Vendola stated that collectors of child pornography go to great lengths to protect their sexually explicit materials and rarely, if ever, dispose of them. Given Daniel's report to police in 1996 that he broke into Schaefer's home when Schaefer was not there and saw Polaroids of juvenile males in a shoe-box in a closet, there is no reason to infer that Schaefer would have thrown the pictures away, despite the fact that Schaefer moved three times in the interim.
¶ 20. Next, we consider Schaefer's complaint that there is no information in Vendola's affidavit that *739 Schaefer either downloaded visual child pornography from the internet or that anyone ever observed pornographic images on his computer, and so there is no nexus between his computer and evidence of child pornography or sexual exploitation. We agree with the State that Schaefer's computer was "a significant tool in allowing him access to children" and to child pornography, and that there existed ample probable cause justifying the search of Schaefer's computer files.
[14]
¶ 21. The police may search all items found on the specified premises that are plausible repositories for objects named in the search warrant. State v. Andrews, 201 Wis. 2d 383, 403, 549 N.W.2d 210 (1996). Schaefer actively cultivated the friendship of teenage boys by inviting them into his home to use his "cool" computer. He used his computer to communicate with others interested in stories about adults sexually assaulting children and he visited internet sites where child pornography was available for downloading. In addition to these facts, computer files are now a common manner of storing photographs.[3] Viewed in light of these factors, it is reasonable to infer that Schaefer used his computer to collect and store child pornography.
¶ 22. In sum, this is not a case where the only evidence for a search warrant is a prior conviction. The prior conviction takes its place in a brick-by-brick case for probable cause, but it is far from the only brick. With or without the deference we are to accord to a magistrate's probable cause determination, we conclude *740 that the search warrant for Schaefer's home and computer was supported by probable cause.
Scope of Search Warrant
[15-18]
¶ 23. We now consider Schaefer's argument contesting the language and scope of the search warrant. The Fourth Amendment to the United States Constitution mandates that warrants "particularly describe the place to be searched, and the persons or things to be seized." The particularity requirement serves three purposes by preventing general searches, the issuance of warrants on less than probable cause, and the seizure of items different from those described in the warrant. State v. Petrone, 161 Wis. 2d 530, 540, 468 N.W.2d 676 (1991). "Elaborate specificity" regarding the items to be seized is not required in affidavits for search warrants, and if a more specific description is not available, general descriptions are permitted. State v. Noll, 116 Wis. 2d 443, 451, 343 N.W.2d 391 (1984). The officers executing the search warrant "are entitled to the support of the usual inferences which reasonable people draw from facts." State v. Marten, 165 Wis. 2d 70, 75, 477 N.W.2d 304 (Ct. App. 1991). A warrant is sufficiently particular when an officer reading the warrant's description would reasonably know what objects are to be seized. Noll, 116 Wis. 2d at 450-51.
[19]
¶ 24. Although we accord deference to the warrant-issuing court's probable cause determination, whether the language of the search warrant meets constitutional requirements for reasonableness is a question of law and our review is de novo. State v. Meyer, 216 Wis. 2d 729, 744, 576 N.W.2d 260 (1998).
*741 ¶ 25. Schaefer lodges a number of individual objections to the warrant's list of items to be seized. He argues that items four and six are not described with sufficient particularity because there is inadequate guidance regarding what the officer is to seize. Item four describes "[p]hotographs, movies, slides, videotape, negatives, and/or undeveloped film which would tend to identify . . . any other juvenile." Item six instructs the executing officers to seize "[m]agazines, books, movies, and photographs depicting nudity and/or sexual activities of juveniles or adults, as well as collections of newspaper, magazines, or other publication clippings of juveniles which tend to demonstrate a particular sex and age preference of JOHN LEE SCHAEFER." According to Schaefer, the scope of these descriptions permits a general search because they conceivably encompass all material in his possession relating to sexuality. Thus Schaefer contends that the descriptions extend beyond unlawful material to items that are protected expression under the First Amendment.
[20, 21]
¶ 26. Schaefer is correct that when First Amendment rights are implicated, the items to be seized must be described with increased particularity. See Marcus v. Search Warrant, 367 U.S. 717, 731-33 (1961). But the crimes being investigated were sexual exploitation of a child and possession of child pornography. Child pornography is not protected expression. New York v. Ferber, 458 U.S. 747 (1982). And, while the search warrant allows for seizure of a large volume of materials, Schaefer does not object to the statement in Vendola's affidavit that preferential child molesters use a variety of sexually explicit materials in the seduction of their victims. Thus even lawful pornography, when evaluated with other materials, may be evidence of *742 child exploitation or of exposing minors to harmful materials. Again, it is irrelevant that the search encompasses lawful materials, as such things may still be circumstantial evidence of criminal activity.
¶ 27. Item twelve authorizes seizure of "[r]elevant images of juveniles estimated to be of varying ages, which are stored in electronic form on a computer system and/or as traditional photographs." Schaefer objects to this description as lacking particularity because it is unlimited; there is no qualifying language restricting seizure to images displaying nudity, suggestive poses or sexually explicit acts. Because item twelve can be read as essentially permitting the seizure of any picture of a juvenile, Schaefer submits that this part of the search warrant is overbroad.
¶ 28. Unlike Schaefer, we do not read item twelve in isolation. The description in item twelve refers to "relevant images of juveniles." The preceding items specify that sexual conduct involving juveniles is the focus of the warrant. An officer would reasonably discern that "relevant images" are those showing juveniles in a sexual manner. Moreover, as the State points out, authorizing the seizure of every photograph of a child is reasonable when investigating the crime of child exploitation. Even lawful photographs could help to identify children with whom the accused has interacted, thereby aiding in the discovery of other victims.
[22]
¶ 29. We conclude that the affidavit and warrant are not constitutionally defective. Reviewed in the context of a child pornography and sexual exploitation investigation, the items to be seized are described with sufficient particularity and provide adequate guidance for the executing officer.
*743 II. Constitutionality of WIS. STAT. § 948.12
[23-25]
¶ 30. Schaefer facially challenges the constitutionality of WIS. STAT. § 948.12 on the ground that the statute does not require the State to establish scienter as an element of the offense. The constitutionality of a statute presents a question of law that we review de novo. State v. Trochinski, 2002 WI 56, ¶ 33, 253 Wis. 2d 38, 644 N.W.2d 891. Generally, statutes enjoy a presumption of constitutionality. State v. Weidner, 2000 WI 52, ¶ 7, 235 Wis. 2d 306, 611 N.W.2d 684. When a statute implicates First Amendment rights, however, the burden falls on the State to demonstrate beyond a reasonable doubt that the statute is constitutional. State v. Zarnke, 224 Wis. 2d 116, 124-25, 589 N.W.2d 370 (1999).[4]
¶ 31. WISCONSIN STAT. § 948.12 provides in pertinent part as follows:
Possession of child pornography. (1m) Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class I felony:
(a) The person knows that he or she possesses the material.
*744 (b) The person knows the character and content of the sexually explicit conduct in the material.
(c) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.
[26]
¶ 32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant "reasonably should know" that the child depicted is under eighteen years of age, WIS. STAT. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as "knows or reasonably should know," the legislature created a statute that allows conviction for mere negligence. In Schaefer's view, "reasonably should know" invokes the objective "reasonable man" standard applied in civil tort actions, the result being that WIS. STAT. § 948.12 creates criminal liability for those individuals who lacked actual knowledge but, through ignorance, mistake or accident, failed to exercise reasonable care and possessed pornographic material depicting children. However, we conclude that the statute is not constitutionally deficient with regard to scienter.
[27, 28]
¶ 33. Scienter is "[a] degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; the fact of an act's having been done knowingly, esp[ecially] as a ground for civil damages or criminal punishment." BLACK'S LAW DICTIONARY 1347 (7th ed. 1999). The term scienter is interchangeable with mens rea. State v. Collova, 79 Wis. 2d 473, 479, 255 N.W.2d 581 (1977).
*745 [29]
¶ 34. Like obscenity statutes, laws criminalizing child pornography present the risk of self-censorship of constitutionally protected material, and therefore "criminal responsibility may not be imposed without some element of scienter." Ferber, 458 U.S. at 764-65 (citing Smith v. California, 361 U.S. 147 (1959)). In United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), the Court considered whether a federal statute prohibiting the interstate distribution of child pornography contained a scienter requirement regarding the age of minority of the performer. The Court held that "knowingly" in the statute must be read to also modify the elements of the minority of the performers and the sexually explicit nature of the material. X-Citement Video applied the rule that "the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." Id. at 72. In a child pornography statute, the age of minority "indisputedly possesses the same status as an elemental fact because nonobscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment." Id. Accordingly, "the age of the performers is the crucial element separating legal innocence from wrongful conduct," Id. at 73, and therefore "a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts." Id. at 78.
¶ 35. The Wisconsin Supreme Court addressed the constitutionality of WIS. STAT. § 948.12 in Zarnke, 224 Wis. 2d 116, and adopted X-Citement Video's view that "the age of the performer is an elemental fact, and . . . the government must prove some level of scienter as to the performer's minority." Id. at 131. For this reason "a defendant who is in no position to garner the *746 age of the minor may not be held strictly liable where the individual depicted is in fact a minor." Id. at 131-32. The court agreed with X-Citement Video's observation that the opportunity for mistake as to age "`increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or receiver.'" Id. at 132 (quoting X-Citement Video, 513 U.S. at 72 n.2). Accordingly, in Zarnke, the supreme court held that Wisconsin's child pornography statute impermissibly created strict liability for such defendants when it provided for an affirmative defense of proof of age because an accused distributor of child pornography "is never in the position to have the child-victim exhibit to him or her an `official document' that is required of the affirmative defense." Id. As written, the court held that the statute relieved the State of the burden to prove scienter as to the minority of the performer. Although the court held that scienter was a constitutionally required element, it declined to discuss "the level of scienter that would withstand scrutiny." Id. at 132-33.
¶ 36. After Zarnke, the legislature modified WIS. STAT. § 948.12 to place the burden on the State to prove that the defendant "knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years." We must now determine if "knows or reasonably should know" satisfies the "some element of scienter" required by Ferber and its progeny. We conclude that it does.
[30]
¶ 37. First, WIS. STAT. § 948.12 is no longer a strict liability statute. "The basic concept of strict liability is that culpability is not an element of the offense and that the state is relieved of the burdensome task of proving the offender's culpable state of mind." State v. *747 Brown, 107 Wis. 2d 44, 53, 318 N.W.2d 370 (1982). By requiring the State to show that the defendant either has actual knowledge or "reasonably should know" that the pornography depicts a minor, § 948.12 precludes convictions in those situations where it would be impossible for the defendant to discover the age of the child. But the question remains, "What is meant by `reasonably should know?'"
¶ 38. According to the State, "reasonably should know" in WIS. STAT. § 948.12 requires proof of the defendant's "awareness of information that would have led a reasonable person to conclude that the image depicted was a child." Thus, § 948.12 now satisfies Zarnke's "some level of scienter" requirement because it does not impose strict liability, and nothing more is necessary under the constitution.
¶ 39. Schaefer does not concede that "reasonably should know" and "reason to know," reflect the same level of scienter. He argues that "reasonably should know" is less than actual knowledge and compares to the standard used in civil negligence actions to define the level of knowledge imputed to the hypothetical "reasonable man." He asserts that by using a level of scienter of "reasonably should know," WIS. STAT. § 948.12, requires a defendant to persuade the jury that he or she took reasonable steps to ascertain the ages of the minors depicted in the images, a task that may not be possible when pornography is obtained from the internet.
[31, 32]
¶ 40. Ordinary negligence is a failure to exercise ordinary care, that is, "the care which a reasonable person would use in similar circumstances." WIS JICIVIL 1005. "A person is not using ordinary care and is negligent, if the person, without intending to do harm, *748 does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property." Id. We disagree with Schaefer's contention that the presence of "reasonably" to modify "know" creates a civil negligence standard.[5] WISCONSIN STAT. § 948.12 is a criminal statute, and thus the burden is on the State to prove beyond a reasonable doubt the defendant's intentional possession of the materials and his awareness of the facts indicating that the pornographic images are of children. The Supreme Court has approved scienter expressed as "reason to know" and "a belief or ground which warrants further inspection or inquiry" as a sufficient level of scienter in statutes criminalizing obscenity. See Ginsberg v. New York, 390 U.S. 629, 643-44 (1968); Mishkin v. New York, 383 U.S. 502, 510-11 (1966). The difference between "reason to know," and "reasonably should know," if a difference exists, is slight. Moreover, contrary to Schaefer's suggestion, nothing in Zarnke or other case law precludes a scienter standard that is lower than actual knowledge. By requiring only "some level of scienter," something less than actual knowledge is permissible.
[33, 34]
¶ 41. Delineating the precise level of scienter in a criminal statute is a policy decision reserved for the legislature. We conclude that, in a criminal statute for possession of child pornography, "reasonably should know" is less than actual knowledge but still requires more than the standard used in civil negligence actions. *749 "Criminal negligence" after all, is defined as "something less than wilful and wanton conduct which, by the law of this state, is the virtual equivalent of intentional wrong." State ex rel. Zent v. Yanny, 244 Wis. 342, 347, 12 N.W.2d 45 (1943).[6] The State must show that the defendant had an awareness of certain facts and information that would have caused a reasonable person to conclude that the persons depicted in the materials were minors. The burden is not on the defendant to show that he attempted to ascertain the age of the photographed individuals. Considered in that light, WIS. STAT. § 948.12 is not constitutionally infirm because, as amended, it requires the "some level of scienter" that was lacking in the version of the statute examined in Zarnke.
III. Multiplicity
¶ 42. Finally, we turn to Schaefer's contention that the thirty-nine counts of possession of child pornography are multiplicitous. The complaint charged Schaefer with thirty-nine counts of possession of child pornography based on the individual images found on the Zip disk removed from Schaefer's computer. Schaefer eventually pleaded no contest to eighteen counts. He now asserts that all but one charge should be dismissed on multiplicity grounds.
[35, 36]
¶ 43. Multiple punishments for a single criminal offense violate an individual's constitutional right to be free from double jeopardy. State v. Sauceda, 168 Wis. 2d *750 486, 492, 485 N.W.2d 1 (1992).[7] The issue of whether or not charges are multiplicitous presents a question of law subject to de novo review. State v. Trawitzki, 2001 WI 77, ¶ 19, 244 Wis. 2d 523, 537, 628 N.W.2d 801, modified by State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1.
[37]
¶ 44. We employ a two-prong test when analyzing a multiplicity challenge: (1) whether the charged offenses are identical in law and fact; and (2) whether the legislature intended multiple offenses to be charged as a single count. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998), modified by State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1. The first step is a constitutional issue. If the charges are identical in law and in fact, they violate the double jeopardy clauses of the state and federal constitutions. Trawitzki, 244 Wis. 2d 523, ¶ 21.[8] Only if we conclude that the charges are different do we reach the second prong, a question of statutory construction regarding the allowable unit of prosecution intended by the legislature. State v. Rabe, 96 Wis. 2d 48, 63, 291 N.W.2d 809 (1980).
*751 ¶ 45. With respect to the first prong, it is undisputed that the charges are identical in law because they arise under the same statute, WIS. STAT. § 948.12. Thus our inquiry focuses on whether the charges are identical in fact. This issue requires a determination of whether the charged acts are "separated in time or are of a significantly different nature." State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980).
[38, 39]
¶ 46. The time element does not turn on the number of seconds or minutes between the alleged criminal acts. See Anderson, 219 Wis. 2d at 749-50. Rather, this factor looks to whether the defendant had sufficient time for reflection between the acts to recommit himself to the criminal conduct. State v. Koller, 2001 WI App 253, ¶ 31, 248 Wis. 2d 259, 635 N.W.2d 838. Similarly, charged offenses are of a significantly different nature when, despite being the same type of act, they evince "a new volitional departure in the defendant's course of conduct." Id. (citation omitted).
¶ 47. Because Schaefer pleaded guilty to eighteen counts of possession of child pornography, we base our review not on an evidentiary record but on the criminal complaint and statements made at the pretrial hearing to determine if the charges are identical in fact. See, e.g., Anderson, 219 Wis. 2d at 748; Koller, 248 Wis. 2d 259, ¶¶ 33-38 (discussing difference between multiplicity challenges to charging and multiplicity challenges to proof at trial).
¶ 48. Schaefer argues that the charges are identical in fact, and therefore multiplicitous, because the police found all the pornographic photographs on a single computer Zip disk, and there is no evidence that he acquired each image with a separate volitional act. The State, relying on Multaler, submits that each *752 individual image may be charged as a separate offense, and the complaint is sufficient because each charge pertains to a picture of a different child. We agree with the State that Multaler is dispositive on this issue.
¶ 49. In Multaler, the supreme court considered a multiplicity challenge to a possession of child pornography prosecution. The State charged Multaler with seventy-nine counts, based upon the number of pornographic photographic images retrieved from his computer. Multaler ultimately pleaded guilty to twenty-eight counts. On appeal he argued that the number of computer disks (two) determined the number of permissible charges for violating WIS. STAT. § 948.12, not the number of pornographic images contained on the disks. The supreme court disagreed and concluded that the charges were not identical in fact:
Although some of the downloaded image files contained multiple images, there were more than 28 separate image files. In a statement given after his arrest, Multaler admitted that he "began downloading . . . in the winter of 1998," thus suggesting that he obtained the image files over a period of time. Even had he downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.
Maltaler, 252 Wis. 2d 54, ¶ 58 (emphasis added).
[40]
¶ 50. The criminal complaint against Schaefer alleged that he possessed thirty-nine separate image files, each depicting a child engaged in sexually explicit conduct. Each file is identified by a different name, such *753 as File Aspty.054.jpg, File Batj07.jpg, File Billi16.jpg, etc. Given these facts, we conclude that, as the supreme court determined in Multaler, it is reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to download a particular image file.[9] Therefore, each image file "represent[s] a new volitional departure," and the charges against Schaefer are different in fact.
¶ 51. Schaefer attempts to factually distinguish Multaler, asserting that here there is no statement indicating that the images were downloaded over a period of time, so the new volitional departure standard is not met. Instead, he submits that "[t]he only thing known about the images is that they were all possessed simultaneously on a single [Z]ip disk."
[41]
¶ 52. We are not persuaded by Schaefer's effort to distinguish Multaler. In Koller, we explained:
When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the State has alleged facts which, if proven, demonstrate a new volitional departure. However, just because the State has properly alleged facts for purposes of multiplicity analysis does not mean the State can prove the alleged facts. Thus, apart from whether there is a basis for a multiplicity challenge to pretrial allegations, events at trial, or otherwise may suggest that the State is unable to actually prove a new volitional departure supporting multiple charging.
Koller, 248 Wis. 2d 259, ¶ 34. We take this opportunity to further clarify the appropriate question when *754 a multiplicity challenge is directed at charging by restating and modifying the first sentence from ¶ 34 in Koller: When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the facts alleged by the State, and reasonable inferences from those facts, demonstrate a new volitional departure.
¶ 53. Schaefer's argument is better suited to a multiplicity objection made during or at the end of trial. Had we a full evidentiary record to review, it is possible that the State's allegations may not withstand a multiplicity challenge. For example, evidence that images were copied wholesale from another disk or computer could convince the trial court that the charges were not different in fact and therefore only one count should be considered by the jury. But here we have only the charging document and the evidence from the pretrial hearing. Under these circumstances, we determine that Multaler is dispositive. Thus, the fact that there were over thirty-nine separate image files "supports a conclusion that [Schaefer] made a new decision to obtain each one." Multaler, 252 Wis. 2d 54, ¶ 58. Here a reasonable inference from the alleged fact that each photograph was contained in a separate computer file is that Schaefer downloaded each file separately and made a separate volitional decision to retain each file.
[42]
¶ 54. When the charges are different in fact, we apply the presumption that the legislature intended multiple punishments. Anderson, 219 Wis. 2d at 751. In order to rebut this presumption, the defendant must show a clear indication of legislative intent to the contrary. Id. Schaefer contends that WIS. STAT. § 948.12 *755 is ambiguous as to whether the legislature intended multiple punishments. According to Schaefer, the legislature's use of the indefinite pronoun "any" to refer to the prohibited "pictorial reproduction," permits two reasonable interpretations regarding the allowable unit of prosecution. "Any" can be defined as "only one" or it may be reasonably read to mean "one or more." State v. Church, 223 Wis. 2d 641, 650, 589 N.W.2d 638 (Ct. App. 1998). Rather than applying the presumption that the legislature intended multiple punishments, Schaefer argues that we should invoke the rule of lenity and construe WIS. STAT. § 948.12 in favor of the defendant. See State v. Kittilstad, 231 Wis. 2d 245, 267, 603 N.W.2d 732 (1999) ("rule of lenity" provides that penal statutes be construed in favor of the accused). Under Schaefer's reasoning, employing the rule of lenity would limit the number of charged offenses for possession of child pornography to the media upon which the prohibited images are contained. Because the charged offenses arise from images found on one of Schaefer's computer disks, he concludes that more than one charge for violating § 948.12 is multiplicitous.
¶ 55. Multaler considered and rejected this argument, and we, of course, are bound by the supreme court's precedent.[10]Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). In Multaler, the court held that the intended unit of prosecution under WIS. STAT. § 948.12 is each pornographic image; the manner in which the images were stored did not dictate the number of charges. "The singular formulation of these items covered under the statute modified by the term *756 `any' is evidence that the legislature intended prosecution for each photograph or pictorial reproduction." Multaler, 252 Wis. 2d 54, ¶ 64. Further, the court concluded that it was not inappropriate to impose punishment for each separate image:
If the proper unit of prosecution were limited to the disk or other storage device, an individual could possess thousands of images depicting children in sexually explicit activity and face only [one] charge under § 948.12. . . .
In essence, because it appears that the images on the disks were photographs of actual children, the disks served as electronic photo albums. The language of § 948.12 shows that the legislature would deem it appropriate to bring separate charges for separate photographs in a traditional photo album. Similarly, the legislature presumably would deem separate charges appropriate for individual images displayed in an electronic photo album.
Id., ¶¶ 66-67.
¶ 56. Like the child pornography considered in Multaler, the images Schaefer possessed on his computer disk are amenable to the supreme court's electronic photo album analogy. Accordingly, we have little difficulty concluding that the charges against Schaefer are not multiplicitous because they are different in fact and separate charges for individual images are consistent with the legislative intent. We note, however, that it is inevitable that there will be future cases in which advances in technology and the access to child pornography via the internet will present facts which might not fall so neatly under Multaler.[11]
*757 CONCLUSION
¶ 57. In sum, we conclude that Officer Vendola's affidavit provided a substantial basis for the warrant-issuing judge to conclude that there was a fair probability that the evidence sought by the search warrant would be found at Schaefer's residence. The scope of the search warrant was not overbroad such that a police officer would not reasonably know what items are to be seized. WISCONSIN STAT. § 948.12 contains the requisite element of scienter and therefore is not constitutionally defective. Finally, we conclude that the eighteen charges of possession of child pornography are not multiplicitous.
By the Court.Judgment affirmed.
NOTES
[] Petition to review granted 10-1-03.
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] A "Zip disk" is a computer disk that may have as much as a 700 MB capacity, generally used to archive data from a computer's hard drive.
[3] Computer image files are aptly described as "electronic photograph albums." See State v. Multaler, 2002 WI 35, ¶ 67, 252 Wis. 2d 54, 643 N.W.2d 437.
[4] While possession of child pornography does not fall under the protections of the First Amendment, nonobscene sexually explicit materials depicting persons over the age of eighteen are protected speech. Our examination of WIS. STAT. § 948.12 involves the boundary between protected and unprotected speech, State v. Zarnke, 224 Wis. 2d 116, 124 n.2, 589 N.W.2d 370 (1999), and therefore the burden to establish constitutionality is borne by the State.
[5] Under WIS. STAT. § 939.23(1), "[w]hen criminal intent is an element of a crime in chs. 939 to 951, such intent is indicated by the term `intentionally' . . . or some form of the verbs `know' or `believe.'"
[6] WISCONSIN STAT. § 939.25(1) provides that criminal negligence is "ordinary negligence to a high degree."
[7] The Fifth Amendment to the United States Constitution provides in part: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb."
Under article I, section 8 of the Wisconsin Constitution, "no person for the same offense may be put twice in jeopardy of punishment."
[8] But see State v. Davison, 2003 WI 89, ¶ 36, 263 Wis. 2d 145, 666 N.W.2d 1, ("Although [the statement that offenses identical in law and fact are multiplicitous in violation of double jeopardy] is usually true, it is not always true, because the legislature may have intended to authorize cumulative punishments for the same offense.").
[9] Detective Vendola's affidavit stated that Schaefer's computer had internet access.
[10] Schaefer acknowledges that we are bound by Multaler, 252 Wis. 2d 54, but raises the multiplicity issue to preserve it for future appellate review.
[11] For example, if the accused downloads several images at once, that are contained in a single computer file, is that still on par with a traditional photo album or is that more like a magazine, which is generally not divided into separate counts for each picture? See City of Madison v. Nickel, 66 Wis. 2d 71, 83-84, 223 N.W.2d 865 (1974) (single sale of four obscene magazines charged as four obscenity offenses under city ordinance precluding sale of obscene material). Under WIS. STAT. § 948.12, the use of the term "motion picture" indicates legislative intent that possession of one movie is a single offense, although a reel of film could contain thousands of individual images. Similarly, the statute refers to a videotape in the singular form. But what if several movies are copied onto one DVD or videotape? It does not appear that Multaler, 252 Wis. 2d 54, provides a ready answer to such situations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616272/ | 104 S.W.3d 919 (2003)
Jose MAURICIO, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-02-00549-CR.
Court of Appeals of Texas, Houston (14th Dist.).
May 8, 2003.
*920 David S. Barron, Bryan, for appellant.
Douglas Howell III, Bryan, for appellee.
Panel consists of Chief Justice BRISTER and Justices YATES and HUDSON.
OPINION
SCOTT BRISTER, Chief Justice.
Appellant Jose Mauricio was convicted of possessing between four and two hundred grams of cocaine with intent to deliver it. The jury assessed punishment at twenty years in prison and a $10,000.00 fine. The question presented is whether the trial court erred in granting the State's request for a jury view of how the arresting officer checked his patrol car for contraband. Current law requires us to hold this was error, but we affirm because the error was harmless.
Appellant was arrested when he fled from police during a traffic stop. After he was taken to jail, the arresting officer found six individually-wrapped bags of cocaine beneath the backseat of his patrol car. The officer testified he routinely checked the backseat for hidden contraband, both at the start of his shift and after transporting anyone. Because the cocaine had not been under the seat before the arrest, appellant was charged with possession of a controlled substance.
The State requested permission to show jurors how the officer removed the backseat and conducted his inspection. As the vehicle could not be driven into the courtroom, the State asked to conduct the demonstration in an adjacent parking lot. The trial judge agreed; in his sole issue, appellant argues this was error.[1]
*921 Jury Views
Jury views have long been disfavored in criminal trials in Texas; indeed, Texas courts appear to look upon them with peculiar horror. The Court of Criminal Appeals has "denounced" them,[2] "condemned" them,[3] and declared them "not legally justifiable."[4] While trial judges are said to have discretion to grant them,[5] it is hard to see how many would dare.
But what is so wrong with allowing jurors to see what the lawyers are talking about? Clearly, trial judges should not ask jurors to "travel around over the country, receiving evidence by sight alone, and which they might discuss without the knowledge of appellant."[6] But trial judges exercising discretion may reject jury views involving inconvenience and delay, especially if quicker and cheaper alternatives such as photographs are available.[7] And jurors are already allowed to see photographs of a crime scene,[8] videotaped reenactments,[9] and recordings of out-of-court experiments,[10] even though they might see something in them (or in any other evidence for that matter) the attorneys have missed.
Other cases express concern that what jurors see during a jury view cannot be reflected in the record for appellate review.[11] In Smith v. State,[12] the Supreme Court of Texas (shortly before it lost criminal jurisdiction) reversed a conviction for theft of a pig on this basis. Although noting that both complainant and accused proved so "intimate an acquaintance with the sow and her history" as to make ownership a close question,[13] the Court nevertheless held it error to bring the pig to town for jurors to view, as she could not be reviewed on appeal.[14]
While we share the high court's concern about filing livestock, we note that jurors see many things during trial that are reflected in our appellate record only if someone describes them for us. In this case, appellant complains of a number of differences (discussed below) that allegedly made the jury view unfair, but there is no argument on appeal that our record is inadequate to conduct an effective appellate review.
In this case, the State could have offered a pretrial videotape of the officer's demonstration. Or the patrol car could have been chopped up and relevant parts brought into the courtroom. But both of these alternatives would have been more expensive and time-consuming than the *922 simple expedient adopted by the trial court.
In most American courts, jury views are discretionary.[15] Modern authorities view the idea of allowing jurors out of the courtroom with considerably less horror than Texas authorities appear to.[16] The federal courts allow trial judges to exercise such discretion, often on facts quite similar to those involved here.[17]
Nevertheless, it is not our role to make changes in Texas law.[18] We do not agree with the State's claim that this was a "demonstration" and not a "jury view."[19] Accordingly, we must find the trial court erred in allowing the jurors out-of-doors.
Harm Analysis
A jury view is not automatic grounds for reversal.[20] Because this error is not constitutional, we must affirm if there is fair assurance it had slight or no influence on the jury.[21]
Before the jury view took place, the arresting officer here described in detail his search of the backseat before and after appellant's arrest. There was no objection to this testimony, so the later visual demonstration of what he had already said was harmless.[22]
The record contains a transcript of what the arresting officer said both inside and outside the courtroom. The jury was outside the courtroom for less than five minutes, and everyone (defense counsel, State's attorney, appellant, court reporter, and trial judge) accompanied them. Just before leaving the courtroom, the trial judge instructed jurors they were leaving the courtroom for the limited purpose of seeing the demonstration of a procedure.
Appellant argues he was harmed by the jury view for five reasons:
*923 · It was during the day, while the search was at night. The trial judge specifically prohibited the State from asking the officer to indicate where he saw the cocaine. Appellant does not explain why the procedure for removing the backseat varied with the lighting.
· The same patrol car was used. Again, appellant does not explain why assuring similitude harmed him.
· The arresting officer testified outdoors. The trial court had the court reporter record everything that was said during the jury view. The outdoors testimony did not differ from what was said in court.
· It was central to the State's case. The officer's testimony was certainly critical, but the jury view itself was cumulative.
· It was in the courthouse parking lot rather than where the search occurred. This was done at appellant's insistence, so it was not error.[23]
We find appellant's arguments that the jury view harmed him are without merit. The record does not suggest the arresting officer's demonstrative testimony had a substantial and injurious effect or influence in determining the jury's verdict.[24]
Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.
NOTES
[1] Appellant asserts in the same point that the jury view should have been denied because the probative value to be gained was substantially outweighed by the danger of unfair prejudice and of misleading the jury. See Tex.R. Evid. 403. But his brief includes no argument or explanation why the demonstration the jury saw was unfairly prejudicial or misleading, so appellant has waived error as to Rule 403. See Tex.R.App. P. 38.1(h) (requiring appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Murchison v. State, 93 S.W.3d 239, 251 (Tex.App.-Houston [14th Dist.] 2002, pet. filed).
[2] Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim.App.1992), overruled on other grounds by Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim.App.2001).
[3] Abell v. State, 109 Tex.Crim. 380, 5 S.W.2d 139, 141 (1928).
[4] Lovett v. State, 87 Tex.Crim. 548, 223 S.W. 210, 211 (1920).
[5] See Jones, 843 S.W.2d at 499.
[6] Fate v. State, 73 Tex.Crim. 278, 164 S.W. 1018, 1019 (1914).
[7] See Martinez v. State, No. B14-88-00893-CR, 1990 WL 101301, at *3 (Tex.App.-Houston [14th Dist.] Jul. 19, 1990, no pet.) (not designated for publication) (finding no abuse of discretion to deny jury view of crime scene as photographs of it were admitted).
[8] See Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App.1997).
[9] See Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App.1987).
[10] See Ginther v. State, 672 S.W.2d 475, 476 (Tex.Crim.App.1984).
[11] See Riggins v. State, 42 Tex.Crim. 472, 60 S.W. 877, 877 (1901).
[12] 42 Tex. 444 (1875).
[13] Id. at 446.
[14] Id. at 448.
[15] Martinez v. State, No. B14-88-00893-CR, 1990 WL 101301, at *3 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (not designated for publication) (citing 23A C.J.S. Criminal Law Sec. 1156 (1989)).
[16] See United States v. Gray, 199 F.3d 547, 548-49 (1st Cir.1999) (citing McCormick on Evidence § 216, at 29 (5th ed.1999) (the "preferable" position is that a view is "evidence like any other")); 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5176, at 141 (1978) ("The notion that a view is not `evidence' has been discredited by the writers, and explicitly rejected by one modern code"); 2 Joseph McLaughlin, ed., Weinstein's Federal Evidence § 403.07[4] (2d ed.1999) ("[T]he modern position is that the view does provide independent evidence"); 4 John Henry Wigmore, Wigmore on Evidence § 1168, at 391, 388 (1972) (referring to the "unsound theory" that a view "does not involve the consideration of evidence by the jury" and noting that "it has in most jurisdictions been repudiated"). Cf. John M. Maguire, Cases and Materials on Evidence 141 (1973) (noting that courts are divided on the question but not taking a position).
[17] See Gray, 199 F.3d at 548-49 (allowing jurors to view defendant's escape route); United States v. Davis, 127 F.3d 68, 70 (D.C.Cir.1997) (finding no error in trial judge's decision to allow jurors to view defendant's vehicle in courthouse parking lot).
[18] See State ex rel. Wilson v. Briggs, 171 Tex. Crim. 479, 351 S.W.2d 892, 894 (1961).
[19] A jury view occurs when the jury "venture[s] forth to observe places or objects which are material to litigation but which cannot feasibly be brought, or satisfactorily reproduced, within the courtroom." McCormick on Evidence, § 216, at 537 (2d Ed.1972).
[20] See Abell v. State, 109 Tex.Crim. 380, 5 S.W.2d 139, 141 (1928) (holding that jury view of the homicide scene was harmless error).
[21] See Tex.R.App. P 44.2(b); Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App.2002).
[22] See Reyes v. State, 84 S.W.3d 633, 638 (Tex.Crim.App.2002) (finding any error in admission of evidence harmless if cumulative of evidence admitted elsewhere without objection).
[23] See Heidelberg v. State, 36 S.W.3d 668, 671 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (explaining doctrine of invited error).
[24] See Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim.App.2001); Abell, 5 S.W.2d at 141. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616274/ | 668 N.W.2d 623 (2003)
Mae A. BOOKER, Personal Representative of the Estate of Sanders S. Magee, Deceased, Plaintiff-Appellee,
v.
CITY OF DETROIT, Defendant-Appellant.
Mae A. Booker, Plaintiff-Appellant,
v.
City of Detroit, Defendant-Appellee.
Docket Nos. 121712, 121856, COA No. 219554.
Supreme Court of Michigan.
September 18, 2003.
On order of the Court, the applications for leave to appeal from the May 3, 2002, decision of the Court of Appeals are considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals in part and REMAND this case to the trial court for further proceedings consistent with this order.
While expressing disagreement with the reasoning of Magee v. City of Detroit (Booker I), 203 Mich.App. 228, 511 N.W.2d 717 (1994), the Court of Appeals concluded that it was bound by that decisions conclusion that the city was required to follow foreclosure sale procedures in the General Property Tax Act (GPTA). 251 Mich.App. 167, 185, 650 N.W.2d 680 (2002). However, the GPTA provides:
The requirements of this act relating to the amount and imposition of interest, penalties, collection or administration fees, the procedures for collection of taxes, and the enforcement of tax liens are applicable to all cities and villages if not inconsistent with their respective charters or an ordinance enacted pursuant to their respective charters. [MCL 211.107(1) ]
Thus, the statute plainly provides that if a conflict exists between the GPTA and the city charter, the charter governs. It appears that the Court of Appeals decision in Booker I overlooked this provision in finding that the GPTA governs where a conflict exists. Accordingly, we reverse the Court of Appeal holding based on Booker I, and conclude that the foreclosure sale was valid under the controlling provisions of the city charter.
Further, we REVERSE the judgment of the Court of Appeals with regard to plaintiff's unjust enrichment claim. Under the particular circumstances of this case, in which the city has retained the plaintiff's tax payment after disposing of the property at a foreclosure sale, we find that city has received a benefit from plaintiff, which benefit it would be inequitable for the city to retain. Dumas v. Auto Club Ins. Ass'n, 437 Mich. 521, 546, 473 N.W.2d 652 (1991). Accordingly, we REMAND the case to the Wayne Circuit Court for reinstatement of the portion of the trial court's judgment awarding plaintiff damages on the unjust enrichment claim.
In all other respects, leave to appeal is DENIED.
TAYLOR, J., not participating.
YOUNG, JR., J., dissents and states as follows:
I dissent from the order reversing the Court of Appeals judgment in part and *624 remanding the case to the trial court for further proceedings. The disposition of this case has resulted in two published Court of Appeals opinions that present conflicting analyses with respect to the application of the General Property Tax Act (GPTA), M.C.L. § 211.1 et seq., to a dispute over foreclosed property. Nevertheless, because plaintiff prevailed in the trial court on claims unrelated to the application of the GPTA, and because the second Court of Appeals panels discussion of the GPTA is therefore merely dicta, the majority's order in this case constitutes an attempt to resolve a moot issue. Furthermore, I strongly dissent from the reversal of the Court of Appeals holding that the trial court erred in entering judgment in favor of plaintiff in the claim of unjust enrichment.
In 1984 plaintiffs property in Detroit was foreclosed upon by the county and was purchased by the state at the county's tax sale. In 1985 the city also obtained a judgment of foreclosure. Plaintiff redeemed within the redemption period under the GPTA, which was applicable to the county's foreclosure, and the State issued a reconveyance deed; however, plaintiff did not redeem within the time period established by the Detroit City Charter. In the meantime, plaintiff allegedly engaged in conversations with a sales representative in the city's Community and Economic Development Department, who advised him that if he paid his taxes he would not have to worry about his property being taken. Plaintiff paid the delinquent taxes in 1985, but the city did not reconvey the property to plaintiff and, instead, sold the property to a third party. The city in 1988 tendered a refund of the tax payment to plaintiff, but plaintiff refused to accept a refund and instead filed an action to quiet title and for an unlawful taking.
The Court of Appeals reversed the trial court's grant of summary disposition to the city and held that the city was not free to ignore the redemption provisions of the GPTA. Magee v. Detroit, 203 Mich.App. 228, 511 N.W.2d 717 (1994) (Booker I).[1] This holding was based on the following provisions in the GPTA:
The taxes on any lands returned as delinquent may be paid to the county treasurer at any time prior to the day of sale. After such petition is filed with the county clerk, payment of part of the taxes therein specified shall not stay proceedings thereon to enforce payment of such part of such taxes as are not paid, but such proceedings shall continue as to all unpaid taxes as herein provided. [MCL 211.106 (emphasis supplied).]
The authorities of any city ... which, by its charter, has the right to sell lands for unpaid taxes or assessments, may provide for judicial sale of such lands. Such sale shall be made on petition filed in behalf of the city ... in interest, and shall conform, as near as practicable, to the provisions as to sale in this act. [MCL 211.108 as quoted at 203 Mich.App. at 231-232, 511 N.W.2d 717 (emphasis supplied).]
The panel held that pursuant to 108, the city's sale had to be carried out by means conforming as near as possible to the GPTA; furthermore, the charter could not conflict with or contravene the GPTA. The panel further held that, pursuant to 106, even if plaintiff failed to redeem within the city's sixty-day redemption period, the city could not sell the property after plaintiff *625 paid up his taxes in October 1985. Because the record did not reveal when the sale was made, the panel held that it could not say that the sale was proper. Finally, the panel held that on remand plaintiff could file a motion in the trial court to amend his complaint to include a claim for unjust enrichment and attorney fees.
On remand, the trial court held that the city charter was inconsistent with the GPTA and that the provisions for sale in the GPTA trumped the charter provisions. Following a bench trial, plaintiff obtained judgment against the city in his newly added claims of unjust enrichment and promissory estoppel.
In a second published opinion, the Court of Appeals reversed and entered judgment for the city. 251 Mich.App. 167, 650 N.W.2d 680 (2002) (Booker II). The panel first noted that plaintiff did not receive fee-simple title to the property after the state quitclaimed it back to him. Pursuant to M.C.L. § 211.131c(4),
[a] redemption deed issued under this section does not vest in the grantee named in the deed any title or interest in the property beyond that which he or she would have owned, if title to the property had not vested in this state.... The deed ... revives all titles, liens, and encumbrances, with their respective priorities, as would have existed if title to the property had not vested in this state.... [Emphasis supplied.]
Thus, the panel held, because the city had already obtained its foreclosure judgment and because plaintiff did not redeem within the period established in the charter, title to the property vested in the city after the state quitclaimed it.
Next, the panel held that the trial court erroneously entered judgment in favor of plaintiff in the promissory estoppel claim. The panel held that the evidence presented at trialconsisting of plaintiffs sons testimony that the city's sales representative told plaintiff that if he paid his taxes he would not have to worry about his property being takendid not establish a clear and definite promise for purposes of the promissory estoppel doctrine.[2] The panel noted that plaintiff failed to present any evidence that the sales representative knew that the city had already obtained a foreclosure judgment or that the redemption period had already expired. Furthermore, the panel held, plaintiff did not establish that he reasonably relied on the representatives statements, which were made in July or August 1985, when plaintiff did not pay the taxes until September 1985. Finally, the panel held that the representative lacked the authority to approve the payment of taxes and that her unauthorized representations could not bind the city.
The panel held that the trial court erroneously entered judgment in favor of plaintiff in his unjust enrichment claim, because a taxpayer could not recover a voluntary payment of taxes, even if it turned out that the payment was in excess of the amount owed or if the taxes were void. The panel noted that plaintiff was partially at fault because he did not verify that he still owned the property when he paid the taxes.
Although this concluded the substantive portion of the second Court of Appeals opinion, the panel spent several additional pages creating dicta. First, the panel addressed the prior Court of Appeals opinion and held that it was wrongly decided in that it had overlooked the following key provision of the GPTA:
*626 The requirements of this act relating to the amount and imposition of interest, penalties, collection or administration fees, the procedures for collection of taxes, and the enforcement of tax liens are applicable to all cities and villages if not inconsistent with their respective charters or an ordinance enacted pursuant to their respective charters. In addition to the methods authorized under section 108, a city or village, which by its charter does not return its delinquent taxes to the county for collection, may enforce the tax liens for delinquent taxes, assessments, and charges by foreclosure proceedings or any other method authorized under statute, charter, or ordinance enacted pursuant to law or charter.... [MCL 211.107(1) (emphasis supplied).]
The panel next discussed the law-of-the-case doctrine, concluding that it was not bound by the doctrine to follow the prior Court of Appeals decision because the facts did not remain substantially or materially the same after the trial court conducted its remand proceedings and because the previous panel did not have the benefit of examining the city charter provisions at length when it rendered its decision. Nevertheless, the panel stated, because [the prior opinion] was a published opinion, we are bound to follow it under MCR 7.215(I)(1). 251 Mich.App. at 185, 650 N.W.2d 680. However, the panel declined to request a conflict panel because we conclude that the issue is not outcome determinative. Id.
The purpose of setting forth the foregoing lengthy history of this dispute is to illustrate the many factual and procedural idiosyncrasies present in this case, which I believe render the GPTA issue particularly unsuitable for appellate review. Because the trial court ultimately granted relief to plaintiff only in his promissory estoppel and unjust enrichment claims, the GPTA issue was thereafter moot. The second Court of Appeals opinionincluding its foray into the merits of the prior opinion, its determination that the law-of-the-case doctrine would not prevent it from reaching a different result on the GPTA issue but that it was, nevertheless, bound by MCR 7.215(I)(1) to follow the prior opinion, and its ultimate conclusion that everything it just said was meaningless because the GPTA issue was not outcome-determinativepresents a procedural quagmire that leaves intact the prior opinions GPTA holding yet, in dicta, firmly, and correctly in my view, discredits that holding. In this posture, the case is simply not amenable to this Courts review with respect to the merits of the GPTA issue. Therefore, although I agree with the majority's conclusion that the Booker I panel erred in holding that the GPTA prevails over conflicting city charter provisions, I would deny leave rather than issue an order that essentially reverses a moot ruling and at the same time affirms the Booker II panels dicta.
Moreover, I am utterly at a loss to comprehend how plaintiffs payment of delinquent taxes can possibly sustain a claim of unjust enrichment. The majority cites Dumas v. Auto Club Ins. Assn., 437 Mich. 521, 473 N.W.2d 652 (1991), for the general proposition that the receipt of a benefit from the plaintiff, which benefit it would be inequitable for the defendant to retain, constitutes unjust enrichment. I do not dispute this statement of the elements of an unjust enrichment claim. However, I note that the Dumas Court, quoting from the Court of Appeals opinion in that case, additionally imparted that
[t]he process of imposing a contractin-law or a quasi-contract to prevent unjust enrichment is an activity which should be approached with some caution.
*627 [Id. at 546, 473 N.W.2d 652 (emphasis supplied).]
See also Kammer Asphalt Paving Co. v. East China Twp. Sch, 443 Mich. 176, 185-186, 504 N.W.2d 635 (1993):
The remedy is one by which "the law sometimes indulges in the fiction of a quasi or constructive contract, with an implied obligation to pay for benefits received" to ensure that "`exact justice'" is obtained. Detroit v. Highland Park, 326 Mich. 78, 100, 39 N.W.2d 325 (1949), quoting Cascaden v. Magryta, 247 Mich. 267, 270, 225 N.W. 511 (1929). Because this doctrine vitiates normal contract principles, the courts "employ the fiction with caution, and will never permit it in cases where contracts, implied in fact, must be established, or substitute one promisor or debtor for another." [Detroit, supra at 100, quoting Cascaden, supra at 270.]
A plaintiff making a claim of unjust enrichment has the duty of establishing the nature of the transaction and the character of the liability arising therefrom as a prerequisite to his right to recover at all...." Michigan Educational Employees Mutual Ins. Co. v. Morris, 460 Mich. 180, 198-199, 596 N.W.2d 142 (1999), quoting Moll v. Wayne Co., 332 Mich. 274, 278-279, 50 N.W.2d 881 (1952). Further, [i]f the recipient of such a benefit has relied to his detriment on it, the plaintiff would be estopped from demanding reimbursement. Id., citing Leute v. Bird, 277 Mich. 27, 31, 268 N.W. 799 (1936); Porter v. Goudzwaard, 162 Mich. 158, 161-162, 127 N.W. 295 (1910).
In keeping with the principle, seemingly ignored by the majority, that the equitable doctrine of unjust enrichment operates in contravention of fundamental contract precepts and must therefore be applied sparingly and only where necessary to vindicate exact justice, I would affirm the holding of the Court of Appeals that plaintiff is not entitled to recover the city tax payment. Plaintiff has presented no evidence whatsoever that the city received any benefit from plaintiff other than the untimely payment of a past-due tax bill, more than two months after the city redemption period had expired. In my view, the retention by the city of payment for an overdue tax debt cannot be considered inequitable.
Moreover, the imposition of an equitable remedy in this situation is particularly inappropriate, where the consequences to be corrected might have been avoided if the victim of the misfortune had ordered his affairs with reasonable diligence. Spoon-Shacket Co. v. Oakland Co., 356 Mich. 151, 165, 97 N.W.2d 25 (1959). As the Booker II panel noted, it was unreasonable for plaintiff to pay the delinquent taxes, well after the commencement of the foreclosure action, without verifying his continued ownership interest in the property. Furthermore, and perhaps most important, plaintiff rejected the city's refund offer and should not at this late date be heard to claim that he is entitled, as a matter of equity, to that which he refused to accept some fifteen years ago.
Finally, I note that plaintiff, to the extent that the foreclosure of his property and his payment of delinquent taxes may have resulted in an overpayment, presumably had an adequate remedy at law. See MCR 211.53a ([a]ny taxpayer who ... pays taxes in excess of the correct and lawful amount due because of a clerical error or mutual mistake of fact ... may recover the excess so paid ... if suit is commenced within 3 years). Taxation is uniquely and extensively governed by constitutional and statutory provisions, see CF Smith Co. v. Fitzgerald, 270 Mich. 659, 259 N.W. 352 (1935), and I question this Court's authority to invoke equitable principles *628 as a means of avoiding the requirements of the GTPA and the Detroit City Charter.
Accordingly, I dissent from the majority's order reversing in part the judgment of the Court of Appeals, and I would deny leave.
CORRIGAN, C.J., joins in the dissenting statement of YOUNG, JR., J.
NOTES
[1] Plaintiff Magee is the original property owner. In subsequent proceedings, Magees estate was represented by plaintiff Booker.
[2] The sales representative invoked her Fifth Amendment right at trial and refused to confirm or deny that she made these statements to plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616237/ | 38 So. 3d 141 (2010)
GILCRUZ
v.
STATE.
No. 2D10-2678.
District Court of Appeal of Florida, Second District.
July 22, 2010.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616271/ | 425 So. 2d 1053 (1982)
FAMEX, INC., and American Automobile Insurance Company
v.
CENTURY INSURANCE SERVICES, INC., M. Glen Jackson, and Darwin W. Holt.
81-132.
Supreme Court of Alabama.
November 19, 1982.
Rehearing Denied January 21, 1983.
William H. Mills of Redden, Mills & Clark, Birmingham, for appellant.
J. Michael Rediker and W. Clark Goodwin of Ritchie & Rediker, and Thomas B. Huie of Huie, Fernambucq & Stewart, Birmingham, for appellees.
BEATTY, Justice.
Plaintiffs appeal from the trial court's order denying their application for a preliminary injunction. We reverse and remand.
Plaintiffs Famex, Inc. (Famex), and American Automobile Insurance Company (American) are subsidiaries of the Fireman's Fund Insurance Company. American is an insurance company engaged in writing property and liability insurance. Famex is not an insurance company. Famex is engaged in the business of marketing insurance, including market consultation, development of group insurance programs and organization of a sales network for marketing group programs. Plaintiffs seek to enforce a non-competition agreement with the defendant Century Insurance Services, Inc. *1054 (Century), and the chief executive officers of the corporate defendant as individual defendants. Century is an independent insurance agency located in Birmingham, Alabama.
Century entered into an authorization agreement with Famex which designated Century as an appointed agent of Fireman's Fund Insurance Company. Famex provided Century with written materials pertaining to the operation of the Famex plan, premium rates, and underwriting criteria as well as information concerning "leads." In addition to the manuals containing instructions for Famex agents, Famex prepared and distributed a file or kit for each of its group programs. These kits included information about the particular industry and about the organizations which sponsored the group insurance programs for their members. Famex also conducted market, loss control and other research pertinent to the insurance business, and provided the results of these studies to its agents, including Century.
Century operated and did business as a Famex agent under the agreement until disputes arose in May of 1981. Century sold and wrote insurance coverages for five Famex insureds with insurance carriers not affiliated with Famex/Fireman's Fund plans. This activity violated the authorization agreement. During July and August 1981, Century began soliciting and quoting coverages to other Famex insureds for insurance coverages with other companies not affiliated with Famex. Famex terminated its agreement with Century in writing on August 13, 1981, effective after thirty days. Famex then sought to enforce the following noncompetition clause which was a part of the agreement between Century and Famex:
"X. Agent's Obligation Upon Termination
"...
"(b) For a period of three (3) years following termination of this Agreement, Agent agrees not to solicit any insured written under a Network Insurance Program for coverages which were available under the Network Insurance Programs."
The trial court found that the provision which the plaintiff seeks to enforce was void as a restraint of trade under Code 1975, § 8-1-1:
"(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
"(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.
"(c) Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted."
We disagree. A similar restraint was recently considered and upheld by this court in Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So. 2d 1027 (Ala.1980). The Hibbett case concerned an agreement between Hibbett, the lessee and Biernbaum, the lessor of space in a shopping mall. In that case the lessor agreed not to lease space in the mall to another sporting goods store. Citing a well-established line of cases, we said:
"`It is true that contracts in general restraint of trade violate the policy of the law and are therefore void, but as observed in Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 73 So. 889:
"`"... Every contract, however, which at all restrains or restricts trade, is not void; it must injuriously affect the public weal; that it may affect a few or several individuals engaged in a like business does not render it void. Every contract of purchase and sale to some extent *1055 injures other parties; that is, it necessarily prevents others from making the sale or sales consummated by such contract....
"`"Contracts in partial restraint of trade are always upheld, when properly restricted as to territory, time and persons, where they are supported by sufficient consideration." ...'"
Id. at 1029. (Citations omitted.)
Under the agreement in the present case, the restraint lasts for three years, which is a reasonable time. Century is not prohibited from doing business, but only from soliciting Famex insureds. With all respect, we are convinced that the learned trial court misinterpreted the statute. In light of Hibbett and the cases cited therein, the statute does not apply to partial restraints. The clause at issue in the case at bar obviously is in partial restraint of trade, it is reasonable and sufficiently limited, and therefore it is not void. The judgment denying the application for a preliminary injunction is due to be and is reversed and this cause is remanded for an order not inconsistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616339/ | 38 So. 3d 64 (2009)
Joe FENISON
v.
BIRMINGHAM SPRING SERVICE, INC., et al.
Birmingham Spring Service, Inc.
v.
Joe Fenison.
2080023 and 2080036.
Court of Civil Appeals of Alabama.
November 6, 2009.
*65 Ralph Bohanan, Jr., of Bohanan & Associates, P.C., Birmingham, for appellant/cross-appellee Joe Fenison.
Scott M. Roberts and Amanda L. Mink of Roberts & Associates, P.C., Birmingham, for appellees Birmingham Spring Service, Inc., Attenta, Inc., and Sara Hargove and cross-appellant Birmingham Spring Service, Inc.
PITTMAN, Judge.
These consolidated cases arise out of an action brought in the Jefferson Circuit Court in June 2004 by Joe Fenison ("the employee") against three defendants: his former employer, Birmingham Spring Service, Inc. ("the employer"); Attenta, Inc., the employer's workers' compensation insurance administrator ("Attenta"); and Sarah Hargrove, an employee of Attenta. In that action, the employee sought compensatory and punitive damages based upon the defendants' alleged wrongful conduct in failing to abide by a consent judgment entered in October 2000 on the employee's earlier workers' compensation claim against the employer stemming from a work-related injury to the employee's right arm. The trial court entered a summary judgment in the action in favor of all defendants on January 14, 2008, and stated in that judgment that costs were "taxed as paid." Compare Rule 54(d), Ala. R. Civ. P. ("Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs....").
On May 20, 2008, more than four months after the trial court had entered its judgment directing that costs were to be taxed as paid, the employer, Attenta, and Hargrove filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the costs provision of the judgment so as to award them costs, including attorney fees, in the total amount of $57,044.65; in that motion, the defendants averred that they had sought relief under Rule 60(b)(6) because "a thorough review of this file as well as invoices, billing, and expenditures subsequent to the entry of this court's final order in January 2008[ ] clearly showed that this litigation could have been handled much more efficiently and with much less cost to both parties." The motion was accompanied by attachments purporting to be court-reporting and transcription bills from 2005 and 2006 and legal-services statements covering the period from September 2004 through January 2008. Nine days after the defendants' motion was filed, on May 29, 2008, the trial court entered an order granting the defendants' Rule 60(b) motion in part and ordering the employee to pay costs in the amount of $19,529.45.
On May 30, 2008, the employee timely moved to vacate the trial court's order granting the Rule 60(b) motion, averring that a motion pursuant to Rule 60(b) was not an appropriate procedural device by which to seek review of the trial court's taxation of costs in its January 14, 2008, judgment. The trial court did not, however, rule upon the employee's motion on or before August 28, 2008, within 90 days of its having been filed, and pursuant to Rule 59.1, Ala. R. Civ. P., that motion was automatically denied. Notwithstanding that denial, on September 15, 2008, the trial *66 court entered an order purporting to grant the employee's motion.
The employee filed a notice of appeal on October 9, 2008, 42 days after the automatic denial of his postjudgment motion to vacate the trial court's judgment as amended by its May 29, 2008, order granting the defendants' motion for relief from the January 14, 2008, judgment. That appeal was docketed in this court as case no. 2080023. On October 15, 2008, within a presumptively reasonable time for seeking review by a petition for an extraordinary writ, see Rule 21(a), Ala. R.App. P., the employer filed a petition for a writ of mandamus challenging the validity of the September 15, 2008, order purporting to grant the employee's May 30, 2008, motion. That petition was docketed in this court as case no. 2080036. Ex mero motu, this court ordered that the two proceedings be consolidated for briefing purposes and ordered that the employer's mandamus petition would be treated as if it were a "cross-appeal" from the judgment under review.
Because the employer's "cross-appeal" is directed to the trial court's most recent order, and may be resolved simply, we address it first. As we have noted, the employee's motion seeking to vacate the trial court's amended judgment was filed on May 30, 2008, but was not ruled upon by August 28, 2008. Rule 59.1, Ala. R. Civ. P., states that a postjudgment motion to vacate pursuant to Rule 59, Ala. R. Civ. P., may not remain pending in the trial court for more than 90 days unless either "the express consent of all the parties" appears of record or an order of extension is issued by the appellate court to which an appeal of the judgment would lie; under Rule 59.1, any failure by the trial court to rule upon a postjudgment motion within the permitted time "constitute[s] a denial of such motion as of the date of the expiration of the period." On the authority of Ex parte Davidson, 782 So. 2d 237, 240-41 (Ala.2000), we must conclude that the trial court's order of September 15, 2008, was entered without jurisdiction and was a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.[1]
We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.[2] Rule 60(b), Ala. R. Civ. P., provides, in pertinent part:
"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or *67 (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper procedural vehicle by which a party may seek relief from a trial court's taxation of costs. There is authority in Alabama that supports the employee's position. In City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala.1981), the Alabama Supreme Court reviewed a trial court's order granting a motion, labeled as a Rule 60(b) motion, that had requested reexamination of the allocation of costs in the trial court's judgment on the merits of the case. The Alabama Supreme Court rejected the appellant's attempt to seek reversal on the basis that Rule 60(b) was not a substitute for appellate review; in doing so, it opined that the motion, although ostensibly one filed under Rule 60(b), had in actuality been a motion to alter, amend, or vacate so as to be cognizable under Rule 59(e), Ala. R. Civ. P. 396 So.2d at 695-96. Subsequently, in City of Jasper Civil Service Board v. Schultz, 412 So. 2d 818 (Ala.Civ.App.1982), this court reversed an order issued by a trial court that had purported to grant a party's pro se oral motion that had been presented more than four months after an amended judgment taxing costs against him; in Schultz, we characterized City of Birmingham as having held that a Rule 60(b) motion "was not a proper procedural device by which to seek a reconsideration of the issue of taxing costs," and we ruled that the oral motion could only be properly viewed as an untimely Rule 59(e) motion. 412 So.2d at 818-19.
However, we reached a seemingly contrary conclusion in Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala.Civ.App.1985), in which we construed a request to amend a judgment so as to provide for a lump-sum award of attorney feesan element of costsas cognizable under Rule 60(b). Because, as we explain herein, Rebel Oil casts doubt upon the correctness of the trial court's May 29, 2008, order in other respects, we will assume that Rebel Oil correctly determined that some portion of Rule 60(b) may, in a proper case, serve as a basis for seeking relief from the cost provisions of a judgment.
"In order to obtain Rule 60(b) relief, the movant must allege and prove one of the grounds in the rule." Briscoe v. Briscoe, 600 So. 2d 290, 292 (Ala.Civ.App. 1992) (emphasis added). In this case, the defendants delayed seeking relief until more than four months had elapsed from the entry of the judgment; thus, the defendants' motion for relief under Rule 60(b) was cognizable, if at all, under only subsections (4), (5), and (6) of that rule, which permit relief based upon voidness of the pertinent judgment, the occurrence of subsequent events indicating that the judgment should not have prospective application, or other reasons justifying relief that fall outside the five grounds enumerated in Rule 60(b) itself. The defendants' motion alleged that relief was justified under subdivision (6), the "catch-all" provision; they did not contend that the January 14, 2008, judgment was void or that it should not have prospective application. We thus proceed to consider whether the defendants were entitled to relief under subdivision (6) of Rule 60(b).
In our inquiry, we are guided by our decision in Rebel Oil. In Rebel Oil, the parties to a workers' compensation claim entered into a settlement of that claim, and the trial court entered a judgment in September *68 1983 approving the settlement and directing that the plaintiff's attorney would be paid a 15% fee to be paid on a weekly basis from the compensation awarded. In November 1984, Pike, the plaintiff's attorney, filed a motion, invoking Rule 60(b)(6) as authority, that sought to amend the September 1983 judgment so as to provide for the payment of the attorney fee in a lump sum based upon a July 1983 opinion of this court providing for such an award; the trial court granted that motion, prompting the defendant to appeal. We concluded that the trial court's order granting relief was outside the scope of that court's discretion to grant relief under subdivision (6) of Rule 60(b):
"In order for rule 60(b)(6) to be available as a device for relief from judgment, two prerequisites must be satisfied. First, the motion must be based on some reason other than those stated in rule 60(b)(1) through 60(b)(5), and second, the reason urged for relief must be such as to justify relief. Neither prerequisite is satisfied in the case before us.
"In Chambers County Commissioners v. Walker, 459 So. 2d 861 (Ala.1984), a case similar to the case before us, plaintiffs brought a rule 60(b)(6) motion for relief from judgment on the grounds that plaintiffs' counsel had mistaken the effect that this judgment would have on any subsequent suit brought against the commission. Plaintiffs' counsel stated that he was unaware of a particular line of cases, and that he would not have agreed to the settlement had he been aware of those cases. The supreme court held that plaintiffs stated grounds for relief under rule 60(b)(1). Thus, plaintiffs could not seek relief under rule 60(b)(6) since the categories for relief under rule 60(b) are mutually exclusive.
"Similarly, in the case at bar, Pike was unaware of a case that would have permitted him to recover his attorney fees in a lump sum. Due to his own mistake and inadvertence, Pike failed to request that his fees be awarded in a lump sum. Pike's motion thus shows grounds for relief under rule 60(b)(1), and he may not seek relief under rule 60(b)(6). Nor may he characterize his motion as a 60(b)(6) motion and thereby escape the four month time limitation of rule 60(b)(1).
"However, Pike contends that relief is available under rule 60(b)(6) because he has shown sufficient aggravating circumstances justifying relief. The supreme court has stated that grounds for relief under rule 60(b)(1) generally cannot be valid grounds under rule 60(b)(6) unless sufficient aggravating circumstances exist so as to permit the trial court to say that the case is properly within 60(b)(6).
"A party seeking relief under rule 60(b)(6) has the burden of proving extraordinary circumstances and/or extreme hardship or injustice sufficient to entitle him to relief.
"Pike argues that if the court does not direct that his fees be paid in a lump sum a sizeable portion of his fee could be lost. Yet, Pike voluntarily entered into the settlement agreement on behalf of his client and agreed to the manner of payment of his attorney fees.... Pike waited more than a year after the judgment was entered before seeking to set it aside....
"Pike participated in the agreement to settle this controversy and must be assumed to have agreed to the provision in the written agreement providing for the payment of his fee. No request was made of the trial court at that time to award a lump-sum fee. Rule 60(b)(6) `is not for the purpose of relieving a party from free, calculated, and deliberate *69 choices he has made. A party remains under a duty to take legal steps to protect his own interests.' The parties have relied on the settlement agreement for thirteen months. Had Pike been more diligent in discovering his legal rights, he might have obtained relief under rule 59(e) or 60(b)(1)."
473 So.2d at 531-32 (citations omitted).
To like effect is the decision of the United States Court of Appeals for the Eleventh Circuit construing analogous federal procedural rules in United States v. Route 1, Box 111, 920 F.2d 788 (11th Cir. 1991).[3] In Route 1, the United States brought a forfeiture action against a parcel of property alleged to have been used to facilitate an illicit-drug-distribution business; the federal district court, which was the trial court in that case, entered a final judgment in December 1987 in favor of the United States stating that no costs would be taxed. In August 1988, the United States filed a motion seeking forfeiture of a cost bond that had been posted by a claimant of the property as to which bond the United States had claimed prior unawareness; the district court construed the request as a motion pursuant to Rule 60(b)(6), Fed.R.Civ.P., and awarded the bond to the United States. In reversing that judgment, the federal appellate court reasoned:
"The district court erred in relying on F.R.C.P. 60(b)(6) as a basis for granting the United States' motion for post judgment relief. That part of Rule 60(b) applies only to cases that do not fall into any of the other categories listed in parts (1)-(5) of Rule 60(b). This result is evident from the Rule's language and structure.
"`[T]he very cast of the Rule and the language of clause (6) indicate that this residual clause is dealing with matter not covered in the preceding five clauses. Further, the maximum time limitation ... that applies to clause (1), (2) and (3) would be meaningless, if after the ... period had run the movant could be granted relief under clause (6) for reasons covered by clauses (1), (2) and (3).'
"From the categories available under Rule 60(b), the United States' failure to request costs as part of the judgment can only be classified as a mistake, inadvertence or neglect.
"We decide that the government waived its right to file a motion to tax costs in the face of a final judgment which states that no costs would be taxed. Rule 59(e)[, Fed.R.Civ.P.,] permits a litigant to move the court to alter or amend a judgment within ten days. Rule 60(b)(1)[, Fed.R.Civ.P.,] permits a litigant to move the court within a reasonable time not to exceed one year for relief from a final judgment. Additionally, we have held that `[a] final judgment under Rule 60(b) is any judgment that is an appealable order.' Thus, the government's only avenue of relief, if any exists, lies under Rule 60(b)(1).
". . . .
"The government's motion under Rule 60(b)(1) ... fails because the government has not shown that the equities of this case warrant our reopening this final judgment. Rule 60(b) is a remedial rule that `should be liberally construed in order to do substantial justice.' This concern is most compelling when the court has not reached the merits of the case. In the instant case, the government *70 contends that its failure to move earlier than eight months after the district court entered judgment was excusable. The government premises its excuse on the fact that it did not realize that the claimant had filed a cost bond. This totally misses the point. Since the judgment included the statement that no costs were to be taxed, the government was on notice from the time of the judgment that it was not entitled to costs. The fact that the government was unaware that the claimant had filed a cost bond is irrelevant. Thus, the question confronting this court is whether the government's failure to attack the final judgment as to costs is excusable. We conclude that it is not.
". . . .
"We recognize that final judgments should `yield, in appropriate circumstances, to the equities of the particular case in order that the judgment might reflect the true merits of the cause.' However, attorney negligence or oversight is rarely grounds for relief. We conclude that the U.S. Attorney's failure to understand the implications of the district court's judgment ... cannot, even under the most liberal construction, qualify for relief under Rule 60(b)."
920 F.2d at 791-92 (emphasis added; footnote and citations omitted).
In this case, the defendants were on notice, from the date that the trial court entered its judgment, that (a) notwithstanding the "prevailing party" provisions of Rule 54(d), Ala. R. Civ. P., the defendants had been determined not to be entitled to an award of costs, and (b) the defendants had accrued substantial costs of more than $50,000 before the entry of that judgment. Despite that knowledge, the defendants did not move to alter, amend, or vacate the costs provision of the judgment within 30 days of the entry of that judgment so as to warrant relief under Rule 59(e), Ala. R. Civ. P. Further, they did not move for relief from the judgment within the four-month period within which they could have obtained relief based upon subdivision (1) of Rule 60(b), the appropriate subdivision of that rule allowing relief based on mistake, inadvertence, or neglect. By waiting until more than four months had elapsed to seek relief from the cost provisions of the trial court's judgment so that a motion seeking relief under only subdivision (6) remained as a viable procedural vehicle, the defendants foreclosed any rights they might have had to such reliefboth Rebel Oil and Route 1 demonstrate that Rule 60(b)(6) relief is not available simply to challenge cost provisions of a judgment that might properly have been modifiable at an earlier point.
Based upon the foregoing facts and authorities, we must conclude that the trial court erred in concluding that the defendants had alleged and proved grounds under Rule 60(b)(6), Ala. R. Civ. P., for relief from the judgment as to costs. Thus, we agree with the employee that the trial court's May 29, 2008, order granting the relief requested by the defendants in their May 20, 2008, motion is due to be reversed. We remand the cause to the trial court with instructions to vacate both the May 29, 2008, order and the September 15, 2008, order, and to reinstate the January 14, 2008, judgment.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
[2] That order, which contemplated "no further proceedings" in the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).
[3] Cases interpreting the Federal Rules of Civil Procedure are authority for interpreting the Alabama Rules of Civil Procedure. Bracy v. Sippial Elec. Co., 379 So. 2d 582, 584 (Ala. 1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456471/ | 796 S.W.2d 201 (1990)
AMERICAN GENERAL FIRE & CASUALTY COMPANY, Appellant,
v.
Monika G. McDONALD, Individually and as Representative of the Estate of James W. McDonald, and as Next Friend of "Child" McDonald, and Dennis McDonald and Patty McDonald, Individually, Appellees.
No. 04-89-00252-CV.
Court of Appeals of Texas, San Antonio.
May 30, 1990.
Rehearing Denied July 24, 1990.
Nissa A. Mykleby, Karen A. Angelini, Carman M. Garufi, Brock & Mathis, San Antonio, for appellant.
James L. Branton, Joanne M. Berscheidt, Branton & Hall, Thomas H. Crofts, Jr., Groce, Locke & Hebdon, Joe Frazier Brown, Richard J. Reynolds, III, Thornton, Summers, Biechlin, Dunham & Brown, P.C., Edward P. Cano, Mendez & Cano, San Antonio, for appellees.
Before REEVES, PEEPLES and CARR, JJ.
OPINION
CARR, Justice.
This is an appeal from a judgment allocating damages caused by a third party among a deceased worker's beneficiaries and ordering the worker's compensation insurance *202 carrier to continue weekly death benefits to a minor beneficiary.
The deceased workman, while performing his job, was killed by a third party who struck him with a vehicle. The deceased's widow (Monika McDonald) brought a third party action against the driver of the vehicle for the death of her husband. She brought suit individually, as representative of the deceased's estate, and as next friend of their child (Kevin McDonald). The deceased's parents (Dennis and Patty McDonald) were also parties to the suit. American General Fire & Casualty Company (appellant) intervened in order to recover worker's compensation benefits which it had already paid and for which it would be liable in the future. The tortfeasor[1] and plaintiffs (appellees) settled the third party claim. The trial court allocated the damages among the widow and the parents, awarded no part of the third party payment to the minor, and ordered Intervenor to continue paying weekly death benefits of $91.50 to the minor child, until the child attains the age of eighteen, at which time the $25,000.00 of the mother's recovery which she agreed to hold in safekeeping would become available to the child.
Intervenor brings this appeal, urging that the trial court erred in failing to terminate future worker's compensation death benefits to the minor child pursuant to TEX.REV.CIV.STAT.ANN. art. 8307, § 6a (Vernon Supp.1990)[2], because the terms of the judgment effectively resulted in a recovery from the third party tortfeasor for the minor child.
It is obvious that plaintiffs were attempting to circumvent the provisions of article 8307, section 6a, by placing $25,000.00 of the recovery in a "voluntary" safekeeping agreement. However, we find that the terms of the judgment clearly indicate an intent to award the minor $25,000.00. Therefore, we reverse the judgment of the trial court and remand the cause to the trial court to award Intervenor the appropriate credit for future death benefits it will pay the minor child.
In the judgment, the trial court stated that "all proceeds are apportioned to the surviving wife and parents of the Deceased...." The court awarded $1,533.00 to Intervenor, $10,000.00 to the parents, and $128,467.00 to
the surviving mother of the Minor Child, whose obligation it is to care for, raise and support said Minor Child. It appearing to the Court that an apportionment of the recovery to the Minor Child at the present time would have the effect of terminating the worker's compensation benefits, and it further appearing to the Court that the surviving widow, MONIKA G. McDONALD, has entered into an agreement with DENNIS McDONALD, the father of the Deceased and the grandfather of the Minor Child, KEVIN McDONALD, and with their attorney, Michael Black, to safeguard $25,000 of the recovery payable to MONIKA G. McDONALD, to be voluntarily turned over by them to the Minor Child when he reaches that age of 18, for use as a college fund and for other necessities. The future obligation of the workers' compensation carrier, the Intervenor herein, to pay benefits to said Minor Child, KEVIN McDONALD, after the age of 18, should he be a student in an accredited college and otherwise be entitled to receive workers' compensation benefits, is hereby terminated.
. . . .
The Court notes that the duly appointed Guardian Ad Litem has reviewed and approved the Agreement entered into between DENNIS McDONALD, MONIKA G. McDONALD, and MICHAEL BLACK, for the protection of funds awarded herein to MONIKA G. McDONALD, to be voluntarily turned over by her to and for the use of KEVIN McDONALD when he reaches the age of 18 in the year 2005, and annually thereafter, until the year 2008, after which time all of the $25,000 invested pursuant *203 to the Agreement, plus any and all interest thereon or other increase, will be turned over to KEVIN McDONALD.
. . . .
IT IS FURTHER ORDERED that nothing in this Judgment shall operate to relieve the Intervenor, AMERICAN GENERAL FIRE & CASUALTY COMPANY, of its obligation to continue payment of weekly benefits to the Minor Child, KEVIN McDONALD, in the sum of $91.50, which are currently being paid, said obligation to continue in this amount until he reaches the age of 18.
. . . .
IT IS FURTHER ORDERED that, based on the agreement that has been entered into by MONIKA G. McDONALD with DENNIS McDONALD and MICHAEL BLACK, and their voluntary agreement to set aside and safeguard monies for the education of the Minor Child upon his reaching the age of 18 and for payment of other necessities and living expenses at such age, there will be no obligation of the Intervenor, AMERICAN GENERAL FIRE & CAUSUALTY [sic] COMPANY, to pay workers' compensation benefits from and after September 6, 2005, the 18th birthday of KEVIN McDONALD, which is the date which the parties to the "safekeeping agreement" will begin turning over the proceeds of the bonds which begin maturing on July 1, 2005, and mature annually thereafter until July 1, 2008.
It further appearing to the Court that MONIKA G. McDONALD has agreed to be bound by Court Order restricting her use and access to $25,000 of the amount awarded to her out of the recovery herein, and that same has and will be used to purchase zero coupon bonds from Rotan-Mosle, and held under a "safekeeping agreement" until the years 2005, 2006, 2007, and 2008, at which dates the proceeds of such zero coupon bonds will be paid to MONIKA G. McDONALD, DENNIS McDONALD and MICHAEL BLACK, Attorney at Law, to be donated to KEVIN McDONALD.
IT IS, ACCORDINGLY, ORDERED, ADJUDGED and DECREED that the Bonds purchased with said funds pursuant to that certain Agreement entered into between MONIKA G. McDONALD, DENNIS McDONALD and MICHAEL BLACK, Attorney at Law, be held under a "safekeeping agreement" with Rotan-Mosle until their maturity dates of 2005, 2006, 2007, and 2008, or until further Order of this Court.
Article 8307, section 6a, of the worker's compensation statute permits a deceased worker's beneficiaries to pursue a claim against a third party who caused the death of the worker and still claim or receive benefits under the act. Art. 8307, § 6a. That article provides, in pertinent part, that:
(a) If the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may proceed either at law against that person to recover damages or against the association for compensation under this law, and if he proceeds at law against the person other than the subscriber, then he shall not be held to have waived his rights to compensation under this law. If the claimant is a beneficiary under the death benefits provisions of Section 8a, Article 8306, Revised Civil Statutes of Texas, 1925, as amended,[3] a judgment shall not constitute an election but the amount of such recovery shall first pay costs and attorney's fees and then reimburse the association, and if there be any excess it shall be paid to the beneficiaries in the same ratio as they received death benefits and the association shall suspend further payments of benefits until the suspended benefits shall equal the amount of such excess at which time benefits shall be resumed. If compensation be claimed under this law by the injured employee *204 or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee or of his legal beneficiaries the liability of said other person, and in case the recovery is for a sum greater than that paid or assumed by the association to the employee or his legal beneficiaries, then out of the sum so recovered the association shall reimburse itself and pay said costs and the excess so recovered shall be paid to the injured employee or his beneficiaries.
. . . .
(c) If at the conclusion of a third party action a workmen's compensation beneficiary is entitled to compensation, the net amount recovered by such beneficiary from the third party action shall be applied to reimburse the association for past benefits and medical expenses paid and any amount in excess of past benefits and medical expenses shall be treated as an advance against future benefit payments of compensation to which the beneficiary is entitled to receive under the Act. When the advance is adequate to cover all future compensation and medical benefit payments as provided by this law, no further payments shall be made by the association but if insufficient, the association shall resume such payments when the advance is exhausted. The reasonable and necessary medical expenses incurred by the claimant on account of the injury shall be deducted from the advance in the same manner as benefit payments.
In their pleadings at trial, plaintiffs claim they fall under the death benefits provision of subsection 6a(a). However, in their appellate briefs, both parties assert subsection 6a(c) as the applicable subsection. We find that subsection 6a(a) concerning death benefits is the appropriate provision. See Ischy v. Twin City Fire Ins. Co., 718 S.W.2d 885, 887 (Tex.App.Austin 1986, writ ref'd n.r.e.).
The purpose of subsection 6a(a) is to prevent overcompensation to the employee and to reduce the burden of insurance to the employer and to the public. Capitol Aggregates, Inc. v. Great American Ins. Co., 408 S.W.2d 922, 924 (Tex.1966); Granite State Ins. Co. v. Firebaugh, 558 S.W.2d 550, 551 (Tex.Civ.App.Eastland 1977, writ ref'd n.r.e.).
Under subsection 6a(a), a compensation carrier has a right to the "first money" received from a third party tortfeasor. Prewitt & Sampson v. City of Dallas, 713 S.W.2d 720, 722 (Tex.App.Dallas 1986, writ ref'd n.r.e.); Art. 8307, § 6a(a). Costs and attorney's fees shall be paid first and then the carrier shall be reimbursed. The excess shall then be apportioned to the beneficiaries in the same ratio as they recovered from the tortfeasor. The carrier's obligation to pay further benefits is suspended until such time as the excess has been used. Art. 8307, § 6a(a).
The association has a right to subrogation and may enforce the liability to a beneficiary in the beneficiary's name against the third party tortfeasor. Art. 8307, § 6a(a).
Since the association has a right to subrogation, its right to reduce its liability due to the payment by a third party must not be compromised. See Capitol Aggregates, Inc. v. Great American Ins. Co., 408 S.W.2d at 924; Granite State Ins. Co. v. Firebaugh, 558 S.W.2d at 551, 552. The judgment in this case does just thatit compromises the carrier's right to subrogation. By structuring the award so as to deny a "recovery" by the minor child and awarding the entire recovery to the mother burdened by an agreement to set aside $25,000.00 for the child, the trial court has effectively given the child a double recovery and denied the carrier reimbursement rights.
Plaintiffs urge that there is no recovery by the child since there is nothing about the "voluntary agreement" to set aside $25,000.00 that the child can judicially enforce. We disagree. Monika McDonald, individually, as representative of the estate of the deceased, and as next friend of the minor, and Dennis and Patty McDonald moved the trial court to approve a settlement and divide the proceeds. The trial court awarded Intervenor $1,533.00; the *205 parents of the deceased $10,000.00; the widow $128,467.00; and the minor child of the deceased nothing. However, the trial court ordered that the $25,000.00 in bonds be held under a safekeeping agreement with Rotan-Mosle until their maturity dates of 2005 through 2008 or until further order of the court. The trial court further ordered the carrier to continue death benefits for the minor child until his eighteenth birthday, "which is the date which the parties to the `safekeeping agreement' will begin turning over the proceeds of the bonds...." Even though the minor child will not be entitled to these funds until the year 2005 and cannot maintain an enforcement proceeding until that time, the safekeeping agreement still constitutes a recovery under the act. See City of Garland v. Huston, 702 S.W.2d 697, 700 (Tex.App. Dallas 1985, writ ref'd n.r.e.). A recovery is the "restoration or vindication of a right existing in a person, by formal judgment or decree of a competent court...." Id. The child has "recovered" for purposes of the Act.
We recognize that the worker's compensation laws are to be construed liberally in order to effectuate the purposes for which the act was enacted and that they should be construed liberally in favor of the employee and beneficiaries. Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4, 6 (1939). However, the attempted circumvention of subsection 6a(a) violates and defeats the purpose of that provision, i.e., permits the parties to retain the full recovery from the third party tortfeasor while continuing to receive payments from the association. See Capitol Aggregates, Inc. v. Great American Ins. Co., 408 S.W.2d at 924; Goodman v. Travelers Ins. Co., 703 S.W.2d 327, 329 (Tex. App.Corpus Christi 1985, no writ); Granite State Ins. Co. v. Firebaugh, 558 S.W.2d at 552.
Plaintiffs urge that the trial court was duty bound to protect the child's best interests by awarding the child no part of the third party tortfeasor's settlement while continuing worker's compensation death benefits for the child. The issue of the child's best interest is inapplicable in this case in which the issue to be determined is not whether the child's best interests were protected but whether the terms of the judgment violate the worker's compensation act.
It is true that the minor child, through his representative, could elect to receive only worker's compensation death benefits and not seek a recovery from the third party tortfeasor. Art. 8307, § 6a(a). Such an election by a beneficiary, however, does not affect the association's right to bring a suit in the beneficiary's name to recoup the association's payments. Id. However, the instance involved here, in which the minor took no part of the settlement, compromised the minor's rights and thus the association's rights to recoup under a separate suit by the association against the third party tortfeasor. The minor cannot arrange the apportionment of the settlement in such a way as to destroy the association's right to receive reimbursement for its payments.
Plaintiffs rely on Sunbelt Insurance Company v. Childress, 640 S.W.2d 356 (Tex.App.Tyler 1982, no writ), for authority that a death beneficiary may waive its rights to death benefits under the worker's compensation act and the waived benefits be distributed among the remaining beneficiaries. Childress involved an award of worker's compensation death benefits and no third party tortfeasor was involved. Childress is not applicable to our facts.
The minor child argues that "the carrier's subrogation interest [should] be compromised when the total amount paid under a judgment as [sic] much less than the total loss suffered by the Plaintiff beneficiary." Plaintiffs pleaded for actual damages of $2,000,000.00 and exemplary damages of $1,000,000.00. We find this argument to be without merit. First, the amount of damages pleaded is not necessarily the amount which will be proved at trial. Second, plaintiffs entered into a settlement agreementsettling the issue of the amount of damages.
For the reasons set out above, the judgment of the trial court is reversed and the *206 cause is remanded to the trial court to determine the proper credit to be given Intervenor based on the minor's recovery through the third party tortfeasor.
NOTES
[1] The tortfeasor is not a party to this appeal.
[2] All statutory references are to TEX.REV.CIV. STAT.ANN. art. 8307 (Vernon Supp.1990) unless otherwise indicated.
[3] TEX.REV.CIV.STAT.ANN. art. 8306, § 8a (Vernon Supp.1990) names death beneficiaries as the surviving spouse, minor children, parents, and certain others not relevant to this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617039/ | 623 So. 2d 1106 (1993)
TRUCK RENTALS OF ALABAMA, INC., and Rollins Leasing Corporation
v.
M.O. CARROLL-NEWTON COMPANY, INC.
1910924, 1910925.
Supreme Court of Alabama.
June 30, 1993.
J. Franklin Ozment and Robert D. Hunter of Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.
James J. Robinson and Carol H. Stewart of Burr & Forman, Birmingham, for appellee.
PER CURIAM.
Truck Rentals of Alabama, Inc. ("TRA"), and Rollins Leasing Corporation appeal from judgments on jury verdicts in favor of M.O. *1107 Carroll-Newton Company, Inc. ("M.O. Carroll"). The jury returned a verdict against TRA in the amount of $196,840.50 on M.O. Carroll's claims of fraud and breach of contract, and against Rollins in the amount of $196,840.50 on M.O. Carroll's claims of breach of contract and conversion. In addition, the jury awarded Rollins and TRA $24,708.50 each on their counterclaims against M.O. Carroll for the rental value of certain vehicles provided by TRA to M.O. Carroll. The trial judge denied motions by TRA and Rollins for a judgment notwithstanding the verdict or, in the alternative, for a new trial, and TRA and Rollins appealed. We affirm.
M.O. Carroll, a wholesale grocer, uses tractor trailer rigs to deliver groceries to small grocery stores in Alabama and surrounding states. In early 1987, Sam Carroll, III, vice president in charge of operations at M.O. Carroll, began negotiating with Bo Harrison, a representative of Truck Rentals of Alabama, regarding the possibility of leasing TRA trucks to meet the business obligations of M.O. Carroll. Initial discussions were not fruitful; however, in December 1987, Sam Carroll began negotiating with Richard Nicholas of TRA regarding the possibility of a business relationship. Nicholas presented Sam Carroll with a proposal to lease 10 trucks for a period of 5 years. Those trucks were to be serviced by TRA, and M.O. Carroll was to have parking privileges on TRA lots. In addition, TRA was to purchase 10 used trucks from M.O. Carroll. Negotiations continued between the parties, and changes were made to the original proposal. Ultimately, M.O. Carroll decided to lease 5 vehicles for 6-½ years, with the option to rent additional vehicles at a specified rate. Under the new proposal, TRA was to purchase 16 used trucks from M.O. Carroll and M.O. Carroll would be allowed to set up office trailers at various TRA locations. In addition, TRA would provide fuel for the trucks at cost and perform routine maintenance on the trucks.
The changes to the agreement were to be submitted to the Birmingham office of TRA for approval and, according to Sam Carroll, he was informed that all approval had been received. A draft of the agreement was then drawn up by TRA in January 1988 and signed by Sam Carroll. The document was then sent to the Birmingham office. Almost immediately, TRA began to abide by the terms of the agreement with regard to the delivery of the trucks and M.O. Carroll obtained the insurance required on the leased vehicles pursuant to the contract. TRA also held an orientation meeting with all M.O. Carroll drivers and explained TRA policies and procedures to them. In addition, TRA provided fuel at cost, in compliance with the contract, and performed routine maintenance on the vehicles pursuant thereto. According to the trial testimony, however, Sam Carroll became concerned when M.O. Carroll did not receive a check in payment for the trucks that TRA was to purchase. Sam Carroll testified at trial that he made numerous telephone calls to TRA and was assured, at least on one occasion, that the "check was in the mail." According to Sam Carroll, telephone calls to Buddy Jackson, vice president and general manager of TRA in Birmingham, regarding the status of the check in payment of the used vehicles, went unreturned.
Almost simultaneously with the negotiations between TRA and M.O. Carroll, TRA was negotiating with Rollins Leasing Corporation with regard to the sale of certain TRA assets to Rollins. The sale was to include equipment and leases and, although the agreement between Rollins and TRA provided that all potential leases would not be signed until authorized by Rollins, there was evidence that TRA's home office never informed its district managers and account representatives of this fact and did not discourage them from obtaining new leases during the negotiations. Although TRA appeared to abide by the M.O. Carroll lease to the letter from January to the end of March, with the exception of paying for the used vehicles it was to purchase from M.O. Carroll, no one ever informed M.O. Carroll that TRA or Rollins had not in fact approved the lease or that they had no intention of doing so. Then, on March 29, 1988, Rollins, having refused to accept the lease agreement, had Buddy Jackson of TRA write Sam Carroll and inform him that all trucks should be returned to TRA and that the lease was being rejected.
*1108 Following Jackson's letter to Sam Carroll, Rollins's agreement to purchase TRA's assets became effective and Rollins sent M.O. Carroll a letter that stated:
"Dear Customer:
"Rollins Leasing Corp. acquired the assets of Truck Rentals of Alabama, Inc. and Truck Rentals of Louisiana, Inc. Through that acquisition we have assumed your agreement with TRA.
"We would like to welcome you to Rollins.
". . . .
"Again, welcome to Rollins. We look forward to meeting your transportation needs now and in the future."
Rollins continued to bill M.O. Carroll for leased vehicles, according to the agreement between M.O. Carroll and TRA; however, following the above-quoted letter, Rollins notified M.O. Carroll of a rate increase that would become effective around the middle of April. When M.O. Carroll notified Rollins that it considered the lease agreement to be binding on Rollins, Rollins proceeded to require M.O. Carroll to return the leased vehicles and refused to service for M.O. Carroll the vehicles that had not yet been returned.
M.O. Carroll filed a complaint against TRA and Rollins on July 7, 1988. Rollins, in turn, filed a complaint against M.O. Carroll on July 8, 1988. The two cases were consolidated on September 22, 1988. TRA and Rollins thereafter filed a counterclaim in which TRA sought rental payments and Rollins incorporated the allegations of its separate complaint.
M.O. Carroll amended its original complaint in November 1988; that complaint is set out in pertinent part as follows:
"COUNT ONE
"1. On or about December 10, 1987, TRA, through its agent Richard Nicholas, presented to plaintiff a written and signed offer to provide a Full Service Lease Program to plaintiff, which included among other things an offer to lease trucks to the plaintiff at a specific rental rate for a period of five years. Defendant TRA also later agreed to purchase sixteen (16) used trucks from plaintiff for the total sum of $63,333.32. A copy of the written offer is attached hereto as Exhibit A.
". . . .
"7. Prior to March 30, 1988 defendants suppressed material facts from plaintiff regarding the lease agreement and the asset acquisition and failed to advise them that Rollins did not intend to honor the lease agreement even though defendants were under an obligation and in a position of trust and confidence to so advise plaintiff.
". . . .
"COUNT FOUR
"SUPPRESSION, DECEIT AND FRAUDULENT DECEIT
"16. Plaintiff hereby adopts and realleges all of the allegations set forth in paragraphs 1-15 above the same as if fully set forth herein.
"17. Defendants' actions as described above constitute suppression of material facts, deceit, and fraudulent deceit as set forth under Alabama Code § 6-5-102, § 6-5-103, § 6-5-104, respectively. As a direct and proximate result thereof plaintiff has been damaged in an amount exceeding $600,000.00.
"WHEREFORE, plaintiff claims from defendants all compensable damages incurred by plaintiff which damages exceed $600,000.00, plus interest and costs. Additionally, plaintiff claims punitive damages in the amount of $1,000,000.00 for the suppression of material facts, deceit and fraudulent deceit."
TRA contends that the trial judge erred in submitting the issue of affirmative misrepresentation to the jury. In particular, TRA argues that neither the complaint, the amended complaint, nor the trial brief contained any allegation of an affirmative misrepresentation and that, therefore, TRA lacked sufficient notice to defend against that theory. Instead, it claims to have had notice only of the theory of suppression of material facts. TRA states as follows in its brief on appeal:
*1109 "Thus, throughout the pre-trial proceedings, M.O. Carroll maintained two theories of fraud: 1) TRA and Rollins failed in an alleged duty to tell M.O. Carroll that Rollins was interested in purchasing TRA's assets and that TRA would not approve Plaintiff's Exhibit 4 unless Rollins approved it, and 2) TRA made a promise to lease trucks to M.O. Carroll when TRA had no intention of doing so."
Contrary to its argument, TRA, by acknowledging theory number (2) as a pre-trial theory of M.O. Carroll's complaint, admits the knowledge of an affirmative misrepresentation theory.
The trial judge's instructions to the jury with regard to misrepresentation include the following:
"And the third claim, M.O. Carroll in this case is claiming damages from T.R.A. for an alleged legal fraud. That's the third one, that was practiced upon them, that is upon M.O. Carroll. The law charged in the plaintiff's complaint is that T.R.A. made misrepresentations to M.O. Carroll, supposed [sic] material facts from M.O. Carroll and practiced deceit upon them, that is M.O. Carroll, related to the lease agreement at issue.
"Now, the defendants' answer to the complaint states that they are not guilty of those charges complained therein.
"If you are reasonably satisfied from the evidence that T.R.A. willfully misrepresented a material fact to M.O. Carroll with intent to induce M.O. Carroll to act thereon and M.O. Carroll did without, knowledge of the falsity, act upon said willful misrepresentation to its damage or detriment, then T.R.A. is guilty of legal fraud.
"If you are reasonably satisfied from the evidence that T.R.A. misrepresented a material fact recklessly without knowledge of the truth or falsity thereof and with the intent to induce M.O. Carroll to act and that M.O. Carroll acted upon said reckless misrepresentation to its injury, then T.R.A. is guilty of legal fraud.
"If you are reasonably satisfied from the evidence that T.R.A. ... by mistake misrepresented a material fact to M.O. Carroll thereby inducing action on the part of M.O. Carroll to its injury, then T.R.A. would be guilty of legal fraud.
"If you are reasonably satisfied by the evidence that T.R.A. deceived M.O. Carroll by a willful misrepresentation, a reckless misrepresentation or a suppression in order to induce M.O. Carroll to act, and that M.O. Carroll did act thereon to its injury, then T.R.A. is guilty of a deceit which is a legal fraud.
"I charge you, ladies and gentlemen, that T.R.A.'s knowledge of the falsehood is an essential element of deceit. A fraudulent or reckless representation of the facts as true which T.R.A. did not know to be false, if intended to decide [sic] M.O. Carroll, is equivalent to a knowledge of the falsehood.
"If you're reasonably satisfied from the evidence that T.R.A. concealed or withheld material facts from M.O. Carroll and without its knowledge of such material facts M.O. Carroll acted to its injury, then T.R.A. would be guilty of legal fraud."
"An action for deceit, under § 6-5-103 and § 6-5-104, results from either a willful or reckless misrepresentation or a suppression of material facts with an intent to mislead." Whitlow v. Bruno's Inc., 567 So. 2d 1235, 1241 (Ala.1990). In the amended complaint as quoted above, M.O. Carroll charged that TRA was guilty of violating § 6-5-103 and § 6-5-104. The amended complaint also charges that TRA agreed to purchase 16 trucks and knew that Rollins had no intention of abiding by that agreement.
Furthermore, we have reviewed the record and we agree with M.O. Carroll that, even if the complaint did not state a claim for an affirmative misrepresentation, such a claim was tried by implied consent. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 15(b), Ala.R.Civ.P. There is evidence in the record that TRA had sufficient notice of the affirmative misrepresentation theory to defend against it, particularly in the depositions taken by the parties during discovery. In *1110 particular, the deposition of Sam Carroll indicated that he had been told by a TRA representative that the check for the vehicles allegedly purchased pursuant to the agreement between the parties should reach him within a few days. Also, he stated that he had been told that TRA had approved the lease agreement in question.
At trial, Sam Carroll testified as follows:
"Q: Now, did this proposal [the original proposal submitted by TRA to M.O. Carroll] on the rate, Sam, meet with your approval? Did youis this what you told Richard Nicholas and Bill Douglas you would accept?
"A: When he broughtwhen Richard Nicholas brought the proposal in to me, we met and we went over it and we talked about it at length. Bill Douglas was present in the meeting also. We went over it and we talked about it and they were real hungry to do business with us. And we had had a good relationship before with Bo Harrison. And I felt comfortable with Truck Rentals of Alabama. I told him that we needed to talk about the price of the tractor a little bit and I started doing some figuring myself and basically came up with the conclusion that we could use five tractors rather the 10 tractors and use extra trucks and not have to pay the fixed rate charge per week on all the trucks, but only pay them as we needed them. So we basically talked about using five full-time lease tractors plus T.R.A. providing us with additional tractors on two or three days that were the only days that they were going to be used and we could do that more economical [sic] than pay for all 10 having some days those tractors would be parked.
". . . .
"Q: ... What is the next thing that you heard after you talked to Richard Nicholas a couple of times? What then happened?
"A: What happened then, I got a call sometime the first partI'm going to say probably around the middle of January and probably the 14th, 15th, 13th, I'm real bad at the dates so I'm not for sure which time, but I got a call and I got a call from Mr. Bill Douglas.
"Q: Okay.
"A: Mr. Bill Douglas said that all approval has been gotten, he got everything that we agreed on in our meetings, they're going to be able to provide everything that we had negotiated and when would be an appropriate timewould like to do a contract.
"Q: Okay. What did you tell them?
"A: I told him that I was going out of town. I think I was going out of town on like the 18th and I told him that I would be back in town on the next Saturday.
". . . .
"Q: Okay. Did you meet with him on Sundaydid you meet with someone on Sunday morning?
"A: I met with Mr. Richard Nicholas on Sunday morning.
"Q: And what took place at that meeting?
"A: Basically, the meeting was fairly short. He brought me the contracts, he brought me the addendum, he brought me theeverything that we had agreed to. And I signed the contract on Sunday morning and we shook hands, told me welcome on board, looking forward to starting doing business with us, hope we have a longterm relationship. I said the same thing to him. I said. `I'm excited, I hope the company's excited and we're excited to be on board with y'all.'
". . . .
"Q: ... All right. What happened after you signed the contract?
"A: After I signed the contract that Sunday morning with Mr. Richard Nicholas, they started delivering trucks in to M.O. Carroll-Newton company. I think they started delivering some of the tractors in Sunday night because basically when they deliver interim trucks in you have to sign for them and you sign the mileage on the truck. The way they charge you the mileage charge is at six and a half cents a mile, it's going to kill you each week and you get a bill for that. So we had to sign when the trucks were delivered to us stating the mileage that was on the truck because starting the first day that truck starts being delivered you have to pay each week *1111 however many miles that truck is going to run.
". . . .
"Q: All right. After say two weeks went by, did you havedid you develop any concerns?
"A: After a couple of weeks, I think about the second week my first cousin, Frank Carroll, came to my office and he said, `Sam,' he said, `When are we going to get our check from Truck Rentals of Alabama for the tractors that they bought?' and I said, `Well, the check hasn't come in yet?' And he said, `No.' And I said, `Well, let me call about it.' So, I called Richard Nicholas about when we were going to get our check on the 16 tractors that we had sold to Truck Rentals of Alabama.
"Q: What did he say?
"A: He told me that he needed to call Bill Douglas and have Bill Douglas call Birmingham to find out when the check would be coming.
"Q: Did he get back with you?
"A: He got back with me and he said he called Bill Douglas and Bill Douglas was going to get in touch with Buddy Jackson to find out when the check was going to be issued.
"Q: And what's the next thing that happened in that regard?
"A: Well, then another week or so went by and the check had not come in. I called Bill Douglas on the phone and asked him the status of the check. He said, `You mean you haven't gotten the check yet?' I said, `No, Bill, we have not received the check yet.' He said, `Well, let me call one more time and find out from Birmingham exactly when you're going to get the check.'
"Q: Now Bill Douglas is Richard Nicholas's boss?
"A: That's correct.
"Q: And what happened after that?
"A: Then I calledthen Bill Douglas called me back and I cannot place the day that he called me He called me back and he told me that he had talked with Buddy Jackson and that we should be receiving our checks by the next Monday."
Based on the pleadings, discovery, and the evidence given at trial, the trial judge did not err in charging the jury with regard to affirmative misrepresentation.
TRA and Rollins next argue that the alleged contract was void under the Statute of Frauds because, they say, it was an agreement not to be performed within a year, but was not expressed in a writing signed by TRA or Rollins. See § 8-9-2(1), Ala.Code 1975. They argue that, because the original proposal submitted to M.O. Carroll in December was significantly changed, it cannot constitute the contract. In addition, they contend that the proposal ultimately signed by Sam Carroll in January specifically stated that it would not be binding on TRA until approved and signed by a TRA officer; they contend this despite the fact that the document was drawn up by an agent of TRA and despite the fact that Sam Carroll was advised before the document was drawn up that all approval had been received.
TRA, by entering into performance in accordance with the agreement, may well be estopped to deny that the contract was in force. As previously stated, according to Sam Carroll, a TRA representative had told him that the agreement had been approved and that he should expect the check for the used vehicles within a few days. In addition, testimony at trial revealed that TRA had entered the agreement into its computer and that it usually did not make such entries until after a contract had been approved.
"`The purpose and intent of the Statute of Frauds is to prevent fraud, and not to aid in its perpetration.' 73 Am.Jur.2d Statute of Frauds § 562 (1974) (citations omitted). Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976); Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 101 So. 2d 78 (1957)."
Dean v. Myers, 466 So. 2d 952, 955 (Ala.1985).
Moreover, M.O. Carroll argues that there were numerous papers that, if considered together, are sufficient to meet the requirement imposed by the Statute of Frauds that the contract be evidenced by a writing signed by the party to be charged. In particular, M.O. Carroll points out that the December *1112 proposal was accompanied by a transmittal letter signed by a TRA officer and that both parties negotiated changes, which were reported to Sam Carroll as having been approved by TRA. Thereafter, the January agreement itself was prepared by TRA on a TRA letterhead. In addition, M.O. Carroll points out that it received weekly invoices with TRA endorsements consistent with the terms of the agreement.
We agree that the documents taken together suffice to meet the requirement of the Statute of Frauds. The negotiated contract constitutes an "agreement or some note or memorandum thereof expressing the consideration... in writing," and the invoices submitted by TRA to M.O. Carroll, as well as TRA's endorsements of checks submitted by M.O. Carroll, are sufficient under these circumstances to meet the requirement of the Statute of Frauds that the writing be "subscribed by the party to be charged therewith." In addition, the letter from Rollins to M.O. Carroll indicates that Rollins had assumed "the agreement" between TRA and M.O. Carroll. Thus, the arguments based on the Statute of Frauds have no merit.
In regard to the conversion claim against Rollins, Rollins contends that the trial judge erred in allowing the testimony of Bruce Sexton, because his name was not submitted on the list of all proposed witnesses in compliance with the pre-trial order. Whether to allow witness to testify is a matter within the sound discretion of the trial judge. Mitchell v. Moore, 406 So. 2d 347, 350 (Ala.1981). See also Alford v. State Farm Fire & Casualty Co., 496 So. 2d 19, 21 (Ala. 1986). We find no abuse of discretion here.
We have considered the remaining arguments of TRA and Rollins, and we find them to be without merit. Therefore, the judgment of the trial court is hereby affirmed as to appeal number 1910924, which is the appeal by TRA and Rollins from the judgment for M.O. Carroll in its action against TRA and Rollins.
The notice of appeal filed by TRA and Rollins included on its face the circuit court docket number for the case that Rollins had filed against M.O. Carroll, so the notice of appeal was treated as raising an appeal in that case, and the number 1910925 was assigned to that purported appeal. No appeal has in fact been taken from the judgment for Rollins in its action that was treated as a counterclaim, so case number 1910925 is due to be dismissed.
1910924AFFIRMED.
1910925DISMISSED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617037/ | 38 So. 3d 391 (2010)
STATE of Louisiana
v.
Michael B. WOODS.
No. 09-KA-399.
Court of Appeal of Louisiana, Fifth Circuit.
March 9, 2010.
*396 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Michael G. Morales, Assistant District Attorneys, Gretna, LA, for State of Louisiana/Appellee.
Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
Michael B. Woods, Angola, LA, In Proper Person.
Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and MARC E. JOHNSON.
MARC E. JOHNSON, Judge.
The Defendant, Michael B. Woods, appeals from his habitual offender proceeding, in which the trial judge found him to be fourth felony offender and sentenced him to life imprisonment. We affirm.
The Defendant was initially convicted of attempted simple burglary of an inhabited dwelling, possession of hydrocodone, and possession of alprazolam. Following his convictions, the Defendant was sentenced to six years imprisonment at hard labor on the attempted simple burglary charge, five years imprisonment at hard labor on the possession of hydrocodone charge, and five years imprisonment at hard labor on the possession of alprazolam charge, all to be served consecutively. The convictions were affirmed by this Court in State v. Woods, 08-718 (La.App. 5 Cir. 2/10/09), 4 So. 3d 248, rehearing denied.[1]
After the Defendant's appeal was filed and prior to this Court's opinion, the State filed a habitual offender bill alleging the Defendant to be a fourth felony offender. The Defendant denied the allegations and filed a response alleging that he was not advised of his constitutional rights at the *397 time he entered the pleas to the predicate offenses, was not advised of the possibility of the future applicability of the habitual offender statute, and was not properly Boykinized at the hearings on the predicate offenses.
After a hearing, the trial judge found the Defendant to be a fourth felony offender. He vacated the Defendant's previous sentence for his attempted simple burglary of an inhabited dwelling conviction, and sentenced the Defendant to life without benefit of probation or suspension of sentence. The Defendant objected to the sentence as excessive. This appeal followed.[2]
Appellate counsel filed one assignment of error. The Defendant filed nineteen pro se assignments of error.
A. Appellate counsel's assignment of error:
In counseled brief, the Defendant asserts that the State did not meet its burden of proving all the predicate offenses listed in the habitual offender bill. Specifically, he contends that he was not fully and thoroughly informed of his Boykin[3] rights, the maximum or minimum sentences, or that his guilty pleas could result in the State pursuing sentencing enhancement against him in the future. The Defendant also claims that the record fails to show whether counsel represented him, or whether he knowingly and voluntarily waived his right to counsel.[4] Third, he argues that the State failed to produce sufficient information regarding his prior convictions, and thus, the trial court committed manifest error in reaching his decision without conducting an independent and thorough review to determine if the Defendant's predicate convictions were constitutional.
In his pro se brief, the Defendant also asserts that the State failed to prove his identity in two of the State's exhibits, 3a and 3b, because those exhibits lack dates and the names of the persons connected to the fingerprints.[5]
The State responds that it met its initial burden of proving the existence of each of the Defendant's prior convictions and that the Defendant was represented by counsel at each guilty plea, thus satisfying its initial burden of proof. The burden then shifted to the Defendant to produce any affirmative evidence showing an infringement of his rights or procedural irregularity in the taking of his pleas, and that the Defendant failed to produce such evidence. The State contends that, because the Defendant did not meet his burden, it was not required to prove the constitutionality of the guilty pleas.
In addition, the State argues that Boykin v. Alabama does not require a defendant to be advised of the sentencing range, or that a guilty plea could result in the State pursuing sentencing enhancement against him in the future for the entry of a presumptively valid guilty plea.
The Defendant first argues that State's exhibits 2, 3a, 3b, 4, 5, 6 and 7 cannot be linked to the bill of information because the item numbers are not on the *398 exhibited fingerprints.[6] He asserts that State's exhibits 3a, 3b, and 4 are not certified by the person claiming to have taken the fingerprints, and that State's exhibits 5 and 6 occurred before his convictions.[7] He also claims that State's exhibit 2 is an enhanced charge and, therefore, it cannot be used to enhance his sentence here.
During the hearing, the Defendant did not object to the admission of the State's exhibits on these grounds. In order to preserve the right to appellate review of an alleged trial court error, the party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La.C.Cr.P. art. 841; State v. McClain, 04-98, p. 14 (La.App. 5 Cir. 6/29/04), 877 So. 2d 1135, 1144, writ denied, 04-1929 (La.12/10/04), 888 So. 2d 835. A new basis for an objection may not be raised for the first time on appeal. Id. These alleged errors have not been preserved for review, and are not properly before this Court on appeal.
Burden of Proof
In order to prove that a defendant is a habitual offender, the State must establish by competent evidence the defendant's prior felony convictions and that defendant is the same person who was convicted of the prior felonies. State v. Chaney, 423 So. 2d 1092 (La.1982); State v. Jones, 08-466, p. 7 (La.App. 5 Cir. 10/28/08), 998 So. 2d 178, 182-83;[8]State v. Guillard, 04-899, p. 13 (La.App. 5 Cir. 4/26/05), 902 So. 2d 1061, 1072, writ denied, 05-1381 (La.1/13/06), 920 So. 2d 233. In addition, when a defendant's habitual offender status is based on guilty pleas in the predicate convictions, the State has the burden of proving the defendant was represented by counsel when the guilty pleas were taken. State v. Shelton, 621 So. 2d 769, 779 (La.1993); Jones, 08-466 at 7, 998 So.2d at 183.
If the State meets its burden of proof, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the plea. Shelton, 621 So.2d at 779; Jones, 08-466 at 7, 998 So.2d at 183. If the defendant meets the burden, then it shifts back to the State to prove the constitutionality of the plea by producing a perfect transcript, which shows that the defendant's waiver of his Boykin rights was voluntary, informed, and express. Shelton, 621 So.2d at 779-80; Jones, 08-466 at 7, 998 So.2d at 183. If the State produces anything less than a perfect transcript, such as a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence to determine whether the defendant's prior plea was both knowing and voluntary. Shelton, 621 So.2d at 780; Jones, 08-466 at 8, 998 So.2d at 183.
The State is not required to use a specific type of evidence in order to carry its burden of proof pursuant to the Habitual Offender Law, La. R.S. 15:529.1. Payton, 00-2899 at 2, 810 So.2d at 1132; State v. Lindsey, 99-3302, p. 7 (La.10/17/00), 770 So. 2d 339, 344 n. 3, cert. denied, 532 U.S. 1010, 121 S. Ct. 1739, 149 L. Ed. 2d 663 (2001); Jones, 08-466 at 7, 998 So.2d at 183. Rather, any competent evidence may be used prove a defendant's *399 prior convictions. Jones, 08-466 at 7, 998 So.2d at 183. The State's burden of proof may be met by various means including the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the defendant with those in the record of prior convictions, or photographs contained in a duly authenticated record. State v. Mays, 05-2555, p. 2 (La.5/26/06), 929 So. 2d 1231, 1232; Jones, 08-466 at 7, 998 So.2d at 183.
In this case, the habitual offender bill of information alleges that the Defendant is a fourth felony offender. The State sought to enhance the Defendant's sentence on his underlying conviction for attempted simple burglary (count one) by producing evidence of seven prior convictions in which the Defendant plead guilty. The seven predicate convictions were obtained in the 24th Judicial District Court for Jefferson Parish, as follows:
1) Possession of marijuana (second offense), a violation of La. R.S. 40:966(C), on February 24, 2005, district court number 05-231, Division "J";
2) Theft valued at over $500, a violation of La. R.S. 14:67, on April 18, 1996, district court number 95-6154, Division "B";
3) Simple burglary, a violation of La. R.S. 14:62, on April 18, 1996, district court number 95-3113, Division "B";
4) Felon in possession of a firearm, a violation of La. R.S. 14:95.1, on July 22, 1993, district court number 93-3600, Division "A";
5) Distribution of marijuana, a violation of La. R.S. 40:966(A), on March 30, 1992, district court number 91-4415, Division "S";
6) Simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2, on February 27, 1991, district court number 90-4500, Division "H";
7) Simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2, on June 26, 1989, district court number 89-835, Division "H".
At the habitual offender hearing, Deputy Chad Pittfield, an expert in fingerprint comparisons with the Sheriffs Office Crime Laboratory Latent Print Section, identified State's exhibit 1 as the fingerprint card that he obtained from the Defendant earlier that day. Pittfield compared the Defendant's fingerprints with the fingerprints on the certified copies of the bills of information in the predicate offenses. Pittfield identified the Defendant's fingerprints in all but one of the predicate cases, case number 95-3113 (State's Exhibit 3b).
Later in the hearing, when the State's exhibits were being entered into evidence, the Defendant objected to admission of State's exhibits 2, 3a, 3b, 4, 5, 6 and 7. He argued that he had not been properly Boykinized because he did not place his initials next to his rights, was not advised of the minimum sentence, and was not advised that his sentence could later be enhanced as a result of his plea. The Defendant asserted that the errors were not harmless, as indicated by the fact that Jefferson Parish took precautionary measures in upgrading the forms to cure the errors. The State responded that the Defendant had been advised of his Boykin rights and, therefore, his plea was constitutional. Defense counsel also objected to State's exhibit 3b (case no. 95-3113), because the fingerprint expert could not identify the prints on the exhibit as belonging to the Defendant.
The State responded that the fingerprints in State's exhibit 3b were part of a self-authenticating document and were taken on the same day as those in State's exhibit 3a. The State claimed that the evidence showed that the Defendant is the *400 same person who pled guilty in both cases. The State noted that the same Boykin form was used in both cases.
The trial judge admitted all the State's exhibits, finding no deficiencies in the certified exhibits presented by the State. He then found the State proved its case beyond a reasonable doubt, and concluded that the Defendant was a fourth felony offender. The judge noted that the State had proven that the Defendant was more than a fourth felony offender. The trial judge vacated the Defendant's previous sentence on the attempted simple burglary conviction, and sentenced the Defendant to life imprisonment without benefit of probation or suspension of sentence. The Defendant objected to the sentence as excessive.
Based on the following, we find that the State proved the Defendant's identity in all of the predicate convictions, the existence of the predicate guilty pleas, and that the Defendant was represented by counsel, thus satisfying the State's initial burden under Shelton.
In Shelton, the Louisiana Supreme Court noted that it had previously held that the State met its burden of proving a prior guilty plea in a habitual offender hearing where it submitted a very general minute entry and a well-executed plea of guilty form.[9] There, the State submitted a minute entry that stated the trial judge advised the defendant of his rights, and a "Waiver of Constitutional Rights/Plea of Guilty" form. The form listed the right to trial by jury, the privilege against self-incrimination, and the right to confront accusers. The defendant initialed indicating a waiver of those rights. The defendant, his attorney, and the trial judge signed the form. This evidence was sufficient to meet the State's burden of showing that the guilty plea was informed, free and voluntary, and made with an articulated waiver of the three Boykin rights.
In the present case, Pittfield testified that he compared the fingerprints in case number 05-231, State's exhibit 2, with the fingerprints of the Defendant that he had made earlier that day and found they were the same. State's exhibit 2 contained two true copies of:
1) The bill of information charging the Defendant with possession of marijuana (second offense) and bearing the district court case number and a fingerprint sheet bearing the Defendant's name dated February 24, 2005;
2) The February 24, 2005 commitment/minute entry bearing the Defendant's name, date of birth (May 23, 1968), age (36 years), the district court case number, the name of defense counsel, and the division, indicating that the Defendant was advised of his Boykin rights, pled guilty to possession of marijuana (second offense), and was sentenced to 2 years and 6 months;
3) The "Plea of Guilty & Waiver of Rights" form dated February 24, 2005, bearing the Defendant's signature, *401 defense counsel's signature, the district court case number, and the division, indicating that he was advised of his Boykin rights, pled guilty to possession of marijuana (second offense), and was sentenced to 30 months.
Therefore, the Defendant's fingerprints in case 05-231 were linked to the bill of information, a February 24, 2005 commitment/minute entry, and the "Plea of Guilty & Waiver of Rights" form by the district court case number and the charged offense.
Pittfield compared the fingerprints in case number 95-6154, State's exhibit 3a, with the fingerprints of the Defendant and found they were the same. State's exhibit 3a contained true copies of:
1) The bill of information filed on November 6, 1995, charging the Defendant with theft of jewelry valued at over $500 and bearing the Defendant's name, the district court case number, and division;
2) A fingerprint sheet bearing the November 6, 1995 filing date of the bill of information;
3) The "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form dated April 18, 1996, bearing the Defendant's signature, the defense counsel's signature, the district court's case number, and the division that indicated the Defendant was advised of his Boykin rights, pled guilty to theft over $500, and was informed that he would receive a six-year sentence;
4) The April 18, 1996 commitment/minute entry indicating the Defendant was advised of his rights, pled guilty to theft over $500, and received a sentence of six years to be served concurrent with case 95-3113 and consecutive to case number 93-3600. The April 18, 1996 commitment/minute entry also indicated the Defendant's date of birth (May 23, 1968), age (26 years), the district court's case number, the defense counsel's name, and the division.
Therefore, the fingerprints in case number 95-6154 were linked to the bill of information by the date the bill of information was filed. The other documents, the "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form, and the April 18, 1996 commitment/minute entry, were linked to the bill of information by the district court's case number and the charged offense.
Pittfield compared the fingerprints in case number 96-3600 (State's Exhibit 4) with the fingerprints of the Defendant and found they were the same. State's exhibit 4 contained true copies of:
1) The bill of information filed on July 12, 1995, charging the Defendant with a violation of La. R.S. 14:95.1 and bearing the Defendant's name, the district court case number, and complaint number (A-06691-93);
2) A fingerprint sheet bearing the Defendant's name dated July 22, 1993, and stamped with the filing date of the bill of information;
3) "Defendant's Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty" form dated July 22, 1993, bearing the Defendant's signature, defense counsel's signature, the district court's case number, and the division indicating the Defendant was advised of his Boykin rights, pled guilty to violating La. R.S. 14:95.1, and was advised that he would receive a sentence of 3 years and 6 months;
4) A "Hard Labor Plea Sentencing Form" bearing the Defendant's *402 name, date of birth (May 23, 1968), age (25 years), defense counsel's name, the district court's case number, division, and complaint number (A-06691-93) indicating that the Defendant was advised of his rights, pled guilty to violating La. R.S. 14:95.1, and received a sentence of 3½ years.
Therefore, the fingerprints in case number 96-3600 were linked to bill of information by the filing date. All the other documents, the "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form and a "Hard Labor Plea Sentencing Form" were linked to the bill of information by the district court's case number.
Pittfield compared the fingerprints in case number 91-4415 (State's Exhibit 5) with the Defendant's fingerprints and found they were the same. State's exhibit 5 contained true copies of:
1) The bill of information bearing the Defendant's name, the district court case number, a complaint number (I-9745-90) indicating the Defendant was charged with distribution of marijuana;
2) A fingerprint sheet bearing the Defendant's name dated March 30, 1992, the date of the Defendant's guilty plea;
3) "Defendant's Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty" form dated March 30, 1992, bearing the Defendant's signature, defense counsel's signature, and district court number indicating the Defendant was advised of his Boykin rights, pled guilty, and was advised that he would receive a sentence of five years with two years suspended and two years on active probation;
4) A "Hard Labor Plea Sentencing Form" dated March 30, 1992, bearing the Defendant's name, date of birth (May 23, 1968), age (24 years), defense counsel's name, the district court's case number, the division, and complaint number (X-XXXX-XX) indicating that the Defendant was advised of his rights, pled guilty to distribution of marijuana, and received a sentence of 5 years with two years suspended and active probation for 2 years.
Therefore, the fingerprints in case number 91-4415 were linked to the "Defendant's Acknowledgment of constitutional Rights on Entry of a Plea of Guilty" form and a "Hard Labor Plea Sentencing Form" by the date of the Defendant's conviction. The bill of information is linked to the "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form and a "Hard Labor Plea Sentencing Form" by the district court case number.
Pittfield compared the fingerprints in case number 90-4500 (State's Exhibit 6) with the Defendant's fingerprints and found they were the same. State's exhibit 6 contained true copies of:
1) The bill of information bearing the Defendant's name and complaint number (I-8627-90) indicating that he was charged with simple burglary;
2) A fingerprint sheet dated on the date of the Defendant's guilty plea, February 27, 1991, bearing his name, the district court case number, the charged offense, and his address;
3) "Defendant's Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty" form dated February 27, 1991, bearing the Defendant's signature, defense counsel's signature, the district court's case number, and division indicating *403 that the Defendant was advised of his Boykin rights, pled guilty, and was informed that he would receive a sentence of three years;
4) A "Hard Labor Plea Sentencing Form" dated February 27, 1991, bearing the Defendant's name, the name of defense counsel, date of birth (May 23, 1968), age (22 years), the district court's case number, the division, and the complaint number (I-8627-90) indicating that the Defendant was advised of his rights, pled guilty to simple burglary, and received a sentence of three years.
The fingerprints in case number 90-4500 were linked to the "Hard Labor Plea Sentencing Form" by the district court case number and the charged offense to which the Defendant pled guilty. The "Hard Labor Plea Sentencing Form" is linked to the bill of information by the complaint number and the charged offense to which the Defendant pled guilty. The bill of information is linked to the "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form by the district court's case number and the charged offense to which the Defendant pled guilty.
Pittfield compared the fingerprints in case number 89-836 (State's Exhibit 7), with the Defendant's fingerprints and those were also found to be the same. State's exhibit 7 contained true copies of:
1) The bill of information charging the Defendant with simple burglary and bearing the Defendant's name, complaint number (A-7254-89), fingerprints dated on the date of the Defendant's guilty plea, June 26, 1989;
2) "Defendant's Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty" form dated June 26, 1989, bearing the Defendant's signature, defense counsel's signature, the district court's case number, and the division indicating that the Defendant was advised of his Boykin rights, pled guilty to violating La. R.S. 14:62.2, and was advised that he would receive a sentence of one year;
3) A June 26, 1989 minute entry bearing the Defendant's name, date of birth (May 23, 1968), age (21 years), defense counsel's name, the district court number, and division indicating that the Defendant was advised of his Boykin rights, pled guilty to simple burglary of an inhabited dwelling, and received a sentence of one-year;
4) A "COMMITMENT" bearing the Defendant's name, the district court number, the division, and item number (A-7254-89) that is identical to the complaint number indicating that the Defendant pled guilty to simple burglary and received a sentence of one year.
Therefore, the fingerprints in case number 89-836 and the bill of information were linked to the "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form and a June 26, 1889 minute entry by the district court's case number, the date of the guilty plea, and the charged offense. The "COMMITMENT" is linked to the bill of information by the complaint number, the date of the guilty plea, and the charged offense.
Pittfield could not identify the fingerprints in case number 95-3113 (State's Exhibit 3b), because the quality of the copy was poor and lacked individual characteristics for comparison. Consequently, the Defendant objected to State's exhibit 3b, arguing that the packet was faulty and deficient.
The State responded to the objection. It argued that the Defendant pled guilty in *404 cases 95-6154 and 95-3113 on the same date, and that the fingerprints in case number 95-3113 (State's exhibit, S-3b) were part of a self-authenticating document and that they were taken on the same day as those in case number 95-6154 (State's exhibit, S-3a). In addition, the State claimed that the evidence showed that the Defendant is the same person who pled guilty in both cases. The State also noticed that the same Boykin form was used in both cases. The trial agreed and admitted State's exhibit 3b.
State's exhibit 3b contained true copies of:
1) The bill of information filed on June 9, 1995, charging the Defendant with simple burglary and bearing his name and the district court case number;
2) The fingerprint sheet bearing the Defendant's name, as well as a co-defendant, Dawn Strecker, with a stamp of the June 9, 1995 filing date, a July 27, 1995 stamp, and a notation indicating that there was an arraignment and trial was set for September 18, 1995;
3) The "Defendant's Acknowledgment of Constitutional Rights on Entry of a Plea of Guilty" form dated April 18, 1996, bearing his signature, defense counsel's signature, the district court's case number, and division indicating that the Defendant was advised of his Boykin rights, pled guilty to simple burglary, and was advised that he would receive a sentence of six years to be served concurrent with case 95-6154 and consecutive with case 93-3600;
4) An April 18, 1996 commitment /minute entry bearing the Defendant's name and date of birth (May 23, 1968), age (26 years), defense counsel's name, the district court's case number, and the division indicating that the Defendant was advised of his rights, pled guilty to simple burglary, and received a sentence of six years to be served concurrent with case 95-6154 and consecutive with case 93-3600.
In State v. Darensbourg, 06-572, p. 8 (La.App. 5 Cir. 12/27/06), 948 So. 2d 1128, 1134, writ denied, 07-0317 (La.11/9/07), 967 So. 2d 495, we stated that testimony comparing a defendant's current fingerprints with those found on the defendant's prior arrest records is sufficient to prove that he was the person convicted of a prior felony.
Furthermore, there is a sufficient linkage where the State has connected the fingerprint card to the arrest register and/or the bill of information by matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, or docket numbers. State v. Thomas, 06-654, p. 10 (La.App. 5 Cir. 1/16/07), 951 So. 2d 372, 379, writ denied, 07-0464 (La.11/21/07), 967 So. 2d 1153.
We find that, although the fingerprint expert could not compare the fingerprints of the Defendant with those in case number 95-3113 (State's exhibit, 3b) because the quality of the prints was poor, there is a linkage to the Defendant. Both case numbers 95-6154 (Exhibit 3a) and 95-3113 (Exhibit 3b) were executed on the same day. The waiver of rights form in Exhibit 3a states that the Defendant's sentence is to run "concurrent w/ 24th JDC No. 95-3113 but consecutive to 93-3600 of 24th JDC." The commitment/minute entry in State's Exhibit 3a indicates the same. The waiver of rights form in State's Exhibit 3b states that the Defendant's sentence is to run "concurrent w/ 24th JDC No. 95-6154; consecutive to 24th JDC No. 93-3600." [Emphasis added.] The commitment/minute entry in State's Exhibit 3b indicates *405 the same. In addition, both commitment/minute entries dated April 18, 1996 recite the Defendant's date of birth as May 23, 1968, and his age as 26 years. These facts, along with Pittfield's identification of the Defendant's fingerprints in case number 95-6154, is more than sufficient to prove that the Defendant is the person referred to in the predicate pleas.
Furthermore, we find that the State proved the Defendant's identity in all of the other predicate convictions, that it submitted documents, including general minute entries and well-executed guilty plea forms, proving the existence of the Defendant's prior guilty pleas, and that the documents show that the Defendant was represented by counsel in those cases. Thus, the State met its initial burden under Shelton.
The burden then shifted to the Defendant to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. The record here shows that the Defendant failed to meet his burden of proof under Shelton.
In State v. Neal, 00-41 (La.App. 5 Cir. 5/30/00), 762 So. 2d 281, 284, the defendant was found to be a fourth felony offender. In the appeal, the defendant claimed that the trial judge improperly found him to be a habitual offender because the State failed to present sufficient evidence that he waived his Boykin rights when he pled guilty in three predicate offenses. The State, however, had introduced minute entries showing that the defendant entered the guilty pleas, was represented by counsel, was personally advised of his Boykin rights by the trial judge, and that the defendant waived those rights. The records also contained "Waiver of Constitutional Rights" forms signed by the defendant and his attorney.
The defendant attempted to meet his burden under Shelton by testifying that he did not recall being advised of his Boykin rights in any of the predicate guilty pleas. This Court agreed with the trial judge that the defendant had not made the requisite showing under Shelton merely because the defendant did not remember being advised of his rights when he previously pled guilty. Neal, 00-41 at 6, 762 So.2d at 284-85. Since the defendant did not present any affirmative evidence under Shelton, the State was not required to introduce a perfect Boykin transcript in connection with the predicate offenses. Neal, 00-41 at 6-7, 762 So.2d at 285.
In this case, the Defendant attempts to meet his burden of producing some affirmative evidence of an infringement of his rights or of a procedural irregularity in the taking of the guilty plea, by claiming that State's exhibits 3a, 5, and 7 are incomplete because he did not write his initials by each of the questions.
There has never been a requirement that a defendant initial each line in a plea form. See, Darensbourg, 06-572, at 11, 948 So.2d at 1136; State v. Fleming, 04-1218, p. 7 (La.App. 5 Cir. 4/26/05), 902 So. 2d 451, 457, writ denied, 05-1715 (La.2/10/06), 924 So. 2d 161. In accordance with Darensbourg and Fleming, we find that lack of initials on the waiver forms is not affirmative evidence of an infringement on his rights or of a procedural irregularity sufficient to satisfy the Defendant's burden under Shelton.
Furthermore, although the Defendant did not initial by his rights on the waiver forms included in State's exhibits 3a, 4, 5, and 7, we note that he did sign the waiver of rights forms.
The Defendant also argues that he met his burden to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity, because he was not informed of his Boykin rights, *406 the maximum or minimum sentences, or that his guilty pleas could result in the State pursing sentencing enhancement against him in the future.
In State v. Nuccio, 454 So. 2d 93 (La. 1984), the Louisiana Supreme Court noted that the scope of Boykin had not been expanded to include advising a defendant of any other rights nor the possible consequences of a defendant's actions, including that the defendant's conviction might be used as a basis for the filing of a future multiple offender bill.
In State v. Guzman, 99-1528 (La.5/16/00), 769 So. 2d 1158, the Louisiana Supreme Court stated that it had never extended the core Boykin constitutional requirements to include advice with respect to sentencing. The Court further noted that the legislature did not intend for La.C.Cr.P. art. 921 to apply to the trial judge's failure to inform a defendant of the mandatory minimum sentences or the enhanced penalties for subsequent offenses.[10]Id., 99-1528 at 9, 769 So.2d at 1164.[11]
In State v. Haywood, 00-1584, p. 13 (La.App. 5 Cir. 3/28/01), 783 So. 2d 568, 579, this Court stated that advice of a defendant's sentencing range or the fact that his guilty plea may be used as a basis for filing a future habitual offender bill has never formed a part of the Boykin requirements for the entry of a presumptively valid guilty plea. Although recognizing that La.C.Cr.P. art. 556.1 sets forth certain requirements that must be met before the trial court can accept a guilty plea,[12] we also noted a harmless error analysis is applied when a defendant challenges a prior guilty plea due to a violation of La. C.Cr.P. art. 556.1. Id. The analysis inquires into whether a defendant's knowledge and comprehension of the full and correct information would have likely affected the defendant's willingness to plead guilty. Haywood, 00-1584 at 13-14, 783 So.2d at 579. Nevertheless, violations of La.C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Strattman, 08-674, p. 5 (La.App. 5 Cir. 4/28/09), 13 So. 3d 1129, 1132.
In light of the above, we find that the constitutional requirements of Boykin did not require the trial judge to advise the Defendant of the minimum and maximum sentence, or the possible consequences of the Defendant's actions, including that his conviction might be used as a basis for the filing of a future habitual offender bill.[13] Therefore, the trial judge's failure to do in the predicate or underlying offense does not affect the validity of the guilty pleas.
Based upon the above, we find that the Defendant failed meet his burden under Shelton to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. Thus, the burden of proof never shifted back to the State to prove the constitutionality of the plea by producing a perfect transcript. See Jones, *407 08-466 at 7, 998 So.2d at 183; Shelton, 621 So.2d at 779-80. Consequently, we find no merit to this assignment of error.
B. Defendant's pro se assignments of error:
The Defendant filed nineteen assignments of error. As can be seen by the following discussion, assignments of error one through thirteen, and assignment of error nineteen are not properly before this Court on appeal. We address the merits of assignments of error fourteen through eighteen.
Numbers 1-4Severance
In pro se assignments one through four, the Defendant claims that the charged offenses in his underlying convictions should have been severed because the charged offenses were not similar or of the same caliber and had no relevance to each other.
Based upon the following, we find that these errors are not properly before this Court.
In State v. Gassenberger, 02-658 (La. App. 5 Cir. 12/11/02), 836 So. 2d 271, the defendant filed a second appeal after re-sentencing claiming that the trial judge erred in denying his motion to disclose the identity of the confidential informant. We declined to address the issue finding that, because the defendant's convictions were affirmed and the case had been remanded for re-sentencing following the original appeal, the only issues that could be properly raised in the defendant's second appeal were those regarding his re-sentencing.
In the present case, this Court affirmed the Defendant's convictions and sentences in his first appeal after finding that the trial court did not abuse its discretion in denying the Defendant's motion to sever the burglary charge from the possession of hydrocodone and possession of alprazolam charges. We noted that the facts of each offense were simple and uncomplicated, and the evidence for each crime was presented chronologically and separately with each witness testifying as to either the burglary or the drug possession offenses. We further noted that the charged offenses were not complicated in nature. Thus, the jury would have been able to segregate the various charges and offenses. In addition, the record did not indicate that the charged offenses made the jury hostile to the Defendant, nor were any of the charged offenses crimes of violence. State v. Woods, 08-718 at 10, 4 So.3d at 254.
In light of the above, we decline to address these claims as the severance issue was fully litigated in the Defendant's appeal on the merits from his convictions.
Number 5Ineffective counsel
In this assignment of error, the Defendant claims that his trial counsel was ineffective because counsel "had inadequacies" and lacked the knowledge to try his case. The Defendant contends that the trial judge should have corrected this unfairness and given him an attorney who was prepared and could give him more than nominal representation, in order to afford him a fair trial. The Defendant asserts that his charges should be vacated because of prejudice.
Again, this issue is not properly before this Court. The Defendant's convictions and sentences were affirmed in the Defendant's previous appeal in which the Defendant could have, but failed to raise this issue.[14]
*408 Numbers 6-12, and 19Trial Evidence
In pro se assignments of error numbers six through twelve and nineteen, the Defendant claims that the trial judge erred in admitting certain evidence and allowing certain witnesses to testify, and that the evidence was insufficient to convict him of attempted simple burglary.
Pro se assignments of error six through twelve and nineteen relate to the sufficiency of the evidence presented at trial. These issues are not properly before this Court since the Defendant's convictions and sentences were affirmed in the Defendant's previous appeal, State v. Woods, 08-718 (La App. 5 Cir. 2/10/09), 4 So. 3d 248; State v. Gassenberger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So. 2d 271. Thus, we decline to address these claims.
Number 13Sentences for Original Convictions
In pro se assignment thirteen, the Defendant claims that the trial judge erred in ordering that the sentences for his convictions be consecutively served because the charges were all part of the same act or transaction or constituted part of a common scheme or plan. In addition, the Defendant contends that the sentences were excessive, and the trial judge failed to adequately consider the guidelines in La.C.Cr.P. art. 894.1.
Again, this assignment of error as it relates to the sentences for the convictions for possession of hydrocodone and possession of alprazolam is not properly before this Court because the Defendant's convictions and sentences were affirmed in the Defendant's previous appeal. See, State v. Gassenberger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So. 2d 271.
Furthermore, the trial judge vacated the Defendant's original sentence for the attempted simple burglary of an inhabited dwelling conviction after the Defendant was found to be a fourth felony offender. Therefore, the argument related to the original sentence for this offense is moot. State v. Jackson, 05-923, p. 13 (La.App. 5 Cir. 3/28/06), 926 So. 2d 72, 79, writ denied, 06-1589 (La.1/8/07), 948 So. 2d 121; State v. Hanson, 00-1168, p. 4 (La.App. 5 Cir. 12/13/00), 778 So. 2d 43, 45.
Thus, we find no merit to pro se assignment of error number 13.
Numbers 14, 15, and 17Habitual Offender Double Enhancement
In pro se assignments 14, 15, and 17, the Defendant claims that he received a double enhancement following the trial judge's finding that he is a fourth felony offender. He argues that the trial judge erred in allowing his firearm conviction, as well as the predicate felony conviction on which it was based, to both be used in finding him to be a fourth felony offender.
The State argues that it presented evidence of seven of the Defendant's prior felony convictions that could have been used to find him to be a fourth felony offender, including the possession of a firearm felony in case 93-3600 and the distribution of marijuana in case 91-4415, the underlying felony used to enhance the Defendant's firearm conviction. The State contends that it presented all of the Defendant's seven prior convictions because they *409 were relevant to the trial judge's sentencing discretion in this case.
In State v. Moten, 619 So. 2d 683, 685 (La.App. 4 Cir.1993), the court found that a felon in possession of a firearm conviction might be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element of the firearm conviction was not also used in the same multiple bill.
In State v. Bailey, 97-493, p. 9-10 (La. App. 5 Cir. 11/12/97), 703 So. 2d 1325, 1331, on error patent review, this Court found, "[i]f a felon in possession of a firearm conviction is used to enhance a subsequent conviction, the underlying felony used as an element of the firearm conviction may not be used in the multiple bill, as this constitutes double enhancement."
In State v. Fletcher, 01-809, (La.App. 5 Cir. 2/26/02), 811 So. 2d 1010, this Court, citing Moten and Bailey, set aside the defendant's determination as a third felony offender. In Fletcher, we found that because the defendant's 1983 conviction for simple burglary was used as an element of the firearm conviction and the firearm conviction was used for enhancement purposes, the 1983 conviction for simple burglary could not be used in the habitual offender bill. We noted that the State could use the 1983 conviction for simple burglary, if it chose not to use the firearm conviction. Fletcher, 01-809 at 7, 811 So.2d at 1013-14. We then entered a judgment finding the defendant to be a second felony offender and remanded the case to the trial court for resentencing. Fletcher, 01-809 at 8, 811 So.2d at 1014.
In the present case, the State used the distribution of marijuana conviction in case number 91-4415 as the predicate felony in case number 93-3600, in order to obtain the firearm conviction. Both of these convictions are included in the Defendant's habitual offender bill. Based upon Moten, Bailey, and Fletcher, the Defendant received a double enhancement. However, the State proved the Defendant's status as a fourth felony offender independent of either of those predicate convictions, as we found in our previous discussion of the assignment of error presented by appellate counsel.
Number 16Counsel of Choice
In pro se assignment 16, the Defendant claims that the trial court erred by depriving him of his choice of counsel at his habitual offender hearing. The Defendant claims that he told the trial judge that he had another lawyer representing him who was not present. According to the Defendant, the trial judge responded that "This State lawyer is here let him handle it." The Defendant contends that the trial judge abused his authority by denying him his choice of counsel and forcing him to proceed with an attorney who was not prepared. The Defendant asserts that he was prejudiced by the lack of nominal representation from appointed counsel at the hearing.
At the hearing, Calvin Fleming, the Defendant's appointed attorney, informed the court that the Defendant had retained Dennis Dobear as his private counsel. The trial judge informed the Defendant that, nevertheless, he intended to conduct the hearing. The trial judge appeared to suggest that, if Dobear were present, he could present himself to the court in order to represent the Defendant. The Defendant informed the court that Dobear was unaware that the hearing was taking place because the hearing was previously postponed and Dobear did not receive a new court date. The trial judge stated that Dobear never informed the court that he was hired or retained by the Defendant and represented him. In addition, the trial judge noted that Dobear had never filed anything in the record or signed into the *410 record. The trial judge stated that the only thing that he could assume was that Dobear did not represent the Defendant, since Dobear had not taken any of the steps that attorneys usually do when they are hired to represent someone.
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." State v. Reeves, 06-2419, p. 35 (La.5/5/09), 11 So. 3d 1031, 1055, cert. denied, ___ U.S. ___, 130 S. Ct. 637, ___ L.Ed.2d ___ (2009). The Louisiana Supreme Court has found that it is both structural error requiring reversal and a violation of the Sixth Amendment when a criminal defendant has been denied his right to retained counsel of choice. Reeves, 06-2419 at 36, 11 So.3d at 1056; United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 2563, 165 L. Ed. 2d 409 (2006). When the right to be assisted by counsel of choice is wrongly denied, no harmless error analysis is required regarding counsel's effectiveness or prejudice to the defendant. Id. The Supreme Court stated:
Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice-which is the right to a particular lawyer regardless of comparative effectiveness-with the right to effective counsel-which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.
State v. Reeves, 06-2419 at 36, 11 So.3d at 1056; Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. at 2563.
The Louisiana Constitution ensures similar rights to the assistance of counsel for a criminal defendant as those arising under the federal constitution. Reeves, 06-2419 at 37, 11 So.3d at 1056. Generally, a person accused in a criminal trial has the right to counsel of his choice. Reeves, 06-2419 at 37, 11 So.3d at 1057. An indigent defendant's right to choose his defense counsel, however, only allows the defendant to retain the attorney of choice if the defendant can manage to do so, but the right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Id. Furthermore, a defendant's right to choose an attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. State v. Burbank, 07-125, p. 7 (La.App. 5 Cir. 10/30/07), 971 So. 2d 1173, 1178, writ denied, 07-2287 (La.4/25/08), 978 So. 2d 364. A defendant in a criminal trial cannot force a postponement by a last minute change of counsel. State v. Williams, 00-1850, p. 4 (La.App. 5 Cir. 4/11/01), 786 So. 2d 785, 790-91, writ denied, 01-1432 (La.4/12/02), 812 So. 2d 666.
The record contains a minute entry dated April 25, 2008 showing that the habitual offender hearing was scheduled for June 23, 2008. At that time, the court-appointed attorney represented the Defendant. The hearing was rescheduled twice. There is nothing else in the record to show that the Defendant had retained private counsel. Furthermore, the habitual offender bill of information was filed on April 25, 2008, but the hearing was not held August 18, 2008, almost four mouths later. As noted by the trial judge, during that time there was no communications or filings in the record to indicate that the attorney represented the Defendant. Thus, we find that the trial court did not err in finding that Dobear did not represent the Defendant.
*411 Number 17Excessive Sentence
The Defendant contends that his sentence of life imprisonment with no parole is excessive. He also complains that the trial judge did not comply with the guidelines in La.C.Cr.P. art 894.1.
The record indicates that the Defendant orally objected to his habitual offender sentence as excessive at the time of sentencing. He did not, however, raise the trial judge's failure to comply with La. C.Cr.P. art. 894.1 at that time. In addition, the Defendant did not make an oral motion for reconsideration of sentence, or file a written motion for reconsideration of sentence raising the lack of compliance with La.C.Cr.P. art. 894.1. Therefore, this issue was not preserved for appeal. La.C.Cr.P. art. 881.1 B; La. C.Cr.P. art. 881.1 E.
Failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hills, 03-716, p. 12 (La.App. 5 Cir. 12/9/03), 866 So. 2d 278, 286, writ denied, 04-1322 (La.4/22/05), 899 So. 2d 569; State v. Fairley, 02-168, p. 4 (La.App. 5 Cir. 6/26/02), 822 So. 2d 812, 814.[15] Therefore, we reviewed the Defendant's sentence for constitutional excessiveness, and found that the sentence is not excessive under these facts.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Crawford, 05-494, p. 6 (La.App. 5 Cir. 1/31/06), 922 So. 2d 666, 669. A sentence that is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering is unconstitutionally excessive, even if it is within the statutory limits. State v. Riche, 608 So. 2d 639, 640 (La.App. 5 Cir.1992), writ denied, 613 So. 2d 972 (La. 1993). Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. State v. Martin, 28,489, p. 8 (La.App. 2 Cir. 8/21/96), 679 So. 2d 557, 563, writ denied, 96-2367 (La.2/7/97), 688 So. 2d 498.
A trial court should consider the defendant's personal history such as age, family ties, marital status, health, employment record, as well as his prior criminal record, seriousness of offense and the likelihood of rehabilitation in determining an appropriate sentence. Crawford, 05-494 at 6, 922 So.2d at 669. A trial court is afforded great discretion in determining sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. Riche, 608 So.2d at 640.
In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. Crawford, 05-494 at 6, 922 So.2d at 669. The three factors that are considered in reviewing a trial court's sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence *412 imposed for similar crimes by the same court and other courts. Crawford, 05-494 at 8, 922 So.2d at 670. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Crawford, 05-494 at 8, 922 So.2d at 670-71. An "appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.C.Cr.P. art. 881.4(D).
The term of imprisonment for a simple burglary of an inhabited dwelling conviction is "hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years." La. R.S. 14:62.2. Pursuant to La. R.S. 14:27, an attempt is punishable by a fine or imprisonment or both, "in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both." Therefore, the maximum sentence that the Defendant could have received for the attempted simple burglary conviction was six years at hard labor, with not less than six months being served without benefit of parole, probation or suspension of sentence. That is a period one-half of the longest term of imprisonment prescribed for the completed offense. See State v. Wilson, 30,634, p. 8 (La.App. 2 Cir. 5/13/98), 714 So. 2d 126, 131.
The Defendant was found to be a fourth felony offender. La. R.S. 15:529.1(A)(1)(c)(i) provides:
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life;
Because the underlying conviction of attempted simple burglary was punishable by a term of imprisonment less than the Defendant's natural life, pursuant to La. R.S. 15:529.1(A)(1)(c)(i), the Defendant's enhanced sentencing exposure was twenty years to life imprisonment.
In State v. Ballay, 99-906 (La.App. 5 Cir. 2/29/00), 757 So. 2d 115, writ denied, 00-0908 (La.4/20/01), 790 So. 2d 13, the defendant was convicted of theft of goods between $100 and $500. The trial judge enhanced the defendant's sentence to life in prison after he was found to be a fourth felony offender based on the facts of the case showing he was a career criminal. We affirmed the sentence, finding no abuse of the trial judge's discretion due to the defendant's extensive criminal record, citing jurisprudence in support. Ballay, 99-906 at 30, 757 So.2d at 135.
In the present case, the record reflects that the trial judge imposed the habitual offender sentence of life imprisonment without benefit of probation or suspension of sentence. Contrary to the Defendant's claim, the Defendant's habitual offender sentence did not restrict parole. The record reflects that the trial judge was aware of the nature of the crime for which the Defendant was convicted since he was the same judge who imposed the Defendant's sentences on his underlying convictions. In addition, the State produced evidence showing that the Defendant is a career criminal. As we noted in Ballay, recent jurisprudence supports the imposition of the maximum sentence under La. R.S. 15:529.1 when a defendant's criminal record is extensive. The Defendant here has seven felony convictions. Thus, the Defendant's extensive criminal record justifies imposition of the maximum sentence under *413 La. R.S. 15:529.1(A)(1)(c)(i). Consequently, we find that the trial judge did not abuse his wide discretion in sentencing the Defendant to the maximum term.
Number 18Double Jeopardy
The Defendant claims that he was placed in double jeopardy when he was sentenced as a habitual offender because he was punished for a second time for the same crimes. We find no merit to the claim.
A habitual offender hearing is not a trial and, therefore, legal principles such as res judicata, double jeopardy and the right to a jury trial do not apply. State v. Dorthey, 623 So. 2d 1276, 1279 (La.1993); State v. Balser, 96-443, p. 5 (La.App. 5 Cir. 11/14/96), 694 So. 2d 351, 354; State v. Brown, 98-938, p. 5 (La.App. 5 Cir. 3/10/99), 732 So. 2d 566, 568 n. 3.
ERROR PATENT
The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). The review reveals no error patent requiring action by this Court.
Accordingly, the habitual offender finding and sentence are affirmed.
AFFIRMED.
NOTES
[1] In the appeal from the convictions, the Defendant only assigned as error the trial judge's denial of his motion to sever the charges for possession of hydrocodone and possession of alprazolam from the charge of simple burglary of an inhabited dwelling.
[2] The facts related to the offenses are included in the Defendant's original appeal. See State v. Woods, 08-718 at 3-6, 4 So.3d at 250-51
[3] Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
[4] This issue will be discussed later in this opinion in regard to the constitutionality of his pleas pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Shelton, 621 So. 2d 769 (La. 1993).
[5] The other pro se claims will be addressed later in this opinion.
[6] It is unclear to which item numbers the Defendant refers.
[7] It is unclear what the Defendant is alleging in this claim.
[8] In addition, the State must further show that the prior convictions fall within the ten-year cleansing period prescribed by La. R.S. 15:529.1(C). The Defendant does not claim any deficiency in proof as to the cleansing period.
[9] Recently, in State v. Balsano, 09-735 (La.6/19/09), 11 So. 3d 475, the Louisiana Supreme Court noted that for guilty pleas entered in Louisiana before December 8, 1971, and for all non-Louisiana guilty pleas used to enhance a defendant's sentence following a subsequent conviction, a defendant does not satisfy his burden of proof on collateral attack merely by presenting contemporaneous records revealing a violation of the three-right rule. Balsano, 09-735 at 13, 11 So.3d at 482. The Court cited its decision in State v. Harris, 97-1352, pp. 1-2 (La. 10/31/97), 702 So. 2d 678, 679, writ denied, 98-1949 (La. 12/11/98), 729 So. 2d 588, stating that the defendant must show that his guilty plea did not represent a knowing and voluntary choice among available alternatives. Balsano, 09-735 at 13-14, 11 So.3d at 482.
[10] La.C.Cr.P. art. 921 states, "A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused."
[11] Guzman was distinguished with regard to cleansing periods in State v. Mosley, 08-1319, p. 8 (La.App. 5 Cir. 5/26/09), 16 So. 3d 398, 403.
[12] In the present case, the Defendant's predicate convictions in 1996, 1993, 1992, 1991, and 1987 occurred prior to the enactment of La.C.Cr.P. art. 556.1 in 1997. The remaining predicate conviction occurred in 2005.
[13] In addition, the waiver forms in predicate cases indicate that the defendant was informed of the maximum sentence that he could receive.
[14] We note that a claim for ineffective assistance of counsel could be addressed on appeal, but it is more appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted when the record does not contain sufficient evidence to fully explore an ineffective counsel claim. State v. Taylor, 04-346, p. 10 (La.App. 5 Cir. 10/26/04), 887 So. 2d 589, 595. See La. C.Cr.P. arts. 924-930.8. Furthermore, even if this issue was properly before the Court, the record does not contain sufficient evidence to rule on the merits of the claim, especially since the trial judge recognized trial counsel's preparedness and knowledge. Therefore, the Defendant's claim should be addressed through an application for post-conviction relief filed in the trial court.
[15] See also, State v. Franklin, 94-409, pp. 14-15 (La.App. 5 Cir. 12/14/94), 648 So. 2d 962, 969, writ denied, 95-143 (La.5/19/95), 654 So. 2d 1354, in which this Court found that the defendant was precluded under La. C.Cr.P. art. 881.1 from raising a claim of excessiveness regarding his habitual offender sentence on appeal because he failed to file a motion to reconsider sentence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1150782/ | 823 P.2d 402 (1991)
312 Or. 463
In the matter of the Compensation of Lois BOOTH, Claimant. Lois Booth, Petitioner On Review,
v.
TEKTRONIX, Inc., Respondent On Review.
WCB 84-07174; CA A50290; SC S36388.
Supreme Court of Oregon.
Argued and Submitted February 6, 1990.
Decided December 19, 1991.
*403 J. Randolph Pickett, P.C., Portland, filed the petition and argued the cause for petitioner on review.
Barbara A. Brainard, of Stoel Rives Boley Jones & Grey, Portland, argued the cause for respondent on review.
Kathryn H. Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.
Karen O'Kasey and Janet M. Schroer, of Schwabe, Williamson & Wyatt, Portland, filed a brief on behalf of amici curiae Attys. for Oregon Ass'n of Workers' Compensation Defense Counsel, Associated Oregon Industries, and Oregon Ass'n of Defense Counsel.
Before PETERSON, C.J.,[*] and CARSON,[**] JONES,[***] GILLETTE, VAN HOOMISSEN, FADELEY, and UNIS, JJ.
CARSON, Chief Justice.
The issues we address in this workers' compensation case arose as the result of claimant's objection to the introduction of evidence obtained by her employer from pre-hearing communications with claimant's treating physicians without prior notice to claimant.[1] The first issue is whether the physician-patient privilege applies to proceedings before the Workers' Compensation Board (the Board) and, if it does apply, whether claimant waived the privilege. The second issue is whether the Board's interpretation of its rules, which allows these pre-hearing communications, was an erroneous interpretation of law. The Court of Appeals affirmed the Board's order without opinion. Booth v. Tektronix, 97 Or. App. 431, 776 P.2d 884 (1989). We affirm the decision of the Court of Appeals.
FACTS
Lois Booth (claimant) started working for Tektronix (employer) as an "assembler" on February 14, 1966. She later obtained positions with employer as a quality control inspector and then as a "calibrator." On October 24, 1983, claimant injured her mid-back and right rib cage while working. In November, claimant's treating physician diagnosed this injury as a pulled muscle or ligament. Claimant filed a claim for a disabling injury which first was accepted and then later denied by employer on the ground that claimant's pain was unrelated to the injury that had occurred at work.
Following the denial in June 1984, another physician examined claimant. At this time, in addition to the rib cage pain, claimant was experiencing pain that radiated down her back. This latter pain eventually was diagnosed as being due to a herniated disc of the spine at the thoracic (chest) level. Upon this physician's request, employer reopened claimant's claim and later rescinded its denial of the claim. In November 1985, she was awarded 25 percent unscheduled permanent partial disability due to the mid-back injury.
Following surgery to correct the herniated disc and alcohol injections to treat her continuing pain after surgery, claimant continued to suffer low-back pain which radiated down her legs. Employer had denied responsibility for claimant's low-back problems in May 1985.
After an April 1987 hearing, the referee affirmed the partial denial (low-back) and the award of 25 percent unscheduled permanent partial disability (mid-back). At the hearing, the referee over claimant's objections admitted seven exhibits consisting of letters describing claimant's condition from three of claimant's treating physicians. The seven letters resulted from five pre-hearing communications by employer's lawyer with these physicians. Employer's pre-hearing communications with the physicians occurred in person, by *404 telephone, and by letters. Employer had not given claimant notice prior to communicating with the physicians.
Claimant requested Board review of the referee's decision. In its decision, the Board relied upon its prior decisions in Adelbert P. Sheppard, 39 Van Natta 747 (1987), and Allen W. Hayes, Jr., 37 Van Natta 1179 (1985), wherein the Board held that pre-hearing communications between an employer's lawyer and a claimant's treating physician without prior notice to claimant were permitted by Board rules. Based on those decisions, the Board agreed with the referee that the letters were admissible and that claimant correctly was denied compensation for her low-back problem because it was unrelated to the on-the-job injury. However, the Board found that the referee incorrectly had determined the extent of claimant's permanent disability for her compensable mid-back injury and increased her award from 25 percent to 50 percent unscheduled permanent disability.
Claimant sought judicial review, assigning as error the admission of the evidence that resulted from the communications. In additional assignments of error, claimant argued that, without the challenged exhibits, there was no substantial evidence to support the Board's findings that the low-back problem was not due to her on-the-job injury and that the Board erred in concluding that claimant was only partially, not totally, disabled. The Court of Appeals affirmed the Board's decision without opinion,[2] and claimant sought review in this court.
DISCUSSION
The essence of claimant's argument to this court is that the Board's interpretation of the statutes and rules, which permits the communications at issue, is an erroneous interpretation of the agency's own rules, the workers' compensation statutes, and other provisions of law, thus bringing this case within our scope of review under ORS 656.298(6) and 183.482(8)(a).[3] We first examine the status of the physician-patient privilege in workers' compensation hearings and then review the appropriateness of pre-hearing communications between the employer's lawyer and the claimant's treating physician.
A. Physician-Patient Privilege
Claimant argues that the exhibits were inadmissible because the evidence obtained from the pre-hearing communications is protected by the physician-patient privilege, Oregon Evidence Code (OEC) 504-1,[4] and neither statutes nor the Board's own rules provide for waiver of this privilege. Employer responds that the physician-patient privilege is inapplicable in workers' compensation proceedings.
The first step in our analysis is the Workers' Compensation Law, ORS chapter 656. ORS 656.704 provides, in part:
*405 "(1) Actions and orders of the director, and administrative and judicial review thereof, regarding matters concerning a claim under this chapter [Workers' Compensation Law] are subject to the procedural provisions of this chapter and such procedural rules as the board may prescribe.
"(2) Actions and orders of the director and the conduct of hearings and other proceedings pursuant to this chapter [Workers' Compensation Law], and judicial review thereof, regarding all matters other than those concerning a claim under this chapter, are subject only to ORS 183.310 to 183.550 [Administrative Procedures Act] and such procedural rules as the director may prescribe. * * *
"(3) For the purpose of determining the respective authority of the director and the board to conduct hearings, investigations and other proceedings under this chapter, and for determining the procedure for the conduct and review thereof, matters concerning a claim under this chapter are those matters in which a worker's right to receive compensation, or the amount thereof, are directly in issue." (Emphasis added.)
The statute references different sources for procedural rules depending upon whether the matter is one, such as the present case, that concerns a claim, or is a matter that does not concern a claim. If the matter concerns a claim, the procedures contained in the Workers' Compensation Law and rules of the Board apply; in contrast, if the matter does not concern a claim, the Administrative Procedures Act (in part) and rules of the director of the Department of Insurance and Finance apply. Because this case involves a claim, the physician-patient privilege could be made applicable by the workers' compensation procedural statutes or by a rule that the Board has prescribed. The parties have cited no such statute or rule to this court, and we have not found such a statute or rule.
Further, ORS 656.283(7), the Workers' Compensation Law provision concerning hearing procedures, provides, in part:
"Except as otherwise provided in this section and rules of procedure established by the board, the referee is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, and may conduct the hearing in any manner that will achieve substantial justice."
Accordingly, because the Workers' Compensation Law does not provide that the physician-patient privilege of OEC 504-1 is applicable, the referee was not required by the Workers' Compensation Law to apply OEC 504-1 and to exclude the evidence resulting from the pre-hearing communications.
Claimant argues, nevertheless, that the Oregon Evidence Code and the Oregon Administrative Procedures Act themselves make the privilege applicable. Claimant relies on the Commentary to OEC 101, which describes the applicability of the Oregon Evidence Code. The legislative commentary states:
"Currently, the rules of evidence except those of privilege do not apply to administrative agencies in contested cases. ORS 183.450. Nothing in [OEC] 101 should be construed to alter present Oregon practice under the administrative procedures statutes." Kirkpatrick, Oregon Evidence Code 3 (1989). (Emphasis added.)
In response to claimant's argument, we begin at the place that the commentary to the Oregon Evidence Code suggests that we should begin an examination of ORS 183.450.
ORS 183.450(1) provides:
"In contested cases:
"(1) Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. *406 Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form." (Emphasis added.)
This broad mandate incorporates the rules of privilege, including those contained in the Oregon Evidence Code, into contested cases. However, another statute, ORS 183.315, lists certain agencies to which the privilege-protecting statute does not apply. The relevant part of ORS 183.315 is subsection (1), which provides:
"Except as otherwise provided in subsection (6) of this section [referring to the Public Utility Commission], the provisions of ORS * * * 183.450 * * * do not apply to * * * [the] Department of Insurance and Finance with respect to its functions under ORS chapters 654 and 656 [chapter concerning workers' compensation] * * *."[5]
Consequently, the statute that retains the evidentiary rules of privilege in contested cases (ORS 183.450) specifically does not apply in workers' compensation claim hearings (ORS 183.315(1)).[6] Thus, claimant's argument based on the Oregon Evidence Code and the Oregon Administrative Procedures Act leads us to the same outcome as our analysis of the Workers' Compensation Law.
We conclude that the physician-patient privilege does not apply in a workers' compensation contested case claim hearing. Therefore, the rules of privilege do not make the Board's interpretation, which permits pre-hearing communications between an employer's lawyer and a claimant's physician without prior notice to claimant, incorrect as a matter of law. Consequently, we do not reach the corollary issue of waiver of the privilege.
B. Pre-hearing Communications Appropriateness
The fact that the statutes and rules do not provide for the physician-patient privilege in workers' compensation contested cases does not resolve entirely the second question of the appropriateness of pre-hearing communications between claimant's treating physicians and employer's lawyer. Claimant argues also (1) that even if the privilege is inapplicable, other areas of the law recognize and protect the special relationship between a patient and her physician, and (2) that the workers' compensation statutes and agency rules do not contemplate this type of communication.
1. Policy
Claimant and amicus Oregon Trial Lawyers Association (OTLA) cite many sources recognizing the special relationship between patient and physician outside the context of the evidentiary privilege. These include: (1) The Hippocratic Oath; (2) willful or negligent disclosure of a professional secret as grounds for suspension of, or refusal to grant, a license to practice medicine, ORS 677.190(5); (3) the existence of tort liability for a physician's breach of the confidential relationship under Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985); (4) the constitutional right to privacy, see Roe v. Wade, 410 U.S. 113, 219, 93 S. Ct. 705, 761, 35 L. Ed. 2d 147 (1973) (Douglas, J., concurring) ("[t]he right to privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship"); and (5) ethical obligations of lawyers when *407 approaching a plaintiff's physicians in personal injury cases.[7]
The respect accorded the physician-patient relationship in other contexts does not govern the status of the relationship in workers' compensation cases. This is especially true, as discussed earlier, when there is no evidentiary privilege connected with that relationship in Workers' Compensation Law. Thus, these reasons supporting prohibition of such communications are, regardless of their wisdom, no more than policy arguments. Weighing of policy arguments in the administrative law context is within the purview of the legislature, not the courts. The legislature delegated authority to the agency to define policy in this area by promulgating rules regarding physician reporting. ORS 656.252. This court's review of such delegative rules is largely deferential, especially when the agency has special expertise and has made a statutory interpretation at least as plausible as any challenger's. As this court has stated:
"All legislative decisions involve value judgments of a political nature and so do delegated legislative decisions.
"* * * The delegation of responsibility for policy refinement under such a [policy-delegating] statute is to the agency, not to the court. The discretionary function of the agency is to make the choice and the review function of the court is to see that the agency's decision is within the range of discretion allowed by the more general policy of the statute." Springfield Education Assn. v. School Dist. No. 19, 290 Or. 217, 229, 621 P.2d 547 (1980).
See Branscomb v. LCDC, 297 Or. 142, 681 P.2d 124 (1984) (court will give deference to agency's interpretation of its rule adopted pursuant to a policy-delegating statute).
The Board is permitted, as it did in Alan W. Hayes, Jr., supra, to adopt a general policy interpreting one of its rules that will be applicable to future cases. ORS 183.355(2); Marbet v. Portland Gen. Elect., 277 Or. 447, 461, 561 P.2d 154 (1977). The Board, in its interpretation permitting the communications, relied upon the express policy of the Workers' Compensation Law that seeks to avoid the delay and excessive costs caused by litigation and the adversarial system. ORS 656.012(2)(b); OAR 438-05-035.[8] The Board's interpretation is not inconsistent with this express policy, and it is not our task on judicial review to evaluate these competing interests and substitute our judgment for the judgment of the Board on what policy provisions should prevail; this would be beyond our scope of review. ORS 656.298(6) and 183.482(8)(a).
2. Type of Communications Contemplated
Claimant next argues that the workers' compensation statutes and the rules, themselves, *408 do not envision these types of communications. Moreover, claimant asserts that the existence of numerous detailed workers' compensation provisions governing written reports by physicians[9] manifests an intent to make written reports the exclusive mode of communication between an employer's lawyer and a claimant's treating physicians. We find this argument unpersuasive.
ORS 656.252(1) authorizes promulgation of rules regarding physician reporting.[10] Subsection (1) does not refer to "writing," but only to reports. We find no reason to presume a legislative intent to require all reports to be written or to restrict verbal communication between employers or their agents and injured workers' physicians. We note, in fact, that subsection (2) of ORS 656.252 explicitly requires physicians to "advise" insurers and self-insured employers within five days of a worker's anticipated release to return to work or the reopening of a claimant's closed claim and subsection (5) requires physicians to "notify" insurers or self-insured employers within five days of changes in physicians or referrals to new physicians. Nothing in the statute addresses how physicians are to report to, advise, or notify insurers or self-insured employers so long as the relay of information is prompt and correct.
Claimant further argues that repeated references to written reports in administrative rules reflect a policy of preventing "unnecessary intrusion into the confidentiality of the physician/patient relationship." This argument, however, also is belied by ORS 656.252(1), which provides that the purpose of the written report requirement is "to insure the prompt and correct reporting and payment of compensation in compensable injuries." The legislative history reveals considerable concern about promptness, but no discussion of protecting claimant confidentiality. See, e.g., Minutes, House Committee on Labor and Management, March 22, 1967, pp. 1-3. ORS 656.252 goes on to absolve complying physicians from legal liability for disclosure of medical confidences.[11] We conclude that physician-patient confidentiality was of scant concern to the legislature in this context, especially in the face of competing concerns for promptness and accuracy.
*409 ORS 656.252 is a non-exclusive outline of the types of communications physicians are required to initiate with insurers or self-insured employers. It is not an outline of any particular or exclusive mode for such communications. Therefore, the Board was free to interpret the statute in its rules to define permissible modes of communication.
The Board, in its opinion in Alan W. Hayes, Jr., supra, interpreted the rules consistent with the stated purpose of the written reports. The Board stated:
"We find nothing in the statutes or rules requiring an insurer to give claimant prior notice of its intent to contact his or her physician. Further, we find such a requirement is inconsistent with our stated policy of full, fair and expeditious disclosure of information between the parties. It is also inconsistent with the legislature's intent to create a compensation system that reduces litigation and minimizes the adversarial process." 37 Van Natta at 1182.
The Board was within its statutory power in so construing the statute.[12]
3. Lack of Specific Reference
In essence, claimant argues that the lack of a specific reference to communications of the type involved in this case within the statutes and rules means that such communications are not permitted. The Board takes the opposite view: it interprets the absence of specific references prohibiting this type of communication to mean that such communications are permitted. Although claimant's interpretation is a plausible one, and may be supported by the policy reasons stated above, the Board's interpretation of the rules also is reasonable and is not inconsistent with the Workers' Compensation Law and rules made pursuant to that law.
CONCLUSION
We do not find the Board's interpretation of the Workers' Compensation Law to be erroneous, ORS 183.482(8)(a), and we defer to the Board's interpretation of its own rules.[13]
The decision of the Court of Appeals is affirmed. The order of the Workers' Compensation Board is affirmed.
UNIS, Justice, concurring in part, dissenting in part.
I agree with the majority's analysis of the physician-patient privilege in Part A of the opinion. I also agree with the majority that the fact that the statutes and rules do not provide for the physician-patient privilege in workers' compensation contested cases does not resolve the second question of whether ex parte[1] communications between claimant's treating physicians and employer's lawyer are proper. I disagree, however, with the majority's conclusion in Part B of the opinion that the workers' *410 compensation statutes contemplate this type of communication. Therefore, I dissent from Part B of the majority opinion.
On review of the Board's action, this court is to determine whether the agency has "erroneously interpreted a provision of law and that a correct interpretation compels a particular action." ORS 183.482(8)(a); see ORS 656.298(6) (review by the Court of Appeals as provided in ORS 183.482(8)). The Board, in its opinion in Alan W. Hayes, Jr., 37 Van Natta 1179, 1182 (1985), stated:
"We find nothing in the statutes or rules requiring an insurer to give claimant prior notice of its intent to contact his or her physician. Further, we find that such a requirement is inconsistent with our stated policy of full, fair and expeditious disclosure of information between the parties. It is also inconsistent with the legislature's intent to create a compensation system that reduces litigation and minimizes the adversarial process."
I agree with the majority that "[t]he Board is permitted * * * to adopt a general policy interpreting one of its rules that will be applicable to future cases." 312 Or. at 473, 823 P.2d 407; see Marbet v. Portland Gen. Elect., 277 Or. 447, 461, 561 P.2d 154 (1977) (discussing usual authority of administrative agencies to promulgate such rules). But "[a]n administrative agency may not, by its rules, amend, alter, enlarge or limit the terms of a statute." Cook v. Workers' Compensation Dept., 306 Or. 134, 138, 758 P.2d 854 (1988). This court has stated:
"`A statute which creates an administrative agency and invests it with its powers restricts it to the powers granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy which the agency is at liberty to disregard or put into effect according to its own ideas of the public welfare.'" (Emphasis added.)
U. of O. Co-Oper. v. Dept. of Rev., 273 Or. 539, 550, 542 P.2d 900 (1975) (quoting Gouge v. David, 185 Or. 437, 459, 202 P.2d 489 (1949)). Thus, this court must determine whether the Board's interpretation of its rules in Alan W. Hayes, Jr., supra, is consistent with its statutory authority. The Board discussed its authority for its ruling in Alan W. Hayes, Jr.:
"The Oregon Legislature has declared that it is the policy of the Workers' Compensation Law `to provide a fair and just administrative system * * * that reduces litigation and eliminates the adversary nature of the compensation proceedings, to the greatest extent practicable.' ORS 656.012(2)(b). Pursuant to this policy, the Board has promulgated rules of practice and procedure designed to `expedite claim adjudication and amicably dispose of controversies.' OAR 438-05-035. Among these rules are those pertaining to the generation of documentary evidence."
37 Van Natta at 1182.
ORS 656.012(2)(b), quoted in Alan W. Hayes, Jr., supra, sets policy but does not give the Board rulemaking authority. OAR 438-05-035 and the other rules mentioned in Alan W. Hayes, Jr.,[2] were promulgated under the authority of ORS 656.726(4).[3] OAR 438-05-005. ORS 656.726(4) provides:
"The board may make and declare all rules which are reasonably required in the performance of its duties, including but not limited to rules of practice and procedure in connection with hearing and review proceedings * * *."[4]
*411 This statute does not specifically grant authority to the Board to authorize ex parte contact with claimant's treating physicians. Another statute, ORS 656.252, does specifically address contacts with physicians. The critical issue, not addressed by the majority, is whether ORS 656.252 in any way limits the Board's authority to establish rules governing contacts with treating physicians under ORS 656.726(4). I conclude that it does.
ORS 656.252(1) authorizes rulemaking governing two things: (1) "audits of medical service bills,"[5] and (2) "reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim." ORS 656.252(1)(a)-(e) specifies certain types of reports which the Board's rules shall govern. Those statutory provisions are prefaced by the qualifying phrase that "[s]uch rules shall include, but not necessarily be limited to [items specified in (1)(a)-(e)]." As the majority suggests, the Board may make rules other than those described in ORS 656.252(1)(a)-(e). 312 Or. at 475, 823 P.2d 408.
However, this qualifying phrase does limit the Board's authority to make rules; the Board is only given authority to make "[s]uch rules" as defined earlier in ORS 656.252(1). That is, the Board may only make rules governing "reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim." Therefore, the statutory authority to make rules governing these "reports by attending and consulting physicians" not only limits the Board's rulemaking authority under ORS 656.252, but it also limits the Board's general rulemaking authority under ORS 656.726(4) and 656.726(3)(a). This is consistent with Cook v. Workers' Compensation Dept., supra; with U. of O. Co-Oper. v. Dept. of Rev., supra; and with Smith v. Clackamas County, 252 Or. 230, 233, 448 P.2d 512 (1969), overruled on other grounds, Whipple v. Howser, 291 Or. 475, 487 n. 6, 632 P.2d 782 (1981) ("the inclusion of specific matter tends to imply a legislative intent to exclude related matters not mentioned").
A number of factors are helpful in determining what the phrase "reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim" means in the context of ORS 656.252. In the abstract, a report can be either written or oral. This court, therefore, looks to the context of the statute, to the purpose of or policy underlying the statute, and to legislative history. Accordingly, I will proceed in that order.
The context of the statute indicates that the word "reports" refers to "written reports." The reports referred to in ORS 656.252(1)(a)-(c) are described as items which are "submitted" or "made." ORS 656.254(1)[6] provides that the Board "shall establish medical report forms [i.e., written] * * * to be used by * * * physicians." (Emphasis added.) Further, ORS 656.252(1) provides that the reports are to be submitted to "the injured worker's representative, the worker's employer, the employer's insurer and the department." (Emphasis added.) By using the conjunctive "and," the legislature has specified that the reports are to be submitted to all of these groups inclusively, not to any one of them separately. The most plausible mechanism by which this can occur is through written reports; verbal reports could only satisfy this requirement if all parties are represented, as in a deposition-type setting. The conjunctive construction in ORS 656.252(1) indicates that, whether in verbal or written form, ex parte contact was not authorized. This is the policy underlying the statute.
In addition, ORS 656.252(4) provides immunity from legal liability when a person "reports medical information to a person referred to in subsection (1) of this section, in accordance with department rules." The only way that a physician can submit a *412 report to "a [singular] person" under ORS 656.252(4) and have it submitted to all four parties in ORS 656.252(1) conjunctively is either for the report to be written so that the exact same report can be distributed to all parties or for all parties to be present if it is to be given verbally.
This reading of the statute is consistent with the policy underlying the statutory framework. The Board supported its determination that ex parte contact with physicians was allowed by quoting the language in ORS 656.012(2)(b) that the policy of the workers' compensation law is "[t]o provide a fair and just administrative system[[7]] * * * that reduces litigation and eliminates the adversary nature of the compensation proceedings, to the greatest extent practicable." Alan W. Hayes, Jr., supra, 37 Van Natta at 1182. The Board, quoting OAR 438-05-035, relied on the notion that the system must be expeditious, and went so far to say that not allowing ex parte contact "is inconsistent with [the Board's] policy of full, fair and expeditious disclosure of information." Alan W. Hayes, Jr., supra, 37 Van Natta at 1182. However, OAR 438-07-005[8] states that "[t]o avoid unnecessary delay and expense medical evidence should be presented in the form of written reports." Apparently, the Board itself does not consider the use of written reports to be contrary to the legislative policy of expeditious claim adjudication. Neither does the legislature. The purpose of ORS 656.252 is to "insure prompt and correct reporting," and the specific reports described in that section are, as I have shown, to be issued in written form and to be shared mutually.
Legislative history suggests that the word "reports" in ORS 656.252(1) was used to refer to "written reports." Reports were discussed as something to be contained in the file. House Bill 1594, as introduced, stated that the reports "shall be on forms established by the board."[9]
Even the administrative rule promulgated pursuant to ORS 656.252 expressly defines the term "report" as a written document. Division 10 of OAR 436, promulgated in part pursuant to ORS 656.252, OAR 436-10-001(1), defines "report" as "medical information transmitted in written form containing relevant subjective and objective findings. Reports may take the form of brief or complete narrative reports, a treatment plan, a closing examination report, or any forms as prescribed by the [Board]." OAR 436-10-003(36). It is interesting that this definition is the result of 1990 amendments, adopted after the Board's decision in Alan W. Hayes, Jr., supra.[10] Apparently the Board does *413 not consider the legislature's description in ORS 656.252 of specific methods by which to obtain information from physicians to be a limitation on the Board's authority to establish rules regarding obtaining information in other ways. I disagree.
ORS 656.252 specifies how the Board is to obtain information from physicians. ORS 656.252(1) limits the Board's authority to promulgate rules for obtaining information to those methods consistent with ORS 656.252(1), absent a specific statutory authorization providing the authority for other methods. ORS 656.252(1) could reasonably be interpreted to allow either (1) rules regarding only written reports, or (2) rules regarding written reports and verbal reports in the presence of the injured worker's representative, the worker's employer, the employer's insurer, and the department, but not to allow ex parte contact.
I would hold that the Board's ruling in Alan W. Hayes, Jr., supra, that allows ex parte contact with the physicians as a part of the process of obtaining the reports was an erroneous interpretation of law and, therefore, that reliance on Alan W. Hayes, Jr., supra, for that proposition in the present case also was error.[11]
Because it is clear from the record that the seven exhibits, which consisted of letters describing claimant's condition from three of claimant's treating physicians, resulted from ex parte communications by the employer's lawyer with these physicians, I would reverse the decision of the Court of Appeals and remand this case to the Board to address, in the first instance, the appropriate consequences of the Board's use of evidence obtained as a result of the improper ex parte contact.
FADELEY, J., joins in this opinion.
NOTES
[*] Peterson, Chief Justice when case argued.
[**] Carson, Chief Justice when decision rendered.
[***] Jones, J., resigned April 30, 1990.
[1] This form of communication frequently is labeled "ex parte contact," using the term "ex parte" to mean "[o]n one side only." Black's Law Dictionary 576 (6th ed. 1990).
[2] The Court of Appeals previously had held, in an opinion on reconsideration, Mershon v. Oregonian Publishing, 96 Or. App. 223, 772 P.2d 440, rev. den. 308 Or. 315, 779 P.2d 618 (1989), that the Board's interpretation of its rules to permit pre-hearing communications between the employer's lawyer and the claimant's physician without prior notice to the claimant was not inconsistent with any statute or rule and thus was entitled to deference.
[3] ORS 656.298(6) provides:
"The review by the Court of Appeals shall be on the entire record forwarded by the board. Review shall be as provided in ORS 183.482(7) and (8)."
ORS 183.482(7) provides, in part:
"[T]he court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion."
ORS 183.482(8)(a) provides:
"The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall: [set aside or modify the order or remand the case.]"
[4] OEC 504-1(2) states:
"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action, suit or proceeding, made for the purposes of diagnosis or treatment of the patient's physical condition, among the patient, the patient's physician or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family."
[5] As a result of a legislatively-directed agency reorganization in 1987, the language in this subsection, which previously listed the "Workers' Compensation Department," was changed to substitute the "Department of Insurance and Finance with respect to its functions under ORS chapters 654 and 656." Or. Laws 1987, ch. 373, § 21. The Workers' Compensation Board was a part of the predecessor Workers' Compensation Department, ORS 656.708 (1985), and now is within the Department of Insurance and Finance, ORS 656.712(1). The proceedings herein spanned the pre- and post-reorganization periods, a factor of no significance in this case.
[6] A statutory exemption of workers' compensation proceedings from the application of the physician-patient privilege is common among the states. See 8 Wigmore, Evidence § 2380 (McNaughton rev. ed. 1961 & Supp. 1991).
[7] Claimants and amicus OTLA cite subsequently withdrawn legal ethics opinions of the Oregon State Bar for the existence of an ethical obligation, e.g., Oregon State Bar, Legal Ethics Opinion No. 248 (Sept. 1981). There are no current legal ethics opinions limiting communication between lawyers and physicians. See Oregon Formal Ethics Opinions, v-vi (1991) (all former ethics opinions withdrawn).
We note that the Rules of Conduct adopted by the Oregon State Bar and the Oregon Medical Association limit such communication generally but provide an explicit exception for communication in conformity with Oregon workers' compensation rules. See Rule 3a, Statement of Principles Governing Certain Lawyer-Physician Relationships (1984).
[8] ORS 656.012(2)(b) provides that an objective of the Workers' Compensation Law is:
"To provide a fair and just administrative system for delivery of medical and financial benefits to injured workers that reduces litigation and eliminates the adversary nature of the compensation proceedings, to the greatest extent practicable[.]"
OAR 438-05-035 states:
"BOARD POLICY; LIBERAL CONSTRUCTION. It is the policy of the Board to expedite claim adjudication and amicably dispose of controversies. These rules shall be liberally construed in favor of the injured worker to carry out the remedial and beneficent purposes of the Workers' Compensation Law. The overriding principle is substantial justice. With respect to postponement or continuance of hearings, substantial justice requires consideration of the relative financial hardship of the parties. The unrepresented injured worker shall not be held strictly accountable for failure to comply with these rules. Any individual who undertakes to represent a party in proceedings under these rules shall be required to comply with these rules."
[9] E.g., OAR 436-10-030 (renumbered from OAR 436-69-101 and concerning reporting requirements for medical providers), OAR 436-10-100 (renumbered from OAR 436-69-801 and concerning independent medical examinations), OAR 438-07-005 (regarding presentation of medical evidence at hearings), and OAR 438-07-015 (regarding disclosure of claims information).
[10] ORS 656.252(1) provides:
"(1) In order to insure the prompt and correct reporting and payment of compensation in compensable injuries, the director shall make rules governing * * * reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim to the injured worker's representative, the worker's employer, the employer's insurer and the department. Such rules shall include, but not necessarily be limited to:
"(a) Requiring attending physicians to make the insurer or self-insured employer a first report of injury within a specified time after the first service rendered.
"(b) Requiring attending physicians to submit follow-up reports within specified time limits or upon the request of an interested party.
"(c) Requiring examining physicians to submit their reports, and to whom, within a specified time.
"(d) Such other reporting requirements as the director may deem necessary to insure that payments of compensation be prompt and that all interested parties be given information necessary to the prompt determination of claims.
"(e) Requiring insurers and self-insured employers to audit billings for all medical services, including hospital services." (Emphasis added.)
[11] ORS 656.252(4) provides:
"No person who reports medical information to a person referred to in subsection (1) of this section, in accordance with department rules, shall incur any legal liability for the disclosure of such information."
The purpose for this provision was to encourage prompt release of information and to prevent claimants and their legal counsel from using confidentiality concerns to delay or impede the flow of relevant medical information. Exhibit A, Summary of C Engrossed SB 48, May 24, 1979.
[12] We note that the dissent's interpretation of the statute (that a statutory requirement of written reports precludes oral communication between employers and claimants' physicians) might be plausible but for the context of this statute. The workers' compensation system is the antithesis of common-law tort rules regarding recovery for personal injury. All references to common-law sources outside the workers' compensation context are inapposite. The Oregon workers' compensation system was created by this state's legislature to streamline the process by which injured workers could be paid for compensable injuries. See generally ORS 656.012. Policy trade-offs were made in this streamlining effort, and it is not for this court to re-weigh competing policies. The legislature did not by statute expressly preclude employer/physician communication and, finding no evidence of legislative intent to do so, we decline to establish a limiting construction.
[13] Claimant also relies on a Washington Supreme Court case, Loudon v. Mhyre, 110 Wash.2d 675, 756 P.2d 138 (1988), a wrongful death tort claim. In that personal injury case, the court held that pre-hearing communications by defense counsel with the claimant's treating physician were not permitted despite waiver of the physician-patient privilege, thus limiting defense counsel to formal discovery methods.
That case is unpersuasive here due to the different context provided by the Workers' Compensation Law. We express no opinion on the persuasiveness of that case in its own context.
[1] The term ex parte as used in this opinion means communications with claimant's treating physicians by the employer or its representatives without the consent of claimant or claimant's counsel.
[2] The Board mentioned that OAR 438-07-005(2), 438-07-005(6), and 438-07-015(2) and (3) were consistent with its policy and thus with its decision allowing ex parte contact. Alan W. Hayes, Jr., 37 Van Natta 1179, 1182 (1985).
[3] At the time OAR 438-05-035 was promulgated, the subsection was ORS 656.726(5), but the wording was identical to current ORS 656.726(4).
[4] The director is also given a general grant of authority to "[m]ake and declare all rules which are reasonably required in the performance of the director's duties." ORS 656.726(3)(a).
[5] This phrase was added to the statute in 1987. Or. Laws 1987, ch. 884, § 3.
[6] ORS 656.254 was enacted as part of the same bill that enacted ORS 656.252. Or. Laws 1967, ch. 626.
[7] I need not address whether allowing ex parte contact is consistent with the policy of providing a fair system.
As the majority points out in Part B(1), 312 Or. at 472-474, 823 P.2d 406-407, claimant and amicus Oregon Trial Lawyers Association pointed to many sources recognizing a special relationship between patient and physician outside the context of the physician-patient evidentiary privilege. For recent discussions about the wisdom of allowing ex parte contacts and the treatment of the issue in other jurisdictions, see Annot., Discovery: Right to Ex Parte Interview With Injured Party's Treating Physician, 50 ALR4th 714 (1986); Dalgleish, Woytus and Ex Parte Physician Interviews in Missouri, 47 J. of Mo. Bar 265 (June 1991); Dewey, Jr., and Heine, Survey of Illinois Law Evidence, 15 So. Ill.Un.L.J. 997 (1991); Comment, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte Contacts with a Plaintiff's Treating Physician, 13 Campbell L.Rev. 233 (1991); Note, Restricting Ex Parte Interviews with Nonparty Treating Physicians: Crist v. Moffatt, 69 N.C.L.Rev. 1381 (1991); and Note, Professional Ethics Codes in Court: Redefining the Social Contract Between the Public and the Professions, 25 Ga.L.Rev. 1327 (1991).
[8] OAR 438-07-005 was proposed at the same time as OAR 438-05-035. OAR 438-05-005.
[9] This language was changed to "the director shall establish medical report forms" and was codified in ORS 656.254(1). See note 6, supra. This change in language arguably could support the idea that, because forms shall be established but not that reports "shall be on forms" as originally proposed, reports need not be written. However, this change in language could just as well support the idea that, while forms are provided, if the physician submits a report in letter format but not on a form, it still is considered a report. Legislative history does not indicate the significance of the change.
[10] The former rule, OAR 436-69-005(21), also promulgated in part to carry out the provisions of ORS 656.252, former OAR 436-69-004, defined "report" as "transmittal of medical information in a narrative letter, on a form or in progress notes from the worker's medical file. Reports may be handwritten but all shall be legible and include all relevant or requested information."
[11] Because I would hold that the Board's rule allowing ex parte contact was without statutory authority as required for immunity under ORS 656.252(4), it might follow (subject to the issue concerning, inter alia, reasonable reliance) that the rule would not provide the physician immunity for participating in ex parte contact. In the absence of this immunity, Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985), recognizes the existence of tort liability for the breach of a confidential relationship. See also ORS 677.190, which provides:
"The Board of Medical Examiners for the State of Oregon may refuse to grant, or may suspend or revoke a license to practice issued under this chapter for any of the following reasons:
"* * * * *
"(5) Willfully or negligently divulging a professional secret." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616319/ | 425 So. 2d 1205 (1983)
HIALEAH HOSPITAL, INC., Appellant,
v.
Luis A. RAVENTOS and Ismael Hernandez, Appellees.
Nos. 82-581, 82-986.
District Court of Appeal of Florida, Third District.
February 1, 1983.
Barranco & Kellough and Steven Kellough and Peter H. Kircher, Miami, for appellant.
Spencer, Hass-Perlman, Hoffmann & Bloom, Coral Gables, and Henry J. Hunnefeld, Smith & Mandler and Mitchell W. Mandler, Miami, for appellees.
Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
PER CURIAM.
Hialeah Hospital, Inc. sued Clinicas Pasteur, Inc., a Florida corporation, and the clinic's principals, Raventos and Hernandez, to collect a debt due it for services rendered to Clinicas. Hialeah's complaint alleged that Raventos and Hernandez were liable to *1206 it based on an agreement between these individuals, which provided, inter alia, (1) that two of the three medical facilities under the clinic's corporate aegis (Hialeah and Miami Beach) would thereafter be owned and operated by Hernandez, and the third (Northwest) by Raventos, and (2) that
"Hernandez ... shall assume all liabilities and receive all assets that have been incurred or created prior to said date with the exception that Raventos .. . shall assume and be responsible for all hospital bills and payment due doctors and professional persons due and owing for the Northwest members whenever they have been incurred."
Significantly, the agreement goes on to mention Hialeah Hospital, Inc. as an entity to which hospital bills are due and owing.
The trial court dismissed, with prejudice, the action against Raventos and Hernandez, and these appeals, consolidated by us, ensued. We reverse.
It is clear that "one for whose benefit a contract is made, although not a party to the agreement and not furnishing the consideration therefor, may maintain an action against the promisor." Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 822-23, 184 So. 852, 856 (1938); American Surety Co. of New York v. Smith, 100 Fla. 1012, 130 So. 440 (Fla. 1930); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909). Accord, Restatement (Second) of Contracts § 304. While it is far from certain that Raventos and Hernandez intended that Hialeah Hospital be a beneficiary of their agreement inter se, we are unable at this stage of the pleadings to draw the contrary conclusion that the agreement was designed solely for the benefit of Raventos and Hernandez, and that, therefore, Hialeah Hospital, Inc. was a mere incidental beneficiary. See, e.g., Muravchick v. United Bonding Insurance Company, 242 So. 2d 179 (Fla. 3d DCA 1970). Since "[w]here a contract creates a right or imposes a duty in favor of a third person, the law presumes that the parties intended to confer a benefit on him and furnishes him a remedy," Auto Mutual Indemnity Co. v. Shaw, 134 Fla. at 823, 185 So. at 856, the complaint and the agreement attached thereto, aided by this as yet unrebutted presumption, states a cause of action against Raventos and Hernandez sufficient to withstand a motion to dismiss.
Reversed and remanded for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616324/ | 425 So. 2d 1181 (1983)
PENINSULAR LIFE INSURANCE COMPANY, Appellant,
v.
Johnnie J. WADE, Sr., Appellee.
No. 82-209.
District Court of Appeal of Florida, Second District.
January 19, 1983.
*1182 Leonard H. Johnson of Dayton, Sumner, Luckie & McKnight, Dade City, and Peter Foley of Ragsdale & Liggett, Raleigh, N.C., for appellant.
Thomas P. McAlvanah of Gibbs & McAlvanah, Dade City, for appellee.
BOARDMAN, Acting Chief Judge.
Defendant Peninsular Life Insurance Company appeals a final judgment against it awarding plaintiff/appellee Johnnie J. Wade, Sr. $5000. We affirm.
The facts, taken in the light most favorable to appellee, are as follows:
Appellee and his now deceased wife both applied for life insurance policies with appellant and were both rejected for failure to meet the health standard. Earl Booth, the insurance agent employed by appellant whom the Wades consulted, then advised them to apply for the policy in issue here, explaining that it was a high risk policy but would pay full benefits. The Wades had requested full coverage policies and expected to receive precisely that. The Wades did apply for and were issued such policies, Mrs. Wade's policy having a face value of $5000.
Upon receiving the policy, appellee read the benefits portion thereof, which provided:
IN CONSIDERATION of the payment of the Mode Premium stated in the schedule above, on or before the Date of Policy and continued payment of such premiums during the continuance of this Policy until death of the Insured, the Company will pay the Beneficiary, upon receipt at the Home Office of the Company of due proof of death of the Insured, the Death Benefit applicable to the policy year in which death occurs.
The Death Benefit for the first three policy years is given in the table below for each $100 of Annual Premium.
Death Benefit
Policy Year Per $100 Annual Premium
1 $108.00
2 224.64
3 350.61
After the first three policy years, the Death Benefit of the Policy is the Ultimate Face Amount as shown in the schedule above.
Appellee then questioned Booth about the three-year limitation provision in the presence of his sister-in-law (who corroborated his testimony concerning the discussion) and his wife. Booth told appellee that very few people understood this type of policy but that he, Booth, was one of them and that the policies would pay full benefits from the date of issuance.
In reliance on Booth's representations, appellee continued to make premium payments on the policies. His wife died less than six months after issuance of the policy on her life. When notified of Mrs. Wade's death, Booth assured appellee and his sister-in-law that the policy would pay $5000. *1183 However, appellant subsequently refused to pay the $5000 face amount, relying on the three-year limitation provision of the policy, and this litigation ensued.
The general rule is that when the meaning of the policy is clear, it will be enforced even though the insurer's agent had made representations as to coverage which were not included in the policy. Hydraulic Equipment Systems & Fabrication, Inc. v. Pennsylvania Millers Mutual Insurance Co., 277 So. 2d 53 at 57 (Fla. 3d DCA 1973); State Liquor Stores # 1 v. United States Fire Insurance Co., 243 So. 2d 228 (Fla. 1st DCA 1971).
The general rule [in Florida] is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is not applicable to matters of coverage as distinguished from grounds for forfeiture. In other words, while an insurer may be estopped by its conduct from seeking a forfeiture of a policy, the insurer's coverage or restrictions on the coverage cannot be extended by the doctrine of waiver and estoppel.
(Citations omitted.) Six L's Packing Co., Inc. v. Florida Farm Bureau Mutual Ins. Co., 268 So. 2d 560, 563 (Fla. 4th DCA 1972), cert. discharged, 276 So. 2d 37 (Fla. 1973).
However, Hydraulic and State Liquor Stores involved representations made only before, not after, the policies in question were issued, and Six L's involved the insured's duty to make monthly reports on the value of the property insured and is in no way analogous to the instant case.
Our research, which included a review of the law in other jurisdictions, revealed no case directly on point, i.e., involving an insurance agent's incorrect representations made as to the meaning of policy language after the insured had read the portion of the policy in question. However, we have found cases in which the insurer was held estopped to deny coverage where the insured was assured of coverage and sustained a loss before learning that the policy actually issued did not provide coverage for the loss in question. E.g., Burns v. Consolidated American Insurance Co., 359 So. 2d 1203 (Fla. 3d DCA 1978); Emmco Insurance Co. v. Marshall Flying Service, Inc., 325 So. 2d 453 (Fla. 2d DCA 1976); Monogram Products, Inc. v. Berkowitz, 392 So. 2d 1353 (Fla. 2d DCA 1980); Liberty Mutual Fire Insurance Co. v. Sanderman, 286 So. 2d 254 (Fla. 3d DCA 1973); Harr v. Allstate Insurance Co., 54 N.J. 287, 255 A.2d 208 (1969); Dodge v. Aetna Casualty & Surety Co., 127 Vt. 409, 250 A.2d 742 (1969); Hully v. Aluminum Co. of America, 143 F. Supp. 508 (S.D.Iowa 1956). See generally J. Appleman, Insurance Law & Practice § 9090 (1981).
We think Emmco is instructive. Emmco sought a reversal of a declaratory judgment decreeing coverage under an insurance policy it had issued to Marshall, a crop dusting company which had been sued by a third party for chemical damage caused by Marshall's spraying. Marshall had applied for insurance through an agent of Emmco and had specifically requested in its application that Emmco provide chemical damage insurance. The policy issued specifically excluded chemical damage. This court affirmed the trial court's ruling that "as a matter of law, Emmco was responsible for chemical damage coverage if its agent failed to provide such coverage or failed to notify the Flying Service that the policy which in fact issued excluded such coverage." 325 So.2d at 454. Accord Liberty Mutual Fire Insurance Co. v. Sanderman.
Here, while it is true that appellee's application did not contain a written request for full benefits as far as we know, appellee was affirmatively misled by appellant's agent and employee, Booth, after having read the policy coverage provision and called it to Booth's attention. We consider Booth's behavior far more egregious than that of the Emmco agent who merely failed to notify the insured that the policy excluded the requested chemical damage coverage. We agree with the reasoning in Harr that
where an insurer or its agent misrepresents, even though innocently, the coverage *1184 of the insurance contract, or the exclusions therefrom, to an insured before or at the inception of the contract, and the insured reasonably relies thereupon to his ultimate detriment, the insurer is estopped to deny coverage after a loss or a risk or from a peril actually not covered by the terms of the policy. The proposition is one of elementary and simple justice. By justifiably relying on the insurer's superior knowledge, the insured has been prevented from procuring the desired coverage elsewhere... . If the insurer is saddled with coverage it may not have intended or desired, it is of its own making, because of its responsibility for the acts and representations of its employees and agents. It alone has the capacity to guard against such a result by the proper selection, training and supervision of its representatives.
255 A.2d at 219. See also Jefferson Realty v. Fidelity & Deposit Co., 410 F.2d 847 (5th Cir.1969).
As stated in Burns: "While estoppel cannot be invoked to create coverage clearly excluded by a written contract of insurance, the concept may be utilized against an insurer when its conduct has been such as to induce action in reliance on it." 359 So.2d at 1207. We conclude that appellant is estopped to deny full coverage on Mrs. Wade's life, notwithstanding the clear and unambiguous policy provision, after its agent and employee unqualifiedly held himself out as an expert on policies such as appellee's and misinformed appellee as to the meaning of that provision, which actions would be expected to and did induce appellee's reliance on the agent's false representations.
Accordingly, the final judgment is AFFIRMED.
CAMPBELL, J., concurs.
GRIMES, J., dissents with opinion.
GRIMES, Judge, dissenting.
In addition to those cited in the majority opinion, the following Florida decisions also support the general rule that waiver and estoppel are not applicable to matters of insurance coverage as distinguished from grounds for forfeiture. Radoff v. North American Co. for Life & Health Insurance, 358 So. 2d 1138 (Fla. 3d DCA 1978); Unijax, Inc. v. Factory Insurance Association, 328 So. 2d 448 (Fla. 1st DCA 1976); Johnson v. Dawson, 257 So. 2d 282 (Fla. 3d DCA 1972); see also Reisman v. New Hampshire Fire Insurance Co., 312 F.2d 17 (5th Cir.1963) (applying Florida law); Kaminer v. Franklin Life Insurance Co., 472 F.2d 1073 (5th Cir.1973) (applying Florida law). Of greater significance is the fact that when the supreme court discharged certiorari in Six L's Packing Co. v. Florida Farm Bureau Mutual Insurance Co., it did not do so upon jurisdictional grounds but rather stated, "we hold that the District Court of Appeal has correctly decided the cause and its decision is adopted as the ruling of this Court." 276 So.2d at 38. The opinion of the district court of appeal to which the supreme court referred contained the language quoted by the majority in the instant case for the proposition that waiver and estoppel cannot enlarge insurance coverage.
There is an annotation at 1 A.L.R. 3d 1139 (1965) entitled "Doctrine of estoppel or waiver as available to bring within coverage of insurance policy risks not covered by its terms or expressly included therefrom." The annotation and its supplement cite cases from forty-one states supporting the rule that waiver and estoppel cannot bring within the coverage of an insurance policy risks which are not covered by its terms. Cases from eight states are cited for the contrary view. (There is an overlap among the states because some of them have decisions going both ways.)
In three of the four Florida cases cited by the majority in support of its holding, the opinions do not reflect that the general rule concerning waiver and estoppel as it relates to coverage was even argued. Only in Burns v. Consolidated American Insurance Co. (Judge Hubbart dissenting) does the court mention the general rule. However, the court purports to distinguish the rule by concluding that the conversations between *1185 the insured and the agent may have created a parol contract contrary to the provisions of the written insurance policy. In the present case, the majority does not suggest that it based its position on a parol contract with an agent who was not shown to have the authority to amend the terms of the policy.
I can see no basis for making a distinction between conversations with the agent which took place after issuance of the policy and those which occurred beforehand. The agent's statements would still constitute waiver and estoppel if these doctrines could be raised. Even though the language of the policy is clear, given the facts of this case I can understand why the majority wishes to affirm the award of the full coverage. Unfortunately, I believe the case represents a good example of the timeworn adage that "hard cases make bad law."
I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616353/ | 38 So. 3d 230 (2010)
Chuy Francisco SOLIS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D10-748.
District Court of Appeal of Florida, Second District.
June 23, 2010.
*231 Chuy Francisco Solis, pro se.
SILBERMAN, Judge.
Chuy Francisco Solis appeals the denial of his "motion for jail time credit," treated as a motion under Florida Rule of Criminal Procedure 3.800(a). Because the records attached to the postconviction court's order do not refute Solis's claim, we reverse and remand for further proceedings.
Solis claims that he was in jail at all times from May 5, 2006, until September 1, 2006, as the result of the revocation of his pretrial bond. He asserts entitlement to 128 days' jail credit for this entire timeframe, although it appears the actual number of days involved is 120 days. The postconviction court denied Solis's motion, finding that he was arrested on April 17, 2006, and released on surety bond on April 19, 2006; that on September 1, 2006, Solis was sentenced to drug offender probation; that Solis was arrested in Hardee County on February 12, 2007, for a probation violation; and that when he was sentenced on February 15, 2007, he received a total of six days of jail credit. Further, the postconviction court found nothing in the record to indicate that Solis's bond had been revoked on May 5, 2006. Thus, this appeal involves a disagreement as to Solis's status between May 5, 2006, and September 1, 2006.
On April 14, 2010, this court directed the Polk County clerk of court to supplement the record on appeal with Solis's motion for pretrial release or reasonable bail, filed May 19, 2006, and the trial court's order denying the motion, filed June 2, 2006. The fact that Solis's counsel filed a motion for pretrial release after the date Solis claims his bond was revoked suggests that his bond was, in fact, revoked. See Green v. State, 979 So. 2d 395, 396 (Fla. 2d DCA 2008) (noting that because documents indicated that the premiums for bonds were returned to the defendant, the record appeared to support the defendant's claim that he was not released from jail and was entitled to additional jail time credit). Moreover, the order denying the motion for pretrial release appears to indicate that Solis was returned to jail after the hearing. At a minimum, the documents attached to the postconviction court's order denying Solis's motion do not refute his sworn allegations, and the postconviction court may have overlooked record documents that address Solis's claim.
Accordingly, we reverse and remand for the postconviction court to reconsider Solis's motion.
LaROSE, J., Concurs.
ALTENBERND, J., Concurs with opinion.
In fairness to the trial court, this motion is very confusing. Mr. Solis filed it only in trial court case no. CF06-002841. The only felony involved in that case was driving on a suspended license as a habitual traffic offender. That sentence and a concurrent sentence in case no. CF05-004609 would appear to be fully served by this time.
Mr. Solis's public records with the Department of Corrections indicate that he is serving a separate five-year term of imprisonment in a case from Indian River County and that he was sentenced in that case on the same date that he was sentenced in Polk County, resulting in the *232 release of a detainer in Indian River County. That offense occurred in October 2004. Assuming these records are accurate, it may be that he was arrested as he claims on May 5, 2006, but that the jail time only accrued in the Indian River case. It is possible he is entitled to jail credit in that case even if he is not entitled to jail credit in this case. I note that he apparently had a direct appeal of that case in the Fourth District, but we have no information about that appellate proceeding. See Solis v. State, 990 So. 2d 1083 (Fla. 4th DCA 2008) (table decision).
I concur in our decision to send this back for another review in the trial court and would encourage that court to examine all of its files from the relevant sentencing hearings, but I am not optimistic that those records will show an entitlement to jail credit as a matter of law in this proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616372/ | 425 So. 2d 1353 (1983)
Mary Lou Windham BOREN
v.
Bobby N. WINDHAM.
No. 53957.
Supreme Court of Mississippi.
February 2, 1983.
Mounce, Soper & McElroy and Thomas M. McElroy, Tupelo, for appellant.
Langston & Lott and Duncan Lott, Booneville, for appellee.
Before WALKER, DAN M. LEE, and ROBERTSON, JJ.
DAN M. LEE, Justice, for the Court:
This is an appeal from the Chancery Court of Prentiss County wherein Bobby N. Windham, appellee, petitioned for modification of a final decree of divorce whereby he sought termination of alimony payable to his former wife Mary Lou Windham Boren, appellant. Windham alleged in his petition a material change in circumstances had occurred subsequent to the rendition of the divorce decree in that Mary Windham Boren had remarried and alternatively, engaged in sexual misconduct, thereby forfeiting her right to future payments of alimony. The proof at trial established that the marriage entered into between Mary Lou *1354 Windham Boren and Jim Boren was void and subsequently annulled as being a bigamous marriage. The chancellor terminated appellant's alimony, finding that she had chosen to look to Jim Boren for her support by marrying him, and upon other grounds as alleged in appellee's petition. Mary Lou Windham Boren appeals. We affirm.
The parties to this appeal were divorced on February 23, 1977. The final decree for divorce provided, among other things, that appellee pay unto appellant alimony in the amount of $75 per week for as long as appellant was able to work on a parttime basis only. In the event appellant's health improved to the extent she was able to resume work on a fulltime basis, the weekly payment of alimony was to be reduced to $40 per week until further order of the court or appellant's remarriage.
Following the divorce, appellant moved to Baldwyn, Mississippi, and obtained parttime employment at Arnold's Restaurant. She worked at Arnold's for approximately three years until she broke her foot. When appellant was ready to return to work, Arnold's did not have an opening to accommodate her. In September or October of 1980, appellant obtained a parttime job at Mr. Quick; however, her employment there ended after approximately one month due to the following circumstances.
In August 1980 appellant met Jim Boren. Four days later appellant and Boren were married in Alabama. Appellant contends the marriage was not consummated, whereupon Boren departed the following day for approximately three months. It was after Boren's departure that appellant became employed at Mr. Quick. While Boren was gone, appellant learned that he was previously married to another woman in Alabama from whom he was not divorced. She began dating a man named Swift. Prior to Boren's return, appellant broke up with Swift; however, when Boren came to see her, Swift also appeared and a fight erupted. Swift then beat appellant and forced her to go to Tennessee where she remained for approximately eight days. A missing person report was filed by appellant's daughter on November 20, 1981.
Upon her return to Mississippi, appellant was hospitalized. When she was released from the hospital, she confronted Boren who had been staying at her house while she was hospitalized, about his other wife in Alabama.
Appellee learned of appellant's ceremonial marriage to Boren in January of 1981, at which time, upon the advice of his attorney, he ceased making alimony payments and instituted the present proceeding. Appellant having lost her job at Mr. Quick, was without funds once the alimony payments were terminated. To help defray expenses, appellant allowed Wallace Keys, a third cousin, to live at her house during January, February and March of 1981. Although Keys paid no rent, he helped buy a few groceries. Both Keys and appellant denied any sexual relationship, asserting they occupied separate bedrooms while he resided at appellant's home. William Myhand also lived in appellant's home for approximately one month. Myhand likewise paid no rent but did contribute for groceries and bills. Appellant denied any sexual relations with Myhand.
At the conclusion of the hearing, the chancellor found that appellant, by marrying Boren, even though such marriage had been annulled, had elected to whom she wished to look for support. The chancellor therefore terminated appellant's alimony.
Where a wife who is drawing alimony from her divorced husband enters into a second marriage which is void, and the second marriage is annulled, may she draw alimony from the first husband after the annulment of the second marriage?
In Bridges v. Bridges, 217 So. 2d 281 (Miss. 1968), this Court refused to adopt a rule that every ceremonial second marriage would automatically cut off the wife's right to alimony from her first husband and likewise refused to adopt the rule that if a voidable second marriage is annulled and the laws of the state of annulment do not provide for alimony in the case of annulment, the right to alimony from the first *1355 husband may be revived unless it would be inequitable under the facts and circumstances.
The parties to this appeal contend that this is a case of first impression because Bridges involved a voidable marriage rather than a void marriage. While we have not previously addressed the issue of whether a revival of alimony would occur where a wife's subsequent marriage is void, we decline to differentiate between a void and voidable marriage for this purpose. In Bridges we held:
We are unwilling to adopt the rule in Keeney, supra, to the effect that every ceremonial second marriage automatically cuts off the wife's rights to alimony from the first husband. We are also unwilling to adopt the rule adhered to in New York and Massachusetts that if a voidable second marriage is annulled and the laws of the state of annulment do not provide for alimony in the case of annulment, the right to alimony from the first husband may be revived unless it would be inequitable under the facts and circumstances. Ordinarily in the case of a voidable marriage, the innocent party may elect to either have the marriage annulled or treated as valid. If appellant had treated the marriage to Ferrell as valid, she would probably have the right to receive alimony from him. She also had the right to have the marriage annulled. This reveals the weakness of the rule applied in New York and Massachusetts.
The duty of the husband to pay, and the right of the wife to receive, alimony should not depend upon whether the divorced wife decides to treat her subsequent marriage as voidable or valid.
Appellant was mentally competent when she undertook to marry Ferrell. She was under no compulsion, except the misrepresentations already mentioned. When she undertook to enter into this marriage she made an election to look to Ferrell as the man from whom she would receive her support, and relinquished her right to receive further alimony from Bridges. If she had been forced to marry Ferrell under duress that made her act wholly involuntary or if she had been mentally incompetent to enter into a contract of marriage, we would have a different kind of case, and undoubtedly would reach a different result. We are of the opinion that the chancellor correctly decided the case and that appellant was not entitled to any further alimony from Bridges after the date of the ceremonial marriage to Ferrell. (emphasis ours). (217 So.2d at 283-84).
We see no reason why our holding in Bridges should not be extended to encompass a situation where the subsequent marriage of a wife is void rather than voidable. Regardless of whether the subsequent marriage is void or voidable the revival of alimony from a wife's first husband upon annulment of the second marriage will depend upon the facts and circumstances of each case.
Turning to the facts in the present case, appellant married Boren in August of 1980. Appellant subsequently learned of Boren's previous marriage while he was on a three-month trip which began the day after their marriage. Appellant then began dating Swift. When appellee discovered that appellant had remarried, he instituted the present action for termination of her alimony on January 9, 1981. Appellant did not file suit for annulment until March 13, 1981. Both causes were later heard on the same day. The annulment was heard first and was not contested by Boren.
Alimony is not a bounty to which appellant became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to appellee. Beacham v. Beacham, 383 So. 2d 146 (Miss. 1980).
From the totality of the circumstances as evidenced by the record, we cannot say the chancellor was manifestly wrong in terminating appellant's alimony. Appellant was mentally competent when she undertook to marry Boren. She was under no compulsion. When she undertook to enter into this marriage, she made an *1356 election to look to Boren as the man from whom she would receive her support. In Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933), this Court held:
In this case there was a question as to whether a wife divorced from her husband, and who has remarried, is entitled to alimony after her remarriage. In our opinion, when a wife remarries, a new status is created which relieves the former husband from further duty to support her. She, in effect, elects to take support from her second husband, and we do not think the law contemplates that she shall marry again, and then have her former husband support her and relieve her last husband from that duty. (167 Miss. at 755, 150 So. at 211).
The loss of alimony may give rise to a separate cause of action against Boren for his alleged misrepresentations which caused appellant to forfeit her right to receive alimony.
As stated in Bridges, under a different set of facts and circumstances we may reach a different result. We cannot say, however, that here the chancellor erred in terminating appellant's alimony.
Based on the foregoing, this cause is hereby affirmed.
AFFIRMED.
PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616366/ | 38 So. 3d 753 (2008)
James SHOULDIS
v.
STATE of Alabama.
CR-06-1425.
Court of Criminal Appeals of Alabama.
August 29, 2008.
Rehearing Denied October 24, 2008.
*754 James Grady Curenton, Jr., Fairhope, for appellant.
Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.
WELCH, Judge.
James Shouldis appeals from the circuit court's denial of his Rule 32, Ala. R.Crim. P., petition. The petition sought postconviction relief from his March 7, 2005, conviction of first-degree sexual abuse, a violation of § 13A-6-66(a)(3), Ala.Code 1975, and his sentence on May 16, 2005, to five years' imprisonment.
Direct Appeal[1]
Shouldis was indicted for two counts of sexually abusing his step-granddaughter, E.D. The two count's were identical. They charged:
"James Shouldis, whose name is otherwise unknown to the Grand Jury other than as stated,
"COUNT I
"he, being sixteen years of age or older, did knowingly subject [E.D.], who at the time was less than twelve years of age, to sexual contact, in violation of § 13A-6-66(a)(3) of the Code of Alabama,
"COUNT II
"he, being sixteen years of age or older, did knowingly subject [E.D.], who at the time was less than twelve years of age, *755 to sexual contact, in violation of § 13A-6-66(a)(3) of the Code of Alabama,
"against the peace and dignity of the State of Alabama."
(Record on direct appeal, CR-04-1907, at CR. 18.)
It appears from the record on direct appeal that Shouldis relied upon the contents of the State's "Notice of Contents of Out-Of-Court Statements by [E.D.] Pursuant to Alabama Code Section § 15-25-35," upon a conversation his counsel had had with the district attorney, and upon "discovery matters that were received and information at the preliminary hearing" to apprise him of the specific charges against which he was to defend. (Record on direct appeal, CR-04-1907, R. 95.) From the above sources, Shouldis understood that the alleged sexual abuse took place over a two- to three-week span of time in November and December 2001. He believed that one count of the indictment concerned two or three incidents of sexual abuse taking place in a chair or recliner and that the other count concerned an alleged incident that occurred one time in E.D.'s bedroom.
The victim, E.D., was 10 years old at the time of trial. E.D. testified that she thought she was seven years old when the sexual abuse occurred but she did not remember exactly when it happened. (Record on direct appeal, CR-04-1907, at R. 105.) E.D. testified that she spent every other weekend with Shouldisher step-grandfather, and Nanaher grandmother. However, E.D. stayed with the couple consecutive weekends in December 2001. E.D. testified at trial that "[w]henever [she] would go to [Shouldis's] house, after [she] would get out of the bathtub ... [E.D.] would go and sit in [Shouldis's] lap and he would give [her] a bad touch." (Record on direct appeal, CR-04-1907, at R. 104-05.) E.D. further testified that when she sat in the recliner with Shouldis to watch television together, he would touch her private part through her clothing. Contrary to her assertions in the "Notice of Contents of Out-Of-Court Statements" that she was sexually abused as many as three times, E.D. testified at trial that she was sexually abused "maybe three, four, maybe five times" while sitting in Shouldis's lap. (Record on direct appeal, CR-04-1907, at R. 117.)
E.D.'s best recollection was that the sexual abuse took place over a period of "a couple of weeks," "around Christmas time" but that she "really [couldn't] remember." (Record on direct appeal, CR-04-1907, at R. 106, 117, 118.) E.D. could not remember if she had been sexually abused multiple times per visit or one time per visit. E.D. testified that she thought the last time Shouldis touched her private part was "a week before" she was taken to the hospital to be examined by a doctor. Other witnesses testified that E.D. was examined by a doctor on January 4, 2002.
E.D. testified that she did not remember playing a game called "the claw" with Shouldis. (Record on direct appeal, CR-04-1907, at R. 111.) E.D. did not remember ever climbing onto Shouldis's lap while he was asleep. (Record on direct appeal, CR-04-1907, at R. 111.)
The charge of sexual abuse that allegedly took place in E.D.'s bedroom was designated as count two by the trial court. This count was dismissed pursuant to Shouldis's motion for a judgment of acquittal made at the end of the State's case. The remaining count, count one, concerned an occurrence or occurrences of sexual abuse that took place while Shouldis and E.D. were sitting together on a recliner.
Shouldis testified regarding two occasions when, he says, he accidently touched E.D.'s groin. The first occasion occurred in the "late summer, maybe August or *756 September" of 2001. (Record on direct appeal, CR-04-1907, R. 270.) He stated that at E.D.'s invitation he was playing a game they called "the claw." He described it as a game derived from a movie he and E.D. had seen. When they played, Shouldis's "hand goes wild and you've got to get away from `the claw.'" (Record on direct appeal, CR-04-1907, R. 268.) He stated that he accidently touched E.D.'s "groin area" once during this game. (Record on direct appeal, CR-04-1907, R. 269.)
The second incident occurred around October 2001. Shouldis stated that one time as he slept in his chair, E.D. startled him by jumping into his lap. Shouldis said that as a reflex he grabbed his own "groin area" and in doing so he accidently "caught [E.D.] right there in [her] groin hard." (Record on direct appeal, CR-04-1907, R. 271.)
The trial court's jury instructions included the following:
"To convict, the State must prove beyond a reasonable doubt each of the following elements of sexual abuse in the first degree: No. 1, that the Defendant James Shouldis subjected [E.D.] to sexual contact; No. 2, that [E.D.] was less than 12 years old at the time; No. 3, that [Shouldis] was 16 years of age or older at the time; and No. 4, that the [Shouldis] acted intentionally."
(Record on direct appeal, CR-04-1907, at R. 335.)
"[Shouldis] is not on trial for any act not charged in the indictment and you may not find him guilty on the basis of any act not charged in the indictment.
"To the contrary, if you find [Shouldis] guilty, you must do so, if at all, solely on the basis that the prosecution has proved beyond a reasonable doubt [Shouldis] did, in fact, do the things that the indictment accuses him of doing."
(Record on direct appeal, CR-04-1907, at R. 336-37.) (Emphasis added.)
"Now, all 12 of you must agree before you can reach a verdict in this case. Your verdict must be the verdict of each and every juror. It cannot be a majority. It cannot be a consensus. It cannot be a plurality. It must be the verdict and decision of each one of you individually."
(Record on direct appeal, CR-04-1907, at R. 337.)
"Now, I will go over the verdict form with you ... and it either is `We, the jury, find the Defendant James Shouldis, guilty of sex abuse as charged in the indictment,' or `We, the jury, find the Defendant James Shouldis not guilty.'"
(Record on direct appeal, CR-04-1907, at R. 338.)
"The second responsibility is once all 12 of you have agreed upon a verdict, the foreperson will sign his or her name on the line associated with the verdict upon which all 12 of you agree."
(Record on direct appeal, CR-04-1907, at R. 339.)
"MR. POWELL [defense counsel]: The only thing that I would request the Court do in connection with this, at the beginning of this trial, the Court announced to the jury that Mr. Shouldis stood before this court for trial on a two-count indictment which is now only a one-count indictment and I think that the jury's entitled to know one of those counts has been dismissed.
"MS. ROSEONY [the prosecutor]: Judge, I think they can reasonably infer it has been dismissed. You just charged them on one count.
"THE COURT: That's noted and overruled. I'm not gonna address they'veyou told them in closing.
*757 "MR. POWELL: Yes, sir. I did tell them in closing that
"THE COURT: And I read them only one count and the verdict form only showed one count.
"MR. POWELL: All right. My objection's overruled?
"THE COURT: Yes. And noted."
(Record on direct appeal, CR-04-1907, at R. 340-41.)
The jury returned a verdict of "guilty of sex abuse 1st as charged in the indictment" and the record reflected "that all 12 answered in the affirmative that it was their verdict." (CR. 51 and Record on direct appeal, CR-04-1907, at R. 342.)
Shouldis appealed his conviction. His conviction was affirmed. Shouldis v. State, 953 So. 2d 1275, 1282 (Ala.Crim.App. 2006). Of the claims presented on direct appeal, three are relevant to the review of his appeal from the denial of his Rule 32 petition.
1.
Shouldis claimed on direct appeal that the trial court erred in refusing to require the State to elect which of the alleged instances of sexual abuse it sought to prove.[2]
We held that Shouldis's claim was not preserved. Moreover, we continued with the following dicta:
"Here, the evidence clearly indicated that the victim and her sister stayed at Shouldis's house every other weekend and on assorted holidays from 1997 when the victim's father dieduntil the abuse was discovered near the end of 2001. The testimony further indicated that the victim spent nearly every weekend in November and December at Shouldis's house in 2001. Clearly the evidence in this case indicated that Shouldis had `virtually unchecked access to the child' in the manner contemplated by [R.L.G. v. State, 712 So. 2d 348, 355 (Ala.Crim.App.1997), aff'd, 718 So. 2d 117 (Ala.1998), and R.A.S. v. State, 718 So. 2d 108 (Ala.Crim.App.1997), aff'd, 718 So. 2d 117 (Ala.1998).]"
Shouldis v. State, 953 So.2d at 1282.
This Court stated that the State had presented only "generic evidence" against Shouldis, therefore, "the limited abrogation of the election rule as set out in R.L.G.[ v. State, 712 So. 2d 348, 355 (Ala. Crim.App.1997), aff'd, 718 So. 2d 117 (Ala. 1998),] and R.A.S. [v. State, 718 So. 2d 108 (Ala.Crim.App.1997), aff'd, 718 So. 2d 117 (Ala.1998),] was applicable." Shouldis v. State, 953 So.2d at 1282. Thus, pursuant to R.L.G., the jury should have been provided a "unanimity instruction" "`that it can find the defendant guilty only if it unanimously agrees that he committed all the incidents described by the victim.'" Ex parte R.L.G. 712 So. 2d 372, 373 (Ala. 1998) (quoting R.L.G. v. State, 712 So. 2d 348, 367) (Ala.Crim.App.1997) (emphasis added).
2.
Shouldis claimed on direct appeal that the trial court committed reversible error because it did not give a specific unanimity instruction to the jury before deliberations. We held that this claim was not preserved for appellate review.
3.
Shouldis claimed on direct appeal that trial counsel was ineffective because, *758 among other claims, counsel failed to require the State to elect which incident of sexual abuse it was pursuing, as set forth under no. 1 above, and for failing to object to the trial court's failure to instruct the jury that it had to unanimously "find Shouldis guilty on all of the incidents under the `either-or' rule (if it applied)" as set forth under no. 2 above. (Shouldis's brief on direct appeal at p. 66.)
This Court found that Shouldis had not preserved his claims of ineffective assistance of counsel for review on direct appeal. However, we noted in a footnote that Shouldis could properly pursue his ineffective-assistance-of-counsel claim in a Rule 32, Ala. R.Crim. P., postconviction motion.
Shouldis's conviction and sentence were affirmed on direct appeal. Shouldis v. State, 953 So.2d at 1282. This Court issued its certificate of judgment on October 13, 2006.
Rule 32 Petition
Shouldis timely filed his Rule 32 petition on October 26, 2006. See Rule 32.2(c), Ala. R.Crim. P. He claimed in his petition that his trial counsel was ineffective based on the following:
(1) Counsel failed to request that the trial court give a unanimity instruction to the jury, and counsel failed to object to the jury charge, which did not contain a unanimity instruction. Specifically, he asserts that this court determined on direct appeal that his was a "non-election" case. Therefore, Shouldis asserts, and this Court acknowledged on direct appeal, that he was entitled to a unanimity instruction in a "non-election" case. Thus, according to Shouldis, his counsel's performance was deficient and he suffered prejudice because "the jury rendered a verdict without having to unanimously agree that Shouldis committed all of the incidents described by the victim." (CR. 6.)
(2) Counsel failed to move for a dismissal or otherwise present or preserve the issue of a material fatal variance.
(3) Counsel failed to properly object to the State presenting evidence of other alleged bad conduct to prove the offense charged in the indictment.
(4) Counsel failed to timely file a motion asking the trial court to require the State to make an election under the doctrine of election concerning which incident of sexual abuse it should consider in deliberations and counsel failed to object to the jury charge. Specifically, Shouldis asserts that the State's evidence disclosed two or more offenses arising from separate incidents, yet the State was not required to elect which act or incident was to be considered by the jury in their deliberations. Therefore, it is unclear which incident the conviction is based upon or whether it was unanimous.
(5) Counsel failed to preserve the cumulative-error issue for review.
On February 22, 2007, an evidentiary hearing was conducted on Shouldis's Rule 32 petition. Shouldis's trial counsel, James C. Powell, testified at the hearing that he "was under the impression that [Shouldis was charged based on] one incident [of sexual abuse] in the bedroom and one incident [of sexual abuse] in a chair in the living room, not plural `incidents,' in the chair." (R. 28.) Powell stated that he viewed the case as being "[t]wo counts of sex abuse, period." (R. 14.) He stated that one of those allegations was dismissed, so, after the State rested, he thought he was defending only one remaining instance of alleged sexual abuse. Powell stated that "there was evidence of other incidents that came in. ... But I never thought I was having to defend against *759 those." (R. 11-12.) He stated that the testimony at trial was that there were "two, three, maybe up to five" separate incidences of sexual abuse committed by Shouldis "in a November, possibly December time frame." (R. 12.) He "objected that these other two or three incidents that were mentioned weren't [Ala. R. Evid,] 404(b)-type evidence" and because he had not been notified by the State before trial, as required by Rule 404(b), Ala. R. Evid., of its intent to offer additional alleged incidents of sexual abuse. (R. 12.)
Powell testified that the State "could have elected as which of the ... alleged incidences which happened in the chair that my client was charged with." (R. 30.) He testified that although there was more than one "lengthy discussion" with the trial court about the necessity of the State's identifying "the time that these incidents were supposed to have occurred," he did not file a motion requesting that the State be required to elect the incident it sought to submit to the jury. (R. 10-11.) However, Powell also testified that he thought he had preserved the election issue for appellate review, but according to the Alabama Court of Criminal Appeals, he did not. (R. 23.)
Powell testified that he was not under the impression that the case was being tried as a "resident-abuser" case where "generic evidence" should be allowed. In fact, Powell testified that "I had never heard of the term `resident-abuser' ... until I read the opinion of the Alabama Court of Criminal Appeals [in Shouldis v. State, 953 So. 2d 1275 (Ala.Crim.App. 2006),]" and he stated that he had never heard the State use the term "generic evidence" and it "never used that argument in this case." (R. 13-14.) He stated that had he known from the indictment that "this was a resident abuser case" he probably would not have represented Shouldis. (R. 14.) Powell asserted that he was "misled by the State charging two single incidents and later claiming it was a resident abuser case." (R. 22.)
Powell testified that neither during nor after the charge conference, did the State, the trial court, or he request that the jury receive a unanimity charge. Powell stated that, at the time, he did not "even know what it was." (R. 16.) He did not object to the trial court's failure to give a unanimity charge to the jury. He testified that he did not "really have any reason for not requesting [a unanimity instruction] other than [he] did not understand the law." (R. 35.) However, he stated that he was "misled by the indictment and the presentation of evidence." (R. 35.)
Nearly 11 months after the hearing, on December 12, 2007, the circuit court entered the following order denying the petition:
"This matter is before this Court on remand by the Court of Criminal Appeals instructing this Court to make specific findings of fact on defendant's [Ala. R.Crim. P.] 32 Petition for Relief from Conviction. This Court will address the five (5) grounds raised by the defendant in support of his claim of ineffective assistance of counsel.
"1. Failure to ask for unanimity instruction. The Court at trial instructed the jury on one count of sexual abuse. The court instructed the jury that the defendant could be found guilty on that count only if each member of the jury found beyond a reasonable doubt the allegations claimed. Further, the jury was instructed that the defendant could only be found guilty of the charge in the indictment and not based on any other act or wrong. There was no reason for defense counsel to seek the instruction now requested by the defendant. The *760 court instructed the jury as to unanimity.
"2. Failure to raise fatal variance in the indictment. The Court has reviewed the indictment and finds there is no fatal variance; therefore, the defense counsel had no grounds to support such a motion.
"3. Failure to object to evidence of other bad conduct. The Defense did raise such issues and the Court allowed it under [Ala. R. Evid.] 404(b).
"4. Failure to require the State to elect. There was nothing for the State to elect. The State proceeded at trial on two instances of claimed sexual abuse. One instance was dismissed by the Court. The other was presented to the jury, with specific information as to location, and actions by the defendant. The `resident abuser' issue was never raised by either party at any time during the trial. The State did not try to proceed under this theory so there was nothing to elect.
"5. Failure to preserve cumulative error issue. This issue appears to have been withdrawn by counsel at the start of the hearing on this matter. Therefore, there is nothing for this Court to address.
"This Court must also note that the case was tried on the issue of credibility of the witnesses. It was the word of the defendant against the word of the victim and her mother. The defendant, at trial, denied the allegations. He did admit that a touching of the victim may have occurred in the chair as described by the victim but that it was inadvertent. The jury chose to believe the victim's testimony over that of the defendant. The undersigned presided over the trial. The defense counsel fought valiantly for the defendant. The defendant is a personal friend of his trial counsel. It is understandable that the trial counsel feels a sense of `letting his friend down.' However, this Court can find none of the allegations raised by defendant now would have increased the likelihood of a different result.
"Therefore, defendant's Petition for Relief is DENIED."
(Supplemental Record at CR. 8-9.) (Emphasis added.)[3]
Shouldis appealed from the circuit court's ruling.
"In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test set out by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
"`First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.'"
*761 McNair v. State, 706 So. 2d 828, 839 (Ala. Crim.App.1997). "[W]hen reviewing a circuit court's denial of a Rule 32 petition, this Court applies an abuse-of-discretion standard. See McGahee v. State, 885 So. 2d 191 (Ala.Crim.App.2003)." Whitman v. State, 903 So. 2d 152, 154 (Ala.Crim. App.2004).
On appeal, Shouldis contends that the circuit court erred in denying his petition for the following reasons.
Shouldis contends that the circuit court abused its discretion in denying his ineffective-assistance-of-counsel claim based on counsel's failure to seek an unanimity charge. As we stated in dicta on direct appeal, this case involved generic evidence. Therefore, Shouldis was entitled to a unanimity charge.
Generally, "`"`[w]here the evidence discloses two or more offenses growing out of distinct and separate transactions,'"'" a trial court will grant a defense motion asking for the State to be instructed to choose, or to "elect," which specific incident it wishes to submit to the jury. R.L.G. v. State, 712 So.2d at 355 (quoting R.A.S. v. State, 718 So.2d at 114, quoting in turn Sparrow v. State, 606 So. 2d 219 220-21 (Ala.Crim.App.1992), quoting in turn Watkins v. State, 36 Ala.App. 711, 711, 63 So. 2d 293, 293-94 (1953)). "`"`The doctrine of election operates to protect a defendant from being prosecuted for more than one offense in the same count of an indictment.'"'" Id.
However, R.L.G. held that the strict election rule does not apply in cases involving generic evidence[4] and resident child molesters.
"[T]he general election rule . . . does not apply in child molestation cases involving purely generic evidence. . . .
"`. . . [W]e adopt for purposes of this case, the "either/or" rule, but only as that rule is modified for generic evidence: where the evidence of more than one incident of sexual molestation to a child victim by a resident child molester is purely generic and where "there is no reasonable likelihood of juror disagreement as to particular acts, and the only question [for the jury] is whether or not the defendant in fact committed all of [the incidents]," the trial court should instruct the jury that it can find the defendant guilty only if it unanimously agrees that he committed all the incidents described by the victim. [People v.] Jones, 51 Cal.3d [294] at 322, 270 Cal. Rptr. [611] at 627-28, 792 P.2d [643] at 659 [(1990)].'"
Ex parte R.L.G. 712 So.2d at 372-73 (quoting R.L.G. v. State 712 So.2d at 367) (emphasis on "only" original; other emphasis added.)
Thus, the "either-or" rule provides essentially that the State must either elect upon which single act or occurrence it is relying, or the trial court must give a specific unanimity instruction to the jury. The unanimity instruction informs the jury that each juror must determine that "all" the alleged incidents of sexual abuse occurred. R.L.G. v. State, 712 So.2d at 367 (emphasis added).[5]
*762 Here, the indictment returned against Shouldis is a barebones accusation that Shouldis committed the crime of first-degree sexual abuse upon E.D. Testimony of more than one incident of sexual abuse was presented to the jury. E.D.'s testimony was that she was sexually abused three to five times in Shouldis's reclinersometimes after a bath and sometimes as they watched television. Shouldis stated that he accidently touched E.D.'s private parts two timesneither incident occurred as described by E.D. The trial court charged the jury that a guilty verdict had to be unanimous and had to be based "solely on the basis that the prosecution has proved beyond a reasonable doubt the Defendant did, in fact, do the things that the indictment accuses him of doing." (Record on direct appeal, CR-04-1907, at R. 336-37.) (Emphasis added.)
The charge to the jury that it had to unanimously find "the things that the indictment accuses him of doing" does not ensure that the jury unanimously found Shouldis guilty of "all" the incidents or even one single incident described by the victim. Jurors could have voted for guilt based on different instances of sexual abuse, i.e., after a bath, while watching television, while playing "the claw," or when E.D. jumped on Shouldis's lap. There is no assurance of unanimity as to any one instance or to all the instances. Therefore, contrary to the circuit court's order, we do not believe that the jury was properly instructed as to unanimity.
The State relies on R.L.G. v. State, 712 So.2d at 366-69, in support of its contention that "the failure of trial counsel to request a unanimity instruction was harmless error, if any, because the only real issue was the credibility of the victim versus the credibility of the defendant." (State's brief at p. 11.) (Emphasis added.) We disagree with the State's argument as it applies to this case. In R.L.G., R.L.G. denied committing all the several alleged incidents of sexual abuse charged against him by the child victim. To return a guilty verdict, the jury had to unanimously disregard R.L.G.'s defense that none of the alleged incidents of sexual abuse occurred. By rejecting R.L.G.'s defense that he did not commit any of the alleged offenses, the jury had to believe the victim's testimony that he committed all of the alleged incidents. Thus, the harmless-error analysis in R.L.G. rested on the condition that "the evidence in its entirety offered absolutely no possibility of jury disagreement regarding the appellant's commission of any of these acts." R.L.G. v. State, 712 So.2d at 367-68. Specifically, the Court reasoned that because the case depended solely on the juror's credibility choice, "[t]here was absolutely no rational basis by which the jury could have found that the appellant committed one of the incidents but not the others." R.L.G. v. State, 712 So.2d at 369.
Shouldis's case differs from R.L.G. Here, E.D. stated that she was sexually abused as many as five times. Shouldis's defense was that he accidently touched E.D. inappropriately only two timesonce while playing "the claw," and once as a reflex when E.D. jumped on to his lap. It may be inferred that Shouldis denied the incidents described by E.D. that allegedly took place in his recliner. Under these facts, the jurors could have returned a unanimous verdict of guilty while being divided in their opinions: some jurors may *763 have believed that only "the claw" incident was an accident with no element of sexual gratification, but that the chair incident was sexual abuse; others may have believed that only the chair incident was a nonsexual accident, but that "the claw" incident was sexual abuse; while others may have believed other incidents of sexual abuse occurred as E.D. testified. It is impossible to tell whether the verdict was unanimous as to at least one incident or as to all. Therefore, the harmless-error analysis described in R.L.G. does not apply in the instant case.
In dicta on direct appeal this Court determined that this case concerned a resident abuser. We now hold that at the trial on the merits the State presented generic evidence of sexual abuse committed by a resident abuser. Therefore, Shouldis was entitled to have the jury receive a specific unanimity instruction as was described in R.L.G. Trial counsel was deficient for failing to request such an instruction. Absent this instruction, we cannot say that Shouldis did not suffer prejudice because we cannot be assured that the jury verdict was unanimous as to a single incident or as to all the incidents.
Therefore, for the reasons set forth above it is clear that counsel's performance was deficient and that Shouldis was prejudiced by that deficient performance. Our holding pretermits review of other issues.
Based on the above we find that the circuit court erred when it denied Shouldis's Rule 32 petition. Accordingly, we reverse the circuit court's judgment and remand this case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
McMILLAN, J., concurs.
SHAW, J., concurs in the result.
WISE, J., dissents, without opinion.
BASCHAB, P.J., recuses herself.
NOTES
[1] "The Court of Criminal Appeals can take judicial notice of its own records." Ragland v. State, 883 So. 2d 730, 731 n. 2 (Ala.Crim. App.2003), citing Ex parte Salter, 520 So. 2d 213, 216 (Ala.Crim.App.1987).
[2] Specifically, Shouldis claimed that the holding in R.L.G. v. State, 712 So. 2d 348, 355 (Ala.Crim.App.1997), aff'd 718 So. 2d 117 (Ala.1998), did not apply to his case because E.D. and he did not "reside" together. Therefore, according to Shouldis, it was necessary for the State to elect which alleged incident of sexual abuse the jury should consider. We found R.L.G. broad enough to include the facts of Shouldis's case.
[3] The circuit court's order is in conflict. In paragraph 1 it asserts that Shouldis's jury did receive a unanimity instruction at trial. In paragraph 4 it asserts that one instance of sexual abuse was presented to the jury and that, therefore, no election was required by the State. By inference, where evidence of one instance of sexual abuse is submitted there is no necessity for a specific unanimity instruction as contemplated in R.L.G. In the final unnumbered paragraph before rendering judgment, the circuit court noted that Shouldis's case was "tried on the issue of credibility of the witnesses." This would imply multiple incidences of sexual abuse were submitted to the jury. See discussion of R.L.G. below.
[4] "Generic evidence" in child sexual abuse cases is evidence of sexual abuse perpetrated upon a young child so often and in so many locations "by an abuser residing with the child . . . that the young child loses any frame of reference in which to compartmentalize the abuse into `distinct and separate transactions.'" R.L.G. v. State, 712 So.2d at 356.
[5] R.A.S. "expand[ed] the `either-or' rule [(set forth in R.L.G.)] to apply in cases involving generic and specific evidence." Ex parte R.A.S., 718 So. 2d 117, 123 (Ala.1998) (emphasis added). R.A.S. stated that, in a case involving generic and specific evidence, "[i]f the State chooses not to elect the specific act, the trial court must instruct the jury that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, thereby assuring a unanimous verdict on one criminal act." Ex parte R.A.S., 718 So.2d at 122. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616376/ | 425 So. 2d 441 (1982)
BANNER WELDERS, INC., a Corporation
v.
Melvin L. KNIGHTON.
80-832.
Supreme Court of Alabama.
December 17, 1982.
*443 Ralph Gaines and Sidney J. Hardy of Gaines, Cleckler & Goodrich, Talladega, for appellant.
Herbert D. Jones, Jr. and J.L. Klinefelter of Burnham, Klinefelter, Halsey & Love, and John R. Phillips of Phillips & Rice, Anniston, for appellee.
ADAMS, Justice.
This appeal involves an action under the Alabama Extended Manufacturer's Liability Doctrine and was tried before a jury in the Circuit Court for Calhoun County. Melvin Leo Knighton (plaintiff) received a verdict and judgment in the amount of $225,000.00 for personal injuries sustained on a shuttle welder. Banner Welders, Inc. (defendant), moved unsuccessfully for postjudgment relief under Rule 50, Alabama Rules of Civil Procedure, and then appealed.
Five issues are presented for our consideration by this appeal. They are:
1. Did the trial court err to reversal by allowing into evidence certain color photographs, offered by plaintiff, which purportedly showed or suggested post-accident safety modifications to the shuttle welder?
2. Did the evidence establish plaintiff's misuse of the shuttle welder, thereby entitling defendant to a directed verdict?
3. Did the evidence establish that plaintiff was contributorily negligent, or that he assumed the risk of injury, in his operation of the shuttle welder?
4. Did the remarks made by plaintiff's counsel during closing argument improperly influence the jury so as to require a new trial?
5. Did the evidence establish that the shuttle welder had undergone a substantial change between the time of its manufacture and the date of plaintiff's accident, thereby precluding plaintiff from making out a case under the Alabama Extended Manufacturer's Liability Doctrine and entitling defendant to a directed verdict?
We answer the questions posed by these issues in the negative, and we affirm the judgment of the trial court. Each issue will be considered separately.
Plaintiff's original complaint alleged negligence in the failure to provide guards on the shuttle welder to prevent personal injury, and negligence in failing to provide warnings of the danger inherent in it. Subsequently, the complaint was amended to include a count for breach of implied warranty and a count under the Alabama Extended Manufacturer's Liability Doctrine. Defendant pleaded the general issue; contributory negligence; misuse of the product; assumption of the risk of injury; and *444 other matters not essential to an understanding of this case.
Plaintiff was a shuttle welder operator employed at Universal Products' Bostrom plant in Piedmont, Alabama. On February 11,1977, he was injured while operating the shuttle welder. The shuttle welder has a moving carriage powered by air pressure. It takes pieces of metal, in this case Jeep seat frames, to different stations for welding. The carriage moves away from the operator, taking the metal pieces to the welding stations. They are then returned to the operator, who removes them. The machine was manufactured by defendant specifically for plaintiff's employer. Defendant's expert witness, Tom Rosenberg, a mechanical engineer and vice-president of manufacturing for Banner Welders, Inc., testified that the shuttle welder was custom built and was unique. Rosenberg acknowledged it was known that at times the welder would jam due to various causes.
Such a jam occurred on the date of the accident. At the time, plaintiff had operated the shuttle welder for three or four months. Plaintiff's testimony revealed that when the jam occurred, plaintiff turned off the master electrical switch. He tried unsuccessfully to dislodge the stuck frame with a three-foot metal pipe which he had previously used successfully for the same purpose. While plaintiff was attempting to unjam the shuttle welder, his supervisor, Bob Adams, came by. Adams instructed plaintiff to use a screwdriver to loosen the frame. He borrowed one from a fellow employee and returned to the shuttle welder. Plaintiff testified that in attempting to dislodge the frame, he kept one foot on the floor, placed his knee over the carriage, and reached up. At that point, apparently, the carriage caught his arm, the frame broke loose, and he was pulled into the shuttle welder. As a result, he broke his hip and wrist, and had to undergo a total hip replacement.
Plaintiff testified that when the accident occurred, the carriage moved toward him, unlike previous occasions when it would not move, or would move away from him. Plaintiff's supervisor testified that even with the air turned off, the machine still could move because of compressed air in the lines. Adams acknowledged that to bleed air out of the lines, a small valve on the side of the machine had to be used. It was disputed at trial as to whether plaintiff was correctly instructed regarding what to do in the event the shuttle welder jammed.
Arnold Martin, a "certified safety professional," testified as an expert witness for plaintiff. Martin explained that at the time of the shuttle welder's manufacture, the state of the art required that in the interest of safety it should have been made with guards on both sides and in the rear to prevent someone from entering it. He also stated that a warning should have been placed on the shuttle welder. He explained as follows:
The other thing, and probably more hazardous, was decals or a sign should have been placed on the machine to the effect that after the power had been turned off, the electrical power, No. 1, the air system should have been turned off; No. 2, the lines bled, because as long as there was pressure in there, there was a possibility that any part stuck in there would trip the machine when they were unjammed; and, the third thing was that a trained maintenance man, or another trained employee, only should have unjammed the machine.
Subsequent to plaintiff's accident, protective barrier guards were installed on the shuttle welder.
I. The Color Photographs
Defendant contends that the trial court erred to reversal by allowing certain color photographs, offered by plaintiff, to be admitted into evidence. The basis of defendant's contention is that the photographs showed post-accident modifications to the shuttle welder, which were apparently made for the purpose of making the machine safer. Generally, evidence of subsequent repairs is not admissible to establish negligence, although it may be admissible to show identity of ownership, to show control of the locus, to contradict or *445 impeach a witness, or to lessen the weight of an expert opinion. Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941). Another permissible use may occur where such evidence is offered to establish a condition existing at the time of the accident. Leeth v. Roberts, 295 Ala. 27, 322 So. 2d 679 (1975). Defendant contends that the photographs were not admissible under any exceptions to the general rule. Assuming, without deciding, that defendant is correct on that point, we find, with the exception of plaintiff's exhibits one, six, nine, and ten (to which defendant objected at the time they were offered), that defendant failed to preserve error as to the photographs.
Defendant theorizes that it preserved error as to all photographs by its motion in limine, and that an objection to the photographs, at the time they were offered into evidence, was unnecessary. We disagree. At the beginning of trial, defendant orally moved for a motion in limine:
MR. GAINES: If it please the Court, on behalf of the Defendant, we move for an order in limine, Judge, if that is the way it is supposed to be phrased, and I think it is, and ask the Court to enter an Order preventing or prohibiting the attorneys for the Plaintiff from going into any evidence regarding any change or changes made in the machine in question after this accident; and also, prohibiting them from offering any photographs of the machine showing a changed condition after the accident in question. And, Judge, we believe that we are entitled to this. We believe that the overwhelming law of many jurisdictions is that such evidence is not admissible if any changes are made, whether they are for remedial purposes or precautionary purposes, of taking precautionary measures. Evidence of subsequent steps is not admissible to prove say negligence, I mean any design defects they claim. It is not admissible as evidence of any of the unreasonable danger, dangerous nature, of the machine in question. We have a number of citations, if the Court would like to look at them. We don't believe that the evidence should be admitted in the case, and we ask for an order in limine prohibiting it.
After that, plaintiff and defendant argued their positions to the trial judge, who viewed the disputed photographs and rendered a decision on their admissibility. The judge ruled that some photographs were admissible, that others were not admissible, and that some would be admissible only after objectionable portions were cut off:
THE COURT: Let her mark them and then I will go get the scissors. On Plaintiff's Exhibit 1,1 am going to cut off that part right through there (indicating). And on Plaintiff's Exhibit 2, I am going to cut off that (indicating). On 3,1 don't see any problem. No. 4, it is at such a distance that I don't really see any problem. No. 6, there doesn't seem to be any problem. I think that one, No. 7, there is no way to correct it. No. 8look at it.
MR. GAINES: That is all right.
THE COURT: No. 3, No. 6, No. 2, and No. 1, there seems to be no objection. No. 7, first of all, I don't think it is a very good picture and it has got that pole right in the middle of it. I sustain the objection to No. 7. I overrule your objection to 4 and I think that is more of a duplication, No. 5 is. I sustain your objection to 5. As far as 9, 9 will be all right. 10
MR. GAINES: I don't even know what that is.
In Acklin v. Bramm, 374 So. 2d 1348 (Ala. 1979), this court effectively overruled Bradford v. Birmingham Electric Co., 227 Ala. 285, 149 So. 729 (1933), and held that use of a motion in limine is permissible in this jurisdiction. Defendant contends that because its motion in limine was granted, it was not required to object again when the photographs were offered into evidence. This court has not previously been called upon to answer this question.[1] Our review *446 of the facts in this case leads us to conclude that it is unnecessary for us to answer that question. We find defendant's motion inadequate to preserve the error asserted in the absence of objections to the photographs at the time they were admitted into evidence.
The Supreme Court of Iowa has noted the proper use of a motion in limine:
The motion should be used, if used at all, as a rifle and not as a shotgun, pointing out the objectionable material and showing why the material is inadmissible and prejudicial. Since no one knows exactly how the trial will proceed, trial courts would ordinarily be well advised to require an evidentiary hearing on the motion when its validity or invalidity is not manifest from the face of the motion.
Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198 at 201 (Iowa 1971), State v. Garrett, 183 N.W.2d 652 at 654 (Iowa 1971).
More broadly, the Supreme Court of Washington has discussed the considerations applicable to the granting or denying of a motion in limine:
Taken together, these cases indicate that the trial court should grant such a motion if it describes the evidence which is sought to be excluded with sufficient specificity to enable the trial court to determine that it is clearly inadmissible under the issues as drawn or which may develop during the trial, and if the evidence is so prejudicial in its nature that the moving party should be spared the necessity of calling attention to it by objecting when it is offered during the trial. To enable the court to make such a determination prior to trial and "out of context" the moving party should provide a memorandum of authorities showing that the evidence is inadmissible. If the court does not have the benefit of legal arguments, it can hardly be said to have abused its discretion if it denies a motion asking it to rule on the admissibility of evidence before it knows what the issues and circumstances are. [Citations omitted.]
Fenimore v. Donald M. Drake Construction Company, 87 Wash.2d 85, 549 P.2d 483 at 488 (1976).
Encompassed in the above-quoted authorities is the concept that, as specifically as possible, a motion in limine must apprise the trial court of its object. This is especially true in the case of exhibits which the non-movant may seek to offer into evidence. A broad-based motion which leaves the trial court to speculate as to the motion's object may be insufficient to preserve subsequent error which is not called to the trial court's attention. This is the case here. It is clear from the record that the defendant initially did not object to plaintiff's exhibits one, two, three, and six. Of those, two and three were later entered into evidence without objection. Although, in ruling on defendant's motion in limine, the trial court found plaintiff's exhibit four to be admissible, it was later offered into evidence with defendant's consent. Therefore, defendant cannot allege error as to that photograph. Plaintiff's exhibits five and seven were never offered into evidence. Plaintiff's exhibit eight was offered without objection, which defendant concedes. As to these photographs, defendant failed to preserve error by either failing to object to their introduction or by implicitly waiving objection, as in the case of plaintiff's exhibit four.
*447 The record reveals that the remaining photographs, plaintiff's exhibits one, six, nine, and ten, were objected to by defendant at the time they were offered into evidence. Therefore, we will consider the propriety of the trial court's allowing these photographs into evidence. Defendant's objection to the photographs, and reason for its motion in limine, was that they purportedly showed post-accident modifications to the shuttle welder in the form of guard screens and posts which were later installed. The guard screens and posts were red in color and readily stood out against the background of the shuttle welder, which was dark green. In response to defendant's motion in limine, the trial judge used a pair of scissors to cut off portions of the photographs containing the post-accident modifications. On appeal, defendant contends this was reversible error because that action emphasized to the jury the defendant had something to hide. We cannot agree.
Plaintiff's exhibits originally were color photographs measuring eight by ten inches. Plaintiff's exhibits one, six, nine, and ten, were trimmed along the borders to eliminate the objectionable modifications.[2] The result was four color photographs with dimensions ranging from approximately eight by nine inches, to approximately five by seven inches. We find no error in the trial court's action. This court has often said that where physical evidence or statements contain objectionable matter or references which cannot be separated from the whole, they may, nevertheless, be admitted under proper circumstances. Central of Georgia Railway Company v. Steed, 287 Ala. 64, 248 So. 2d 110 (1971); Sims v. Struthers, 267 Ala. 80, 100 So. 2d 23 (1958); Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955); Sims v. State, 253 Ala. 666, 46 So. 2d 564 (1950); Pittman v. Calhoun, 233 Ala. 450, 172 So. 263 (1937); Kennedy v. State, 85 Ala. 326, 5 So. 300 (1888). The converse, logically, is true, applying the above-cited cases. Where objectionable matter can be separated from proffered evidence, the objectionable matter may be deleted and the remainder admitted.
We find the case of Rogall v. Kischer, 1 Ill.App.3d 227, 273 N.E.2d 681 (1971), authority supporting the trial court's action in trimming the photographs. There, photographs showing damage to plaintiff's automobile were allowed into evidence over defendant's objection. The photographs had "car damage" written on them with arrows indicating the damaged parts of the vehicle. The trial court judge allowed the photographs to be admitted after they were trimmed to remove the writing contained on them. The Illinois Appellate Court sanctioned the trial court's action. Similarly, it upheld the showing of a motion picture to the jury, after excluding certain inflammatory portions. Although Rogall v. Kischer did not involve the issue of trimming a photograph to remove evidence of post-accident modifications or repairs, the same result still applies. Where a photograph depicts objectionable material which is capable of being severed, the remainder of the photograph may be admitted into evidence in the trial court's discretion. The vesting of that discretion in the trial court in the admission of photographs is well established.
Photographs and testimony are relevant and admissible to help the jury to better understand the persons, object, locale, or conditions in issue. However, relevancy and introduction of both testimony and photographs are within the sound discretion of the trial court. This discretion is *448 not reviewable in the absence of a gross abuse of that discretion. Costarides v. Miller, 374 So. 2d 1335 (Ala.1979); Moon v. Nolen, 294 Ala. 454, 318 So. 2d 690 (1975).
Raines v. Williams, 397 So. 2d 86 at 88 (Ala. 1981), quoted with approval in Shiver v. Waites, 408 So. 2d 502 (Ala.1981).
Reviewing photographs trimmed by the trial court, we are unable to conclude that their admission was an abuse of discretion, in light of the above-cited principles. Instead, we find that the trial court wisely exercised its discretion by trimming the photographs and admitting them into evidence. By so doing, the jury was afforded additional views of the shuttle welder to aid them in their resolution of the issues presented at trial.
II. Plaintiff's Alleged Misuse of the Shuttle Welder
Next, defendant argues that plaintiff did not make out a case under the Alabama Extended Manufacturer's Liability Doctrine and, therefore, it was entitled to a directed verdict. It theorizes that plaintiff misused the shuttle welder by disregarding its safety devices and attempting to dislodge the Jeep seat frame which had jammed. In McCaleb v. Mackey Paint Manufacturing Co., 343 So. 2d 511 at 514 (Ala.1977), citing and quoting Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976), this court stated: "The user's misuse of the product constitutes a valid defense under the `extended manufacturer's liability doctrine.'" We further observe that "[o]rdinarily, the conduct of the plaintiff, in his use of an alleged defective product, is a factual issue for the jury." Beloit Corporation v. Harrell, 339 So. 2d 992 at 997 (Ala. 1976).
The principles applicable to the granting of a directed verdict are well established.
A directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Deal v. Johnson, 362 So. 2d 214 (Ala.1978). In considering a motion for directed verdict, the court must apply Rule 50(e), ARCP, under which "a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, ... or a scintilla in support of the theory of the complaint...." Dixie Electric Company v. Maggio, 294 Ala. 411, 318 So. 2d 274 (Ala.1975).
In addition, the trial court must view the entire evidence, and all reasonable inferences which a jury might have drawn therefrom, in the light most favorable to the non-moving party. Alabama Power Company v. Taylor, 293 Ala. 484, 306 So. 2d 236 (1975); Vintage Enterprises, Inc. v. Cash, 348 So. 2d 476 (Ala.1977). Also, this Court's function in reviewing a motion for a directed verdict is to review the tendencies of the evidence most favorably to the non-movant, regardless of a view we may have as to the weight of the evidence, and we must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more probable. Beloit Corp. v. Harrell, 339 So. 2d 992 (Ala.1976).
Caterpillar Tractor Company v. Ford, 406 So. 2d 854 at 856 (Ala.1981).
Assuming, without deciding, that the defense of misuse of the product properly applies to the instant fact situation, we conclude that the evidence was conflicting as to plaintiff's "use" of the shuttle welder. A jury question, therefore, was created. Viewing the evidence in a light most favorable to plaintiff, the jury could conclude that he did not misuse the shuttle welder. Defendant's argument on this issue cannot be a basis for reversal.
III. Assumption of the Risk and Contributory Negligence
Defendant also argues that the evidence showed plaintiff's actions in unjamming the shuttle welder constituted assumption of the risk, or alternatively, contributory negligence. It insists that the trial court erred by not granting its motion for a new trial. A trial court's granting or denying of a motion for a new trial is largely discretionary. Chavers v. National *449 Security Fire & Casualty Co., 405 So. 2d 1 at 9-10 (Ala.1981) (Chavers); ConAGRA, Inc. v. Masterson, 290 Ala. 273 at 279-80, 276 So. 2d 134 at 140 (1973). In Chavers, this court stated:
The new trial rule simply permits a trial judge to consider the evidence which was before the jury, weigh it in light of what he observes during the course of the trial, and allow another jury to pass on the case if he is convinced that the jury verdict returned is unjust. It does not, however, where there is some evidence to support the verdict, permit the trial judge to enter a JNOV in favor of the party opposing the verdict. A JNOV is never proper unless it would have been proper to grant a directed verdict in favor of the same party.
Chavers, at 10.
In the instant case there was conflicting evidence bearing on the defenses raised by defendant. The jury could conclude that plaintiff neither assumed the risk, nor was contributorily negligent in his efforts to unjam the shuttle welder. "Verdicts are presumed to be correct and that presumption is strengthened when a new trial is denied by the court." Cooper v. Peturis, 384 So. 2d 1087 at 1089 (Ala.1980); Gavin v. Hinrichs, 375 So. 2d 1063 (Ala. 1979); Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978). We will not disturb the trial court's ruling on a motion for a new trial unless it is "plainly and palpably erroneous." ConAGRA, Inc. v. Masterson, supra; Shepherd v. Southern Railway Company, 288 Ala. 50, 256 So. 2d 883 (1970). We cannot reach that conclusion here, and, therefore, we cannot disturb the trial court's ruling and judgment.
IV. Plaintiff's Comments During Closing Arguments
Defendant argues that during closing arguments, on several separate occasions, plaintiff made highly prejudicial remarks, to which objections were made and sustained. Plaintiff's argument, made by James L. Klinefelter, Esq., and by John R. Phillips, Esq., contained the following remarks.
MR. KLINEFELTER: "I want to read a quote to you by C.C. Torbert
MR. GAINES: I hate to interrupt
MR. KLINEFELTER: It is not a case; it is just a statement from him about the importance of a Jury.
THE COURT: All right, go on.
MR. KLINEFELTER: "I think they made more money, more profit"
MR. GAINES: We object, Your Honor. That is improper argument.
THE COURT: Sustained.
. . . .
MR. PHILLIPS: "There is one other thing that is involved in this case, punitive damages. Punitive damages are those damages which the law allows"
MR. GAINES: Excuse me. We object to this. There is no grounds for claiming any punitive damages in this case, none whatsoever.
THE COURT: Sustained.
MR. PHILLIPS: "Now, Banner Welder is not going to live or die on whether you return a verdict in this case. They are a big business, and they make"
MR. GAINES: Excuse me again. I hate to interrupt; but that is objectionable. That is not proper argument.
THE COURT: Sustained.
MR. PHILLIPS: "The art was good enough and known by this company to do exactly what I said they ought to have done. I bet you you couldn't buy one of those Shuttle Welders without getting"
MR. GAINES: That is improper argument; and we object.
THE COURT: Sustained. Defendant contends that the remarks were ineradicable and improperly influenced the jury's verdict. We observe that although defendant objected to plaintiff's remarks, it did not request curative instructions or move for a mistrial. Moore v. State, 364 So. 2d 411 at 414 (Ala.Cr.App. 1978), recited the familiar rule concerning preservation of error in improper argument of counsel:
*450 In the absence of an objection by counsel, a motion to exclude, a ruling on the objection, or a refusal of the trial judge to rule thereon, improper argument or remarks by counsel are not subject for review by this court. Brown v. State, 50 Ala.App. 471, 280 So. 2d 177; Veith v. State, 48 Ala.App. 688, 267 So. 2d 480; Hutcherson v. State, 40 Ala.App. 417,114 So.2d 572.
However, an exception to this rule exists where the comment is so prejudicial that its effect is ineradicable. Anderson v. State, 209 Ala. 36, 95 So. 171; Christian v. State, Ala. 351 So. 2d 623; Gunnels v. Jimmerson, Ala. 331 So. 2d 247. But, in view of the materiality of the appellant's mental condition, we do not believe that the comment falls within this exception. See Lyons v. State, 53 Ala.App. 111, 298 So. 2d 42.
It is our judgment that, without a timely objection, this court has nothing to consider.
Lawrence v. Alabama Power Company, 385 So. 2d 986 (Ala.1980); Richardson v. State, 354 So. 2d 1193 (Ala.Cr.App.1978).
The question which next arises is whether defendant's alleged error came within the exception to the general rule. We find that it does not. None of the remarks were so invidious that they could not have been cured by requested instructions from the trial court. Nor do we find that the four instances cited from the record, when considered together, cumulatively created ineradicable prejudice. Instead, we find that the error alleged by defendant falls within the situation considered by this court in Prescott v. Martin, 331 So. 2d 240 (Ala.1976):
We are not of the opinion that the statement in the instant case is so strongly prejudicial as to be beyond cure by the trial court. We also recognize that the trial court has a great deal of latitude in determining the prejudicial effect of statements made in argument. Central of Georgia Railway Company v. Phillips, 286 Ala. 365, 240 So. 2d 118 (1970). See also: McClard v. Reid, 190 Tenn. 337, 229 S.W.2d 505, 506 (1950).
Since the statement was of such a nature that it could be and was cured by the trial court, and since no motion for mistrial was made, there is no error for this court to consider. See, e.g., Montana v. Nenert, (Mo.App.1950), 226 S.W.2d 394, 400, 401, and Logwood v. Nelson, 35 Tenn.App. 639, 250 S.W.2d 582, 586 (1952).
Prescott v. Martin, at 247. Accordingly, we find defendant's allegation of reversible error to be without merit.
V. The Allegation of Substantial Change
Lastly, defendant argues that it was entitled to a directed verdict because the evidence showed the shuttle welder had been substantially changed after it left defendant's hands. Defendant points to the fact that the "ground blocks" on the shuttle welder were changed. On cross-examination Bob Adams, a witness for the defense and plaintiff's supervisor, gave the following testimony:
Q. I will ask you, Mr. Adams, from the time that machine was installed in Piedmont until the time that Mr. Knighton was hurt, did you all modify that welding machine in any manner?
A. The only thing we changed was the ground blocks on it, because we went to a different type of ground to get a better weld.
Q. But you didn't
A. That was all.
Q. You didn't change the carriage or the welding guns?
A. No, nothing that operates the machine, just the welding is all.
Defendant correctly calls to our attention the fact that to prevail under the Alabama Extended Manufacturer's Liability Doctrine, a plaintiff must establish that the product "was expected to, and did, reach the user without substantial change in the condition in which it was sold." Atkins v. American Motors Corp., 335 So. 2d 134 at 141 (Ala.1976); Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976). Defendant theorizes that it is logical to infer *451 that the change in the ground blocks increased the frequency of malfunctions of the shuttle welder, thereby causing the accident. It concludes that properly, judgment should have been entered in its favor.
We find defendant's argument to be without merit. Plaintiff did establish defendant's liability under the Alabama Extended Manufacturer's Liability Doctrine by showing that the shuttle welder was substantially unchanged at the time plaintiff was injured. Arnold Martin, plaintiff's expert witness, testified on direct examination that the shuttle welder was substantially unchanged at the date of plaintiff's injury. Proximate cause is an element of a products liability action. A plaintiff must prove that his injury resulted from the defective condition of the product. Casrell v. Altec Industries, Inc., at 133. One commentator has observed:
The question of liability of a manufacturer or seller for injuries sustained by the user of an altered product involves the issue of whether the injuries were proximately caused by a defect in the product as manufactured and sold, or by a defect created by the alteration by the user or a third party.
Annot., 41 A.L.R. 3d 1252 at 1253 (1972). In the instant case, we find it to be a reasonable inference that no substantial change occurred to the shuttle welder after its manufacture so as to negate a showing of proximate cause by plaintiff. It is unclear from the record what ground blocks are. Nevertheless, the reasonable inference of the testimony of plaintiff's supervisor is that no substantial change was made to the machine. Plaintiff's expert witness specifically denied that the shuttle welder had changed substantially. Defendant cites no other portion of the record to support its theory. Therefore, we find no error in the trial court's denial of defendant's request for a directed verdict.
For all of the foregoing reasons, we find no reversible error, and we affirm the judgment of the trial court.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
NOTES
[1] Louisville and Nashville Railroad Company v. Phillips, 293 Ala. 713, 310 So. 2d 194 (1975), superficially appears to have bearing on this question, but closer scrutiny reveals that it does not. There, plaintiff, who was the appellee, secured a favorable ruling on his motion in limine, which later was violated during trial. When defendant attempted to interject subject matter encompassed by the motion, plaintiff moved for a new trial but did not secure a ruling from the trial court judge. Plaintiff's motion for a new trial was granted after the trial concluded. Defendant, who brought the appeal, argued that the granting of a new trial was improper because plaintiff failed to secure a ruling on his motion during trial. This court disagreed, noting the trial court's duty to keep extraneous influences from the jury, and its discretion in granting motions for a new trial. That case is also distinguishable from the instant one because there, the party (plaintiff) who secured a favorable ruling on a motion in limine was not the party taking an appeal and asserting error on a matter arising out of the trial court's ruling on the application of the motion in limine.
[2] Defendant calls to our attention the fact that plaintiff's exhibit # 9 depicts a red barrier guard in the center of the photograph. It insists the admission of this photograph constitutes reversible error. We note that the photograph in question apparently shows the shuttle welder from a front end view. The red barrier guard is at the rear of the machine, in the background. That part of the photograph is at least partially out of focus. To the extent the barrier guard can be seen, it occupies a very small portion of the photograph even as trimmed. In our opinion, it is unclear whether the barrier guard would be recognized as such in the absence of a viewer's being informed as to what it was. In any event, the photograph would be admissible under the rule (infra) that where an exhibit may contain some objectionable matter, it may, nevertheless, be admitted in the trial court's discretion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616356/ | 425 So. 2d 710 (1982)
STATE of Louisiana
v.
Alvin Scott LOYD.
No. 82-K-0747.
Supreme Court of Louisiana.
November 29, 1982.
Rehearing Denied February 11, 1983.
*712 Gordon Hackman, Randy Lewis, Boutte, for relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel, Jr., Dist. Atty., John Crum, Abbott J. Reeves, Jr., Asst. Dist. Attys., for respondent.
DENNIS, Justice.
The defendant, Alvin Scott Loyd, who has been indicted for first-degree murder and aggravated rape, unsuccessfully moved the trial court for suppression of evidence, discovery and Brady orders. We granted the defendant's application for review of these pre-trial rulings. 414 So. 2d 780 (La. 1982).
On the evening of April 26, 1981, Tina Giovanetti and her three year old daughter were walking home after attending a fair in Terrebonne Parish. They accepted defendant's offer of a ride in his pick-up truck. When he reached the Giovanetti home, the defendant asked if he could come in. The woman refused his request and stepped out of the truck. Before she could remove her daughter, however, the defendant drove off with the little girl inside the cab. The defendant traveled to the Mississippi River, crossed into St. John the Baptist Parish on the Lutcher ferry, and continued down a desolate dirt road near a pipeline. At a remote spot, he raped the child, drowned her in a ditch, carried her body into an adjacent swamp, and covered it with leaves.
Ms. Giovanetti reported the kidnapping of her daughter to the police and described the offender and his truck. Armed with this and other information, the St. John the Baptist Parish police contacted the defendant at his home early the next morning and requested that he accompany them to the sheriff's office. He willingly got dressed and drove his truck to the stationhouse. Interrogation and other events ultimately culminated in the defendant leading the sheriff to the victim's body and giving a written confession.
The defendant initially assigns as error the trial judge's failure to suppress the defendant's statements, certain items of physical evidence and the identification of the defendant by other witnesses.
ASSIGNMENT OF ERROR NUMBER ONE
The first statement that the defendant moved to suppress was one he made to two St. James Parish deputies who stopped him just after midnight on April 27, 1981, and conducted a field sobriety test because he had been driving to the left of the center line. The defendant passed the test, informed the deputies that he was tired and was trying to catch the 12:15 Lutcher ferry. He added that his little girl was in the truck with him and that they were returning home from the fair. Unaware of the reported kidnapping in Terrebonne Parish, the deputies allowed the defendant to continue.
The deputies did not give the defendant his Miranda warnings upon stopping him. However, in State v. Badon, 401 So. 2d 1178 (La.1981), we held that these warnings are not required before the administration of a field sobriety test. Furthermore, there is no suggestion that defendant's remarks were solicited by the deputies; rather the evidence indicates that defendant's statement that he had his young daughter with him was a spontaneous statement and is independently admissible. State v. Robinson, 384 So. 2d 332 (La.1980); State v. George, 371 So. 2d 762 (La.1979); State v. Thornton, 351 So. 2d 480 (La.1977).
The second statement at issue was evoked by the identification of him as the kidnapper by Mrs. Giovanetti, the victim's mother, in St. John the Baptist Parish Sheriff's Office around 4:30 a.m. after the defendant voluntarily came there for questioning. The defendant seeks the suppression of the testimony concerning the woman's identification and his exculpatory response to her accusation.
Mrs. Giovanetti accompanied the Houma police officers to the St. John the Baptist Sheriff's Office to see if the defendant *713 resembled her child's abductor, but the evidence is devoid of any hint that her identification of him as the kidnapper was suggested by the officers. She entered the Sheriff's Office through the back door and spotted the defendant sitting in the officer's lounge through an open door. No one drew any attention to the defendant or the room where he was sitting. The encounter was brief and accidental; her identification was definite and immediate. In these circumstances, because there is no indication of police suggestions, and because the witness made a positive identification upon spotting the suspect, the out-of-court identification was reliable and properly admissible. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
Mrs. Giovanetti was escorted away by Detectives Vito and Duplantis from Houma, who immediately returned to introduce themselves to defendant and give him the Miranda warnings. They testified that defendant acknowledged his understanding of these rights, did not invoke his right to silence, but instead stated that he did not know what the "crazy lady" was talking about. We need not resolve the question of whether defendant was in "custody" at the time of his statement, because the remark was made after defendant had received, apparently comprehended, and decided not to invoke his Miranda rights. In any event, this particular statement by the defendant was not incriminating in any way. Beyond the Miranda question, the evidence clearly reflects, contrary to defendant's contention, that his unsolicited spontaneous response to the accusation was freely and voluntarily made and thus is admissible.
The most serious questions raised by defendant's motion to suppress concern statements made by the defendant to the authorities after he invoked his right to silence. Before discussing these issues, we will set forth in detail the factual context within which they arise.
Deputy Fuselier of the St. John the Baptist Parish Sheriff's Department testified that he arrived at the office early in the morning of April 27, 1981. The policemen from Houma were with defendant when Fuselier entered the room. Fuselier gave defendant his Miranda rights and at approximately 5:00 a.m. defendant informed Fuselier that he did not wish to speak to him. Fuselier said that he called defendant's mother to the office so that she could talk with him. According to Fuselier, the mother spoke with defendant alone for approximately 30 to 40 minutes, perhaps as long as an hour. An officer testified that Mrs. Loyd left her son sitting in the lounge and related to the police that defendant said he would take the police officers to the place where he had dropped off the child near Lutcher. Mrs. Loyd disagrees that defendant made such an offer; she testified that defendant only told her that he had dropped the child off near the Lutcher ferry landing.
Immediately, Oubre, Duplantis (from Houma), defendant and his mother went to Lutcher to locate the child. Before they left at approximately 6:15-6:30 a.m., Fuselier read the Miranda rights to defendant and his mother. Defendant refused to sign the form. Oubre testified that enroute to Lutcher, which is in St. James Parish, he advised St. James officials of the situation and requested assistance in searching for the child. When the group arrived in St. James Parish, they were met by the two St. James deputies who had stopped defendant earlier in the morning. These two men identified defendant as the man they had stopped and who told them that he had his little girl in the truck. Oubre stated that the meeting was a coincidence, that he had not requested these specific men to meet them. Defendant directed the group to the location where he asserted that he had left the girl and the search began by knocking on doors to inquire whether anyone had seen her. A State Police helicopter was also used in the search, but to no avail.
Oubre returned the group to the St. John sheriff's office at around 7:30 a.m. At this time, Fuselier placed defendant under arrest on a fugitive warrant from Terrebonne Parish which Vito had obtained while defendant was on the trip to Lutcher. Vito *714 had explained that he did not effect the arrest because he was out of his jurisdiction. When Fuselier arrested defendant, Oubre gave defendant his Miranda rights. Fuselier repeated the rights and defendant stated that he did not understand. When questioned about what he did not understand, defendant did not respond.
Defendant remained alone in custody until shortly before 11 a.m. that morning when his mother sought permission to talk to defendant from Lloyd Johnson, Sheriff of St. John Parish. The sheriff allowed the visit, asking only that Mrs. Loyd try to elicit from defendant the whereabouts of the missing child. Mrs. Loyd talked with defendant a while. When she left the room where defendant was sitting, Sheriff Johnson asked whether defendant had said anything about the location of the girl and Mrs. Loyd replied that he had not. Mr. Crump, a friend of Mrs. Loyd, requested permission to speak with defendant and the sheriff granted the permission, hoping that defendant might tell him something he had not told his mother. When Crump came out, Mrs. Loyd went back into the room. The sheriff requested that she ask her son if he would talk to him and Deputy Rome. According to Sheriff Johnson and Deputy Rome, Mrs. Loyd returned and said that defendant had consented to speak to them. Mrs. Loyd testified that her son manifested no willingness to speak to the officers, and that she had not indicated any such willingness to Sheriff Johnson.
Sheriff Johnson and Deputy Rome entered the room and Johnson gave defendant the Miranda rights. Defendant said that he did not understand the rights. The sheriff told defendant that he would read each right slowly. After reading the first one the right to remain silent and that anything said could be used in courtthe sheriff again asked defendant if he understood. Defendant said he did not. The sheriff asked defendant what it was he did not understand. According to Johnson, defendant said "okay", he "kind of smiled" and said "I understand." Although defendant did not wish to sign the form, he did say that he would answer questions. The sheriff asked defendant whether it was possible that the little girl was still alive and defendant responded by asking for a piece of paper. Deputy Rome handed defendant paper and defendant began drawing lines on it. When asked the meaning of the lines, defendant explained that "this is the map of where the little girl is" and identified landmarks. Rome left to search for the child in the hope that she might be found alive. After Rome left, defendant indicated to Johnson that the child was dead and Johnson asked defendant whether he had raped her. Defendant answered that he had.
Rome called from the field to report that he and others were unable to locate the child and to ask whether it might be possible for defendant to show him the location. At Fuselier's request, defendant consented to lead the police to the child's body. Johnson testified that he had instructed Fuselier to be certain to give defendant his rights when asking him to go to the scene, but stated that he did not know whether Fuselier had done so. However, enroute to the scene, Fuselier, in Johnson's presence, did give defendant his rights. Fuselier then asked defendant whether he was sure the little girl was dead and defendant responded that there was no way she could still be alive. Defendant explained that he had held her face under water in a ditch until the bubbles stopped coming to the surface and then continued to hold her down until she stopped moving completely. In response to Fuselier's inquiry whether he had raped the child, defendant replied that he had "jugged her twice."
At the scene, defendant got out of the patrol car and walked to where Rome and Oubre were standing beside a drainage ditch. Defendant, handcuffed to the rear, made a gesture with his foot toward the canal and said that "this is where I drowned her at." Defendant then turned around and walked into a wooded area to a place where there was palmetto on the ground. Again he made a gesture with his foot and said "she is right there" and then turned around.
*715 Later in the afternoon, after defendant had been returned to the jail, Fuselier and Oubre interviewed defendant and obtained a written statement. Fuselier advised defendant of his Miranda rights and asked defendant if he understood. Defendant replied that he did not and Fuselier went over the rights slowly. Again defendant said that he did not understand. Fuselier asked defendant what it was he did not understand and offered to have someone else explain the rights. Fuselier testified that defendant "kind of laughed and said `yes, I understand, it's all right.'" Fuselier gave the form to defendant, who appeared to be reading it and indicated that he understood. Fuselier filled in the top of the form. Defendant said that he was nervous and asked that the police write the statement. Fuselier received a phone call; so Oubre continued the interview, writing the statement while Fuselier remained in the room talking on the phone. At the end of the statement, defendant read it and signed each page. Both Fuselier and Oubre testified that defendant was not coerced or threatened nor promised anything to make the statement and both said that he appeared calm.
At the time of these events, the defendant was 25 years old and had one and one-half or two years of college while making good grades. He had attended "Storekeepers' School" in the Navy and he was a foreman at the Godcheaux sugar plant. He was married and the father of a child.
The trial judge accepted the version of these events recited by the police where it differed from the testimony of Mrs. Loyd. When we review a ruling of the trial court based upon a finding of fact, great weight is placed upon the determination of the court below because the trial judge had the opportunity to observe the witnesses and weigh the relative credibility of their testimony. State v. Alford, 384 So. 2d 761 (La.1980); State v. Sullivan, 352 So. 2d 649 (La.1977); State v. Cobb, 350 So. 2d 168 (La.1977). These findings will not be disturbed unless they are not supported by the evidence. State v. Dewey, 408 So. 2d 1255 (La.1982); State v. Castillo, 389 So. 2d 1307 (La.1980) cert. denied 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1004 (1981); State v. Williams, 386 So. 2d 1342 (La.1980). The consistent testimony of the investigating officers provides ample support for the trial judge's factual findings.
These events, during which defendant made incriminating statements shortly after having asserted his right to silence or professed ignorance of such right, indicate a possible violation of the prophylactic rules established in Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Miranda guidelines were adopted because without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and compel him to speak where he would not otherwise do so freely. Miranda v. Arizona, supra, Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). To assure safeguards that promised to dispel the "inherently compelling pressures" of police custodial interrogation, a prophylactic rule was fashioned to supplement the traditional determination of voluntariness on the facts of each case. Michigan v. Mosely, 423 U.S. 96, 96 S. Ct. 321, at 330, 46 L. Ed. 2d 313 at 327 (1975) (Brennan, J., dissenting).
Resolution of the questions in this case depends on the interpretation of a single passage of the Miranda opinion:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at a time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege: any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. 384 U.S. at 473-474, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
*716 Subsequently, the high court observed that the critical safeguard identified in this passage is a person's right to cut off questioning. Although the passage could be read to mean that a person who has invoked his right to silence can never again be subjected to custodial interrogation, or interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite, the court chose a middle course. It concluded that the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his "right to cut off questioning" was "scrupulously honored." Through the exercise of his option to terminate questioning, he can control the time of when questioning occurs, the subjects discussed, and the duration of questioning. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. Michigan v. Mosley, 96 S.Ct. at 326, 46 L.Ed.2d at 321.
The restraints placed upon the interrogator when the suspect invokes his right to silence are to be contrasted with the more stringent safeguard called forth by his request for an attorney. In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the high court expressly held that an accused, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. 101 S.Ct. at 1884, 68 L.Ed.2d at 386.
Consequently, when the accused invokes his right to silence, Miranda does not erect a complete bar to further police initiative in communications as it does after a request for an attorney. Nevertheless, the police must scrupulously honor the right to cut off questioning by the person in custody. Apparently, courts must look to the facts of each case and the precepts underlying Miranda to determine if the police engaged in conduct in obtaining a confession which destroyed the accused's confidence in his right to cut off questioning.
Although the Supreme Court has not clearly resolved the issue, it appears that defendant Loyd is unable to invoke Miranda. Professor Kamisar has persuasively demonstrated that even though a person is in custody, "surreptitious interrogation" is insufficient to bring Miranda into play. For unless a person realizes he is dealing with the police, their efforts to elicit incriminating statements from him do not constitute "police interrogation" within the meaning of Miranda. It is the impact on the suspect's mind of the interplay between police interrogation and police custody each condition reinforcing the pressures and anxieties produced by the other which creates "custodial interrogation" within the meaning of Miranda. It is the suspect's realization that the same persons who have cut him off from the outside world, and have him in their power and control, want him to confess, and are determined to get him to do so, that makes the "interrogation" more menacing than it would be without the custody and the "custody" more intimidating than it would be without the interrogation. Miranda recognizes that the Fifth Amendment only protects against some kind of compulsionand not the kind produced by custody alone. In the absence of police interrogation, the coercion of arrest and detention does not rise to the level of "compulsion" within the meaning of the privilege. Kamisar, Brewer v. Williams, Massiah and Miranda: What is "Interrogation"? When Does it Matter?, 67 Georgetown L.J. 1, 50-53, 63-69 (1978).
The Supreme Court apparently confirmed the validity of this analysis by implying that Miranda could not be applied to suppress an accused's incriminating custodial statement to a fellow inmate because Miranda is "limited to custodial police interrogation." See U.S. v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980) (emphasis added); W.S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich.L.Rev. *717 1209, 1247 (1980). Similarly, the Fifth Amendment has been held not to be implicated by the use of undercover government agents before charges are filed because of the absence of the potential for compulsion. See Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966).
In the present case, during the times that defendant Loyd exercised his right to cut off questioning, he was not subjected to the interplay between police custody and police interrogation which is necessary to constitute "custodial interrogation" within the meaning of Miranda. When the defendant invoked his right to silence, the police ceased their interrogation immediately and did not resume questioning until they were invited to do so by the defendant. While police interrogation was cut off, the defendant was questioned by his mother out of the officers' presence, and she elicited incriminating statements from him. She was not a police officer or agent, however, and there was no reason for the defendant to think that he was dealing with the police in talking to his own mother. Because the defendant was a mature adult of 25 years with substantial education, apparent intelligence and lived separately from his mother with a wife and child of his own, we do not think his mother's entreaties to reveal the child's location caused him to believe that his right to control or cut off questioning would not be honored by police. Consequently, in the absence of any interplay between police custody and police interrogation, the mere fact that the defendant was in custody was not so intimidating, nor his mother's questioning so menacing, as to bring Miranda into play. Similarly, Mrs. Loyd's request that defendant talk to Sheriff Johnson later that morning was not an impermissible resumption of custodial interrogation. The inherent pressures of the custodial environment, without the companion pressures of police interrogation, are not a sufficient compulsion on which to conclude that the police did not scrupulously honor defendant's right to silence. State v. Rebstock, 418 So. 2d 1306 (La.1982). In both instances, defendant made his decision to initiate renewed contact with the police without receiving custodial interrogation or pressure from them. When an accused initiates communication on the subject with police after earlier invoking his right to silence, the police may permissibly resume the interrogation. Michigan v. Mosley, 96 S.Ct. at 327, 46 L.Ed.2d at 322.
Although the police scrupulously honored defendant's right to silence, the resulting statements are only admissible if made freely and voluntarily by the defendant. The State bears the burden of proving beyond a reasonable doubt the voluntariness of a confession which the defendant has moved to suppress as evidence at the trial on the merits. La.R.S. 15:451; State v. Rodrigue, 409 So. 2d 556 (La.1982); State v. Dewey, 408 So. 2d 1255 (La.1982); State v. Jones, 376 So. 2d 125 (La.1979); State v. Volk, 369 So. 2d 128 (La.1979). In reviewing the trial judge's rulings as to the admissibility of a confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Rodrigue, supra, State v. Bouffanie, 364 So. 2d 971 (La. 1978).
From our review of the record, we conclude that the trial judge's finding that the defendant's statements were freely and voluntarily given is adequately supported by the consistent testimony of the sheriff deputies and Houma detectives. Accordingly, this statement is properly admissible at the trial on the merits.
The defendant also seeks the suppression of items of physical evidence taken from his truck pursuant to a warrantless search by the police. When the defendant was taken into the sheriff's office in the early morning of April 27, 1981, he parked his truck beside the sheriff's office building. At 9:30 that morning, a Jefferson Parish crime scene technician arrived at the sheriff's office to assist in the investigation. Soon after arriving, this technician undertook a warrantless search of the interior of defendant's pick-up truck. This search produced a face cloth, a paper tower and T-shirt on the floor of the truck, and a face cloth on the passenger seat.
*718 The constitutional prohibitions against unreasonable searches and seizures encompass protection against unreasonable intrusions into a person's automobile. U.S. Constitution, Art. IV; La. Const. Art. I, § 5; Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). A warrantless search is per se unreasonable unless it falls within certain limited, well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1974); Coolidge v. New Hampshire, supra; State v. Hernandez, 410 So. 2d 1381 (La.1982); State v. Zito, 406 So. 2d 167 (La.1981).
At the time the truck was searched, the police had reasonable cause to believe that the kidnapped child was still alive and in imminent and serious danger. The facts then known to the police gave the police probable cause to believe that the defendant had kidnapped the girl in the truck and that it held possible clues to the location of the victim. We believe that this search was permissible under the exigent circumstances presented by the pressing need to rescue the victim.[1] The warrant requirement must yield to the overriding interest in protecting or rescuing individuals reasonably thought to be in imminent danger of death or serious bodily harm. United States v. McKinney, 477 F.2d 1184 (D.C.Cir.1973); United States v. Perez, 440 F. Supp. 272 (N.D.Ohio 1977); People v. Sirhan, 7 Cal. 3d 710, 102 Cal. Rptr. 385, 497 P.2d 1121 (1972); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 1978. This warrantless entry into the defendant's truck was authorized under these circumstances, and accordingly, the fruits of this search are properly admissible into evidence.
Finally, the defendant seeks the exclusion of a pubic hair taken from the defendant after he was incarcerated. A detective approached the defendant and informed him that he needed a sample of pubic hair for the investigation. He further told defendant that a search warrant could be obtained if necessary. The defendant replied that he would willingly cooperate and then removed a sample himself.
Consent is an exception to the necessity of obtaining a warrant to seize evidence. State v. Winn, 412 So. 2d 1337 (La.1982); State v. Packard, 389 So. 2d 56 (La.1980). The record lends substantial support to the trial court's determination that the defendant consented to the procurement of this evidence. This evidence is therefore admissible.
ASSIGNMENT OF ERROR NUMBER TWO
By this assignment, the defendant complains that the trial judge did not order the state to comply with the usual discovery procedure followed in St. John Parish. The defendant contends that it is customary practice of the prosecution in St. John Parish to make its entire file available to the defense attorney. In his motion for discovery, defendant requested the names of all witnesses the state intends to use at trial.
The state is not required to allow the defendant to inspect its entire file. La.C.Cr.P. art. 723.[2] Moreover, this court *719 has consistently held that the defendant is not usually entitled to the names of state witnesses. State v. Lane, 414 So. 2d 1223 (La.1982); State v. Marks, 337 So. 2d 1177 (La.1976); State v. Thomas, 306 So. 2d 696 (La.1975); c.f. State v. Walters, 408 So. 2d 1337 (La.1982). We find no merit in this assignment.
ASSIGNMENT OF ERROR NUMBER THREE
By this final assignment, the defendant contends that the trial judge erred in failing to compel the state to produce Brady material. In brief, the defendant asserts that the failure of the state to allow him to inspect its entire file prejudices his rights to discover Brady material. The defendant does not assert that the state is withholding such material, but only that its failure to open its files precludes the verification that no such material in fact exists. The mere chance that a full inspection of the file will reveal Brady material does not justify a fishing expedition through the state's file in the face of the clear language of La.C.Cr.P. art. 723. We find no merit in this assignment.
DECREE
For the reasons assigned, the ruling of the trial court on the motion to suppress statements and physical evidence is affirmed. The ruling on the motions for discovery and Brady materials is also affirmed.
MARCUS, J., concurs in the result only.
WATSON, J., concurs in the result.
LEMMON, J., assigns additional concurring reasons.
LEMMON, Justice, assigning additional concurring reasons.
I fully subscribe to the reasoning and result of the majority opinion. I additionally point out that the prophylactic rules of Miranda (designed to protect against "overzealous police practices") were not designed to regulate police interrogation which (as in this case) was undertaken primarily for the purpose of discovering information necessary to preserve the life of an innocent victim (such as the missing three-year old in this case) or to insure the safety of the investigating police officer and others on the scene. See U.S. v. Castellana, 500 F.2d 325 (5th Cir.1974); State v. Levy, 292 So. 2d 220 (La.1974); People v. Dean, 39 Cal. App. 3d 875, 114 Cal. Rptr. 555 (1974); People v. Riddle, 83 Cal. App. 3d 563, 148 Cal. Rptr. 170 (1978).
NOTES
[1] The trial judge erroneously decided that these items fell within the "plain view" exception to the warrant requirement. The "plain view" doctrine properly provides a means of securing probable cause; it does not excuse the necessity of securing a warrant based on a showing of probable cause to effect an entry into a protected area. Coolidge v. New Hampshire, supra, State v. Parker, 355 So. 2d 900 (La.1978). The failure of the police to obtain a warrant to enter the truck was not excused by the "plain view" doctrine.
[2] La.C.Cr.P. art. 723 provides: "Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of the statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state." The exceptions to this article entitle defendant to specific statements and tangible evidence, but not access to the entire file. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616433/ | 668 N.W.2d 217 (2003)
George M. ROEHRDANZ, Respondent,
v.
Toby BRILL, Appellant.
No. CX-03-137.
Court of Appeals of Minnesota.
August 26, 2003.
Review Granted October 29, 2003.
Andrew D. Parker, Ryan P. Winkler, Smith Parker, P.L.L.P., Minneapolis, MN, for appellant.
George M. Roehrdanz, Minneapolis, MN, attorney pro se.
*218 Considered and decided by PETERSON, Presiding Judge, LANSING, Judge, and WRIGHT, Judge.
OPINION
WRIGHT, Judge.
After respondent sued appellant in conciliation court for unpaid legal fees, respondent removed the matter to district court, where a default judgment was eventually entered. The district court denied appellant's motion to vacate the default judgment, finding that appellant was properly served. Appellant contends that service was ineffectual because respondent did not comply with Minn. R. Civ. P. 4.05, which requires an acknowledgment of service by mail. We reverse.
FACTS
On May 7, 2002, respondent George Roehrdanz brought a conciliation court action against appellant Toby Brill for unpaid legal fees. The complainant listed Brill's address as 1212 Yale Place in Minneapolis, and it was personally served on her by a Hennepin County deputy sheriff. Brill filed a counterclaim, on which she listed her address as "5115 Excelsior Blvd." Brill alleged that she did not reside at 1212 Yale Place and that 5115 Excelsior Boulevard was her proper mailing address. A hearing was held on June 17, 2002, and the conciliation court issued a judgment that awarded no damages to either party.
On July 2, 2002, Roehrdanz filed a demand for removal to district court and mailed a copy to Brill, using the 1212 Yale Place address. The demand did not contain an acknowledgment of service, and Brill did not send an acknowledgment of service to Roehrdanz. Brill did not appear for the October 18, 2002, post-removal hearing. On October 29, 2002, the district court entered a default judgment, awarding Roehrdanz $7,500. On November 7, 2002, after opening mail sent to the 1212 Yale Place address, Brill learned of the removal action and the default judgment. She moved to vacate the default judgment, and the district court denied her motion. Brill now appeals.
ISSUE
Where respondent did not send or receive an acknowledgment of service in accordance with Minn. R. Civ. P. 4.05, was service of process effectuated by mail?
ANALYSIS
Whether service of process is proper and effectual is a question of law, which we review de novo. Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn.App.2000), review denied (Minn. Jan. 26, 2001); Leek v. Am. Express Prop. Cas., 591 N.W.2d 507, 508 (Minn.App. 1999), review denied (Minn. July 7, 1999). Citing Rule 4.05 of the Minnesota Rules of Civil Procedure, which provides that service by mail is ineffectual if an acknowledgement is not received by the sender, Brill argues that Roehrdanz's service of the demand for removal was ineffectual because he did not send or receive an acknowledgment of service. Although Brill raised this issue at the hearing on the motion to vacate the default judgment, the district court did not expressly address Brill's argument when it found that service was proper.
Rule 4.05 provides, in pertinent part:
In any action service may be made by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 22 and a return envelope, postage prepaid, addressed to the sender. *219 If acknowledgment of service under this rule is not received by the sender within the time defendant is required by these rules to serve an answer, service shall be ineffectual.
Minn. R. Civ. P. 4.05 (emphasis added). "Rule 4.05 requires strict compliance to procedure in order to perfect service." Coons v. St. Paul Cos., 486 N.W.2d 771, 776 (Minn.App.1992), review denied (Minn. July 16, 1992). "Service of process in a manner not authorized by the rule is ineffective service." Turek, 618 N.W.2d at 611 (quotations omitted). When service of process is invalid, the district court lacks jurisdiction to consider the case, and the case is properly dismissed. Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154, 157 (Minn.App.1987).
Roehrdanz counters that service of the demand was proper because it complied with the General Rules of Practice for the District Courts governing conciliation court actions. See Minn. R. Gen. Pract. 501-525 (conciliation court rules). Regarding removal of an action from conciliation court to district court, Rule 521 provides:
To effect removal, the aggrieved party must perform all the following * * *: (1) Serve on the opposing party or the opposing party's lawyer a demand for removal of the cause to district court for trial de novo. Service shall be by first class mail. Service may also be by personal service in accordance with the provisions for personal service of a summons in district court.
Minn. R. Gen. Pract. 521(b). The rules of general practice regarding conciliation court do not address sending or receiving an acknowledgment of service. Resolution of the parties' dispute, thus, requires us to determine which set of rulesthe Minnesota Rules of Civil Procedure or the General Rules of Practice governing conciliation courtgoverns the service of a demand for removal to district court.
The Minnesota Rules of Civil Procedure list the actions to which they apply. The rules "govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81." Minn. R. Civ. P. 1. Rule 81.01(a) exempts proceedings listed in Appendix A from the scope of the rules of civil procedure when they are inconsistent with the statutory provisions governing the proceedings listed in Appendix A. Appendix A does not list conciliation court proceedings as exempt; and under Rule 81.01(c), except for the proceedings listed in Appendix A, the Minnesota Rules of Civil Procedure supercede any statutes that are inconsistent with them.
In addition, we have previously addressed the applicability of the Minnesota Rules of Civil Procedure to the removal of a case from conciliation court to district court. In Wilkins v. City of Glencoe, which required us to determine the time limits for removal, we held that "[t]he Minnesota Rules of Civil Procedure apply to conciliation court proceedings which are removed to district court." 479 N.W.2d 430, 431 (Minn.App.1992) (citation omitted). In Wilkins, the demand of a party seeking removal was received by the district court 21 days after notice of judgment was mailed to the party. Id. The applicable conciliation court rule provided a 20-day deadline for removal, but Rule 6.05 of the Minnesota Rules of Civil Procedure permitted an additional three days because the demand for removal was served by mail. Id. Compare Minn. R. Civ. P. 6.05 (providing that, when notice is served by mail, three days shall be added to the period allowed for service) with Minn. Stat § 487.30, subd. 9 (1990) (providing that procedures for removal from conciliation court must be performed within 20 days of *220 mailing of notice of judgment order), repealed 1993 Minn. Laws ch. 321, § 7.[1] Thus, in resolving the conflict, we concluded that Rule 6.05 controlled, in light of Minn. R. Civ. P. 81 and the precedent established in Reichel v. Hefner, 472 N.W.2d 346 (Minn.App.1991).
In Reichel, we were required to determine whether the Minnesota Rules of Civil Procedure applied to the removal of a case from conciliation court to district court or whether the Minnesota Rules of Conciliation Court controlled. Id. at 347-48. Compare Minn. R. Civ. P. 4.02 (prohibiting a party to an action from making service) with Minn. R. Conciliation Cts. 1.21 (1990) (requiring that aggrieved party serve opposing party by personal service). The parties disputed whether service of process was effective when a party in a conciliation court action removed the case to district court. Id. at 347. Specifically at issue was whether a party was prohibited from personally serving the opposing party. Id. We concluded that the Minnesota Rules of Civil Procedure governed. Id. at 348. We are mindful that Reichel and the instant case are distinguishable in that the conciliation court action in Reichel resulted in a default judgment, not a judgment pursuant to a contested hearing, as in the case here. Id. But this distinction does not render inapposite our conclusion in Reichel that, "since the parties are entitled to a trial de novo, the removal from conciliation court to district court constitutes commencement of a civil action" governed by the Minnesota Rules of Civil Procedure. Id. Here, where the parties were likewise entitled to a trial de novo pursuant to Minn. R. Gen. Pract. 521(b), we conclude that a civil action was commenced upon removal, thereby requiring service in conformity with Minn. R. Civ. P. 4.05.
Roehrdanz argues that, because Rule 521(b) specifically covers the method of service in removal actions from conciliation court, there is no reason to refer to the civil procedure rules. We acknowledge that this conciliation court rule does not inform a litigant that the Minnesota Rules of Civil Procedure apply upon removal.[2] But this argument is unavailing in light of Rule 81, which does not exempt conciliation court from the application of the Minnesota Rules of Civil Procedure and explicitly provides that these rules supercede any conflicting statutes, along with the precedent established in Wilkins and Reichel. Both cases explain that removal of a conciliation court action constitutes the commencement of a civil action. Wilkins, 479 N.W.2d at 432; Reichel, 472 N.W.2d at 348. Although Wilkins and Reichel addressed other requirements of the service rules, we conclude that their holdings apply with equal force here, where effectuating proper service by mail with the requisite acknowledgement of service is at issue.
Because Rule 4.05 applies to Roehrdanz's removal to district court, service was ineffectual, and the district court lacked jurisdiction over this case. Without jurisdiction *221 to enter the default judgment, the district court was required to grant Brill's motion to vacate the default judgment as void and dismiss Roehrdanz's claim in district court. See Minn. R. Civ. P. 60.02 (providing for relief from judgment when judgment is void); Turek, 618 N.W.2d at 613 (stating that default judgment was void for lack of jurisdiction when service was improper); Lewis, 413 N.W.2d at 157 (stating that it is proper to dismiss case when service of process is invalid).
DECISION
The district court erred when it denied Brill's motion to vacate the default judgment. Because Roehrdanz failed to effectuate proper service by mail, the default judgment against Brill is void for lack of jurisdiction.
Reversed; judgment vacated.
LANSING, Judge (dissenting).
The dispositive question in this case is how to serve an appeal from a conciliation court decision. George Roehrdanz served Toby Brill by first class mail with a demand for removal to district court. The majority concludes that the notice of removal or appeal is ineffective because Roehrdanz was required to serve Brill under Rule 4.05 of the Minnesota Rules of Civil Procedure. I respectfully disagree. The conciliation court rules allow the notice for removal to be served by first class mail. Minn. R. Gen. Pract. 521(b)(1). Roehrdanz could have effectively served Brill under the rules of civil procedure, but service by first class mail is equally effective.
The conciliation court rules are included in the General Rules of Practice for the District Courts. Rule 521 provides that a person who is "aggrieved by an order for judgment entered in conciliation court" may "remove the cause" or appeal to the district court for trial de novo. Minn. R. Gen. Pract. 521(a). Under the rules, the demand for removal may be served on the opposing party in either of two ways. Minn. R. Gen. Pract. 521(b)(1). The rules provide: "[s]ervice shall be by first class mail," or "[s]ervice may also be by personal service in accordance with the provisions for personal service of a summons in district court." Id.
I do not agree with the majority's conclusion that the Minnesota Rules of Civil Procedure supersede the General Rules of Practice for the District Courts on the method of service for an appeal from conciliation court to the district court. The rules of civil procedure specifically provide that "[t]hese rules do not supersede the provisions of statutes relating to appeals to the district courts." Minn. R. Civ. P. 81.02. Appeal by removal to the district court is addressed in Minn.Stat. § 491A.02. The statute provides that the right of appeal from the decision of the conciliation court by removal to the district court will be governed by the rules promulgated by the supreme court. Minn. Stat. § 491A.02, subd. 6 (2002). The conciliation court rules promulgated by the supreme court are set forth in the General Rules of Practice for the District Courts, which contain the alternative provision for service by first class mail or in accordance with the rules of civil procedure.
The two previous Minnesota Court of Appeals decisions that the majority relies on to confirm the application of the Minnesota Rules of Civil Procedure do not directly address whether the notice to remove may be served by first class mail. The cases instead address service issues that are not directly covered by the General Rules of Practice for the District Courts. See Wilkins v. City of Glencoe, 479 N.W.2d 430, 431 (Minn.App.1992) (permitting an additional three days when demand *222 for removal is served by mail); Reichel v. Hefner, 472 N.W.2d 346 (Minn.App. 1991) (determining whether party to action is disqualified from personally serving opposing party). I read these cases to stand for the proposition that the rules of civil procedure apply once the case has been removed to district court, and, before removal, they are a source of instructive information on questions not resolved by the General Rules of Practice for the District Courts.
I agree that after the case has been removed to district court the rules of civil procedure apply. Reichel, 472 N.W.2d at 348 (holding that rules of civil procedure apply upon removal to district court). But the method of serving the notice of removal or appeal to the district court is governed by the conciliation court rules, and the district court correctly determined that service by mail is effective to appeal from conciliation court by removing the case to the district court.
NOTES
[1] When Wilkins was decided (prior to the conciliation court rules merging into the General Rules of Practice for the District Courts), the predecessor to the current conciliation court rules were the Minnesota Rules for Conciliation Courts. Minn. R. Conciliation Cts. 1.21. The conciliation court rule at issue in Wilkins, however, was amended by Minn. Stat § 487.30, subd. 9 (1990), 1987 Minn. Laws ch. 221, § 5, and repealed in 1993. 1993 Minn. Laws ch. 321, § 7.
[2] Accordingly, we concur with the Reichel court's observation that "[i]t would be a considerable public service for conciliation court rules to specify that, upon removal, the Rules of Civil Procedure apply." Reichel, 472 N.W.2d at 348. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616536/ | 668 N.W.2d 45 (2003)
Raymond SCOTT, Appellant,
v.
FOREST LAKE CHRYSLE-PLYMOUTH-DODGE, Respondent.
No. C7-03-368.
Court of Appeals of Minnesota.
September 2, 2003.
*46 Thomas J. Lyons, Jr., John H. Goolsby, Little Canada, MN, for appellant.
Gregory J. Johnson, Klay C. Ahrens, Johnson Provo-Petersen, L.L.P., St. Paul, MN, for respondent.
Considered and decided by MINGE, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
OPINION
MINGE, Judge.
Appellant challenges summary judgment dismissing his claims for intentional damages and limiting him to damages and attorney fees for an unintentional violation of Minnesota Motor Vehicle Retail Installment Sales Act (MMVRISA) under Minn. Stat. § 168.71 (2002). Because appellant vehicle purchaser does not claim that respondent auto dealer's deliberate failure to timely provide a copy of the sales agreement signed by the auto dealership caused or could cause any actual damages or harm, because the substantial statutory damages for intentional violations of MMVRISA are to deter practices that might cause harm to consumers, and because the district court did not abuse its discretion in determining allowable attorney fees, we determine that the remedy for respondent's technical violation of MMVRISA is limited to that allowed for unintentional violations of MMVRISA, and we affirm the district court's summary judgment order but modify the award of attorney fees.
FACTS
In November 1995, appellant Raymond Scott traded in a 1991 Dodge Caravan for a 1995 Dodge Caravan at Forest Lake Chrysler-Plymouth-Dodge (Forest Lake Chrysler). This was not the first vehicle Scott had purchased from Forest Lake Chrysler. As he had done with his previous vehicle purchases, Scott financed the vehicle through the dealership and was provided with a retail installment contract containing the purchase price, applicable fees, interest rate, number of monthly payments, the amount of each monthly payment, and the total amount to be paid over time. A Forest Lake Chrysler representative did not sign the contract at the time of the transaction, but Scott received an unsigned copy of the agreement.
Scott filed several actions in both the United States district court and in Minnesota district court based on Forest Lake Chrysler's failure to deliver a signed copy of the agreement and other alleged violations of MMVRISA. The U.S. District Court action was dismissed; two of the state actions were appealed to the Minnesota Court of Appeals, and one of those was further appealed to the Minnesota Supreme Court. See Scott v. Forest Lake *47 Chrysler-Plymouth-Dodge, No. 3-96-671 (D.Minn. July 3, 1997); Scott v. Forest Lake Chrysler-Plymouth-Dodge, 637 N.W.2d 587 (Minn.App.2002); Scott v. Forest Lake Chrysler-Plymouth-Dodge, 598 N.W.2d 713 (Minn.App.1999), rev'd, 611 N.W.2d 346 (Minn.2000). At issue in those actions was the use of a conditional delivery agreement instead of a retail installment contract, the nonsigning of the contract by Forest Lake Chrysler, and Forest Lake Chrysler's intent. Appellant does not allege that he suffered, and he concedes that he did not suffer any loss, damage, inconvenience, or risk.
On May 24, 2002, the issue of Forest Lake Chrysler's intent came before the district court. The court defined intentional and unintentional, determined that Forest Lake Chrysler's actions were unintentional, and granted Forest Lake Chrysler's motion for summary judgment. The court ordered Forest Lake Chrysler to pay Scott $50 as a statutory penalty.
The issue of attorney fees was reserved and came on for hearing on September 27, 2002. Scott requested attorney fees in the amount of $116,022.45; the court awarded attorney fees in the amount of $4,063.47. This appeal followed.
ISSUES
I. Is a vehicle purchaser entitled to the remedies provided for intentional violations of the Minnesota Motor Vehicle Retail Installment Sales Act when the act that violated the statute is intentional but is technical in nature and no actual damage or harm is claimed?
II. Did the district court err by awarding attorney fees and costs of $4,063.47?
ANALYSIS
Scott appeals the district court's grant of summary judgment in favor of Forest Lake Chrysler. On appeal from a summary judgment determination, this court asks two questions: (1) are there any genuine issues of material fact; and (2) did the lower court err in the application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court accords the district court great deference and only sets aside the district court's factual findings if those findings are clearly erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999). But this court is not bound by the district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).
I.
The MMVRISA requires every retail installment contract to (1) be in writing; (2) contain all the agreements of the parties; and (3) be signed by both the buyer and the seller. Minn.Stat. § 168.71(a)(1) (2002). In 1995, when Scott purchased the vehicle, it was the customary practice of dealerships to give the buyer an unsigned copy of the contract. This was because only certain persons at a dealership were authorized to sign the contracts on behalf of the dealership, and these authorized persons were not always available to sign the contract at the time of sale.
The requirements for the elements of the retail installment contract were established by the Minnesota Motor Vehicle Retail Installment Sales Act, which was enacted in 1957. 1957 Minn. Laws ch. 266, § 6. The statute stated, both in 1957 and in 1995, when appellant purchased the vehicle, that "every retail installment contract shall be in writing, ... shall be signed by the retail buyer and seller, and a copy thereof shall be furnished to such retail *48 buyer at the time of the execution of the contract." Minn.Stat. § 168.71(a)(1) (1957 & 1994). At the time Scott purchased his vehicle, dealerships customarily provided purchasers with unsigned carbon copies of the contract, despite the statutory language requiring the dealership to provide the customer with a signed copy. In 1996, in response to several consumer lawsuits, the Minnesota legislature amended Minn. Stat. § 168.71(a)(1). 1996 Minn. Laws ch. 414, art. 1, § 33. The amended statute gives the dealership seven days from delivery of the vehicle to provide the buyer with a copy of the contract signed by both the buyer and the seller. Minn.Stat. § 168.71(a)(1) (1996 & 2002). In addition, the amendment allowed dealerships to cure the lack of delivery of any contract executed before the amendment, and not yet paid in full, by providing a signed copy of such contract to the buyer within 120 days of August 1, 1996. Id. Forest Lake Chrysler sent a letter to Scott's attorney, stating that upon the request of Scott or his attorney, Forest Lake Chrysler would deliver a signed copy of the document. Neither Scott nor his attorney made a request for the signed document, and Forest Lake Chrysler did not provide a copy of the signed contract. In the previous appeals brought by this appellant, this court and the Minnesota Supreme Court determined that the 1995 contract met all requirements of the MMVRISA save one: appellant was not provided with a copy of the contract signed by the seller within the 120-day grace period. At issue here is whether the district court erred by determining that the failure to provide appellant with a signed copy of the contract was an unintentional failure to comply with the statute.
An unintentional failure to comply with the statute allows the buyer to recover, as liquidated damages "three times the amount of any time price differential charged in excess of the amount authorized by section 168.66 to 168.77 or $50, whichever is greater, plus reasonable attorneys' fees." Minn.Stat. § 168.75(c) (2002). An intentional failure to comply is treated more harshly; the buyer has the right to recover as liquidated damages, "the whole of the contract due and payable, plus reasonable attorneys' fees." Minn.Stat. § 168.75(b) (2002). MMVRISA includes definitions of certain terms, but "intentional" and "unintentional" are not among those defined in the Act. Minn.Stat. §§ 168.011, .274 (2002).
The district court noted that the terms "intentional" and "unintentional" were not defined in the Act and that they needed to be defined in order to characterize Forest Lake Chrysler's actions. Relying on the civil jury instruction guide, the Restatement (Second) of Torts, and the legislative intent of the statute, the court determined that the
legislature intended to define intentional violation as one in which there is proof of conduct substantially certain to result in harm, disadvantage to, or deceit of, the customer or to achieve an inequitable result ... the statute defines intentional as acting with the intent to deceive, or to achieve an inequitable result, or to take advantage of, or harm the customer.
The court determined that Scott had failed to show that Forest Lake Chrysler acted with malicious intent or a purposeful intent to deceive and that Scott was not damaged or harmed by the failure to provide a signed copy of the agreement. The district court therefore determined that as a matter of law Forest Lake Chrysler's actions were unintentional, awarded Scott $50, and granted summary judgment accordingly.
*49 We determine that there are three options to bring a conclusion to this long, litigious saga. Our first option is to determine that the meaning of intentional or unintentional should be determined by applying Minn.Stat. § 645.08(1) (2002) (words in statutes "are construed according to rules of grammar and according to their common and approved usage"). Since it is clear that Forest Lake Chrysler deliberately decided to not send out a signed copy of the contract, its actions appear to be "intentional" according to the common dictionary definition of that word. That strict-construction approach would require us to reverse and remand this case with instructions to the district court that this violation is an intentional violation and that the court should award the damages required by Minn.Stat. § 168.75(b). The problem with this option is that the resulting damages would be "the whole of the contract due and payable," which would shock the conscience and violate the presumed legislative intent. In addition, the litigation connected with this matter has already gone on for seven years; a remand further protracts a final resolution and serves to increase the already hefty attorney fees and consume additional judicial resources.
Our second option is to uphold the previously summarized definition by the district court of "intentional failure" and thereby affirm the district court's decision. But this option ignores Minnesota law requiring that "words and phrases are construed according ... to their common and approved usage." Minn.Stat. § 645.08(1). Furthermore, upholding the district court's strained definition of "intentional" may come back to haunt claimants in other situations by raising the level of proof needed to sustain a claim for intentional damages.
Our third option is to hold that a technical violation without any claim of loss, damage, inconvenience, or risk does not justify the buyer's receipt of the substantial, intentional damages. While this option also ignores the plain meaning of "intentional failure to comply," it recognizes the purpose of the statute as repeatedly articulated by the Minnesota Supreme Court. Our supreme court determined that "the plain purpose of the MMVRISA is to require disclosure to consumers of the cost of credit extended to them, including sale price, amount of down payment, insurance charges, and finance charges." Scott v. Forest Lake Chrysler-Plymouth-Dodge, 611 N.W.2d 346, 351 (Minn.2000) (quotation omitted); see also O'Brien v. Phillips Motors Excelsior, Inc., 288 Minn. 183, 185, 179 N.W.2d 158, 160 (1970) (stating that the "plain purpose of the provision is to inform the installment buyer of the cost of the credit extended to him"); Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 70, 93 N.W.2d 690, 696 (1958) (stating that part of the reason for the adoption of the MMVRISA was "to protect the purchasers of automobiles from the activities of a few individuals who had been guilty of inequitable practices in particular situations").
The third option is the best choice. The legislature did not intend that a technical violation of the statute would be used to enrich the buyer. Here the buyer did not incur any damages or harm. He purchased the vehicle, knew its cost, knew the cost of the financing, paid those costs, and drove that vehicle. By holding that a technical violation of the statute without any claim of loss does not justify the buyer's receipt of intentional damages, we avoid an award of significant damages to an appellant who does not even claim that any harm has occurred.
*50 Truth in Lending cases in other states provide some support for the third option. In some cases, the courts have held that technical errors in a contract which do not undermine congressional policy are not actionable. See, e.g., Chem. Bank v. Mayo, 121 Misc. 2d 781, 469 N.Y.S.2d 315, 318 (1983) (citing Jumbo v. Nester Motors, 428 F. Supp. 1085, 1087 (D.Ariz.1977)). Other cases have held that if the contract was in "substantial compliance" with the rules, there is not an intentional violation, See Chem. Bank, 469 N.Y.S.2d at 318 (citing cases).
We hold that a violation of the MMVRISA without a claim of loss, damage, or harm to the consumer is limited to the damages awarded for an unintentional violation of the statute.
II.
Appellant also contends that the district court erred by awarding attorney fees and costs of only $4,063.47 when appellant requested $116,022.45 in attorney fees and costs. "On review, this court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion." Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987) (citation omitted). The district court shall allow reasonable costs to a prevailing party in a district court action. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998). The district court "retains discretion to determine which party, if any, qualifies as a prevailing party." Id. at 54-55 (quotation omitted).
Here, appellant initially brought seven claims against Forest Lake Chrysler. Appellant lost on six of the claims. The district court determined that based on an unintentional failure to comply with the statute, and an award of $50 to appellant, the appellant was neither "victorious on the merits with respect to any of the violations specifically alleged in the complaint," nor did appellant allege in the complaint a right to recover under an unintentional violation of the statute. Thus, the court determined that appellant had "not met his burden of establishing entitlement to the award sought." The court's calculation of reasonable attorney fees excluded $2,245.32 for legal research on the grounds that such a charge should be included in the charges for the attorneys' time. The district court then divided the remaining requested fees by seven for the number of violations asserted in the original complaint, then divided by two because there was no recovery for any violation specifically alleged in the original complaint, and divided by two again. The resulting figure was $4,063.47, and the district court awarded that amount because it was more fairly commensurate with the $50 damage award.
It is clear that "reasonable" attorney fees can be awarded. Minn.Stat. § 168.75 (2002) (awarding reasonable attorney fees as part of the remedy for a statutory violation). The district court determines the reasonableness of the fees, and this court upholds the district court's determination unless the district court abuses its discretion. We agree with the district court's exclusion of the $2,245.32 in legal research fees, and we agree with the initial division by seven. However, a further discount is more difficult. We note that every aspect of this litigation has been strenuously contested, that the violation in question persisted and was effectively repeated after the legislature had established a window period and a method to cure past violations, and that the statute is clearly designed to cover attorney fees. Accordingly, we conclude that the district court should have stopped with excluding legal research and awarded attorney fees of $16,253.88, plus $50 in nominal statutory *51 damages for a total of $16,303.88. Due to the protracted nature of this proceeding and in the interest of judicial economy, we do not remand for yet further hearings.
DECISION
Because appellant makes no claim of damages or harm from a car dealer's violation of MMVRISA, appellant is limited to damages for unintentional violations of that act. The district court's definition of intentional is modified, and its calculation of attorney fees is modified.
Affirmed as modified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920162/ | 279 Md. 597 (1977)
369 A.2d 1048
ERNEST H. HUPP ET UX.
v.
THE GEORGE R. REMBOLD BUILDING COMPANY
[No. 134, September Term, 1976.]
Court of Appeals of Maryland.
Decided March 4, 1977.
*598 The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.
Joseph I. Huesman, with whom was R. Douglas Jones on the brief, for appellants.
Robert W. Warfield for appellee.
SINGLEY, J., delivered the opinion of the Court.
Ernest H. Hupp and Mildred E. Hupp, his wife (the Hupps) entered an appeal to the Court of Special Appeals from an order and decree of the Circuit Court for Anne Arundel County dismissing their bill of complaint for specific performance of a contract which they had entered into with The George R. Rembold Building Company (Rembold) for the purchase of a house to be constructed by Rembold. We granted certiorari before the case came on for hearing in the Court of Special Appeals.
In December of 1973, the Hupps had entered into the contract for the purchase of a house at 761 North Mesa Road in a development known as Hillendale in Anne Arundel County. The house was to be identical with another house which had been built by Rembold in the same community, with certain modifications, not material to the issue before us, as agreed by the parties.
The purchase price was $42,500.00, of which $2,000.00 had been paid prior to the execution of the contract. At settlement, at which time possession was to be given, an additional $25,500.00 was to be paid in cash, and the balance was to be realized from a 20-year purchase money mortgage with interest at eight percent to be obtained by the Hupps.
The contract is otherwise unremarkable, except for the provisions of paragraph 7:
"Should Buyers cancel or default hereunder for any reason all monies paid by Buyers, including the cost of all change orders, will remain the property of the Seller and Seller shall be entitled to recover from Buyers all damages sustained as a *599 consequence of such cancellation or default in excess of said monies. Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other."[1]
During the course of construction, which appears to have proceeded more slowly than the 120-day period stipulated by the contract, the Hupps advanced $2,910.34 for modifications and other extras not contemplated by the contract.
Rembold scheduled settlement for 28 June 1974. The Hupps failed to appear because Rembold had refused to meet with them at the house to review the work which had not been completed.[2] Rembold than called for settlement on 3 July, but rejected the Hupps' suggestion that $1,000.00 of the purchase price be escrowed pending completion of the work. When the Hupps declined to attend the settlement, Rembold wrote to the Hupps' counsel on 3 July, saying in part "I am invoking Para. (7) seven of a contract dated Dec. 5, 1973."
On 11 July 1974, Rembold entered into a contract for the sale of the house to another purchaser for $49,900.00.[3] The Hupps, by then, had filed their bill of complaint for specific performance on 10 July in the Circuit Court for Anne Arundel County.
Rembold demurred on the ground that the purchase contract violated the rule against perpetuities and was too *600 uncertain and indefinite to be specifically enforced, and answered, denying that the work had not been properly performed and alleging that the house had been sold, in good faith, to others. The matter of the demurrer was referred to a Master in Chancery, whose report recommended that the demurrer be overruled. The court so ordered on 27 January 1975.
The case came on for hearing on the merits in July, 1975 and on 25 May 1976, the court entered its opinion and order, in which it concluded that Rembold had acted under the second sentence of paragraph 7 of the contract:
"Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other."
and dismissed the bill of complaint.
Generally, the granting or withholding of a decree for specific performance lies within the discretion of the trial court, Gross v. J & L Camping & Sports, 270 Md. 539, 543-44, 312 A.2d 270, 273 (1973), quoting from The Glendale Corp. v. Crawford, 207 Md. 148, 154, 114 A.2d 33, 35 (1955):
"This discretion is not, however, arbitrary; and where the contract is, in its nature and circumstances, unobjectionable or, as it is sometimes stated, fair, reasonable and certain in all its terms it is as much a matter of course for a court of equity to decree specific performance of it as it is for a court of law to award damages for its breach."
An overview of circumstances in which specific performance may be granted can be found in this Court's opinion in Charles County Broadcasting v. Meares, 270 Md. 321, 324-26, 311 A.2d 27, 30-31 (1973):
"The granting of specific performance rests within the sound discretion of the trial court, Horst v. Kraft, 247 Md. 455, 459, 231 A.2d 674, 676 (1967); Restatement of Contracts § 359 (1) (1932). If a *601 contract is fair, reasonable and certain, specific performance may be granted almost as a matter of course, Excel Co. v. Freeman, 252 Md. 242, 246, 250 A.2d 103, 106 (1969). This is true even if the contract is contingent, if the contingency can be met, Scheffres v. Columbia Realty Co., 244 Md. 270, 284, 223 A.2d 619, 626 (1966); within the time stated, Paape v. Grimes, 256 Md. 490, 499, 260 A.2d 644, 649 (1970). See generally Chapman v. Thomas, 211 Md. 102, 126 A.2d 579 (1956).
"While specific performance has been historically associated with contracts for sale of land, it has been invoked to enforce other contracts for at least a century, Simpson, Fifty Years of American Equity, 50 Harv. L. Rev. 171, 173 (1936). See Board of County Comm'rs v. MacPhail, 214 Md. 192, 133 A.2d 96 (1957) (paving public road); Wolbert v. Rief, 194 Md. 642, 650-51, 71 A.2d 761, 764-65 (1950) (sale of a business).
"It has long been established that if the remedy of specific performance is possible when the vendee brings suit, but while the action is pending, a vendor disables himself from performing his contract, damages may be awarded in lieu of specific performance, Busey v. McCurley, 61 Md. 436, 448 (1884); Powell v. Young, 45 Md. 494, 498 (1877); Green v. Drummond, 31 Md. 71, 84 (1869); Rider v. Gray, 10 Md. 282, 300 (1856); 1 Pomeroy, Equity Jurisprudence § 237f, at 443 (5th ed. 1941); Miller, Equity Procedure § 672 (1897); Pomeroy, Specific Performance of Contracts § 294, at 372 (2d ed. 1897). See Kappelman v. Bowie, 201 Md. 86, 90, 93 A.2d 266, 268 (1952) (`equity may refuse ... to ... enforce a hard bargain').
"If a complainant files a bill for specific performance at a time when he knows specific performance is impossible, and the sole remaining prayer for relief is for damages, his bill will be dismissed, Davis v. Winter, 168 Md. 613, 618-19, *602 178 A. 604, 605-06 (1935). Although specific performance cannot be decreed once performance has been impossible, Powichrowski v. Sicinski, 139 Md. 376, 383, 114 A. 899, 901-02 (1921), damages may be awarded in the same equitable proceeding, Restatement of Contracts, supra, § 363 and illustration 1 at 657, provided that at the time the action was commenced in equity, specific performance was in fact obtainable, Harris v. Harris, 213 Md. 592, 597, 132 A.2d 597, 600 (1957). Compare Prucha v. Weiss, 233 Md. 479, 485, 197 A.2d 253, 256, cert. denied, 377 U.S. 992 (1964), where an equity court was held to be without jurisdiction to grant money damages when no independent grounds of equitable jurisdiction were present.
"If the object of the bill is to compel specific performance and there is a prayer for general relief, damages traditionally could be awarded under that prayer, Powell v. Young, supra, 45 Md. at 496-97; Miller, supra, § 673.
"The rule as to measure of damages is articulated in Hartsock v. Mort, 76 Md. 281, 288-89, 25 A. 303, 304 (1892), quoting, with minor editing, from Hammond v. Hannin, 21 Mich. 374, 387 (1870):
`If the vendor acts in bad faith, as, if having title he refuses to convey, or disables himself from conveying, the proper measure of damages is the value of the land at the time of the breach; the rule, in such case, being the same in relation to real as to personal property. But, on the other hand, if the contract of sale was made in good faith, and the vendor for any reason is unable to perform it, and is guilty of no fraud, the clear weight of authority is that the vendee is limited in his recovery to the consideration money (paid) and interest, with perhaps in *603 addition, the costs of investigating the title.'
This is essentially the English rule, adopted by Flureau v. Thornhill, 96 Eng. Rep. 635 (1776). See generally McCormick, Law of Damages § 179 (1935).
"Under Hartsock v. Mort, supra, we conceive good faith to be that ordinarily exhibited by a seller who is unable to perform through no fault or fraud of his own, while bad faith is that shown by a seller who refuses to perform when able to do so, Horner v. Beasley, 105 Md. 193, 198, 65 A. 820, 822 (1907)."
We are here called upon to construe a contract provision which may be analogized to an option, where specific performance might have been decreed against the optionor but not necessarily against the optionee, Simpers v. Clark, 239 Md. 395, 400-01, 211 A.2d 753, 756 (1965); Trotter v. Lewis, 185 Md. 528, 534, 45 A.2d 329, 332 (1946).[4] What makes this case unusual is that the purchaser can be likened to the optionor, and the seller, to the optionee. As a consequence, Rembold might have sought specific performance against the Hupps, had he fully performed, assuming that the first sentence of paragraph 7 of the contract is not to be regarded as a provision for liquidated damages in lieu of specific performance,[5]see Armstrong v. Stiffler, 189 Md. 630, 634-35, 56 A.2d 808, 810 (1948); Rogers v. Dorrance, 140 Md. 419, 423-24, 117 A. 564, 566 (1922); 71 Am.Jur.2d Specific Performance § 57, at 83-85 (1973).
When, as here, the parties enter into a contract which gave the seller the right to rescind for any reason, or perhaps even for no reason, specific performance cannot be *604 decreed unless the seller against whom specific performance is sought fails to meet any condition precedent which must be complied with before his right to rescind can be invoked. Here, the condition was that "... all monies paid by Buyers shall be returned by Seller...."
Because there is no evidence that Rembold made a timely proffer of the return of the sums advanced by the Hupps when he attempted to rescind the agreement by his letter of 3 July, the case must be remanded for an evidentiary hearing to determine whether Rembold made a timely proffer of the Hupps' deposit, together with all monies expended by them on the house. Should it be found that he did not, the Hupps should have been granted the relief which they sought.
Case remanded, without affirmance or reversal for further proceedings conformable to the views herein expressed; costs to abide the result.
NOTES
[1] A contract containing the same provision was before the Circuit Court for Baltimore County and later before the Court of Special Appeals in Harris v. Stefanowicz Corp., 26 Md. App. 213, 214, 337 A.2d 455, 456 (1975). In that case, the lower court commented that it was "the type of clause that no prudent buyer should allow to be in a contract...." A decree dismissing an action for specific performance prior to an evidentiary hearing was reversed and the case was remanded for trial.
[2] While there were 23 items on the Hupps' punchlist, the significant ones related to the manner in which kitchen cabinets had been installed, the failure to install a sump pump, and exterior grading. At trial the county building inspector said he regarded the house as being 95% complete, presumably in terms of building code requirements.
[3] The contract with the new purchasers took the form of a lease, which could be converted into an agreement of purchase and sale, contingent upon Rembold's prevailing in this litigation.
[4] In cases involving options, the test of mutuality is usually met by regarding the parties as mutually bound once the option is exercised, or by regarding the undertaking as a conditional one which becomes mutual when the condition is met, see E. Miller, Equity Procedure §§ 685-86, at 791-94 (1897).
[5] This surely must have been apparent to Mr. Hupp, who is a member of the Maryland bar. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737576/ | 727 N.W.2d 373 (2006)
2007 WI App 19
STATE
v.
WARREN.
No. 2005AP274-CR.
Wisconsin Court of Appeals.
December 12, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697589/ | [Cite as State v. Umphries, 2012-Ohio-4711.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 11CA3301
vs. :
WILLIAM E. UMPHRIES, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Aaron M. McHenry, 14 South Paint Street, Suite 1, Chillicothe, Ohio 45601
COUNSEL FOR APPELLEE: Matthew S. Schmidt, Ross County Prosecuting Attorney, and Richard W.
Clagg, Ross County Assistant Prosecuting Attorney, 72 North Paint
Street, Chillicothe, Ohio 45601
CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 10-1-12
ABELE, P.J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of conviction and
sentence. A jury found William E. Umphries, defendant below and appellant herein, guilty of rape, in
violation of R.C. 2907.02. The trial court sentenced appellant to serve eight years in prison.
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE JURY’S VERDICT IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT OF
ROSS, 11CA3301 2
THE EVIDENCE.”
{¶ 3} During the late evening hours of August 15 or early morning hours of August 16, 2010, the
victim awoke to find appellant on top of her. He began to have sexual intercourse with her and she begged
him to stop. He did not. The next day, the victim contacted the Ross County Sheriff’s Department to report
the incident.
{¶ 4} On August 6, 2010, the Ross County Grand Jury returned an indictment that charged appellant
with rape, in violation of R.C. 2907.02. Appellant entered a not guilty plea.
{¶ 5} On September 27 and 28, 2011, the trial court held a jury trial. At the trial, the victim
testified that she awoke during the night to discover appellant, her uncle, on top of her. She stated that he put
his hands down her pants and then removed her pants, her underwear, and her tampon. She stated that he
placed his penis inside her and that she “begged him to stop.” After appellant completed the act, the victim
went into the bathroom and did not exit until she knew appellant had left. When she awoke in the morning,
she told her father what happened and he called the sheriff. Later that day, she went to the hospital where a
rape kit was performed.
{¶ 6} Ross County Sheriff’s Detective Tony Wheaton testified that appellant admitted that he had
sexual intercourse with the victim. Detective Wheaton stated that appellant explained that he had entered
the victim’s residence through a bedroom window. Appellant advised Detective Wheaton “that he knew
that what he had done was wrong and that he felt that [the victim] had now ruined his life.” On
cross-examination, Detective Wheaton stated that appellant claimed that appellant and the victim had an
on-going sexual relationship for about a month or two before the victim’s rape allegation. Detective
Wheaton testified that appellant claimed that the sexual encounter was consensual.
{¶ 7} After hearing the evidence, the jury found appellant guilty. The trial court sentenced
appellant to serve eight years of mandatory imprisonment. This appeal followed.
{¶ 8} Appellant’s two assignments of error raise the interrelated, but legally distinct, concepts of
ROSS, 11CA3301 3
the sufficiency and the manifest weight of the evidence. For ease of analysis, we have combined them.
{¶ 9} In his first assignment of error, appellant argues that the state failed to present sufficient
evidence that he compelled the victim to submit to sexual conduct by force or threat of force. He asserts that
the state failed to present any evidence that appellant “used any violence, compulsion, or other physical
restraint to compel the intercourse. [The victim] never said [appellant] held her down or otherwise prevented
her from getting up.”
{¶ 10} In his second assignment of error, appellant contends that the jury lost its way when
affording the victim’s testimony more credibility.
{¶ 11} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the
adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of
guilt beyond a reasonable doubt. See Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997) (stating
that “sufficiency is a test of adequacy”); State v. Jenks, 61 Ohio St. 3d 259, 273, 574 N.E.2d 492 (1991).
The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn
therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); Jenks, 61 Ohio St. 3d at 273. Furthermore, a reviewing court is not to assess
“whether the state’s evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” Thompkins, 78 Ohio St. 3d at 390 (Cook, J., concurring).
{¶ 12} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe
the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St. 3d 195, 205, 661 N.E.2d
1068 (1996); State v. Grant, 67 Ohio St. 3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not
overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the
conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St. 3d 146, 749 N.E.2d 226 (2001); State v.
Treesh, 90 Ohio St. 3d 460, 739 N.E.2d 749 (2001).
ROSS, 11CA3301 4
{¶ 13} “Although a court of appeals may determine that a judgment of a trial court is sustained by
sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the
evidence.” Thompkins, 78 Ohio St. 3d at 387. When an appellate court considers a claim that a conviction
is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the
evidence, and consider the credibility of witnesses. The reviewing court must bear in mind, however, that
credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St. 3d 49, 67, 752
N.E.2d 904 (2001); State v. DeHass, 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph
one of the syllabus. Once the reviewing court finishes its examination, the court may reverse the judgment
of conviction only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins, 78 Ohio St. 3d at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d
717 (1983).
{¶ 14} If the prosecution presented substantial evidence upon which the trier of fact reasonably
could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established,
the judgment of conviction is not against the manifest weight of the evidence. State v. Eley, 56 Ohio St. 2d
169, 383 N.E.2d 132 (1978), syllabus. A reviewing court should find a conviction against the manifest
weight of the evidence only in the “‘exceptional case in which the evidence weighs heavily against the
conviction.’” Thompkins, 78 Ohio St. 3d at 387, quoting Martin, 20 Ohio App. 3d at 175; State v. Lindsey,
87 Ohio St. 3d 479, 483, 721 N.E.2d 995 (2000).
{¶ 15} In the case at bar, R.C. 2907.02(A)(2) contains the essential elements of the rape offense
contained in appellant’s indictment. It states: “No person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by force or threat of force.”
{¶ 16} Appellant asserts that the state failed to present sufficient evidence that appellant compelled
the victim to submit by force or threat of force. “‘Force’ means any violence, compulsion, or constraint
ROSS, 11CA3301 5
physically exerted by any means upon or against a person * * *.” R.C. 2901.01(A)(1).
“A defendant purposely compels another to submit to sexual conduct by force or
threat of force if the defendant uses physical force against that person, or creates the belief
that physical force will be used if the victim does not submit. A threat of force can be
inferred from the circumstances surrounding sexual conduct.”
State v. Schaim, 65 Ohio St. 3d 51, 55, 600 N.E.2d 661 (1992)
“The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the
parties and their relation to each other.” State v. Eskridge, 38 Ohio St. 3d 56, 526 N.E.2d 304 (1988). “‘* *
* Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be
shown that the rape victim’s will was overcome by fear or duress, the forcible element of rape can be
established.’” Id. at 58-59, quoting State v. Fowler, 27 Ohio App. 3d 149, 154, 500 N.E.2d 390 (1985).
{¶ 17} Courts have held that when a defendant removes the victim’s clothing against the victim’s
will, then the element of force ordinarily will be established. State v. Walker, 8th Dist. No. 96662,
2011-Ohio-6645, ¶20 (holding that “manipulation of a sleeping victim’s clothing in order to facilitate sexual
conduct constitutes force under R.C. 2901.01(A)(1) even though such force requires only minimal
exertion”), citing State v. Clarke, 8th Dist. No. 94207, 2010-Ohio-5010, ¶23, State v. Sullivan, 8th Dist. No.
63818 (Oct. 7, 1993), and State v. Lillard, 8th Dist. No. 69242 (May 23, 1996). Accord State v. H.H., 10th
Dist. No. 10AP-1126, 2011-Ohio-6660, ¶12; State v. Burton, 4th Dist. No. 05CA3, 2007-Ohio-1660, ¶38.
In Sullivan, for example, the victim awoke in the middle of the night to find the defendant between her legs,
licking her vagina. The defendant had pulled down the victim’s underwear and shorts and had pulled her
legs apart. After the defendant was convicted of rape, he appealed and argued that the state failed to present
sufficient evidence of force. The appellate court disagreed and explained:
“It is readily apparent that the element of force was established through the
testimony of the victim in two separate manners. First, the separating of [the victim’s] legs
and the pulling down of her shorts and [underwear] clearly can only be accomplished by the
application of physical force. These acts, although not of the same degree as a blow or
continuous restraint, are without question within the definition of ‘force’. The word ‘any’
specified in the definition of ‘force’ recognizes that various crimes upon various victims
require different degrees and manners of force. In the instant case, the victim was a young
ROSS, 11CA3301 6
girl who was initially asleep; therefore, the force the defendant needed * * * required only
minimal physical exertion.”
{¶ 18} In State v. Lillard, 8th Dist. No. 69242 (May 23, 1996), the victim was asleep when she
awoke to find the defendant looking into her vagina with a flashlight. On appeal, the court disagreed with
the defendant’s argument that the state failed to present sufficient evidence of force. The court explained
that the
“evidence, when viewed in a light most favorable to the prosecution, would allow a rational
trier of fact to infer that appellant used physical exertion to position [the victim’s] robe and
legs to allow the examination. The state, therefore, provided sufficient evidence regarding
the element of force or threat of force.”
{¶ 19} Similarly, in the case sub judice we believe that the state presented sufficient evidence that
appellant engaged in sexual conduct with the victim by purposely compelling the victim to submit by force
or threat of force. The victim testified that appellant removed her pants, underwear, and tampon and that
she “begged” him to stop. The victim’s testimony implies that appellant acted with physical exertion when
he removed her pants, underwear, and tampon. The victim did not offer any testimony that she willingly
removed her clothing or the tampon. Obviously, the victim’s clothing did not magically remove itself.
Instead, appellant had to use some degree of physical force to remove the items.
{¶ 20} Additionally, the victim testified that appellant was bigger than she and stated, “what was I
going to do.” She explained that she was “scared.” The state pointed out to the jury that the victim is a
petite woman and that appellant obviously outweighed her.1 From this testimony, the jury could have
inferred that appellant was physically imposing and thus induced fear in the victim. The victim’s
testimony, “what was I going to do,” coupled with her petite size in relation to appellant’s, shows that she
felt compelled to submit, scared, and that she believed she had no other option. Thus, this testimony
1
The state did not present specific evidence regarding the victim’s height and weight compared to appellant’s so as
to enable this court to compare the two, but it did point the comparison out to the jury, which obviously was able to actually
view the victim and appellant and could use its common sense to determine the parties’ relative sizes.
ROSS, 11CA3301 7
sufficiently shows that her will was overcome by fear. Taken together, the facts demonstrate that appellant
physically exerted, by any means, compulsion upon the victim. R.C. 2901.01(A)(1).
{¶ 21} Contrary to appellant’s argument, the state did not need to show that appellant “held [the
victim] down or otherwise prevented her from getting up.” In fact, R.C. 2907.02(C) states that a victim’s
physical resistance to the defendant’s conduct is not a prerequisite to a rape conviction. Thus, we disagree
with appellant that the state failed to present sufficient evidence of force to sustain his rape conviction.
{¶ 22} Furthermore, we disagree with appellant that his version of events was more credible than
the victim’s. The jury, as the fact-finder, was entitled to believe the victim’s version of events. As we
explained in State v. Murphy, Ross App. No. 07CA2953, 2008–Ohio–1744, ¶31:
“It is the trier of fact’s role to determine what evidence is the most credible and
convincing. The fact finder is charged with the duty of choosing between two competing
versions of events, both of which are plausible and have some factual support. Our role is
simply to insure the decision is based upon reason and fact. We do not second guess a
decision that has some basis in these two factors, even if we might see matters differently.”
Accord Bugg v. Fancher, Highland App. No. 06CA12, 2007–Ohio–2019, ¶9; In re N.Z., 11th Dist. Nos.
2010-L-023, 2010-L-035, 2010-L-041, 2011-Ohio-6845, ¶¶79-80 (deferring to fact-finder in “classic
he-said/she-said’ rape case”). The jury was under no obligation to discredit the victim’s testimony simply
because she had consumed a significant amount of alcohol and simply because appellant claimed it was
consensual.2 We find nothing in the record that leads us to conclude that the jury clearly lost its way by
believing the victim’s testimony over appellant’s statement to Detective Wheaton. Consequently,
appellant’s conviction is not against the manifest weight of the evidence.
2
We observe that although the testimony establishes that the victim was impaired when the sexual conduct
occurred, i.e., she testified that she vomited when she returned home from the bar and then passed out, the state did not charge
appellant under R.C. 2907.02(A)(1)(c).
ROSS, 11CA3301 8
{¶ 23} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s two
assignments of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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.
Harsha, J.: Concurs in Judgment & Opinion
Kline, J.: Concurs in Judgment & Opinion as to Assignment of Error II; Concurs in Judgment Only
as to Assignment of Error I
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period
for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/96163/ | 195 U.S. 510 (1904)
CITY OF SAN JUAN
v.
ST. JOHN'S GAS COMPANY, LIMITED.
No. 41.
Supreme Court of United States.
Argued November 3, 1904.
Decided December 12, 1904.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF PORTO RICO.
*515 Submitted by Mr. N.B.K. Pettingill for plaintiff in error.
Mr. Frederic D. McKenney, with whom Mr. Francis H. Dexter and Mr. John Spalding Flannery were on the brief, for defendant in error.
MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
In order to come to the principal controversy covered by the assignments of error we dispose of certain contentions which we deem of minor importance. We think the court was right in instructing the jury that it must disregard the *516 items as to fines charged by the city against the gas company, because no proof was offered on the subject. Whilst it is true, as asserted in the argument, that some reference was made to such fines in the testimony of one or more of the witnesses, such reference in no sense tended to establish that the fines had been legally imposed. As to the assignment of error relating to the refusal of the court to allow testimony for the purpose of showing that even if, under the contract, payment in foreign current money was required, the contract was tacitly modified, we deem it unnecessary to express an opinion for the following reasons: The record shows that subsequent to the ruling complained of, without objection, testimony was admitted establishing that although all the payments made up to the first of the items embraced in the claim in suit, were made by the city to the gas company in Porto Rican money, nevertheless that such payments were only received by the gas company under protest, asserting its right to be paid in foreign current money. However conclusive on the gas company may have been the receipt by it of payment in a different medium from that which it asserted the contract required, the fact of the protest operated to prevent the inference that the medium actually received was admitted to be the one in which future payments should be made.
With the questions just referred to out of the way, it is apparent from the statement which we have made of the case that the record requires us to decide only two questions, first, In what money were the sums due under the contract payable? and, second, The effect of the agreement concerning payment made by the city to Mullenhoff & Korber.
1st. In what currency were the sums due under the contract payable?
The contract, of which only a translation is in the record, was passed before a notary, and is voluminous, containing in minute detail a recital of all the occurrences which took place from the date of the first steps taken to make a contract and its consummation.
*517 Excluding irrelevant details, it appears as follows:
Some time in 1874 the city advertised for bids for a contract for lighting. Proposals were received from a Mr. Steinacher and Mr. Olney. Steinacher, whilst proposing to bind himself to light lamps for three dollars monthly for each lamp, suggested that the city modify its request for proposals in several particulars, one of which was that there should be included in the contract the purchase by the contractor of gas works then owned by the city. This suggestion was accepted, and preparatory to making a call for bids, after obtaining the authority of the provincial deputation of Porto Rico, the city directed that the gas works be appraised by certain city officials. This appraisement was made as follows:
Recapitulation: Pesetas.
Value of the buildings ......................................... 19,176.25
Fixed and loose materials in the gas works ..................... 48,908.85
Fixed materials in the city .................................... 10,624.00
_________
Total amount ............................................. 78,709.10
The present appraisement amounting to 78,709.10 pesetas, or $31,741.82 of the currency in commerce.
PORTO RICO, 26th of May, 1875.
The municipal architect.
(Signed) DOMINGO SESMERO.
The city thereupon called for new proposals. Among the many conditions exacted were, first, that the bidder should agree to light street lamps at $3 monthly for each lamp, and that payment for the same "will be made in the circulating foreign money in commerce for the value that it is received without any premium that will equalize it to the Spanish official current money;" that he should buy the gas works, appraised, as we have above stated, at $78,709.10, Porto Rico money, at its equivalent in foreign currency, $31,741.82; that the bidder should furnish a guarantee of $6,000 in cash or a bond for *518 $9,000, to be secured by first mortgage on a house in the city, satisfactory to the municipality. Many details were provided in the conditions; as to the manner in which the contractor should perform his duties; as to fines to be imposed by the city for neglect in the quality and character of the light furnished, and for various other delinquencies, and it was also provided "the penalties for faults in the service and supply of gas to the public will be imposed by the alcalde without appeal."
Steinacher was the only bidder in answer to this call for proposals. He offered "to take charge of the city service for the amount of $3 currency for each lamp," and to buy the buildings and apparatus, etc., for the sum of $22,000 in currency, instead of $31,741.82, as required by the requests for bids made by the city. In his proposition, moreover, Steinacher tendered two houses, stating the fact to be that one of them was encumbered by a prior mortgage in favor of the municipality, which he, Steinacher, had given to guarantee a prior contract existing between himself and the municipality. In addition, his bid suggested various modifications in the administrative provisions enumerated by the city in its conditions. The bid, not being in accord with the proposition submitted by the city, was rejected. Negotiations then ensued, the result of which was that the city yielded as to the administrative provisions, and Steinacher yielded as to the price to be paid for the gas works, it being recited in the proceedings of the city on the subject that, in order to terminate the difficulties, "Mr. Steinacher expressed himself disposed to the acquisition of the said buildings, etc., as published in the Official Gazette of the 8th of June last, for the amount of thirty-one thousand seven hundred and forty-one dollars 82 cents in currency, and to take under his charge the public light at three dollars monthly for each lamp, at same currency according to the price published." The houses tendered to secure the bond were accepted by the city, and in order to give the city a first mortgage a liquidation was had between Steinacher *519 and the city under the prior contract, and by this liquidation it was established that Steinacher owed the city $203 in "foreign currency," which he paid. To ascertain whether the value of the houses was equal to the requirements of the city, they were appraised by the city officials in Porto Rican money, and this sum was reduced to foreign currency, and as the amount in foreign currency equaled the $9,000 required by the conditions of the city, the houses were accepted and a new mortgage for that amount was given. Under these proposals and acceptance the contract was executed, conforming in all respects to the proposals and bids as modified by the proceedings which we have narrated.
The contention that the $3 per month for lighting street lamps was payable in Porto Rican money is based on the fact that sometimes in the contract the sum to be paid is referred to as in currency without any qualification. The arguments would have cogency if the passages in the contract relied upon stood alone, but its unsoundness becomes apparent by a consideration of the context of the contract. The estimate of the property to be sold in Porto Rican money and its liquidation in foreign currency; the terms of the bid; the proposition of Steinacher, which was accepted, to pay for the gas works at the sum of the foreign current money to which the Porto Rican money was reduced, and to do the lighting at $3 per lamp in the same currency, the action of the city concerning the liquidation of the prior account, and the mortgage upon the house, all demonstrate that both the proposals of the city, the acceptance by Steinacher and the contract fixed current foreign money, exclusive of Spanish gold, as the medium in which the service for lighting the street lamps was to be paid. The court, therefore, was right in its instruction as to the medium of payment required by the contract. We find, however, nothing in the contract to support the construction that it required the payment to be made in foreign current money circulating in the island at the time the contract was made, instead of money of that character circulating at the time *520 the payments were to be made. The general rule, under both the common and the civil law, is that in the absence of a stipulation to the contrary, the character of money which is current at the time fixed for performance of a contract is the medium in which payments may be made. Butler v. Horwitz, 7 Wall. 258; Willard v. Tayloe, 8 Wall. 557; Trebilcock v. Wilson, 12 Wall. 687; Commercial Code of Porto Rico, Art. 312; Spanish Civil Code of Porto Rico, Arts. 1091, 1157, 1170; Code Nap. Art. 1246; Aubrey & Rau. vol. 4, p. 158; Mourlon, vol. 2, p. 749.
There was, therefore, error in instructing that the time of making the contract was to be alone considered in determining the foreign current money for which the contract provided. We think, however, such error was in no sense prejudicial. This follows, because it was conceded that if foreign current money was required by the contract, money of the United States current at the time the contract was made was within the contemplation of the parties, and that such money was also current in the island at the time when performance was due. From this it results that the rights of the parties were in no way affected by the erroneous ruling.
2d. The effect of the agreement concerning the payment made by the city to Mullenhoff & Korber.
On the face of the written agreement between the city and the gas company it undoubtedly appears that a stated sum of money, to be paid in United States currency, was to extinguish a larger sum in Porto Rican money.
As we have seen, there was testimony tending to show, and none tending otherwise, that the reservation in the written document concerning "claims previously filed by the said contractor," and which were to be "passed some time in the future," solely related to claims for fines which the city had assessed against the gas company and the justice of which the company disputed. The city asked the court to instruct that if it was found that at the time of the agreement it was stipulated by way of compromise that the larger sum owing *521 at that time should be extinguished by the payment of the lesser amount, the parties were bound. This request was refused and excepted to. The court, in its general charge, in the fullest manner instructed the jury that, as the medium of payment required by the contract was foreign current money, payment in that money extinguished simply the amount paid in foreign money, unless it was found that the minds of the parties had met on an agreement engendering an entirely new contract substituting Porto Rican money for foreign currency.
It is urged by the city that error to its prejudice resulted from refusing to give the requested instruction. To sustain this proposition the doctrine is invoked that where one receives in payment a different thing or medium from that called for in the contract, such receipt is binding. Undoubtedly the general rule obtains and is based on the premise that the discharge of a contract is a different thing from that for which the contract provides, necessarily is an accord and satisfaction as to the particular payment concerning which the different thing is received. Sheehy v. Mandeville, 6 Cranch, 253, 263; Very v. Levy, 13 How. 345, 357; Bull v. Bull, 43 Connecticut, 455; Neal v. Handley, 116 Illinois, 418; Dimmick v. Sexton, 125 Pa. St. 334.
True also it is that it has been settled by this court, Savage v. United States, 92 U.S. 382, that this doctrine is applicable to the receipt under protest in discharge of a particular payment of a different money medium from that which was required by the contract. Whilst we have not been referred to any Spanish authority showing that these principles obtained under the law in force in Porto Rico, as the doctrine rests upon principles known to the Roman law (L. 17, C. De solut), enforced under the Code Napoleon (Journal de Palais Repertoire, v. 10, verbo paiement, p. 10, No. 117; Toulier, t. 12, p. 355; Duranton, t. 12, Nos. 79 and 80), we cannot hesitate to conclude that the doctrine in question prevailed also in the Spanish civil law in force in Porto Rico. Whether it is applicable to the facts of this case is, then, the question.
*522 Now, whilst it may be at once conceded that the doctrine in question is applicable to the payments made in Porto Rican money, before the date of the first item sued for, it is equally clear that it cannot be applied to the payments thereafter made, including those to Mullenhoff & Korber, since they were made in United States currency. The contention that these payments in such money extinguished a larger sum than the par value of the money paid reduces itself to this: that a larger sum was satisfied by the payment of a lesser sum, because there was an agreement to that effect. The gas company in effect insists that this cannot be sustained, because of the well established rule, "that where a liquidated sum is due, the payment of a less sum in satisfaction thereof, though accepted as satisfaction, is not binding as such for want of consideration." Chicago, M. & St. P.R. Co. v. Clark, 178 U.S. 353, 364, and authorities there cited.
Conceding, without so deciding, that such rule was controlling in Porto Rico, we think it is not applicable to the case in hand. As pointed out by this court in the case just previously cited, the rule in question is subject, among others, to the well established exception that it does not apply where, at the time of the agreement, there was a dispute between the parties, the subject matter of which dispute is embraced in the agreement to extinguish a greater by a less amount. True it is, as pointed out in Fire Insurance Association v. Wickham, 141 U.S. 564, it must appear that the alleged dispute really existed and did not arise merely from an arbitrary denial by one party of an obligation which was obviously due. Despite the construction which we have given the contract, we think it is quite clear that the proof established that there was a bona fide dispute in this case. As we have seen, from the very inception of the contract the parties differed as to the medium of payment, the one the city insisting that it was Porto Rican money; the other the gas company that it was foreign current money. During a period of fully twenty years this controversy continued, and in every instance the gas *523 company, although protesting, accepted the city's view of the contract, and by taking a different medium bound itself as to those payments despite its protest. When the period arrived when the company was no longer willing to so act and stood upon its rights as it understood them, naturally the city stood upon its asserted rights, and thus the parties were at arm's length disputing their respective rights. If there had been no agreement, the solution would have required judicial action. When in view of this dispute an agreement was reached that the payment should be made in United States currency, and that the payment should extinguish a larger amount estimated in Porto Rican currency, there was necessarily a compromise and settlement as to that payment which put the transaction so settled exactly in the position which had resulted from the action of the parties concerning the payments made during the preceding period of more than twenty years.
It follows from the foregoing that the court below erred to the prejudice of the city in refusing the instruction asked by it as to the result of the compromise, and that this error was not cured by the general charge, which instructed the jury that the compromise evidenced by the agreement must be treated as inefficacious as to the particular items to which it related, unless it was found that the minds of the parties had met on an entirely new and independent contract.
The judgment of the court below is reversed, and the cause is remanded with directions to set aside the judgment, and grant a new trial.
Reversed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1556024/ | 66 F.Supp. 431 (1946)
NORTHLAND GREYHOUND LINES, Inc.,
v.
AMALGAMATED ASS'N OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 1150, et al.
Civil Action No. 1937.
District Court, D. Minnesota, Fourth Division.
June 5, 1946.
*432 Bowen & Bowen, of Minneapolis, Minn., for plaintiff.
John A. Goldie and Samuel I. Sigal, both of Minneapolis, Minn., for defendants.
JOYCE, District Judge.
This suit is brought under 28 U.S. C.A. § 400 for a declaratory judgment defining the rights and obligations of the parties under a contract between them. The plaintiff is a motor carrier and the defendants are the Union representing plaintiff's employees and its officers and agents. Jurisdiction is properly invoked because of diversity of citizenship and the requisite jurisdictional amount. The type of contract involved is a proper subject for the invocation of the Declaratory Judgment statute. Texoma Natural Gas Co. v. Oil Workers International Union Local No. 463, D.C., 58 F.Supp. 132 affirmed, 5 Cir., 146 F.2d 62, certiorari denied 324 U.S. 872, 65 S.Ct. 1017, 89 L.Ed. 1426.
The dispute between the parties arises by virtue of certain changes in the existing contract proposed by the Union. Negotiations between the parties have failed to produce an agreement and the Union has invoked the arbitration clause in the contract. The Company asserts (a) that the proposed changes are not given in accordance with the notice required in Section 26 of the contract, (b) that even if they were so given the arbitration clause does not cover changes in or amendments to the contract itself. This matter was first before the court on April 30, 1946, on plaintiff's application for a temporary injunction seeking to restrain further arbitration proceedings. This motion was denied principally because of the lack of showing of any irreparable injury. The company has now moved (1) to strike the second and third defenses of defendant's answer and (2) for summary judgment. Defendant has moved under Rule 57 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to advance the case on the calendar. The motion to strike has been denied and as the motion to advance is dependent upon the disposition of the motion for summary judgment, it is to the latter motion that this memorandum is directed.
The pleadings and affidavits are quite complete. They disclose the contractual relations between the parties for several years past including the facts leading up to the execution of the contract in *433 suit. Although the parties draw different conclusions from certain facts, there is no controversion of any material fact and therefore no genuine issue for trial. Summary judgment is proper in such a case. Although Rule 56 (c) provides in part "the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," and defendants here have filed no cross-motion, it seems to me that where the case is properly disposable by summary judgment the court should enter whatever judgment is proper in the circumstances. This should be particularly true where the relief asked is a declaration of the rights of the parties to a contract under the Declaratory Judgment statute. While it may be the better practice to file a cross-motion I do not think that Rule 56 (c) proscribes the court's power to enter judgment because of the mechanical failure of one of the parties to file a motion. This view finds support in 3 Moore's Federal Practice, Sec. 56.02 page 3183:
"If either the proponent of a claim or the defending party moves for a summary judgment, and the court finds that the moving party is not entitled thereto, but that the other party is so entitled, it would seem that the court has the power to enter the proper judgment, although a cross-motion therefor was not made."
The effect of such a judgment would be, technically, the granting of the motion for summary judgment even if not entirely in accordance with the prayer of the moving party. Both parties have taken the same approach to the problem, that is, (1) each contends that from the plain language of the contract he is entitled to summary judgment, (2) that if the contract is unclear or ambiguous the surrounding circumstances resolve the doubtful meanings in their favor, (3) that there are no material facts that do not appear in the pleadings and affidavits. The disputed portions of the contract are Section 26, which reads:
"Section 26. This Agreement shall be in effect from May 1, 1944, to and including September 30, 1945, and shall remain in effect from year to year thereafter unless terminated, changed, added to, amended or modified as herein provided.
"Either party desiring to change, add to, amend or modify this Agreement October 1 of any year shall notify the other party of such desire in writing at least sixty (60) days prior to October 1, 1945, or any annual renewal thereof, whereupon the parties agree to meet within fifteen (15) days from receipt of such notice and commence negotiations for a new Agreement.
"Either party desiring to terminate this Agreement shall notify the other party in writing at least sixty (60) days prior to October 1, 1945, or any annual renewal thereof."
and Section 2.A:
"The Company agrees to meet and treat with the duly accredited officers and committees of the Amalgamated upon all questions relating to hours, wages and working conditions, and should any difference arise between them which cannot be mutually adjusted, the same shall be submitted at the request of either party to a Board of Arbitration to be selected forthwith in the manner following:"
The first question is whether the proposed changes in the contract are governed by the provisions of the contract. If not, of course the question of whether the arbitration referred to in Section 2.A is applicable to changes in the contract would become moot so far as this case is concerned. The contract is dated December 23, 1945 but was actually signed by the parties on March 6, 1946. Similar contracts had been in effect since 1938 one of which bore expiration date of May 1, 1944. More than sixty days prior thereto the Union had served notice of proposed changes or amendment and the Company had served notice of termination, all in accordance with Section 26, which read the same then as it does in the present contract. Negotiation did not produce a new contract nor was arbitration resorted to. Defendant's counsel explains that the reason arbitration was not then resorted to was plaintiff's notice of termination which would have terminated the contract by its terms on April 30, 1944 *434 made any proceedings thereafter under that contract impossible. Being unable to agree, the matter was referred to a United States Conciliation Commissioner and later to the National War Labor Board, the parties having agreed by stipulation to make any changes or amendments retroactive to May 1, 1944. The hearings before the panel of the War Labor Board were not completed until September, 1945 and in the meantime, in February, 1945, presumably to protect its rights under the contract, the Union served a notice of "proposed changes" to become effective May 1, 1945. The Company refused to recognize this notice as the changes to become effective May 1, 1944 were still unsettled and were pending before the War Labor Board. The Union then served a strike notice and the Governor of Minnesota appointed a fact-finding commission all pursuant to the Minnesota Labor Relations Act. Minn.St.1941, § 179.01 et seq. Hearings were had and the fact-finding commission filed its report and recommendations December 14, 1945, among which were that the parties should await the award of the War Labor Board, incorporate it into a contract and should then begin negotiations for changes effective after the termination date of that agreement (which turned out to be April 30, 1945 but which by agreement the parties later extended to September 30, 1945), and that they settle any differences by arbitration. Shortly thereafter, December 23, 1945, the War Labor Board made its report and recommendations substantially all of which were incorporated in the contract now before the court. (It must be borne in mind that the War Labor Board was concerned only with the dispute originating as of May 1, 1944 while the Governor's fact-finding commission was concerned with the 1945 dispute). The parties apparently did not reach complete agreement until January 10, 1946 when they met in the Governor's office and signed a document entitled "Recommendations for Settlement." This document contained some matters not here material, provided for acceptance of the panel report of the War Labor Board, extended the date thereof from April 30 to September 30, 1945, as previously mentioned, and contained this language which is pertinent here:
"With respect to the changes and modifications to become effective October 1, 1945, the parties shall negotiate for a period of thirty days from the date hereof or such additional period as may be mutually agreed upon."
What was the legal effect of this language on the demands for changes effective October 1, 1945 which the Union served immediately after the contract was actually signed? Plaintiff contends that these demands were not served with the notice required by the terms of Section 26 and therefore cannot be considered as within the scope of the contract. Of course, no one could serve a notice sixty days prior to October 1, 1945 when the contract was not consummated until 1946. By the time the contract was signed its initial termination date had passed and it had automatically renewed by its terms. To serve a notice of termination or modification effective in 1945 was a physical impossibility, but it seems to me that the language in the January 10th agreement constitutes an express waiver of the notice requirements of Section 26 so far as changes to be effective October 1, 1945 are concerned. The history of the dealings between the parties makes it clear that the dispute which was before the War Labor Board and which culminated in the contract in suit did not involve any contract changes effective October 1, 1945. That question was raised but held in abeyance pending settlement of the questions which arose in 1944. By the January 10, 1946 agreement the right of the Union to raise and negotiate on those questions was preserved, and it is my holding that the Company thereby waived its right to require the notice ordinarily necessary by the terms of Section 26.
The other and more vigorously disputed question is whether when negotiation on changes and modifications fail the parties are bound by the arbitration provisions of Section 2. This question will be considered only in a case where the parties are legally negotiating for changes in an existing contract. Counsel for plaintiff has cited In the Matter of Pennsylvania Greyhound Lines, Inc., et al. and Amalgamated Association, etc., decided by the National War Labor Board May 18, 1944, Case No. *435 111-4721-D, where an opinion by Lloyd K. Garrison expresses the view that in a contract with a termination and notice clause similar to Section 26 involved here, except that arbitration of contract changes was specifically arbitrable at the will of either party, the serving of a notice of termination of the contract also terminates any contractual liability to arbitrate changes. This view seems sound and was acquiesced in by defendant's counsel on argument. However, the effect of a termination notice on the arbitration clause is not before me because none was given here and both parties agree that they are bound by this contract until October 1, 1946. The parties have actually carried on negotiations for changes to become effective October 1, 1945 but have failed to agree. The Union has sought to invoke the arbitration clause and this suit has resulted.
The language of Section 2.A is extremely broad. By it the Company agrees to "meet and treat with" the Union officers "upon all questions relating to hours, wages and working conditions" and to arbitrate any "difference" that may arise. Of course the principal subject matter of the entire contract is hours, wages and working conditions and the changes proposed here deal with nothing else. On its face this section would require that any changes in hours, wages and working conditions proposed by either party would be subject to arbitration if negotiation failed. The only serious question is whether there is anything in Section 26 to prevent this construction. The first paragraph of that section reads:
"This Agreement shall be in effect from May 1, 1944, to and including September 30, 1945, and shall remain in effect from year to year thereafter unless terminated, changed, added to, amended or modified as herein provided."
Then follows provision for sixty day notice before October 1st of any year for changes or termination and in the case of changes the parties agree to "meet" within fifteen days and "commence negotiations for a new Agreement." The parties obviously contemplated a distinction between an amendment or modification and a termination. To speak of amendments as a "new" agreement is not strictly accurate. What did they contemplate would result if the contract were not terminated and negotiations for amendments and modifications relating to wages and working conditions failed? In order to give force and effect to the plain language of Section 2, such a situation would produce a "difference" within the meaning of the arbitration section. There is nothing in Section 26 to the contrary and in no other way can the literal language of the two sections be reconciled. I can see no distinction between an agreement "to meet and treat" as expressed in Section 2.A and an agreement to "commence negotiations" which is the language used in Section 26. Plaintiff contends that it was the intent of the parties to limit arbitration to grievances or questions arising under the administration of the contract. There are no such limitations in the contractual language and in any event it would seem that questions of amendment of a continuing contract are questions arising under the contract and if they pertain to hours, wages and working conditions are arbitrable if a "difference" arises between the parties which cannot be resolved by negotiation.
Any uncertainty in this regard is resolved against plaintiff's position by the fact that on different occasions plaintiff has attempted to amend Section 2.A so as to limit its application to "grievances" and has not been successful. In order to give meaning to the whole contract, it is my conclusion that the differences between the parties arising from the failure of negotiation on the changes proposed in March, 1946 are subject to the arbitration provisions of Section 2.
In conclusion I may state gratuitously that a rewording of the two sections involved here, in the interest of clarity and an adjustment of differences between the parties so that their contract relations would operate prospectively and not retroactively, would be highly desirable and would obviate the necessity of litigation such as this.
Judgment will be entered in accordance with the views herein expressed. Defendant's counsel may prepare findings of fact and conclusions of law and order for judgment and submit them to the court within *436 five days with copies to opposing counsel. The motion to advance the case on the calendar has become moot and is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/583578/ | 964 F.2d 66
UNITED STATES of America, Appellee,v.Ronald E. TILLEY, Defendant, Appellant.
No. 91-1550.
United States Court of Appeals,First Circuit.
Heard March 3, 1992.Decided May 15, 1992.
Dana A. Curhan, Boston, Mass., by Appointment of the Court, for defendant, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and James E. McCarthy, Asst. U.S. Atty., Portland, were on brief, for appellee.
Before TORRUELLA, Circuit Judge, CAMPBELL and WEIS, Jr.,* Senior Circuit Judges.
TORRUELLA, Circuit Judge.
1
This is an appeal from the denial of a motion to withdraw a guilty plea and from a sentence imposed pursuant to the United States Sentencing Guidelines ("U.S.S.G.") in the United States District Court for the District of Maine. As we find no error in the determinations of the district court, we affirm.
FACTS
2
Appellant, Ronald Tilley ("Tilley") was charged in a two count indictment with (1) making a false statement in connection with the acquisition of a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a); and (2) illegal receipt of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
3
On July 6, 1990, Tilley signed an Agreement to Plead Guilty and Cooperate as to count II. Pursuant to that agreement, Tilley consented to withdraw two motions to suppress dated May 24, 1990. In addition, the information Tilley provided pursuant to this agreement would be covered by a grant letter of immunity and would not be used in calculating his guideline sentence. However, in the event that the court rejected the agreement, or Tilley either withdrew his guilty plea or breached the agreement, the Government would be free to use any information Tilley provided against him.
4
In exchange, the Government agreed that if all the terms and conditions were met, the maximum sentence the court could impose was the maximum provided for a Level 10 offense. Should Tilley fulfill his obligations, the Government would make a non-binding recommendation that he receive a two-level reduction for acceptance of responsibility. On the other hand, if the court determined that the appropriate sentence should exceed the agreed upon level, Tilley would be permitted to withdraw his guilty plea.
5
Tilley alleges that pursuant to the agreement to cooperate, he called Aaron Harvey and arranged to purchase cocaine. He recorded the conversation with Harvey. Pursuant to that conversation Tilley was sent to the Harvey residence on July 26, 1990, where he made and recorded a controlled purchase of cocaine.
6
Subsequently, according to Harvey and two other witnesses, Tilley returned to the Harvey residence, threatened him at gun point, and took an undetermined amount of narcotics.
7
Tilley entered a plea of guilty on October 5, 1990. At the Rule 11 hearing, appellant, in response to detailed questioning from the district judge, acknowledged that he was aware: (1) that he was waiving his constitutional right to a speedy and public trial by jury with the assistance of counsel;1 (2) that the maximum sentence which could be imposed under the count to which he was pleading guilty was 10 years of imprisonment and a $250,000 fine;2 and (3) that the court had not yet decided on the sentence to be imposed.3 Tilley also affirmed that he had discussed all of the facts of the case with his attorney;4 that no threats or inducements had been made to ensure a guilty plea;5 and that his decision was entirely free and voluntary.6
8
On February 8, 1991, the Government elected, pursuant to the agreement, to bring a breach of the plea agreement by Tilley to the court's attention, and to withdraw its commitments to certain ceilings in its recommendations for sentencing. The Government alleged that Tilley had perjured himself before a grand jury and at another criminal trial.
9
On the morning of April 10, 1991, when the court was due to sentence Tilley, he moved to withdraw his guilty plea. He claimed that a fair and just reason to grant his request existed because he could defend the charge on the basis of duress.7 In addition, he argued that his cooperation with the Government had collapsed and thus the chance that he would be shown leniency was considerably reduced.8 The Government offered evidence showing that Tilley failed to testify truthfully both before a grand jury and at another criminal trial, and alleged a breach of the plea agreement. The plea agreement read in pertinent part
10
7. If defendant should fail in any way to cooperate fully, honestly, truthfully and completely, then the United States may, at its discretion, be released from its commitments as set forth in this Agreement.... In the case of a failure to fully cooperate by the defendant, the United States may, in its discretion, choose either to be released from its commitments under this agreement and declare this agreement null and void, or, it may bring the failure to fully cooperate to the attention of the court and recommend at sentencing that the defendant be sentenced to the maximum penalty permitted under this agreement pursuant to paragraph 1.
11
Agreement to Plead Guilty and Cooperate, p. 5.
12
Tilley denied all allegations against him, and suggested that the only reason the Government wanted out of the agreement was because their prosecution of Harvey failed.
13
The district court heard testimony from three witnesses and from Tilley himself at the sentencing hearing on April 10, 1991. Subsequently, the court found that the only explanation advanced for the tardy effort to withdraw the guilty plea was Tilley's fear of the consequences of having breached his plea agreement. In addition, the court concluded that the six month delay between entry of the guilty plea and Tilley's effort to withdraw it "belies any notion that some mistake arising from haste or confusion occurred at the time of the guilty plea."9 Also, in the district court's view, the defense of duress which Tilley wanted to assert was "not a legally cognizable defense."10 Being satisfied that Tilley's guilty plea was voluntary, and that the Government had not breached the plea agreement, the court denied Tilley's motion to withdraw on April 23, 1991.11
14
At a hearing on May 31, 1991, the sentencing court reiterated its findings, after reading the Pre-Sentence Investigation Report ("PSI"), that Tilley breached the plea agreement. The court assigned an offense level of 9 pursuant to U.S.S.G. § 2K2.1(a), and denied a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The court also found that a two-level increase was in order pursuant to U.S.S.G. § 3C1.1 because the court found that Tilley impeded the administration of justice during the investigation, presentence and sentencing of the offense. Tilley's criminal history category was IV which together with a base offense level of 11 produced a guideline range of imprisonment of 18 to 24 months. In addition, a memorandum from the Department of Probation pointed out that:
15
If the Court finds that reliable information indicates that the defendant's criminal history category does not adequately reflect the seriousness of his past criminal conduct or the likelihood that the defendant will commit other crimes, the Court pursuant to § 4A1.3, may consider imposing a sentence departing from the otherwise applicable Guideline range.
16
See Memorandum by William Beck, January 17, 1991.
17
Accordingly, the district court concluded that Tilley's criminal history category significantly under-represented the seriousness of his criminal past and thus, departed upward from the guideline term for imprisonment of 18 to 24 months to impose a sentence of 54 months. Fines were waived, but a $50 felony assessment was imposed.12
18
Tilley appeals from the sentenced imposed and the denial of his motion to withdraw his guilty plea.
LEGAL ANALYSIS
I. Violation of Plea Agreement
19
Appellant asserts that his breach of the plea agreement, if any, was minor. He further contends that the Government itself violated both the spirit and the letter of the plea agreement when it publicized his cooperation in the local newspaper.13 Thus, according to appellant, the district court should have enforced the terms of the plea agreement, or in the alternative, should have allowed the defendant's motion to withdraw his guilty plea.
20
The Supreme Court has stated that the Government may not breach any term of a plea agreement which induced a defendant to plead guilty. Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1971). Accordingly, when a defendant has entered into a plea agreement with the Government, the court must ensure that he/she receives what is reasonably due him/her under the agreement. United States v. Gonzalez- Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S. 989, 108 S. Ct. 510, 98 L. Ed. 2d 508 (1987). Thus, if a defendant lives up to his/her end of the bargain, the Government is bound by its promises. Id. (citing United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983). However, if a defendant fails to fulfill his/her promises, the Government is released from its obligations under the agreement and may indict and try the defendant regardless of whatever it may have promised earlier. Id. (citing United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985); Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L. Ed. 2d 1 (1987)).
21
This circuit has established that the factual determination of whether there has been a breach of the plea agreement lies with the trial judge. Panzardi-Alvarez v. United States, 879 F.2d 975, 987 (1st Cir.), cert. denied, 493 U.S. 1082, 110 S. Ct. 1140, 107 L. Ed. 2d 1045 (1990) (citing Gonzalez-Sanchez, 825 F.2d at 578); McAleney v. United States, 539 F.2d 282, 284 (1st Cir.1976) (citation omitted). This court will not reverse the factual determinations of a district court in relation to the breach of a plea agreement unless it is clearly erroneous. Id.
22
Here, the district court concluded that appellant Tilley violated the terms of his plea agreement, and consequently released the Government from its obligations under it. We review the findings of the district court for clear error.
23
The district court here held an evidentiary hearing on the issue of whether or not Tilley had violated his plea agreement, properly allocating the burden of proof to the Government to show that there had been a substantial breach of the plea agreement, see Gonzalez-Sanchez, 825 F.2d at 578, and asking that they do so by a preponderance of the evidence. See United States v. Verrusio, 803 F.2d 885, 891 (7th Cir.1986). The court heard testimony from three witnesses, including Aaron Harvey,14 all of whom testified that Tilley visited Harvey a second time, on July 28, 1991.15 According to Harvey's testimony, Tilley pulled a gun on him and demanded whatever amount of cocaine Harvey had leftover from the July 26 purchase. Two other witnesses testified as to Tilley's presence at Harvey's residence on July 28, 1990, and one of these two witnesses corroborated Harvey's story that Tilley pulled a gun on him during that second visit. Tilley, also testified at this hearing and insisted that he did not visit Harvey a second time. This had also been Tilley's testimony at the grand jury, and at Harvey's trial. Based on a preponderance of the evidence, the district court found that appellant Tilley provided false testimony before a grand jury; at a subsequent criminal trial; and at the sentencing hearing; and thus found him to be in violation of his plea agreement.16 The plea agreement signed by Tilley provided in paragraph four:
24
4. Defendant further agrees to testify fully, honestly, truthfully and completely at any and all grand juries, trials or court proceedings in which his testimony is requested, in the District of Maine, or any other districts.
25
Agreement to Plead Guilty and Cooperate, p. 3. Upon finding Tilley in violation of the plea agreement, the district court released the Government from its obligations pursuant to it and found that it was proper under the plea agreement for the Government to bring Tilley's failure to cooperate to the attention of the sentencing court.17
26
We are not convinced that the sentencing court committed clear error in concluding, as a factual matter, that Tilley did not live up to his end of the bargain, and violated his plea agreement. The trial judge had discretion to believe the other three witnesses regarding the second visit of Tilley to Harvey's residence, rather than Tilley. As there is sufficient evidence on the record to support the district court's factual finding we affirm. See U.S. v. Pellerito, 878 F.2d 1535, 1538 (1st Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 184, 116 L. Ed. 2d 145 (1991) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.") (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985)).
27
Appellant Tilley further argues that the Government breached the plea agreement by releasing his name to the press as a police informant. Tilley provided testimony to this effect at the evidentiary hearing held by the district court.18 However, we find that the district court was entitled to find that appellant's testimony was not credible, especially in light of his faulty testimony as to other events. As Tilley has introduced no other evidence showing a breach of the plea agreement by the Government, we find no clear error on the part of the district court.
II. Withdrawal of Guilty Plea
28
Having found no clear error on the part of the district court in finding a breach by Tilley of the plea agreement, we consider whether the district court nevertheless abused its discretion when it denied appellant Tilley's motion to withdraw his guilty plea. United States v. Daniels, 821 F.2d 76, 78 (1st Cir.1987).
29
We note at the outset that having chosen to plead guilty, a defendant possesses no absolute right to retract his/her plea. Pellerito, supra, 878 F.2d at 1537 (citing United States v. Buckley, 847 F.2d 991, 998 (1st Cir.1988), cert. denied, 488 U.S. 1015, 109 S. Ct. 808, 102 L. Ed. 2d 798 (1989) and United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983)). When a defendant wishes to withdraw his guilty plea, the rule of decision depends upon the timing of the attempt. When, as here, a defendant seeks to withdraw his plea just prior to sentencing, the court should permit withdrawal if there is a "fair and just reason" for doing so. Fed.R.Crim.P. 32(d). See also Pellerito, 878 F.2d at 1537; Buckley, 847 F.2d at 998; Kobrosky, 711 F.2d at 454. Such a determination will be set aside on appeal only if the appellant convinces us that the court below abused its discretion. Kobrosky, 711 F.2d at 454 (citations omitted).
30
In determining whether a fair and just reason exists, a number of factors should be weighed, including
31
(1) the timing of defendant's change of heart;
32
(2) the force and plausibility of the reason;
33
(3) whether the defendant has asserted his legal innocence;
34
(4) whether the parties had reached (or breached) a plea agreement; and
35
(5) most importantly, whether the defendant's guilty plea can still be regarded as voluntary, intelligent, and otherwise in conformity with Rule 11 of the Federal Rules of Criminal Procedure in light of the proffered reason and the disclosed circumstances.
36
Pellerito, 878 F.2d at 1537 (citations omitted). Also, due consideration must be given by the district court to whether the Government will suffer undue prejudice as a result of the withdrawal. Kobrosky, 711 F.2d at 455.
37
In this case, appellant signed an agreement to plead guilty on July 6, 1990. He entered his guilty plea during a Rule 11 hearing on October 5, 1990, where the judge questioned appellant thoroughly regarding the constitutional rights he was waiving.19 Appellant received a copy of his PSI on or about November 23, 1990. He was on notice of the Government's intention to bring to the district court's attention all relevant factors and recommend any sentence up to the statutory maximum as of February 28, 1991.20 Appellant had nine months to evaluate his guilty plea. His decision to change his plea on the morning of the sentencing hearing certainly does not constitute the "swift change of heart" envisioned by the First Circuit. U.S. v. Ramos, 810 F.2d 308, 313 (1st Cir.1987). In fact, appellant alleges no misunderstanding whatsoever of the plea agreement or the consequences of entering a guilty plea. Rather, he submits that a "break-down" in the cooperation between he and the Government had occurred, and reasoned that, in light of the testimony which two witnesses provided in a prior trial, and would presumably provide in his sentencing hearing, it was in his best interest to withdraw his guilty plea and assert the defense of duress at trial.21
38
Appellant asserts no defense on appeal, except to suggest that since he did in fact cooperate with the Government in other criminal investigations, the court should have compelled the Government to comply with the plea agreement, or in the alternative allow him to withdraw his plea.22 In following this line of argument, appellant overlooks the fact that he did indeed violate the plea agreement by engaging in behavior which constitutes a crime in and of itself--perjury.23 In view of a violation by appellant of the plea agreement, the Government was entitled to bring all factors related to said violation to the attention of the court.24
39
Moreover, at no time during the entire proceedings before the district court has appellant asserted his legal innocence.25 Nor has he given the court any indication that his guilty plea was anything other than voluntary or intelligent. In addition, the district court fully spelled out the charges against Tilley, their elements, the penalties therefor, the evidence the Government would offer to prove the case, and the constitutional rights he would be waiving by pleading guilty. Thus, in light of the fact that appellant had nine months during which to consider the consequences of his guilty plea; the absence of a viable defense; appellant's breach of the plea agreement and the apparent lack of evidence pointing to appellant's innocence, we find that the district court did not abuse its discretion in denying appellant's motion to withdraw his guilty plea.
III. U.S.S.G. § 4A1.3
40
Appellant also challenges his sentence on the ground that the trial judge abused his discretion in departing from the sentencing guideline providing for a criminal history category of IV, pursuant to United States Sentencing Guideline § 4A1.3. The PSI placed appellant in criminal history category IV, with a sentencing range of 18 to 24 months of imprisonment. However, the district court concluded that neither category IV, V nor VI adequately reflect the likelihood of further criminal activity by appellant. Thus, the court departed from the sentencing guidelines and sentenced appellant to 54 months of incarceration, noting "that increasing the criminal history by one or even two categories still fails to reflect adequately the likely recidivism."26
41
Under the Sentencing Reform Act, a district court may depart from the Guidelines if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." United States v. Diaz- Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S. Ct. 177, 107 L. Ed. 2d 133 (1989) (citing 18 U.S.C.3553(b); United States v. Russell, 870 F.2d 18 (1st Cir.1989) (per curiam)).
42
The Commission intends the sentencing court to treat each guideline as carving out a "heartland," a set of typical case embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted ... [T]he Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in an unusual case.
43
Id. (citing Manual § 1A4(b) at 1.6-1.7).
44
Accordingly the First Circuit has stated that "[a]ppellate review of an upward adjustment in criminal history category involves a three step process." United States v. Madrid, 946 F.2d 142, 143 (1st Cir.1991); United States v. Polanco-Reynoso, 924 F.2d 23, 24 (1st Cir.1991); United States v. Brown, 899 F.2d 94, 96 (1st Cir.1990); Diaz-Villafane, 874 F.2d at 49. We must determine (1) whether the circumstances relied upon by the district court were sufficiently "unusual" to warrant departure; (2) whether the circumstances relied upon actually existed; and (3) whether, in light of those existing unusual circumstances, the departure was reasonable. Diaz- Villafane, 874 F.2d at 49; see also United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989) (adopting the First Circuit three-step analysis in departure cases).
45
Appellant argues that here the district court failed to satisfy the first part of this test. The court stated that it based the departure on the appellant's alleged theft of a check from his employer, stating that it was "one more incident in a long history of negotiating worthless instruments and forgery." However, according to appellant, the court failed to explain why that behavior warranted the departure. In particular, appellant asserts, the court did not explain why it found the defendant's potential for recidivism to be significantly more serious than that of most category IV defendants. Further, appellant submits, the court never explained why a sentence outside the guidelines was more appropriate than a sentence in category V or category VI. In light of the lack of an explanation on the part of the court for the departure, appellant submits that to the extent that the court cited any circumstances for departure, these were not unusual enough to warrant departure, and that said departure was unreasonable, especially, since the underlying offense involved no violence, nor did it encompass a large sum of money.27 Moreover, the harm from the activity was relatively limited in scope, and in fact, the victim apparently declined to press charges.
46
After carefully reviewing the record in this case we find that the district court found sufficiently unusual circumstances to depart from the proper sentencing guideline range.
47
There are several misstatements in appellant's argument. First, at the very beginning of the district court's Memorandum and Order, dated May 31, 1990, the court clearly adopted the facts as related by the PSI. These facts related the extensive criminal history of Tilley in negotiating worthless instruments, which the court cited as one of the reasons for its departure from criminal history category IV.28 According to the PSI appellant was convicted for (1) one count of arson in 1979, for which he served only 30 days; (2) two counts of negotiating worthless instruments in 1981, for which he incurred a $50 fine on each count; (3) one count of forgery in 1982 for which he incurred a $50 fine; (4) three counts of negotiating worthless instruments in 1984 for which he was sentenced to three years imprisonment; and (5) one count of forgery in 1984 for which he was sentenced to three years of imprisonment to run concurrently to the prior sentence. Appellant was released from custody in October of 1986.29 A subsequent memorandum from the Department of Probation reveals yet another conviction for assault in 1991, for which he was sentenced to thirty days, all suspended.30 This memorandum also contained an incident report prepared by the Bangor Police Department alleging that Tilley was responsible for the theft and forgery of a check.31 Tilley later admitted to these acts in a letter to the proper owner of the check, Gary Inman.32
48
Further, the court cited appellant's criminal behavior while on pretrial release. Specifically, the district court found that appellant provided false testimony before grand jury proceedings, before a district court in another criminal trial, and at his own sentencing hearing. Moreover, the theft and forgery of the check mentioned in the memorandum from the Department of Probation dated May 20, 1991, occurred after the court had found him in violation of his plea agreement due to his perjured testimony and while Tilley was awaiting sentencing. About this the court commented in its order as follows:
49
It might be expected that most criminal defendants while on pretrial release under a pending federal charge would be exceptionally careful to avoid criminal involvement. This defendant's experience to the contrary suggests the extraordinary high likelihood of future criminal involvement, different from ordinary defendants who might be in Criminal History Category IV. It is apparent that this defendant currently has a complete inability to be a law-abiding citizen.
50
(Emphasis added). Clearly the district court had sufficient reason to be concerned about appellant's non-ending criminal behavior. In its opinion, the district court found that the fact that Tilley would disregard the seriousness of the charges against him to the extent of once again engaging in criminal behavior while on pretrial release was unusual enough to depart from the sentencing guidelines. We agree.
51
Sentencing Guideline § 4A1.3 specifically allows the district court to depart from the guidelines where
52
... reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes.
53
(Emphasis added). Clearly this appellant's criminal history, as well as his behavior during pretrial release was sufficiently unusual to justify, factually and legally the district court's upward departure from Criminal History Category IV.
54
In determining reasonableness, the court should consider relevant factors, including (1) the seriousness of the defendant's past criminal conduct; (2) the likelihood of recidivism; (3) prior similar adult conduct not resulting in criminal convictions; (4) previous lenient sentences for serious offenses; (5) and whether the sentence will have deterrence on future criminal conduct. Joan, 883 F.2d at 496.
55
A review of the record in this case shows that the court took many of these factors into consideration in its decision to depart. More specifically the district court cited the great likelihood that appellant would once again engage in criminal behavior, and the seriousness of appellant's past criminal conduct.33 The PSI report also shows the unusual leniency which appellant has received from prior sentencing courts, similar conduct not resulting in convictions and the failure of said sentences in deterring appellant from engaging in criminal conduct.34
56
We hold that the district court in this case took into account the relevant factors and circumstances, and find sufficient evidence in the record to support the district court's action in this case. "The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing."35 We will not curtail the district court's discretion to impose sentence unless it is clearly beyond the realm of reasonableness. The district court's action in this case was not.
57
Thus, the decision of the district court is affirmed.
*
Of the Third Circuit, sitting by designation
1
See Tr. of Change of Plea Proceedings, October 5, 1990, pp. 5-6
2
Id. at 5
3
Id. at 14
4
Id. at 4
5
Id. at 12
6
Id
7
See Tr. of Sentencing Hearing, April 10, 1991, p. 5
8
Id. at 6
9
Order on Pending Motion, April 23, 1991, p. 2
10
Id. at 3
11
Id. at 4. On May 21, 1991, appellant filed another motion to withdraw his guilty plea. The district court denied the motion on May 23, 1991
12
On that same day, the defendant moved for a stay of execution of the judgment. The district court denied that motion on June 6, 1991
13
As discussed infra, no evidence, except for appellant's testimony, was presented to this effect
14
The other two witnesses were Diane Kelleher, Harvey's girlfriend, and Linda Colavecchio, a friend of both Harvey and Kelleher. See Tr. Sentencing Hearing, April 10, 1991, pp. 34 and 51
15
As related in the fact section, Tilley arranged a meeting with Harvey for the purchased of cocaine. The purchased took place on July 26, 1990, under police surveillance
16
See Order on Pending Motion, April 23, 1991, pp. 6-7
17
Under paragraph 7 of the plea agreement the Government had the option to declare the agreement null and void, or to bring the failure to fully cooperate to the attention of the court. Agreement to Plead Guilty and Cooperate, p. 5
18
See Tr. of Sentencing Hearing, April 10, 1991, p. 75
19
See Tr. of Change of Plea Proceeding, October 5, 1990
20
See Government Response to Procedural Order of January 23, 1991
21
More specifically, appellant's counsel stated at the Sentencing Hearing:
I got the transcripts of the testimony of the different witnesses which was said (sic) in the prior trial. We evaluated those transcripts late last night, and based upon all the information that we had in front of us, Mr. Tilley strongly is pursuing for (sic) me to file his--a motion to withdraw his plea.
Tr. Sentencing Hearing, May 31, 1991, pp. 7-8.
22
Appellant introduced the defense of duress through his motion to withdraw his guilty plea before the district court. However, he does not argue this defense on appeal, thus we will not address it here
23
Defendant also committed other crimes while waiting for the resolution of his case. See Memorandum by William B. Beck, May 20, 1991. This in and of itself constituted a breach of the plea agreement. See Agreement to Plead Guilty and Cooperate, pp. 5-6
24
See Agreement to Plead Guilty and Cooperate, p. 5
25
See Tr. Change of Plea Proceeding, October 5, 1990, p. 4
26
Memorandum of Sentencing Judgment, May 31, 1991, p. 7
27
Here appellant refers to another offense committed by appellant while the present case was pending
28
See Memorandum of Sentencing Judgment, May 31, 1990, p. 15
29
Pre-Sentence Investigation Report, pp. 12-13
30
Memorandum by William B. Beck, May 20, 1991
31
Incident Report, dated May 20, 1991
32
Letter by Ron Tilley to Gary Inman
33
See Memorandum of Sentencing Judgment, May 31, 1991, p. 7
34
See Pre-Sentence Investigation Report, pp. 12-13
35
Manual § 5K2.0, Grounds for Departure at 5.36 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2697610/ | [Cite as State v. Mount, 2012-Ohio-4119.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 11CA3297
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
CRAIG M. MOUNT, : RELEASED 09/04/12
:
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Benjamin J. Partee, Chillicothe, Ohio, for appellant.
Sherri Rutherford, City of Chillicothe Law Director, and Michele R. Rout, City of
Chillicothe Assistant Law Director, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Following his no contest plea, Craig Mount appeals his conviction for
driving under the influence of alcohol and/or a drug of abuse and refusing a chemical
test (“OVI refusal”). Mount contends that the trial court erred when it denied his motion
to suppress two eyewitness identifications of him as the person who fled from a crashed
vehicle. The witnesses identified Mount after a trooper showed them his photo and told
them Mount was the registered owner of the vehicle. Even if this procedure was
suggestive of Mount’s guilt, it was not so flawed as to create a very substantial
likelihood of irreparable misidentification under the totality of the circumstances. The
witnesses identified Mount within an hour or two of the crash and expressed no doubt
about their identifications. Their pre-identification description of Mount – he had a
bloody face and wore a blue coat – indicates they had some opportunity to view him
during the crime and were not inattentive during the incident. Moreover, this description
Ross App. No. 11CA3297 2
was accurate as it matched Mount’s appearance when, within hours of the crash, other
officers located him hiding one-half mile from the crash scene. Therefore, the trial court
did not err when it overruled the motion to suppress, and we affirm the judgment below.
I. Facts
{¶2} A law enforcement officer charged Mount with OVI, OVI refusal, failure to
control, and a safety belt violation. Mount moved to suppress two eyewitness
identifications of him as the person who fled from a crashed vehicle and any evidence
derived from those identifications. The parties stipulated to the following facts:
Trooper Rutherford of the Ohio Highway Patrol was called to the
scene of a crash on Massieville Road on February 13, 2011. When the
trooper arrived, other people were already present including EMS and fire
personnel, and two witnesses. The two witnesses told the officer that they
had seen a person, who had a bloody face and who was wearing a blue
coat, get out of the car and go into the woods. The trooper searched the
woods for ten to fifteen minutes, but was unable to find the suspect. The
trooper then performed a computer check of the registration plates on the
car from which he was able to obtain a picture of the registered owner. He
showed the picture to the two witnesses. He told the witnesses that it was
a picture of the registered owner of the car in the crash. He asked the
witnesses if the person they had seen going into the woods was the same
person as depicted in the picture. The witnesses agreed that it was the
same person. Approximately one hour later, other law enforcement
officers found the defendant hiding behind a house approximately one-half
mile north of the crash scene. The defendant’s face was bloody, and he
was wearing a blue coat. When the trooper talked to the defendant, he
admitted his involvement in the crash.
{¶3} The trial court denied the motion to suppress. Subsequently, Mount
pleaded no contest to OVI refusal, and the State dismissed the remaining charges.
After the trial court found Mount guilty of the OVI refusal and sentenced him, this appeal
followed.
II. Assignment of Error
Ross App. No. 11CA3297 3
{¶4} Mount assigns one error for our review: “THE TRIAL COURT ERRED IN
OVERRULING THE MOTION TO SUPPRESS BASED ON THE EYEWITNESS
IDENTIFICATION.”
III. Motion to Suppress
A. Standard of Review
{¶5} In his sole assignment of error, Mount contends that the trial court should
have suppressed the two eyewitness identifications. However, Mount does not
challenge the court’s determination that law enforcement derived no other evidence,
i.e., his confession, from the identifications.
{¶6} Our review of a trial court’s decision on a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court acts
as the trier of fact and is in the best position to resolve factual questions and evaluate
witness credibility. Id. Accordingly, we defer to the trial court’s findings of fact if they
are supported by competent, credible evidence. State v. Landrum, 137 Ohio App. 3d
718, 722, 739 N.E.2d 1159 (4th Dist.2000). Accepting those facts as true, we must
independently determine whether the trial court reached the correct legal conclusion in
analyzing the facts of the case. Burnside at ¶ 8.
B. Admissibility of the Eyewitness Identifications
{¶7} “ ‘When a witness has been confronted with a suspect before trial, due
process requires a court to suppress her identification of the suspect if the confrontation
was unnecessarily suggestive of the suspect’s guilt and the identification was unreliable
under all the circumstances.’ ” State v. Garvin, 197 Ohio App. 3d 453, 2011-Ohio-6617,
Ross App. No. 11CA3297 4
967 N.E.2d 1277, ¶ 22 (4th Dist.), quoting State v. Waddy, 63 Ohio St. 3d 424, 438, 588
N.E.2d 819 (1992). Under this two-prong test, the first question is whether the
identification procedure was unnecessarily suggestive. “A defendant has ‘the burden of
going forward and the burden of persuasion’ to establish, by a preponderance of the
evidence, that a pretrial identification procedure was unnecessarily suggestive.” Id. at ¶
23, quoting State v. Greene, 4th Dist. No. 1211, 1979 WL 206802, *4 (Apr. 12, 1979).
“Suggestiveness depends upon a variety of factors, such as the size of the array, its
manner of presentation, and its contents.” State v. Cook, 10th Dist. Nos. 09AP-316 &
09AP-317, 2010-Ohio-2726, ¶ 39. If the defendant does not prove that the procedure
was unnecessarily suggestive, our inquiry ends. Garvin at ¶ 23. See State v. Conley,
4th Dist. No. 08CA784, 2009-Ohio-1848, ¶ 9 (“Generally, as long as pretrial
identification procedures are not unduly suggestive, issues concerning the reliability of
that identification [go] to the weight of the evidence, not its admissibility.”).
{¶8} However, if the pretrial identification procedure is deemed unnecessarily
suggestive, the next question becomes whether the identification was unreliable under
the totality of the circumstances, i.e., whether the suggestive procedure created a “ ‘very
substantial likelihood of irreparable misidentification.’ ” Garvin at ¶ 25, quoting Waddy
at 439. The defendant also had the burden of proof on this issue. Cook at ¶ 37. “ ‘In
evaluating whether the procedure created a very substantial likelihood of irreparable
misidentification, courts should look to the following key factors: (1) the witness’s
opportunity to view * * * the defendant during the crime, (2) the witness’s degree of
attention, (3) the accuracy of the witness’s prior description of the suspect, (4) the
witness’s certainty, and (5) the time elapsed between the crime and the identification.’ ”
Ross App. No. 11CA3297 5
Garvin at ¶ 25, quoting State v. Dickess, 174 Ohio App. 3d 658, 2008-Ohio-39, 884
N.E.2d 92, ¶ 24 (4th Dist.).
{¶9} Mount contends the identification procedure was unnecessarily suggestive
because the trooper only showed the witnesses one photograph and told them it was of
the registered owner of the crashed vehicle. Even if we assume the identification
procedure was unnecessarily suggestive, it did not create a very substantial likelihood
of irreparable misidentification. The stipulated facts do not contain much detail.
However, the witnesses were clearly able to view the defendant long enough, in close
enough proximity, and in sufficient lighting, to tell he had a bloody face and identify the
color of his coat. Thus, there is evidence that the witnesses had some opportunity to
view the defendant during the crime and were not inattentive. Mount attempts to claim
the witnesses had little opportunity to view the suspect and were inattentive because
they were calling 911 as they approached the car, the person in the car “quickly ran”
from the scene, and the accident occurred at dusk. However, none of these facts
appear in the stipulated facts the court used to reach its decision, so we must disregard
them.
{¶10} The stipulated facts do not indicate the exact time the crash occurred.
However, once the trooper arrived on the scene and spoke to the witnesses, he only
spent ten to fifteen minutes searching the woods for the suspect before he obtained
Mount’s picture and showed it to the witnesses. Given this timeline, it is reasonable to
presume the identifications occurred within an hour or two of the crash, lending
credence to their accuracy. See by way of analogy State v. Madison, 64 Ohio St. 2d
322, 332, 415 N.E.2d 272 (1980), quoting Bates v. United States, 405 F.2d 1104, 1106
Ross App. No. 11CA3297 6
(D.C.Cir.1968) (explaining that “ ‘[t]here is no prohibition against a viewing of a suspect
alone in what is called a ‘one-man showup’ when this occurs near the time of the
alleged criminal act; such a course does not tend to bring about misidentification but
rather tends under some circumstances to insure accuracy.’ ”)
{¶11} The fact that two witnesses identified Mount points to reliability. And the
witnesses expressed no doubts when they identified the defendant as the person who
fled from the crashed vehicle. Moreover, the witnesses gave an accurate description of
Mount before the identification. They told the trooper the suspect had a bloody face and
was wearing a blue coat. After they identified the defendant, other officers found Mount
approximately an hour later, hiding behind a house about one-half mile from the crash
scene with a bloody face and wearing a blue coat.
{¶12} Given these facts, we conclude that under the totality of the circumstances
there was no substantial likelihood of irreparable misidentification. Because the
identifications were not unreliable, the trial court properly denied the motion to suppress.
Accordingly, we overrule the sole assignment of error and affirm the trial court’s
judgment.1
JUDGMENT AFFIRMED.
1
In any event, Mount’s confession to driving the vehicle and abandoning it after the accident was not
derived from the photo identifications. In light of his confession we see no chance whatsoever that
suppression of the photo identification would have resulted in finding Mount not guilty.
Ross App. No. 11CA3297 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
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. Exceptions.
Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1920070/ | 471 Pa. 104 (1977)
369 A.2d 1216
Grace A. SALZMAN, Appellant,
v.
Lloyd H. MILLER and Mary V. Miller, Added Defendant.
Supreme Court of Pennsylvania.
Argued January 20, 1976.
Decided February 28, 1977.
*105 *106 James P. Coho, Lancaster, for appellant.
No appearance for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
OPINION
POMEROY, Justice.
This is an appeal from a final decree in equity which ordered specific performance of an agreement for sale of real property.[1]
In July 1968, appellant and her late husband entered into a written lease agreement with appellee Lloyd H. Miller[2] for the property which is the subject of this suit.[3] The term of the lease was one year, with an option *107 to purchase within two years. The agreement also provided that the optionees, if they exercised the option, would accept a deed for the property from one Everett McDonald. At the time he entered into this lease-option agreement, Mr. Miller had in his possession a deed to the property in question which was signed by Everett McDonald and his wife. The space in the deed for the grantee's name, however, was blank, and the deed apparently was not acknowledged. In January, 1969, appellant or her late husband orally communicated to Mr. Miller their desire to exercise the option, and this communication was orally acknowledged by Mr. Miller. Thereafter, Mrs. Salzman or her husband made several attempts to arrange for settlement, but Miller either refused or neglected to fix a date. In February, 1973, Mr. and Mrs. Miller received a second deed to the property from the McDonalds.[4] This deed named the Millers as grantees as tenants by the entireties, and was subsequently recorded.
Appellant commenced the present action for specific performance of the lease-option agreement in September, 1973. The final decree ordered the Millers to convey the property to appellant, but subject to Mrs. Miller's "inchoate intestate rights."[5] On this appeal, appellant argues that Mrs. Miller had no intestate rights in the property, *108 and therefore the trial court should have ordered that the conveyance to appellant be free and clear of all encumbrances.
In concluding that the property here at issue should be conveyed subject to Mrs. Miller's "inchoate intestate rights," the lower court reasoned as follows:
"The deed in question [deed of February, 1973 from McDonald and his former wife naming the Millers as tenants by the entireties] was executed and delivered after execution of the lease-option agreement, the latter being entered into at a time when defendant, Lloyd H. Miller, did not have title to the property . . . . The fact that Lloyd H. Miller did not have title to the property when he signed the lease-option agreement is immaterial under the doctrine of estoppel by deed. However, his having taken title in his and his wife's name as tenants by the entireties requires that Mary V. Miller, his wife, execute the deed to plaintiff for the purpose of passing the title; but since the lease-option agreement was not signed by the wife, her inchoate intestate interest is not affected. . . ."
For several reasons we believe the trial court's reasoning is erroneous. First, as the quoted portion of the opinion indicates, in applying the doctrine of estoppel by deed the court gave effect to the second deed naming the Millers as grantees holding as tenants by the entireties. It is clear, however, that Mrs. Miller could not obtain any "intestate" rights by virtue of this deed. If Mrs. Miller had any interest in the property, it was by virtue of being a tenant by the entireties. It is fundamental that in a tenancy by the entireties, each spouse owns the entire estate as long as both are living. Gasner v. Pierce, 286 Pa. 529, 134 A. 494 (1926). The survivor continues to hold not as a new estate, but as a continuation of the previous one. Porobenski v. American Alliance Ins. Co., 317 Pa. 410, 176 A. 205 (1935).
*109 Second, and more importantly, if any effect is to be given to the deed naming the Millers as grantees holding as tenants by the entireties, then the trial court erred in decreeing specific performance. As already noted,[6] Mrs. Miller did not sign the lease-option agreement. Nor is there any evidence in the present record which indicates that she was aware of the transaction with the Salzmans, acquiesced in it, or in any way ratified it. We have held that a husband's attempt to alienate or encumber an estate by the entireties absent his wife's joinder violates the Statute of Frauds and is unenforceable against the wife. Del Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Schweitzer v. Evans, 360 Pa. 552, 63 A.2d 39 (1949). Thus, unless an estoppel theory were applied to divest Mrs. Miller of her interest in the entireties property, a course of action eschewed by this Court in the past, see Del Borrello, supra; Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Peterson v. Chandler, 362 Pa. 102, 66 A.2d 284 (1949), specific performance could not be granted if effect is given to the deed to the entireties.
While we have concluded that the trial court's reasoning is incorrect, it does not necessarily follow that its final decree was incorrect. Resolution of the case depends upon (1) the effect, if any, which should be given to the blank deed held by Mr. Miller, and (2) the effect, if any, which should be given to the second deed naming the Millers as grantees holding as tenants by the entireties. After having reviewed the record, we are convinced that these issues cannot be resolved properly without more information than is presently in evidence.[7]
*110 We thus hold that neither the reasoning of the trial court nor the evidence of record supports its decree, and that there are undisclosed and unresolved facts, some of which we have adverted to, which must be established before the rights of the parties to this suit can be intelligently ascertained and adjudicated.
The decree is vacated and the case remanded for further proceedings consistent with this opinion. Each party to pay own costs.
MANDERINO, J., concurs in the result.
ROBERTS, J., filed a dissenting opinion in which JONES, C.J., joins.
NIX, J., took no part in the consideration or decision of this case.
*111 ROBERTS, Justice, dissenting.
I dissent, and would affirm the Chancellor's decree.
In 1969, appellant and her late husband exercised an option to purchase real property under a lease agreement with appellee Lloyd H. Miller. At the time the option was exercised, Mr. Miller had in his possession a deed to the property, signed by Everett McDonald and his wife, with the grantee's name in blank. In 1973, Mr. Miller and his wife, Mary V. Miller, received a deed to the property, in tenancy by the entireties, from the McDonalds.
In this action for specific performance, the Chancellor decreed specific performance of the agreement to sell the property, subject to the intestate share of Mrs. Miller.
If Mr. Miller acquired title to the property by virtue of the deed in blank, then appellant is entitled to specific performance. Since Mrs. Miller did not sign the lease agreement, however, any conveyance would still be subject to her intestate rights.[1]
If, on the other hand, Mr. Miller did not acquire any title to the property until the 1973 deed to him and his wife, as tenants by the entireties, Mrs. Miller has a far greater interest in the property.[2] Since Mrs. Miller has not appealed from the Chancellor's decree, however, she is entitled only to her intestate rights, as decreed by the Chancellor.
Thus, I see no need to remand to the Chancellor to determine whether Mr. Miller had title at the time the option to purchase was exercised, for I would affirm the Chancellor's decree whether or not Mr. Miller had title at that time.
JONES, C.J., joins in this dissenting opinion.
NOTES
[1] The final decree was appealed directly to this Court pursuant to § 202(4) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(4), 17 P.S. § 211.202(4) (Supp. 1976). The appeal was taken before jurisdiction of such equity decrees was transferred to the Superior Court. See Pa.R.A.P. 702(b), superseding Supreme Court Rule 73, effective April 17, 1975.
[2] Mr. Miller's wife, Mary V. Miller, did not sign the lease agreement.
[3] The chancellor, pursuant to Pa.R.Civ.P. 227, sua sponte added Mrs. Miller as an additional defendant when it developed at trial that the Millers had received a deed to the property naming both Millers as grantees as tenants by the entireties. Neither Mr. Miller nor Mrs. Miller filed a brief or appeared for oral argument before this Court. We proceeded, however, pursuant to former Supreme Court Rule 30, now Pa.R.A.P. 2314.
[4] Mr. McDonald and his wife had apparently been divorced, and the pleadings indicate that this deed was by Mr. McDonald and his former wife, then Bernice Crist. The deed itself is not in the record.
[5] In his decree nisi the chancellor directed the Millers to execute and deliver a deed of conveyance to appellant for the property in question. No mention was made of Mrs. Miller's inchoate intestate rights. Following the decree nisi, Mr. Miller discharged his counsel and filed in the lower court a "Notice of Appeal" which the court chose to treat as exceptions to the decree nisi. None of Mr. Miller's "exceptions" raised the issue of his wife's intestate rights, and Mrs. Miller took no action on her own behalf. All of these "exceptions" were dismissed, but the court sua sponte raised the issue of Mrs. Miller's intestate rights, and in its final decree ordered that the property be conveyed to appellant subject to those rights.
[6] See note 2 supra.
[7] Without intending to limit in any way the scope of the hearings on remand, the following matters, suggest themselves as pertinent areas of inquiry:
(1) What was Mr. Miller's exact interest in the property in question at the time he entered into the lease-option agreement with appellant and her late husband? Although the trial court concluded that Mr. Miller had no title to the property when he entered into the lease-option agreement, the chancellor made no specific finding of fact to that effect. While it is clear that Mr. Miller was not the record owner and did not have legal title to the property, there is evidence in the record which suggests that he might have been the equitable owner of the premises. (For example, Mr. Miller apparently received the blank deed from the McDonalds in return for assuming the McDonalds' mortgage payments; also, Mr. Miller's answer to the complaint alleges that the Salzmans knew or should have known that he was the actual owner of the premises, "since the situation was fully explained to them" before the lease-option was entered into.)
(2) Related to the first question is the question of why the first deed from McDonald to Miller was in blank as to grantees, and seemingly unacknowledged; what was the intention of the parties to that transaction? Was it intended that Mr. Miller alone was to be the owner of the premises? These questions, in turn, raise the question of the nature of the relationship between the McDonalds and Mr. Miller (and/or his wife). There is evidence in the record which suggests that Mr. Miller may have been an agent for the McDonalds. (For example, the provision in the lease-option agreement that the Salzmans would accept a deed from Everett McDonald; Mr. Miller's testimony (a) that he did not have title in his name and that "the McDonald's [sic] could have done anything to the property at this time" [Deposition of Lloyd H. Miller at 15]; (b) that the McDonalds were the record owners when he entered the agreement with the Salzmans [Deposition of Lloyd H. Miller at 16]; (c) that he had authority from the McDonalds to sell the property and that he was to take care of it for them [Deposition of Lloyd H. Miller at 18-19].)
[1] See 20 Pa.C.S.A. § 2105(a) (1975).
[2] If Mr. and Mrs. Miller had title as tenants by the entireties, her interest would include the right to succeed to the entire estate if her husband predeceased her. See Del Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456469/ | 63 F. Supp. 2d 1028 (1999)
Carl G. DIERKS, SSN: XXX-XX-XXXX, Plaintiff,
v.
Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant.
No. 4:98CV3093.
United States District Court, D. Nebraska.
September 16, 1999.
Catherine R. Enyeart, Enyeart Law Office, Hot Springs, SD, for Plaintiff.
Paul D. Boeshart, Assistant United States Attorney, Lincoln, NE, for Defendant.
MEMORANDUM AND ORDER
KOPF, District Judge.
This is a social security appeal filed by Carl Dierks ("Dierks") pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Dierks' claim for disability benefits under Title II because Dierks was not under a "disability," as defined in the Social Security Act, 42 U.S.C. §§ 401, et seq. Dierks argues on appeal that the *1029 Administrative Law Judge ("ALJ") failed to apply the proper legal standards for deciding whether Dierks' home business activity during the first five months of disability amounted to "substantial gainful activity," and whether Dierks was entitled to a trial work period. For the reasons that follow, I shall affirm the decision of the Commissioner.
I. BACKGROUND
A. Procedural History
Dierks filed an application for Title II disability benefits on January 30, 1995. (Tr. 93-95.) The Regional Commissioner of the Social Security Administration denied Dierks' application initially (Tr. 96-98) and on reconsideration (Tr. 101-102). Following a hearing before an Administrative Law Judge ("ALJ"), the ALJ concluded that Dierks was not entitled to a period of disability or disability insurance benefits under sections 216(i) and 223 of the Social Security Act (Tr. 10-23). Because the Appeals Council of the Social Security Administration denied Dierks' request for review, the ALJ's decision stands as the final decision of the Commissioner (Tr. 3-4.)
B. ALJ's Findings
On October 17, 1996, the ALJ found that Dierks, who claims to have been disabled since August 1, 1994, has worked as an engineering consultant and owner/operator of a manufacturing company since August 1, 1994, 20 C.F.R. § 404.1574; Dierks' work activity involves significant physical or mental activities for pay or profit, 20 C.F.R. § 404.1573; Dierks' work activity constitutes substantial gainful activity within the meaning of the social security regulations, 20 C.F.R. § 404.1572; Dierks has not been unable to engage in substantial gainful activity for any continuous period of at least 12 months; and Dierks was not under a "disability," as defined in the Social Security Act, at any time through the date of the ALJ's decision, 20 C.F.R. § 404.1520(b). (Tr. 22.)
The ALJ also found that Dierks was not entitled to a "trial work period" because "there has been no period of twelve consecutive months wherein the claimant has been unable to engage in substantial gainful activity, there is no starting point which serves as a commencement point for a trial work period." (Tr. 21.) The ALJ also noted that while some courts have allowed trial work periods to commence during the period in which a claimant waits for a determination regarding whether he or she is entitled to disability insurance benefits, the Eighth Circuit Court of Appeals has not adopted such a rule. (Tr. 21.)
C. Facts
Dierks applied for benefits on January 30, 1995, alleging a disability-onset date of August 1, 1994, due to cardiac problems, depression, anxiety and sleep disorders, pulmonary problems, back pain, hypertension, and obesity. Dierks' alleged disability-onset date, August 1, 1994, is the same date he quit his job as city manager and city engineer for Chadron, Nebraska. (Tr. 93-95, 111, 115, 127.) Dierks is a registered professional engineer who, as city manager for 15 years, supervised 50 employees and managed a $4 million annual budget. (Tr. 115.)
From August 1994 until the time of the hearing before the ALJ on June 13, 1996, Dierks operated an engineering consulting business from his home, doing engineering work related to streets, sewers, water mains, and buildings. (Tr. 42.) He charged $40.00 per hour for his services, and had the City of Chadron as his major client, as well as "private ... people in the community." (Tr. 41.) Dierks testified that he works "a few hours a day" (Tr. 48), but a VAMC medical progress note dated January 26, 1996, indicates that, at that time, Dierks was spending "long hours on computer work." (Tr. 343.)
Dierks also testified that until March 1996, he was a commissioner of the Nebraska Interlocal Government Lottery Commission who received $1,600 annually *1030 for attending quarterly meetings and doing associated preparation, totaling approximately 50 hours per year. (Tr. 42-44.) The administrative record also establishes that Dierks owned and operated a steel products company named Westlands Manufacturing from 1994 until the time of the administrative hearing, and that Dierks worked 70 hours for his company in 1995. (Tr. 48-51, 107, 437.) The ALJ accurately described this venture:
[Dierks] is trying to market an invention which he has not yet patented. At present, another individual produces the product and the claimant buys them from him, therefore the cost of goods is extremely close to the gross sales. The claimant is leasing a building which he hopes can be used for manufacturing these devices in the future. He is marketing these devices to certain communities and most of his effort thus far has been in direct mailing. As to the amount of work involved, he has done three direct mailings which have involved about fifteen or twenty hours each for the year. Processing orders, thus far, has entailed about ten hours over the course of a year.
(Tr. 15.)
Dierks' 1994 tax records indicate that he had $10,788 in gross income from his manufacturing company in that year, but had a net loss of $1,106 after subtracting expenses, such as $3,988 in depreciation, $1,806 in repairs and maintenance, and $1,864 in supplies. (Tr. 437.) Dierks' 1994 income and expense statement reported earnings of $6,757 during the period from August 1, 1994, through December 31, 1994, for his engineering consulting work for the City of Chadron, Excel Corporation, and Panhandle Chrysler, and for his service on the Lottery Commission. (Tr. 439.) After subtracting self-employment expenses, his net income for that same period was $77.55. Dierks' 1995 tax records demonstrate gross income of $18,342 from his engineering consulting business, and $142 from his manufacturing business. After depreciation, expenses, and other costs, Dierks' consulting business had a net profit of $5,444, and his manufacturing business had a net loss of $3,809. (Tr. 415-416.)[1]
D. Issues on Appeal
Dierks' maintains that (1) the ALJ incorrectly applied the legal standards for assessing whether his home businesses from August 1, 1994, through December 31, 1994, constituted "substantial gainful activity"; and (2) the ALJ applied an incorrect legal standard when deciding that Dierks was not entitled to a trial work period beginning on January 1, 1995, the month he filed his application for disability benefits.
II. DISCUSSION
A. Standard of Review
A denial of benefits by the Commissioner is reviewed to determine whether the denial is supported by substantial evidence on the record as a whole. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
"Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.1993). Therefore, "[w]e do not reweigh the evidence or review the factual record de novo." Naber v. Shalala, 22 F.3d 186, 188 (8th Cir.1994) (citation omitted). Rather, "`if it is possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, we must affirm the decision.'" Oberst, 2 F.3d at 250 *1031 (quoting Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992)).
Flynn v. Chater, 107 F.3d 617, 620 (8th Cir.1997).
This court must also review the decision of the Commissioner to decide whether the proper legal standard was applied in reaching the result. Smith v. Sullivan, 982 F.2d at 311. Issues of law are reviewed de novo. Olson v. Apfel, 170 F.3d 820, 822 (8th Cir.1999); Boock v. Shalala, 48 F.3d 348, 351 n. 2 (8th Cir. 1995); Smith, 982 F.2d at 311.
B. Issue (1): Substantial Gainful Activity
Pursuant to 42 U.S.C. § 423(a), disability insurance benefit payments are available to individuals who are under a "disability," defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). See also 20 C.F.R. § 404.1505 (1999) (defining "disability").
"The first step in determining whether a claimant is disabled is to ascertain whether the claimant engaged in substantial gainful employment during a period of claimed disability. If a claimant engages in substantial gainful activity, there can be no finding of disability, even if the claimant does in fact have an impairment." Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996) (citations omitted); 20 C.F.R. § 404.1520(a) ("If you are doing substantial gainful activity, we will determine that you are not disabled."); 20 C.F.R. § 404.1571 (same).[2]
Substantial gainful activity is work activity that is both substantial and gainful:
(a) Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.
20 C.F.R. § 404.1572. Section 404.1573 of the social security regulations further state how the nature of a claimant's work and the time a claimant spends doing such work are considered in the "substantial gainful activity" analysis.
(a) .... If your duties require use of your experience, skills, supervision and responsibilities, or contribute substantially to the operation of a business, this tends to show that you have the ability to work at the substantial gainful activity level.
....
(c) .... Even though the work you are doing takes into account your impairment, such as work done in a sheltered workshop ..., it may still show that you have the necessary skills and ability to work at the substantial gainful activity level.
(d) .... Supervisory, managerial, advisory or other significant personal services that you perform as a self-employed individual may show that you are able to do substantial gainful activity.
(e) .... While the time you spend in work is important, we will not decide *1032 whether or not you are doing substantial gainful activity only on that basis. We still evaluate the work to decide whether it is substantial and gainful regardless of whether you spend more time or less time at the job than workers who are not impaired and who are doing similar work as a regular means of their livelihood.
20 C.F.R. § 404.1573.
The regulations also contain several evaluation guidelines for individuals who are self-employed, as is the plaintiff in this case. Section 404.1575(a) states in relevant part:
(a) .... We will consider your activities and their value to your business to decide whether you have engaged in substantial gainful activity if you are self-employed. We will not consider your income alone since the amount of income you actually receive may depend upon a number of different factors like capital investment, profit sharing agreements, etc.... We will evaluate your work activity on the value to the business of your services regardless of whether you receive an immediate income for your services. We consider that you have engaged in substantial gainful activity if
....
(2) Your work activity, although not comparable to that of unimpaired individuals, is clearly worth [$500 per month] when considered in terms of its value to the business, or when compared to the salary that an owner would pay to an employee to do the work you are doing ....
20 C.F.R. § 404.1575[3]. Social Security Ruling 83-34 further explains how the "substantial gainful activity" analysis should be applied to self-employed individuals like Plaintiff.
In determining whether a self-employed individual is engaging in SGA, consideration must be given to the individual's activities and their value to his or her business. Self-employment income alone is not a reliable factor in determining SGA, since it is influenced not only by the individual's services but also by such things as market conditions, capital investments, the services of other people, and agreements on distribution of profits. An individual's services may help build up capital assets during a period of development when no profits are evident, or they may reduce losses during temporary periods of poor business conditions.... Hence, it is necessary to consider the economic value of the individual's services, regardless of whether an immediate income results from such services.
Social Security Ruling 83-34, 1983-1991 Soc. Sec. Rep. Serv. 106, 1983 WL 31256, at *1 (1983).
In light of the above standards, I conclude the ALJ properly concluded that Dierks' home business activity, beginning at or around his alleged disability-onset date in August 1994, amounted to substantial gainful activity such that Dierks was not under "disability," as defined in 42 U.S.C. § 423(d). Although the evidence shows that Dierks had relatively little net income during 1994 and 1995 after subtracting various self-employment expenses, it is clear that: (1) Dierks' work as a registered professional engineering consultant for the City of Chadron and other private clients, and as the owner of a manufacturing company, required significant mental activities, even though he engaged in such activities on a part-time basis; (2) such work was done for pay or profit, whether or not a profit was actually realized; (3) Dierks' experience, skills, responsibilities, and registration as a professional engineer contributed substantially to *1033 the operation of his consulting and manufacturing businesses since he was the sole participant in these businesses; and (4) although Dierks received little net income in 1994 and 1995, Dierks' work activity was worth $500 per month "when considered in terms of its value to the business," 20 C.F.R. § 404.1575(a)(2) (emphasis added), especially when considering that (a) the City of Chadron and other private clients were willing to pay Dierks $40.00 per hour for his engineering services (an indication of the value of Dierks' professional services to his business), and (b) Dierks' net income in the first two years of his new businesses is not an accurate representation of the value of his services to his business. 20 C.F.R. §§ 404.1572, 404.1573, 404.1575.
Other courts have reached analogous results. See Johnson v. Sullivan, 929 F.2d 596 (11th Cir.1991) (affirming termination of benefits pursuant to 20 C.F.R. § 404.1575(a)(2) because claimant found to be engaging in substantial gainful activity as licensed surveyor from home; claimant's experience, license, and mental contribution to business were substantial and enabled the business to continue, even though he was relegated to drawing maps and signing plats made by family members participating in the business; noting that income is less reliable as indicator of "substantial" nature of work when claimant is self-employed; claimant had income of $800 per month); Rollins v. Shalala, 19 F. Supp. 2d 1100 (C.D.Cal.1994) (affirming denial of benefits for substantial gainful activity when self-employed dentist working two days per week grossed $4,000 per month, indicating significant value of dentist's services, but consistently operated at a loss due to expenses), aff'd, 77 F.3d 490, 1996 WL 62687 (9th Cir.1996) (table); Strahan v. Shalala, 1994 WL 543029 (S.D.Tex.1994) (affirming Secretary's decision that claimant was engaged in substantial gainful activity when he owned and operated a television transmitter, but operated at loss, when claimant failed to present documentary evidence showing that his services were not worth at least $300 per month; ALJ properly found it was claimant's intent to operate business for profit, even if television station was operating at a loss; "Work may be gainful even if no profit is realized if it is of the kind usually done for pay or profit."); Barber v. Sullivan, 765 F. Supp. 58 (W.D.N.Y.1991) (affirming ALJ's alternative finding that home insurance agency in which plaintiff a licensed insurance agent worked from four to eight hours per month was substantial gainful activity under 20 C.F.R. § 404.1575(a)(2) when considered in terms of value to business because plaintiff's business depended upon his singular role as business decision-maker). See, e.g., Petersen v. Chater, 72 F.3d 675 (8th Cir. 1995) (remanding when ALJ's analysis of 20 C.F.R. § 404.1575(a)(1-3) tests inadequate; noting in footnote that record was also insufficient to show whether plaintiff's activity as self-employed farm manager satisfied the test laid out in section 404.1575(a)(2) because farm manager reported loss on tax return and there was no evidence presented regarding whether a third-party landowner would have paid $500 per month to manage an unprofitable venture).
C. Issue (2): Temporary Work Period
Dierks argues the ALJ erred in not finding him entitled to a temporary work period as of January 1, 1995, the first day of the month in which he filed his application for benefits. Specifically, Dierks asserts the ALJ erred in stating that the Eighth Circuit Court of Appeals has not adopted a rule which allows trial work periods to commence during the period in which a claimant waits for a determination regarding whether he or she is entitled to disability insurance benefits, citing Newton v. Chater, 92 F.3d 688 (8th Cir.1996). (Tr. 21.)
A "trial work period" is a period in which a claimant may test his or her ability to work and still be considered "disabled." *1034 20 C.F.R. § 404.1592(a). A trial work period "begins with the month in which you become entitled to disability insurance cash benefits," but such a period cannot begin before the month in which an application for benefits is filed. 20 C.F.R. § 404.1592(e).
Newton v. Chater involved a claimant who alleged disability from October 1992 and who worked at a foundry from June to September 1994. In Newton, the Eighth Circuit Court of Appeals found that one's entitlement to a trial work period depends upon whether one is "entitled" to disability insurance cash benefits, and that under 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A), such cash benefits are "not conditioned upon receipt of a benefits award, but only upon the passage of five consecutive months of disability lasting twelve continuous months.... [A] trial work period starts in the month that entitlement to disability benefits begins, which is the month following five consecutive months of being under a disability that has lasted or is expected to last a total of twelve continuous months." Id. at 694 (citation omitted). Thus, the Newton court found that the Commissioner erred in considering the claimant's work from June to September 1994 as evidence of substantial gainful activity without first determining whether the claimant was entitled to a trial work period during that time. Id.
Although the ALJ in Dierks' case failed to cite Newton, his ruling is consistent with it. Because Dierks became engaged in substantial gainful activity the same month in which he alleged onset of his disability, and he continued to perform such activity up until the date of hearing, there was never a "passage of five consecutive months of disability," a prerequisite to receiving benefits and to a trial work period. Id.; 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A). Thus, the ALJ correctly concluded that Dierks was not entitled to a trial work period.
III. CONCLUSION
The ALJ's decision regarding Dierks' performance of substantial gainful activity from the alleged onset date of his disability and the unavailability of a trial work period must be affirmed. Specifically, because Dierks was engaged in substantial gainful activity since August 1994, the month in which he filed his application for disability benefits, he was not under a "disability," as defined in the Social Security Act. Further, Because Dierks became engaged in substantial gainful activity the same month in which he alleged onset of his disability, and he continued to perform such activity up until the date of hearing, there was never a "passage of five consecutive months of disability," a prerequisite to receiving benefits and to a trial work period. Newton v. Chater, 92 F.3d at 694; 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A). Thus, Dierks was not entitled to a trial work period.
Accordingly,
IT IS ORDERED that judgment shall be entered by separate document providing that the final decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
NOTES
[1] A more complete summary of the medical evidence is not required because the ALJ decision that is the subject of this appeal was based on nonmedical grounds; rather, it focused on whether Dierks' activity after his alleged disability-onset date was "substantial gainful activity" such that Dierks could not be classified as disabled.
[2] Disability determinations are made according to a five-step process described in 20 C.F.R. § 404.1520. Newton v. Chater, 92 F.3d 688, 692 (8th Cir.1996). The ALJ's determination in this case stopped at the first step; that is, the only inquiry required was whether the claimant was working and performing substantial gainful activity during a claimed period of disability, regardless of the claimant's medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(b).
[3] The ALJ did not apply the two other tests laid out in sections 404.1575(a)(1) and (3). The plaintiff does not argue that either of these alternative tests should have been applied, but rather that the ALJ improperly concluded that the test laid out in section 404.1575(a)(2), quoted above, was met. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616443/ | 104 S.W.3d 568 (2002)
In the Interest of M.A.H., A Child.
No. 10-02-234-CV.
Court of Appeals of Texas, Waco.
October 16, 2002.
*569 Julia A. Adams, Waco, for appellant/relator.
Brian E. Howell, Clark, Clark & Howell, Waco, for respondent.
Diane Hightower, Meridian, for ad litem.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
NOTICE REGARDING STATUS OF APPEAL
PER CURIAM.
A jury found that Destiny Dawn Merritt's parental rights with respect to her daughter M.A.H. should be terminated. The trial court signed a decree in accordance with the verdict on May 29, 2002. Merritt filed a motion for new trial and an indigence affidavit on June 27. She did not file a formal notice of appeal until August 9, twenty-three days after the trial court sustained the court reporter's contest of her indigence affidavit.
TIMELINESS OF NOTICE OF APPEAL
Based on a recent amendment to the Family Code, this is an accelerated appeal. Tex. Fam.Code. Ann. § 109.002(a) (Vernon 2002). Therefore, the notice of appeal was due twenty days after the decree was signed, which was June 18. TEX. R.APP. P. 26.1(b). Merritt's motion for new trial did not extend the due date for her notice of appeal. Id. 28.1. Accordingly, her formal notice of appeal is untimely.
Nevertheless, "[a] court of appeals has jurisdiction over any appeal where the appellant files an instrument that `was filed in a bona fide attempt to invoke appellate court jurisdiction.'" Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (quoting Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex.1989)); accord Foster v. Williams, 74 S.W.3d 200, 203 (Tex.App.-Texarkana 2002, pet. denied); Health Care Ctrs. of Tex., Inc. v. Nolen, 62 S.W.3d 813, 815 (Tex.App.-Waco 2001, no pet.). Only two documents arguably can be considered to have invoked our jurisdiction under this principle: the motion for new trial or the indigence affidavit. See Aguirre v. Texas Dep't of Protective & Regulatory Servs., 917 S.W.2d 462, 464 (Tex.App.-Austin 1996, order, writ denied); J.C. v. State, 892 S.W.2d 85, 86 (Tex.App.-El Paso 1994, no writ); see also Foster, 74 S.W.3d at 203 (construing docketing statement as bona fide attempt to perfect appeal). However, Merritt filed these documents nine days late. See Tex.R.App. P. 26.1(b).
*570 IMPLIED EXTENSION
The appellate rules permit this Court to extend the time for filing the notice of appeal if a party files the notice of appeal in the trial court and a motion for extension in this Court within fifteen days "after the deadline for filing the notice of appeal." Id. 26.3. Merritt filed the motion for new trial and the indigence affidavit within this fifteen-day window. If she filed one of these documents in a "bona fide attempt" to invoke our jurisdiction, then we must imply a motion for extension. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997); In re B.G., 104 S.W3d 565, 567 (Tex.App.-Waco 2002, order); Weik v. Second Baptist Church, 988 S.W.2d 437, 439 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). However, this implied motion will not be granted unless Merritt can provide a reasonable explanation for the late filing. Tex.R.App. P. 10.5(b)(1)(C), 26.3(b); Verburgt, 959 S.W.2d at 617; Cotton v. Cotton, 57 S.W.3d 506, 508-09 (Tex.App.-Waco 2001, no pet.); Coronado v. Farming Tech., Inc., 994 S.W.2d 901, 901 (Tex.App.-Houston [1st Dist.] 1999, order, no pet.).
Therefore, we hereby notify Merritt that her appeal is subject to dismissal for want of jurisdiction unless she files a response showing a reasonable explanation for the late filing of her appeal. See TEX. R.APP. P. 42.3(a); B.G., 104 S.W.3d at 567; Coronado, 994 S.W.2d at 901-02. If she fails to do so within ten days after the date of this notice, her appeal will be dismissed for want of jurisdiction.
Justice GRAY concurring and dissenting.
TOM GRAY Justice, dissenting and concurring.
In the guise of a "notice," the majority has not just become the advocate for a party, but has gone into the mind of a party and determined the party's subjective intent, given that subjective intent conclusive effect under the law, and then instructs the party to explain why they are correct in divining the party's intention or suffer dismissal as a consequence.
Merritt's notice of appeal was not filed timely. To overcome this problem she must show she timely filed some document in a bonafide attempt to invoke our jurisdiction. But no document was timely filed to invoke our jurisdiction. The majority has linked two concepts together to save hera bonafide attempt to invoke our jurisdiction and an implied motion for extension of time to file a notice of appeal. See Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) and Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997), respectively. Thus, the majority has held that, within 15 days of the date the notice of appeal was due, she filed some document attempting to invoke our jurisdiction, and therefore a motion for extension of time to file a notice of appeal was implied.
But to receive the benefit of the implied motion, she must have intended that the document be filed for the purpose of invoking our jurisdiction. It is not enough that the document could be so construed as an attempt to invoke our jurisdiction. The party must actually have filed it for the purpose of invoking our jurisdiction.
When the document filed late is the notice of appeal, it is obviously filed in an effort to invoke our jurisdiction. This is also true of the older cases when a defective appeal bond was filed. The purpose of such a filing was beyond dispute. But when some other document is filed late, unless we are clairvoyant, we do not know why the document has been filed. Thus *571 seldom, if ever, could a motion for new trial be intended to invoke our jurisdiction, because the express purpose of a motion for new trial is just that, to have the trial court order a new trial, not to obtain appellate review of the judgment. Even if we harken back to the days that a motion for new trial was a necessary predicate to bring an issue on appeal, the motion for new trial would have been properly characterized as a prerequisite to an appeal, not an effort to invoke appellate jurisdiction.
We have not previously notified the parties that our jurisdiction was in question. The parties, therefore, have not advised us of the purpose for the filing of the motion for new trial or the indigency affidavit. The majority speaks for Merritt by telling her why she filed these documents. We should not.
After telling Merritt why she filed these documents, the majority then tells her all that we should be telling her, and which is what we have consistently told other litigants in the past: "... that her appeal is subject to dismissal for want of jurisdiction unless she files a response showing a reasonable explanation for the late filing of her [notice of] appeal."
When we raise jurisdiction on our own motion due to the failure to timely file a notice of appeal, as we have done in this case, I contend the party should be advised by letter, because there is no need for a published notice, that the notice of appeal appears to be filed late and the appeal is subject to dismissal unless grounds for continuing the appeal are shown. See e.g. In the Interest of B.G., 104 S.W.3d 565, 567, 2002 Tex.App. Lexis 4371, *3 (Waco 2002, order). Accordingly, I can join only that portion of the notice which notifies the parties that we are questioning our own jurisdiction and that they should explain why this appeal is not subject to dismissal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616441/ | 104 S.W.3d 284 (2003)
U.S. RESTAURANT PROPERTIES OERATING L.P., and U.S. Restaurant Properties, Inc., Appellants,
v.
MOTEL ENTERPRISES, INC., Appellee.
No. 09-02-018-CV.
Court of Appeals of Texas, Beaumont.
Submitted February 6, 2003.
Decided April 17, 2003.
*287 James R. Jordan, Shannon, Gracey, Ratliff & Miller, LLP, Dallas, Joseph W. Spence, J. Christopher Nickelson, Shannon, Gracey, Ratliff & Miller, LLP, Fort Worth, for appellants.
Joe McElroy, Robert T. Cain, Jr., Zeleskey, Cornelius, Hallmark, Roper & Hicks, LLP, Lufkin, for appellee.
Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
OPINION
DAVID B. GAULTNEY, Justice.
Motel Enterprises, Inc. ("Motel") sued U.S. Restaurant Properties Operating L.P. ("USRP") and U.S. Restaurant Properties, Inc. for breach of contract. A jury awarded Motel $550,000. This appeal challenges the sufficiency of the evidence, the measure of damages, the jury charge, evidentiary rulings, and the calculation of prejudgment interest.[1]
BACKGROUND
Motel owned numerous Dairy Queens ("DQs"). Thirty-seven of the DQs were sold to USRP, which then leased them to Bar S Restaurants, Inc. ("Bar S") in a lease-purchase arrangement. USRP paid Motel almost $12,000,000 in cash for the Dairy Queens, but that amount was $500,000 short of the actual price. Motel agreed to finance the remaining $500,000 by taking a promissory note on which Bar S, the lessee of the Dairy Queens, was the maker. USRP, Motel, and Bar S entered into a purchase and sale agreement containing the following "put option:"
At any time after the eighteenth (18th) month following the execution of this Agreement, Motel shall have the right to cause USRP, upon delivery of ten (10) days' prior written notice, to purchase that promissory note (the "Note") of even date herewith, executed by Maker [Bar S] and payable to the order of *288 Motel in the principal sum of $500,000.00....
Motel may not exercise the put option provided by this paragraph at any time there is a continuing material uncured default by Maker [Bar S] under the Lease Agreement (the "Lease Agreement") described in the Note....
The restaurant lease ("lease") between Bar S and USRP obligated Bar S to keep and maintain each of the Dairy Queens in good order, condition, and repair, as follows:
Tenant [Bar S] shall at its sole cost and expense keep and maintain each of the Premises and Buildings, including sidewalks, landscaping and driveways located on the Premises, in good order and condition and repair, and shall ... make all needed repairs and replacements, interior and exterior, structural and nonstructural, ordinary and extraordinary, including but not limited to, roof, air conditioning and heating systems, replacements of cracked or broken grass [sic], repair of parking areas and driveway....
In April 1997, USRP sent Bar S the first of a series of letters claiming a lease defaultspecifically the failure to maintain and appropriately repair the properties. USRP's last letter of default to Bar S was in late September 1997. In early November 1997, Motel notified USRP of Motel's exercise of the put option requiring USRP to purchase the note. Claiming Bar S was in default under the lease, USRP refused to purchase the note. Motel's lawsuit followed.
LIABILITY
USRP argues the evidence is legally and factually insufficient to support the jury's answer to the following question:
Do you find from a preponderance of the evidence that at the time Motel Enterprises, Inc. sought to exercise the put option, Bar S Restaurant, Inc. was not in an uncured, material default on the Restaurant Lease [of] Thirty-Seven Dairy Queen Restaurants with U.S. Restaurant Properties Operating L.P.?
____ Bar S Restaurant Inc was not in an uncured, material default; or
____ Bar S Restaurant Inc was in an uncured, material default.
The jury found Bar S was not in an uncured, material default on the lease. Using language from the lease, the jury instruction contained the following definition:
You are instructed ... "an uncured, material default on the Restaurant Lease Thirty-Seven Dairy Queen Restaurants" ("the Lease") is defined as follows:
....
(d) A failure by [Bar S] to observe and perform any other provision of this Lease to be observed or performed by [Bar S], where such failure continues for twenty (20) business days after written notice thereof by the Landlord to [Bar S]. However, if the nature of the default is such that the default cannot be reasonably cured within the twenty (20) business day period, [Bar S] shall not be deemed to be in default if [Bar S] shall within such period of time commence such cure and thereafter diligently prosecute the same to completion[.]
When an appellant attacks the legal sufficiency of an adverse finding on which it does not have the burden of proof, it must demonstrate on appeal there is no evidence to support the adverse finding.[2]See Croucher v. Croucher, 660 S.W.2d 55, *289 58 (Tex.1983). On appeal, the evidence is viewed in "a light tending to support the jury's verdict," and "all evidence and inferences contrary to the jury's finding" must be disregarded. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). In a factual sufficiency review, an appellate court examines all the evidence, and will set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that the verdict is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
When USRP leased the properties to Bar S, some DQs were in disrepair, while others were in "okay" condition. At the beginning of the lease, "[i]t was understood on both sides that the properties were underperforming due to their current condition." The parking lots were a concern, but it was understood that putting the parking lots in "A-1 condition" "wouldn't be immediate." As one witness explained, maintenance on the DQs was a "continuous process;" there were always problems on the facilities that needed addressing.
The record reveals Bar S was performing maintenance on seven stores at issue here. USRP's letters specified that the condition of the seven DQs placed Bar S in default. USRP said the parking lot in Diboll had potholes and needed to be resurfaced and restriped, and the roof required repair. Bar S's improvements and maintenance in Diboll included filling of potholes, a new menu board, new outside lighting, and retrofitting of inside lighting. The Diboll parking lot was scheduled for resurfacing in the summer. USRP's letter alleging defaults at the Humble DQ included no specifics. Bar S responded by noting the following improvements: new parking lot with striping; new paint job inside and out; roof repair; new flooring; and gravel patio with outside tables. Improvements and repairs at the Kountze DQ included a paint job inside and out, restriping of the parking lot, installation of an air conditioning unit, and repair of the overhang. At Waskom, Bar S patched the parking lot and put the building on a schedule for repainting. The resurfacing and striping of the parking lot had not been done. At the Rusk DQ, the parking lot had not been resurfaced, but Bar S was waiting on finalization of a joint site plan with Taco Bell. The weeds and dead plants, complained of in the Rusk letter, would be replaced or already had been. Other problems at Rusk included a soap dispenser on the floor, and the lack of a switchplate in the men's restroom. Carroll Sullivan, Bar S chief executive officer, believed all the repairs, except those to the parking lot, had been completed on the Lufkin DQ, and Bar S was negotiating with Taco Bell to do a new parking lot. At the Livingston DQ, Bar S had not resurfaced the parking lot, but the roof had been fixed and the DQ painted.
In addition to requiring Bar S to keep the properties in good order, condition, and repair, the lease provided for a two year plan for capital improvements and repairs in excess of necessary maintenance. John Pettijohn, who handled the negotiations in USRP transactions, indicated that Sullivan's plan was to spend at least $500,000 in the first eight quarters for capital repairs and improvements, part of which would be for parking lots. Pettijohn explained that capital expenditures are different from repairs which need to be done on a timely basis. Pettijohn's understanding was that the "stores in general... were in substantial disrepair and a lot of repairs were getting worse." But he testified the resurfacing of a parking lot was a capital improvement. Nancy Sedlak, the assets manager for USRP, testified resurfacing was both a capital improvement and a necessary repair and *290 would fall within the $500,000 two year expenditures. Sullivan, Pettijohn, and Sedlak all indicated the lease contemplated these types of repairs being made over eight calendar quarters, or two years. At the time Motel exercised the put option, the two years had not expired.
Because it had overfunded the acquisition and did not want to put any more money into the Dairy Queen system, USRP decided not to buy the note. Pettijohn told Sullivan that USRP was building a case, through the letters of default, that would give it grounds to refuse to buy the note. Sedlak testified that during an April 1997 conversation Stetson, the president of USRP, told her to look for any provision of the lease that Bar S was not upholding. According to Sedlak, this conversation took place prior to all the DQ inspections, except for the Lufkin DQ.[3]
As part of its ongoing maintenance program, Bar S had worked on all seven locations, except the closed Lufkin DQ. Although Bar S had not addressed every repair or maintenance issue raised by USRP, the jury reasonably could conclude from the evidence that Bar S kept and maintained the premises and buildings in "good order and condition and repair," that it was making "all needed repairs and replacements," and that it was in compliance with the two year capital improvements program. Further, the jury reasonably could conclude that USRP had determined not to buy the note prior to Motel's exercise of the put option, and simply had set upon a course of action to insure that fact. Though USRP gave notice regarding seven DQs, it never revisited those stores or inquired within the twenty day time frame to see if efforts were being made to cure the claimed problems. We find there is legally sufficient evidence to support the jury finding, and the evidence is not so weak that the finding is clearly wrong and unjust. The challenges to the liability finding are overruled.
DAMAGES
USRP argues the evidence is legally and factually insufficient to support the jury's answer to the following damages question:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Motel Enterprises for its damages, if any, that resulted from U.S. Restaurants' breach of the Put Option?
Consider the following elements, if any, and none other:
The difference, if any, between the value of the Put Option agreed to by the parties and the value of the Put Option as performed by U.S. Restaurants. The difference in value, if any, shall be determined at the time the Put Option was breached.
The jury answer was $550,000.
The put option provided that Motel had the right to cause USRP to purchase the note for 110% of the then outstanding principal balance of the note. It is undisputed that USRP refused to purchase the note. The note provided for payment of monthly interest beginning June 1, 1996, but provided for no payment on principal until May 1, 2001. It is undisputed that at the time Motel exercised its put option on November 3, 1997, the principal balance was $500,000. The jury finding of $550,000 which is 110% of the outstanding principal balance of the noteaccurately reflects these undisputed facts. The sufficiency *291 challenges to the damages finding are overruled.
THE NOTE
Motel was awarded $550,000 for USRP's failure to purchase the note, but the judgment does not address the transfer of the note. Motel suggests the judgment be modified to provide for transfer of the note. We modify the judgment to order Motel to legally transfer the note to USRP. See Tex.R.App. P. 43.2(b).
THE JURY CHARGE
USRP argues that the measure of damages submitted to the jury in question 1-A, quoted above, was incorrect. USRP requested the following jury question:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate [Motel] for its damages, if any, that resulted from the refusal of [USRP] to purchase the note dated April 30, 1996 from [Bar S] payable to [Motel]?
Consider the following elements of damages, if any, and none other.
The difference, if any, between $550,000.00 and the value of the note dated April 30, 1996 from [Bar S] payable to [Motel], as of November 14, 1997.
Do not add any amount for interest on the difference, if any.
Motel's measure of damages sought the difference between the value of the put option as agreed to by the parties and the value of the put option as performed. USRP says the measure is wrong, because it does not include any consideration of the losses Motel avoided by not having to perform its contract with USRP. Although Motel contends otherwise, we conclude USRP preserved the issue by tendering and obtaining a ruling on its question and instruction on the measure of damages. See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex.1992) (The test for preservation of error concerning the jury charge is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.).
The general rule for measuring damages for breach of contract is "just compensation for the loss or damage actually sustained." Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex.1991) (quoting Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952)). Typically, the "benefit of the bargain" measure, based on an expectancy theory, is the difference between the value represented and the value received. See Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (Tex.1992)(Phillips, J., concurring). Here, Motel contracted for USRP's purchase of the note in a lump sum of $550,000, so long as eighteen months of the lease had elapsed and Bar S was not in an uncured material default. USRP refused to purchase the note and paid Bar S nothing. The judgment as modified transfers the note to USRP. The question, in effect, asked for the difference between the value as represented or agreed to by the parties and the value Motel received. The damages question submitted in the charge correctly reflects the general rule for measuring breach of contract damagesjust compensation for the loss or damage sustained. The challenge to jury question 1-A is overruled.
EXPERT WITNESS
USRP contends the trial court erred in excluding the testimony of Jeffrey Balaban, an expert witness on damages. To be admissible under Tex.R. Evid. 702, an expert's testimony must be relevant to the issues in the case, and must be based on a reliable foundation. See Exxon Pipeline *292 Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex.2002). A trial court has broad discretion in determining the admissibility of evidence. Id. at 629. The parties agreed that the purchase price of the note would be 110% of the then outstanding principal balance of the note. It is undisputed that $500,000 was the outstanding principal balance. Mathematically, 110% of $500,000 is $550,000. It is undisputed that USRP paid nothing when it received notice Motel was exercising the put option. The difference between the value of the put option as agreed to and the value of the put option as performed is $550,000, which is the sum awarded.
To be relevant, expert testimony must be sufficiently tied to the facts of the case that it will aid the jury in answering the questions presented. Id. An expert's opinion also may be excluded as not reliable if the testimony presents too great a gap between undisputed controlling facts and the opinion offered. And expert testimony which is of no assistance to a jury in understanding the evidence or determining a fact issue should be excluded. See Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex.2000). Given the undisputed facts establishing the amount of the damages calculated under the contract, the trial court did not abuse its discretion in excluding the opinion testimony.
EVIDENTIARY CHALLENGES
USRP says the trial court erred during the damages phase of the trial by (a) admitting evidence of Bar S's financial reversal and failure to pay the note after Motel exercised the put option, and (b) admitting opinion testimony on the difference in value between the put option as agreed to and as performed by USRP. Even if an evidentiary ruling is erroneous, an appellate court ordinarily will not reverse and require a new trial when the testimony is merely cumulative of other properly admitted evidence and is not controlling on a material issue dispositive to the case. See Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000).
The underlying material and controlling facts supporting the damage calculation under the contract were undisputed, as detailed. The challenged evidenceassuming it need not and should not have been admitted given the undisputed controlling factswas cumulative of other properly admitted evidence or did not control the damage finding; the admission of the evidence does not require a new trial. The challenges to the trial court evidentiary rulings are overruled.
MITIGATION OF DAMAGES
USRP contends the trial court should have included in the damages question the following instruction on mitigation of damages:
Plaintiff [Motel] had an obligation to exercise reasonable care to lessen or mitigate the damages it claims to have suffered. In determining the amount of damages, if any, which [Motel] may have incurred as a result of USRP's action, you are not to include any amount of damages which [Motel] could have avoided by the exercise of reasonable care.
The parties are entitled to have controlling and disputed fact issues submitted to the jury if they are properly pleaded and supported by the evidence. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995). A trial court may submit controlling issues to the jury by questions, instructions, definitions, or a combination thereof. See Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex.App.-Corpus Christi 1990, writ denied). When a trial judge refuses to submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. See *293 Texas Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). The trial court has broad discretion in submitting jury instructions. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex.1995). A plaintiff has a duty to mitigate when damages can be avoided by the plaintiff's reasonable efforts made at a "trifling expense or with reasonable exertions." Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex.1995) (quoting Walker v. Salt Flat Water Co., 128 Tex. 140, 96 S.W.2d 231, 232 (1936)). A defendant has the burden of proving the plaintiff's lack of diligence and the amount by which the failure to mitigate increased the damages. See Geotech Energy Corp. v. Gulf States Telecomm. and Info. Sys., Inc., 788 S.W.2d 386, 390 (Tex.App.-Houston [14th Dist.] 1990, no writ).
In arguing for an instruction on mitigation, USRP relies on evidence that (a) Carroll Sullivan had personally guaranteed the note; (b) the guarantee ran only to Motel, the payee on the note; and (c) Motel admitted no efforts were made to enforce the guarantee agreement. But the note with Bar S was not in default at the time USRP breached the put option. The evidence was not relevant to mitigation at that time.
If USRP is claiming Motel had a duty to mitigate after the first trial[4] in this case, we disagree. The trial court's prior judgment ordered Motel to deliver the note, properly endorsed, to USRP. In January 2000, prior to this Court's decision in the first appeal of this case, USRP, Bar S, and Sullivan entered into a "Mutual Release Agreement" in which USRP acquired "substantially all of Bar S assets" and the parties mutually released any claims against the others regarding the note and the purchase and sale agreement. In July 2000, this Court reversed the earlier judgment in Motel's favor, and the second trial resulted. See U.S. Restaurant Properties Operating L.P. v. Motel Enters., Inc., 25 S.W.3d 293, 295 (Tex.App.-Beaumont 2000, pet. denied). We find no error in refusing to include an instruction on mitigation of damages.
LIABILITY OF GENERAL PARTNER
U.S. Restaurant Properties, Inc. asserts it is not liable because it was not a party to the purchase and sale agreement; U.S. Restaurant Properties Operating, L.P. signed the agreement. Motel sued both Properties, Inc. and Operating, L.P., and pleaded that Properties, Inc. is the general partner of Operating, L.P. The defendants never denied that Properties, Inc. was liable in the capacity in which it was sued, or asserted that there was a defect of parties. See Tex.R. Crv. P. 93. In a general partnership, a partner is liable for partnership debts jointly and severally with all other partners. See Burnap v. Linnartz, 914 S.W.2d 142, 151 (Tex. App.-San Antonio 1995, writ denied). Having failed to plead otherwise, Properties, Inc., a general partner, is jointly and severally liable with Operating L.P.
PREJUDGMENT INTEREST
In the alternative, USRP asks this Court to reduce the prejudgment interest by the amount of interest Bar S paid to Motel under the terms of the note. Otherwise, says USRP, Motel has a double recovery, since the prejudgment interest was running at the same time Bar S was paying Motel interest on the note. Motel argues the issue is waived, because USRP did not plead offset or credit; Motel asserts a better argument would be that prejudgment interest did not commence until Bar S made its last payment.
We conclude USRP preserved its complaint below by raising the prejudgment *294 interest issue in its motion to modify or reform the judgment, and also that USRP is in effect arguing that prejudgment interest should be calculated from the date Bar S made its last interest payment. Prejudgment interest is compensation allowed by law as "additional damages for lost use of money due as damages during the lapse of time between the accrual of the claim and the date of judgment." Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998). USRP's issue on prejudgment interest is sustained.
With the exception of the prejudgment interest issue, appellants' issues are overruled. Pursuant to Tex.R.App. P. 43.2(b), the judgment is modified to require Motel to effect legal transfer of the note to USRP. The case is remanded to the trial court for a recalculation of prejudgment interest consistent with this opinion.
MODIFIED AND AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
NOTES
[1] This was the second trial of this case. See U.S. Restaurant Properties Operating L.P. v. Motel Enters., Inc., 25 S.W.3d 293 (Tex.App.-Beaumont 2000, pet denied).
[2] Motel did not object to the placement of the burden of proof. No argument is made on appeal that USRP had the burden to prove an uncured, material default.
[3] There were two Lufkin DQs, one of which had been closed. Pettijohn told Sullivan it was not advisable to spend money on the closed store.
[4] The first trial occurred in 1998. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616435/ | 104 S.W.3d 206 (2003)
Mark TROSTLE and Carroll Draper, Appellants,
v.
Susan COMBS, Commissioner of Agriculture and in her Individual Capacity; Donnie Dippel, Kathy Reed, Sara Jo Snodgrass, Raette Hearne, Charlie Thomas, Larry Beauchamp, and Martin Hubert, in their Official and Individual Capacities; and Lisa Woods and Karen Macomb, in their Official Capacities, Appellees.
No. 03-01-00645-CV.
Court of Appeals of Texas, Austin.
April 3, 2003.
*209 Royce Lemoine, Peter M. Kreisner & Assoc., P.C., Austin, for appellants.
David E. Jenkins, Asst. Atty. Gen., Austin, for appellees.
Before Justices KIDD, B.A. SMITH and YEAKEL.
OPINION
LEE YEAKEL, Justice.
Appellants Mark Trostle and Carroll Draper appeal from the take-nothing summary judgment rendered against their claims that the appellees damaged them while demoting them at the Texas Department of Agriculture ("the Department"). Trostle and Draper contend that they were deprived of property interests, liberty interests, and due process by appellees acting in the following capacities: Susan Combs, Commissioner of Agriculture and in her individual capacity; Donnie Dippel, Kathy Reed, Sara Jo Snodgrass, Raette Hearne, Charlie Thomas, Larry Beauchamp, and Martin Hubert, in their official and individual capacities; and Lisa Woods and Karen Macomb, in their official capacities. Trostle and Draper contend that Combs slandered them per quod and per se, that several appellees intentionally inflicted emotional distress upon them, and that the appellees conspired to inflict emotional distress and humiliation upon them. Appellees moved for summary judgment, contending that their actions are protected by the at-will employment doctrine and do not violate the constitution or any of the laws alleged. The court granted the motion without stating a basis. We will affirm the judgment.
BACKGROUND
Trostle and Draper are longtime employees of the Department. Trostle was the director of the pesticide-registration program and Draper was a pesticide-registration specialist. Both had good employment records before the incident leading to their demotion.
In late 1998, Trostle was invited by his friend, Dr. J.R. Moody, to hunt deer on a lease in Concho County. Trostle believed Moody, an employee of Zeneca Ag Products, owned the lease. Trostle invited Draper. Appellants provided their own transportation, toiletries, food, and bedding. They did not shoot or kill any game while on the lease.
On February 11, 1999, Trostle and Draper were questioned by Donnie Dippel, their immediate supervisor, and Larry Beauchamp, the Department's ethics officer, about the hunting trip. Dippel and Beauchamp told appellants that the trip violated the Department's ethics policies and the penal code. Dippel and Beauchamp further stated that appellants must sign individual statements about the trip or face termination and prosecution. Five days later, they were pressed to sign individual statements prepared by Beauchamp admitting that the lease was owned by Zeneca, a company regulated by the Department. Both appellants signed such statements.
On February 19, 1999, appellee Martin Hubert, the deputy commissioner of agriculture, told appellants they must quit, be fired, or agree to demotion, probation, and salary reduction. Hubert reiterated the Department's position that the hunting trip constituted acceptance of a benefit from a company that the Department regulateda violation of Texas Penal Code section 36.08 and the Department's ethics policies. Appellants signed documents detailing the terms of their demotion and probation. In conjunction with their demotions, Trostle lost $635 in monthly salary and Draper lost $384 in monthly salary.
*210 Appellants later learned that the lease is held in the name of another Zeneca employee who, Beauchamp said he learned, used funds from Zeneca to pay for the lease.
Many people outside the Department learned of the accusations against appellants. Appellants specifically allege that Combs told Chris Shields, the executive director of the Texas Aerial Applicator Association, that appellants had taken a bribe from Zeneca.
Appellants sued, claiming that appellees deprived them of their interests in property, liberty, and due process.[1] They also claimed that appellees intentionally inflicted emotional distress on them, and that Combs slandered them. Appellees filed a motion for a no-evidence summary judgment that was denied except as to the claims for intentional infliction of emotional distress.
Appellees later filed a combined no-evidence and traditional motion for summary judgment against the remaining claims. In response, appellants filed affidavits describing their work histories, the lack of process in their demotions, the spread of rumors about their demotions, and the effect they believed the rumors and their demotions had on their job prospects within and outside the Department. The district court granted the appellees' second motion for summary judgment without stating a basis. In the course of granting the motion, the court sustained objections to appellants' affidavits, and denied a hearsay objection to the affidavit of appellants' former counsel Jason Nassour submitted for the purpose of attempted impeachment of Shields.
DISCUSSION
Appellants raise seven issues on appeal. They contend that the district court erred by concluding that they did not show either that they have a property interest in their employment and retirement benefits or that appellees violated their liberty and property interests. Appellants also argue that the district court erred by concluding that they did not produce evidence of a genuine issue of material fact concerning their claims that appellees engaged in a civil conspiracy or slandered appellants. Appellants further contend that the district court erred by granting summary judgment on the basis of immunity. Finally, appellants argue that the district court erred by sustaining appellees' objections to their evidence submitted in support of their response to appellees' second motion for summary judgment.
The appellate standards for reviewing a summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ).
Property interest
Appellants contend that they have a property interest in their employment *211 and retirement benefits at the Department. They acknowledge that employment in Texas is at will, but contend that the Department's disciplinary policy establishing methods for demoting or firing employees created property interests in their continued employment, retirement benefits, and the processes described in the Department's policy manual. They point to language requiring all employees to abide by the manual's policies, which include particular processes for grievances and adverse employment decisions.
A protected property interest in employment, process, or benefit exists only when an employee has a "legitimate claim of entitlement" to the employment, process, or benefit. See Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The employee must have more than an abstract need, desire, or unilateral expectation of it. Id. at 577, 92 S. Ct. 2701.
The presumption that employment in Texas is at will is difficult to overcome. "[A]bsent a specific agreement to the contrary, employment may be terminated by the employer or the employee for good cause, bad cause, or no cause at all." Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998). A manual alters the at-will status only if it contains language that specifically and expressly limits the employment relationship and curtails the employer's right to terminate the employee. Texas State Employees Union v. Texas Workforce Comm'n, 16 S.W.3d 61, 66 (Tex.App.-Austin 2000, no pet.). A disclaimer in an employee handbook negates any implication that a personnel procedures manual places a restriction on the employment at-will relationship. Federal Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993). In that case, the court found that any implication of a restriction on the at-will status of an employee in the company personnel manual was negated by language in that manual stating that "the policies and procedures set forth in this manual provide guidelines for management and employees during employment, but do not create contractual rights regarding termination or otherwise." Id.
Similarly, the Department's manual contains ample and repeated denials that it restricts the Department's ability to fire or demote employees at will. The manual contains a chapter entitled "employment at will" that contains the following policy statement.
The Texas Department of Agriculture adheres to the common-law doctrine of at-will employment. This means that once employed with the department, you serve at the pleasure of the commissioner. The department's policies, manuals, and procedures are subject to change and do not constitute terms of an express or implied employment agreement. No employee of the department has the authority to enter into a contractual agreement regarding employment with any other employee of the department.
The chapter setting out the disciplinary process contains a section entitled "employment at will" that repeats the first two sentences quoted above, then states, "No disciplinary action is a prerequisite for other disciplinary action, including termination." The manual then sets out the process that managers "may" use, including discussion, oral and written warnings, and probation. Next, in a paragraph entitled "variations," the manual states:
The above identified process may be varied or totally eliminated depending upon the severity and/or recurring nature of the employee's behavior. It is also possible to use suspensions without pay and demotions in addition to, or in *212 place of, these steps. Committing a criminal or unethical offense may be grounds for immediate termination.
The chapter setting out the grievance process closes with a paragraph in bold print that states, "Nothing in this policy should be construed as creating a contract of employment or any property right in employment. Notwithstanding the procedures set forth in this policy, employment at the Texas Department of Agriculture may be terminated at will."
The manual's repeated disclaimers show unequivocally that the policies and procedures therein did not alter the at-will employment status of appellants. See Dutschmann, 846 S.W.2d at 283. We hold that appellants therefore did not have a protected interest in their jobs. They may have an interest in the employment benefits they had accrued, but there is no indication that those benefits were affected by the demotions. Appellants lack a protected interest in benefits they speculate they would have accrued if they had not been demoted. See Roth, 408 U.S. at 577, 92 S. Ct. 2701.
Liberty interest
Appellants contend they were deprived of a liberty interest. Appellants must show that they were discharged without meaningful process, that they requested and were denied a chance to clear their names, and that false, defamatory charges were made public in connection with the discharge. Rosenstein v. The City of Dallas, 876 F.2d 392, 395 (5th Cir.1989).
Appellants, however, were demoted, not discharged. See Paul v. Davis, 424 U.S. 693, 710, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). They contend that a question remains regarding whether their demotions were significant enough to be a discharge under the standard. "The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the fourteenth amendment." See Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977) (affirming summary judgment finding no deprivation of liberty interest when corporal returned to patrolman status) (footnote 11 omitted). The court wrote:
Although Moore was transferred from a position with some supervisory and training responsibilities, he retained his position as a patrolmana duty that itself entails significant and important activities. If Moore had been transferred from corporal's duties to janitorial duties, his loss of status might present the type of loss of tangible interest connected with stigmatizing state action that, under Paul, could give rise to a liberty interest.
Id. n. 11, at 438 (citation omitted).
The facts of this case track those of Moore. Although neither appellant here was fired, both lost income; Trostle lost $635 per month and Draper lost $384 per month. Trostle lost his supervisory duties and became a subordinate in programs he once supervised. He lost the use of e-mail and the locks on his doors were changed. Draper was assigned statistical duties with which he had no experience and was moved to another building. These facts do not approach the level of demotion described in Moore. See id. Appellants did not lose a liberty interest.
Due process
Appellants complain that they were denied due process when they were demoted without the procedures described in the Department's manual. As discussed above, the "mandatory" language of the manual was overcome by the manual's repeated *213 denials that the procedures therein were mandatory or altered the at-will status of the Department's employees. "[T]he strictures of due process apply only to the threatened deprivation of liberty and property interests deserving the protection of the federal and state constitutions." Spring Branch ISD v. Stamos, 695 S.W.2d 556, 561 (Tex.1985); see also Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Because we have concluded that appellants were not guaranteed any process by the manual and were not deprived of liberty or property interests, we conclude that they were not deprived of any process due them.
Slander
Appellants complain that appellees slandered them by telling people outside the Department untruths about the circumstances of their demotion. A slander claim requires proof that the defendant published a statement that defamed the plaintiff while acting with negligent disregard of whether the statement was true. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). Appellants complain specifically only about a statement attributed to Combs.
Appellants complain generally of slander by unspecified appellees. Trostle avers that people inside and outside the agency and state government approached him with knowledge of the accusations against him, even though he had not discussed the accusations. There is no evidence, however, of how these individuals gained knowledge of the accusations. There is no evidence that appellees made the statements that gave these unnamed individuals the knowledge. Summary judgment in favor of all appellees against these nonspecific allegations was appropriate.
Appellants complain specifically that appellee Combs slandered them by telling Shields that appellants had taken a bribe from Zeneca. They support this allegation primarily with an affidavit from Jason Nassour, their former attorney. He averred:
In conjunction with my efforts to represent Trostle and Draper I had a telephone conversation with Chris Shields. Mr. Shields told me that he had a telephone conversation with Susan Combs and had been told that Trostle and Draper committed a crime, a Class A misdemeanor, for accepting a bribe. He further read the bribery [statute] to me over the telephone and indicated that Susan Combs had reported this matter to the District Attorney's office but they were holding off prosecuting this matter at Susan Combs' request.
Appellants also refer to Shields's deposition testimony about a telephone conversation he had with Combs in January or February of 1999. Shields said,
The basic gist of the conversation was that she understood that I had called her office inquiring about the Trostle matter. And I said, yes ma'am that's why I was calling. I got a couple of phone calls about it and I was wanting to try to figure out, you know, what exactly was going on with that. And what she basically said to me was that she had deliberately and carefully and appropriately dealt with a disciplinary action involving Mark Trostle.
And I said basically thank you very much for that information, and that was basically the conversation....
She did not, to my knowledge, say anythingto my recollection, say anything specifically about the facts of the case or what was involved or anything.
Shields testified that he learned more details of the situation from others, including Moody, Trostle's friend who invited him on the hunting trip.
*214 Appellees objected to Nassour's affidavit at trial contending, among other things, that it was tainted by an offensive use of attorney-client privilege, that the portions pertaining to what Shields told Nassour that Combs said were double hearsay, and that Nassour had no personal knowledge of the Shields-Combs conversation. In ruling on these objections to Nassour's affidavit and to affidavits by Trostle and Draper, the district court wrote the following:
The Court sustains all of Defendants' objections to the affidavit of Plaintiff Trostle, and sustains all of Defendants' objections to the affidavit of Plaintiff Draper. Further, the objection to the affidavit of Jason Nassour with respect to the hearsay objection is overruled for the purpose of attempted impeachment of Chris Shields.
The judgment concludes with a clause denying all relief not expressly granted.
Because the only evidence that Combs slandered appellants appears in Nassour's affidavit, the competence of the affidavit is critical to the viability of appellants' claims. Affidavits must be made on personal knowledge. Tex.R. Civ. P. 166a(f). The mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for such knowledge. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex.1988). When the substance of an affidavit reveals that it was not made on personal knowledge, the affidavit is not competent summary-judgment evidence. Dailey v. Albertson's, Inc., 83 S.W.3d 222, 227 (Tex.App.-El Paso 2002, no pet.); see also Bauer v. Jasso, 946 S.W.2d 552, 557 (Tex.App.-Corpus Christi 1997, no writ) (lack of personal knowledge is substantive defect). But see El Paso Associates, Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 19 (Tex.App.-El Paso 1990, no pet.) (hearsay is admissible and competent evidence unless properly objected to); see also Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex.App.-Houston [1st Dist.] 1997, no writ) (lack of personal knowledge is defect of form); Dolenz v. A_B_, 742 S.W.2d 82, 83 n. 2 (Tex.App.-Dallas 1987, writ denied).
Nassour's affidavit makes it plain that he had no personal knowledge of the defamatory statements Combs allegedly made. She did not make the statements to him and he did not overhear the conversation between her and Shields; Nassour avers that he learned of Combs's remarks through Shields's recounting of the conversation. Combs objected and asserts on appeal that Nassour's statements are double hearsay. The district court, while not expressly sustaining this objection, sustained other objections and then overruled the double-hearsay objection "for the purpose of attempted impeachment of Chris Shields." We are concerned, not with the impeachment of Shields, but with whether the record contains any competent evidence that Combs made defamatory statements. We hold that Nassour's affidavit, made without personal knowledge of Combs's remarks and subject to a hearsay objection, is not competent evidence that she made those remarks. But see Dolenz, 742 S.W.2d at 83 n. 2 (affidavit recounting conversations is competent summary-judgment evidence when not objected to).
Because there is no competent evidence that Combs made defamatory remarks, the district court did not err by granting summary judgment against the slander claim.
Conspiracy
Appellants allege that appellees engaged in a conspiracy to inflict emotional distress and humiliation. They argue on appeal that appellees conspired to deny them due process by failing to follow the Department's procedures outlined in *215 the policy. "A civil conspiracy is generally defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means. It is not the agreement itself, but an injury to the plaintiff resulting from an act done pursuant to the common purpose that gives rise to the cause of action." Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex.1979). Because none of the actions allegedly conspired upon supports a cause of action, summary judgment is also appropriate against the claim that appellees conspired to commit those actions.
Remaining issues
Because we have found that summary judgment is appropriate against all of appellants' causes of action, we need not consider whether appellees were immune from liability in these causes of action. Similarly, because the information in appellants' affidavits excluded by the district court does not alter our conclusions regarding the issues considered above, we need not consider whether the district court erred by sustaining objections and excluding the information.
CONCLUSION
Having considered all necessary issues and resolved them in favor of the judgment, we affirm the judgment.
NOTES
[1] Appellants also sued the Department and Shields. The Department was dismissed and Shields was nonsuited. Appellants do not appeal the judgment as to the Department and Shields. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616470/ | 104 S.W.3d 441 (2003)
Karen CHIPMAN, Petitioner-Respondent,
v.
Jaima COUNTS, Respondent-Appellant, and
Tad Sessums, Respondent.
No. 24977.
Missouri Court of Appeals, Southern District, Division One.
May 14, 2003.
*442 John M. Albright, Moore & Walsh, L.L.P., Poplar Bluff, for appellant.
Lew Polivick, Legal Services of Southern Missouri, Charleston, for respondent.
PHILLIP R. GARRISON, Judge.
Jaima Counts ("Appellant") appeals from the judgment of the trial court awarding sole legal and physical custody of her daughter, L.K.S., to Appellant's mother, Karen Chipman ("Respondent"). Appellant raises two points on appeal; we do not reach them, however, as we find the trial court lacked subject matter jurisdiction.
Appellant was divorced from her first husband, with whom she had one child, on April 8, 1994 in an Arkansas court. Shortly thereafter, L.K.S. was born to Appellant and Tad Sessums ("Sessums"). Appellant *443 and Sessums were never married. For the first six months of L.K.S.'s life, she lived with Appellant and Sessums. Since that time, she has lived in Respondent's home, with Respondent being her primary caregiver. At the time of trial, L.K.S. was six years old.
On February 7, 2000, Respondent filed a petition for custody, in which she sought sole legal and physical custody of L.K.S., and the child born to Appellant and her first husband.[1] Some sixteen months later, on June 19, 2001, a hearing was held on a motion of Respondent for temporary custody of L.K.S. Sessums entered his appearance as L.K.S.'s father and consented to the granting of temporary custody to Respondent. Appellant was declared in default, and the trial court entered an order granting Respondent temporary custody of L.K.S.
Eight days later, on June 27, 2001, Appellant filed a motion to set aside the temporary custody order and for leave to file responsive pleadings out of time. A hearing on these motions was held on July 12, 2001 in which the trial court, believing a full hearing was in the best interest of L.K.S., modified the temporary custody order, appointed a guardian ad litem for L.K.S. and set the case for full hearing. The court also ordered Appellant to submit to a drug test that day; Appellant complied, and the test results were negative.
On August 23, 2001, the trial court apparently took up the petition for custody, although the docket sheet indicates the court took up once again the motion to set aside the temporary custody order.[2] We are left to speculate as to the exact nature of this proceeding; in any event, it concluded, rather abruptly in the middle of Respondent's testimony, with the trial court continuing the case and ordering that temporary custody of L.K.S. remain with Respondent.
On October 9, 2001, Appellant, through newly retained counsel, filed a motion to dismiss the petition for custody, and a cross-petition for writ of habeas corpus. Six days later, on October 15, 2001, Respondent moved the court for leave to file an amended petition for custody, which was granted during a hearing on October 31, 2001.[3] At that hearing, Appellant withdrew her motion to dismiss. The trial court heard argument on Appellant's cross-petition for writ of habeas corpus, which it then denied.[4]
*444 The case proceeded to trial on Respondent's amended petition on December 3, 2001. Significant evidence at trial showed that Appellant had a lengthy history of substance abuse, including frequent use of methamphetamine, morphine and alcohol. Following the birth of L.K.S., Appellant had numerous boyfriends with whom she often would leave for extended stays away from Respondent and L.K.S., leaving no way for Respondent to contact her in case of an emergency. Appellant's employment history was sporadic at best.
Evidence also was adduced showing that Appellant's life had stabilized somewhat by the time of trial. She had recently married, had passed numerous random drug tests and had maintained employment, albeit for a relatively short period of time, in a job that typically experiences significant turnover. Respondent continued, however, to be the primary caregiver and parental figure to L.K.S.
At the close of evidence, the trial court took the case under advisement. Five months later, on May 3, 2002, the court entered its judgment granting sole legal and physical custody of L.K.S. to Respondent. In its judgment, the trial court found specifically that it had jurisdiction over the parties and the case, based on its finding that Missouri was the home state of both L.K.S. and the parties, and that no other custody proceedings concerning L.K.S. were pending in any court. The court stated that "[i]n making a custody determination, [it had] considered the public policy of Missouri set out in Section 452.375[5] and also the factors listed in subdivisions (1) to (8) of subsection 2 of Section 452.375." While the court acknowledged that "[a]t the time of trial [Appellant's] home life and employment seemed more stable," and that it was "reluctant to label [Appellant] as totally unfit or unable to be [L.K.S.'s] custodian," it nevertheless found that she was "unsuitable as custodian." (emphasis in original). The court stated that "[t]his term encompasses the needs of [L.K.S.], plus the history of unreliability of [Appellant] in putting parenting ahead of her personal wants." The court found that "Section 452.375(5) require[d][it] to address the appropriateness of different custodial arrangements prior to making an award of custody." In view of the "extraordinary circumstances" of the case, the court determined that neither of L.K.S.'s parents should be awarded custody, finding instead that "third-party custody in [Respondent] [was] the most appropriate custodial arrangement" for L.K.S. based upon the court's application of Section 452.375.2(1)-(8). The trial court concluded its judgment by stating that it "reaffirm [ed][its] denial of [Appellant's] Petition for Writ of Habeas Corpus as shown by docket entry of October 31, 2001" (emphasis in original).
Appellant raises two points on appeal. In her first point, she alleges that the trial court erred "in applying Chapter 452 standards, divorce law, to an action brought by a grandparent to obtain custody because the only legal mechanism allowing a grandparent to initiate a custody case is under the guardianship statutes, Chapter 475[.]" Appellant also suggests under this point that, had the proper statutory scheme been applied to the evidence, there was insufficient evidence to support a finding *445 that Appellant was unfit as a custodian to L.K.S. In her second point, Appellant apparently alleges that the trial court abused its discretion in making a finding that Respondent was the proper custodian because that finding was against the weight of the evidence.
As stated above, we find it unnecessary to address Appellant's points on their merits, for we find the trial court lacked subject matter jurisdiction to hear the case from the outset. "A court has `subject matter jurisdiction' if it has authority to adjudge the type of issue presented in the case that is before it." In re McGlaughlin, 885 S.W.2d 33, 34 (Mo.App. S.D.1994). Regardless of whether the issue is raised by the parties, an appellate court has an affirmative duty to determine jurisdiction prior to addressing the issues raised on appeal. Henningsen v. Independent Petrochemical Corp., 875 S.W.2d 117, 118 (Mo.App. E.D.1994) (citing Estate of Sawade v. State, 787 S.W.2d 286, 288 (Mo. banc 1990)).
Neither Appellant's first point on appeal nor her argument in support of that point raise specifically the issue of jurisdiction or standing in assigning error to the trial court for applying the wrong statutory scheme to this case. Rather than identifying the court's error as jurisdictional in nature, which would render the trial court's judgment void ab initio, Appellant characterizes the court's error in terms of misapplying the law, a reversible error under the well-established standard announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).[6]
Respondent, however, astutely recognizes the crux of Appellant's first point as being a challenge to Respondent's standing to bring the original action by way of a petition for custody. Acknowledging that "Appellant never actually questions Respondent's `standing' in so many words," Respondent nevertheless contends that "the arguments set forth under [Appellant's first point] lead to the conclusion that Respondent's standing is in issue and, therefore, subject matter jurisdiction is also in issue."
Respondent is correct in stating that "[s]tanding is a jurisdictional matter antecedent to the right to relief." Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002) (citing State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 n. 6 (Mo. banc 1982)). To determine a party's standing is to "ask[ ] whether the person[ ] seeking relief [has] a right to do so." Id. (citing State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992)). If a court determines a party lacks standing, it "must dismiss the case because it does not have jurisdiction of the substantive issues presented." Id. (citing State ex rel. Ryan v. Carnahan, 960 S.W.2d 549, 550 (Mo.App. E.D.1998); Rule 55.27(g)(3)).
With commendable candor, Respondent concedes she "did not have standing to bring the initial custody action against Appellant on February 7, 2000." Her concession is supported by McCoy v. Rivera, 926 S.W.2d 78 (Mo.App. W.D. 1996). In McCoy, a minor child's grandfather and his wife petitioned the trial court for custody of the child, who had lived with them for four years at the request of the child's mother while she was incarcerated. Id. at 79. The mother filed a motion to dismiss for lack of standing and subject matter jurisdiction, which the trial court *446 denied. Id. at 79-80. The court's subsequent judgment granted custody of the child to the mother, but ordered, in the best interests of the child, that transfer of custody be delayed almost five years from the date of the judgment. Id. at 80.
The court of appeals reversed the trial court's judgment for lack of subject matter jurisdiction. Id. at 81. The court noted four actions by which child custody may be adjudicated in Missouridissolution, habeas corpus, juvenile and guardianship. Id. (citing State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178, 180 (Mo. banc 1967)). Noting that the facts dictated that a guardianship proceeding was the only one of the four child custody actions applicable to the case, and that "[b]efore this action, no court had entered a custody order[,]" meaning the child's grandparents "had no legal right, without a court order, to retain custody" of the child, the McCoy court determined the trial court's judgment was void. Id. at 81.
Notwithstanding the fact that the judgment here clearly is founded upon the court's application of Chapter 452, Missouri's statutory scheme governing dissolution of marriage, this obviously is not a dissolution case; Respondent filed a petition seeking custody of her daughter's child.[7] Nor did Respondent seek custody of L.K.S. by way of a petition for writ of habeas corpus.[8] This also is not a proceeding under Chapter 211, which establishes the juvenile courts' jurisdiction, as no juvenile officer filed a petition concerning L.K.S. and seeking to terminate the parental rights of L.K.S.'s parents. See McCoy at 80; Section 211.447. This leaves a petition for letters of guardianship as the only means by which Respondent could properly have invoked the jurisdiction of the trial court as a grandparent seeking custody of a grandchild. See Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998); Section 475.030.4. Since she did not proceed under Chapter 475, Respondent did not have standing to file her petition for custody and the trial court lacked subject matter jurisdiction based on that petition. Moreover, nothing contained in the amended petition, upon which the trial court proceeded in the December 3, 2001 trial, served to remedy the jurisdictional deficiencies contained in the original petition.[9]
Understandably, Respondent's argument does not consist solely of her concession that the petition she filed failed to successfully invoke the trial court's jurisdiction. She goes on to argue that "[t]he reasoning in McCoy would dispose of this appeal were it not for the fact that Appellant conferred jurisdiction on the [trial] court to litigate the custody issue by filing a Cross-Petition for Habeas Corpus *447 against Respondent on October 9, 2001." Respondent notes, correctly, the longstanding principle that a trial court has jurisdiction to determine matters pertaining to child custody in the context of a habeas corpus proceeding. See State ex rel. Busch by Whitson v. Busch, 776 S.W.2d 374, 376 (Mo. banc 1989); Wakefield v. Thorp, 365 Mo. 415, 283 S.W.2d 467, 471 (1955); In Interest of Feemster, 751 S.W.2d 772 (Mo.App. S.D.1988); Rule 91.01(b).
Indeed, Appellant did file the aforementioned cross-petition for writ of habeas corpus, along with a motion to dismiss, on October 9, 2001. Six days later, Respondent filed a motion for leave to file an amended petition, which was granted at a hearing on October 31, 2001. At the same hearing, the trial court heard argument on Appellant's cross-petition for writ of habeas corpus and, according to a docket sheet entry, denied the same[10] and set the case for trial of Respondent's amended petition on December 3, 2001.
Undaunted by the docket entry showing the habeas corpus petition denied on October 31, 2001, Respondent argues that the trial court "apparently" deemed Respondent's amended petition as a response to the habeas corpus petition and that it is "evident" the trial court treated the trial of December 3, 2001 as, in part, a consideration of the habeas corpus petition. In support of the latter supposition, Respondent cites us only to the portion of the final judgment where the trial court "reaffirms " its denial of the habeas corpus petition "as shown by docket entry of October 31, 2001."
Notwithstanding Respondent's creativity in advancing it, we find her argument that the trial court's jurisdiction accrued by way of Appellant's habeas corpus petition unpersuasive. The fact of the matter is the trial court denied the habeas corpus petition at the October 31, 2001 hearing, following argument directed specifically to that petition. Moreover, at the start of the December 3, 2001 trial, the court indicated it was proceeding on an "amended petition for custody ... filed by [Respondent]." At no time during that trial was there any reference, direct or inferential, to the cross-petition for habeas corpus filed by Appellant. In fact, the record reveals but a single reference to Appellant's cross-petition subsequent to it being denied at the October 31, 2001 hearing, namely, the trial court's "reaffirm [ing]" said ruling at the conclusion of its final judgment of May 3, 2002. This notation, which Respondent assumes to be proof that the trial court considered the habeas corpus petition viable at the December 3, 2001 trial, is just as likely evidence that the trial court sought, out of an abundance of caution, to ensure its ruling of October 31, 2001 denying the habeas corpus petition was incorporated in and a part of the final judgment. In any event, by relying upon this notation as the sole evidence that the trial court had acquired subject matter jurisdiction by way of Appellant's cross-petition, Respondent, as the "litigant asserting that [the] trial court [had] jurisdiction, [failed to] bear[ ] the burden of establishing a prima facie basis for jurisdiction." McCoy at 80 (citing State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo.App. S.D.1987)).
This court is acutely mindful of the ramifications of our compelled finding that the trial court lacked subject matter jurisdiction. L.K.S., now eight years of age, has had but one consistent, stable, and, by all accounts, positive parental influence since the age of six months. For whatever reasons, Appellant, who retains custody of *448 L.K.S. by virtue of our holding, has consistently failed to provide such influence. While signs contained in the record of Appellant's nascent marital and employment stability were understandably encouraging to the trial court, substantial evidence supported its finding that the best interests of L.K.S. mandated that she remain in the custody of her grandmother pending further signs of Appellant's maturation as a potential parent figure to L.K.S.
This case once again demonstrates the extreme difficulty the courts have in dealing with child custody matters.... In determining the best interests of children in the present, trial courts are forced, in many respects, to predict how present conditions will play out in the future, when, ultimately, we know that the only sure way to determine the best interests of children is by the passage of time.
Flathers v. Flathers, 948 S.W.2d 463, 471-72 (Mo.App. W.D.1997). We can, and do, hope the parties will proceed in a manner reflective of the concern both profess to have for the best interests of L.K.S. We cannot, however, avoid the fact that Respondent's petition for custody did not invoke the subject matter jurisdiction of the trial court, a deficiency that was not remedied by either Appellant's cross-petition for habeas corpus or Respondent's amended petition for custody.
The judgment of the trial court is reversed and the case is remanded to the trial court with instructions to dismiss the amended petition for custody.
MONTGOMERY, P.J., and BARNEY, J., concur.
NOTES
[1] The trial court subsequently granted leave for the Missouri Department of Child Support Enforcement ("DCSE") to intervene in this case. As the issues on this appeal do not concern DCSE in any way, no further reference to its intervention appears herein.
[2] We are faced, not only in this instance, but also at several points in the record on appeal, with what can only be characterized as a confusing and contradictory procedural history. Our recitation of the procedural history of this case is, therefore, the best we can discern from that record.
[3] The amended petition sought custody only of L.K.S., removing any reference to the child born to Appellant during her first marriage, as had appeared in the original petition. In addition, the amended petition included new references to Appellant's "irresponsible" conduct, her "abandon[ment]" of L.K.S. and her "unwilling[ness]" to provide for L.K.S. Finally, the amended petition pled the previously unalleged fact that L.K.S. was "without a legal guardian."
[4] We note that the trial court appears not to have dealt with the petition for writ of habeas corpus in the manner prescribed by Rule 91.05, which requires that a "court to which a petition for a writ of habeas corpus is presented. . . forthwith grant the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the petition that the person restrained is not entitled thereto." The only provision for a hearing on a petition for writ of habeas corpus presupposes the issuing of the writ and the filing of a required answer by the respondent, neither of which occurred here. See Rule 91.09, 91.15. References to rules are to Missouri Rules of Civil Procedure (2002) unless otherwise indicated.
[5] References to statutes are to RSMo (2000) unless otherwise indicated.
[6] Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2002).
[7] In making this observation, we express no opinion regarding the merits of Appellant's first point on appeal, which alleges reversible error in applying dissolution law to a case where no dissolution was sought, rather than Chapter 475, which governs guardianship proceedings.
[8] Indeed, Respondent could not bring an action for habeas corpus here, as the law "does not authorize an individual who has no previously existing legal right to custody of [a] child to bring an action in habeas corpus for custody." McCoy at 81. See Rule 91.01(b). "The person bringing an action in habeas corpus must stand in the position of a parent, guardian or someone entitled to custody because of some court order or judgment." Id. Since no court had previously granted Respondent any legal rights concerning custody of L.K.S., no habeas corpus action would lie if brought by Respondent.
[9] Indeed, in conceding the jurisdictional shortcomings of her original petition, Respondent proffers no argument suggesting those shortcomings were cured in any way by the amended petition.
[10] See supra note 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616474/ | 425 So. 2d 403 (1983)
CENTRAL FINANCIAL SERVICES, INC.
v.
Marshall SPEARS.
No. 53677.
Supreme Court of Mississippi.
January 12, 1983.
Bourdeaux & Jones, Thomas L. Webb, E. Gregory Snowden, Meridian, for appellant.
Leslie C. Gates, Meridian, for appellee.
Before SUGG, P.J., and BROOM and BOWLING, JJ.
SUGG, Presiding Justice, for the Court:
The question in this case is whether a mortgagee, who purchases the mortgaged property at a foreclosure sale must account to the mortgagor for the surplus arising from a sale of the property by the mortgagee within two weeks for two and one-half times the amount bid by the mortgagee at the foreclosure sale.
Marshall Spears borrowed $1250 from Central Financial Services, Inc. (CFS), and executed a promissory note and financial disclosure statement along with his wife, Ester Spears. They also executed a deed of trust covering certain real property described therein to secure the debt. The total amount secured was $1797.30 which included principal, interest, insurance and fees.
Spears gave his son $625 or half the amount of the principal and expected him to assist in paying back the loan. They could not agree on an arrangement so payments on the promissory note fell into arrears. CFS advertised the property for sale under the terms of the deed of trust, but stopped the advertisement when Spears paid the amount in arrears including cost of the foreclosure proceedings. Spears and his son still could not agree upon how they could make payments on the note, so once again it became delinquent. On October 12, 1979, after advertising the sale in accord with section 89-1-55 Mississippi Code Annotated (1972), the sale was conducted and CFS bid $1458.86, the amount of the indebtedness then due plus costs of foreclosure. There were no other bidders. Two days later, Spears was notified by an agent for CFS that he would have to vacate the premises. Spears claimed that this was the first time he was aware of the second sale and that he offered to pay the amount of the delinquency, but was told it was too late for that.
On October 24, 1979, CFS sold the property to Joe Stewart and Earl Aycock for $4,000. CFS then paid a $30 judgment lien *404 on the property and realized a profit of $2481.14. Aycock and Stewart sold the property to Roger C. Henderson on February 19, 1980 for $6,500. Henderson then made improvements to the property.
On March 11, 1980, Spears filed a bill of complaint in the Chancery Court of Lauderdale County which named CFS, Thomas B. Bourdeaux, Trustee, Joe Stewart, Earl Aycock and Roger Henderson as defendants. The bill prayed that the second foreclosure sale be set aside, alleging violation of Spears' constitutional rights, inadequate sale price and prayed for an injunction and other relief. The demurrer of the defendants was sustained and Spears appealed to this Court.
The appeal was submitted on March 3, 1981, and, in an unpublished opinion we held, "On the face of the complaint, taking as true Spears' allegation that the fair market value was $7,000, the consideration of $1458.86 was so grossly inadequate as to shock the conscience of this Court," We reversed and remanded for a trial on the merits because of the gross inadequacy of consideration alleged on the face of the complaint. Miss., 394 So. 2d 1391.
The chancellor dismissed the case as against the trustee, Aycock, Stewart and Henderson, but found that the sale price at the second foreclosure sale was so inadequate that it shocked the conscience of the court. He determined from the evidence presented that the property had a fair market value of $6,000 at the time of the sale and ordered CFS to respond in damages based on the difference between fair market value and the price paid at the foreclosure sale. CFS appealed. Spears did not cross-appeal so the dismissal of the action against the trustee, Aycock, Stewart and Henderson is not at issue.
We have reviewed our cases involving adequacy of consideration as a ground for setting aside a foreclosure sale.[1] These cases do not address the issue involved in this case but do lay down the general rule that mere inadequacy of price[2] is not sufficient to set aside a foreclosure sale unless the price is so inadequate as to shock the conscience of the court. These cases, except *405 Federal Credit Co. v. Boleware,[3] do not involve a resale by the mortgagee of property purchased by it at a foreclosure sale. We also note that most of the cases cited in footnote 1 involved sales during a time of economic depression and, as stated in Hardin v. Grenada Bank, supra, many of the sales were deemed adequate because the entire country "was in the throes of a depression."
In this case, the chancellor found that the sale price was so inadequate it shocked his conscience. This finding is amply supported by the evidence because CFS bid only $1458.86 at the foreclosure sale and twelve days later sold the property for $4,000. We hold that a sale of mortgaged property within twelve days of the foreclosure sale at a price two and one-half times the bid of the mortgage is so inadequate, it would be "impossible to state it to a man of common sense without producing an exclamation at the inequality of it."[4] The chancellor did not set the sale aside; instead, he fashioned a remedy with which we agree in principle.
CFS was in compliance with the statutory law pertaining to the advertisement and sale of real property under deeds of trust. However, the sale of the property by CFS twelve days later resulted in a windfall to it of approximately $2,500. We deem this windfall to be unjust. If CFS had bid $4,000 at the foreclosure sale it would have been entitled to recover the amount of its indebtedness plus the expense of the sale, with the surplus being payable to Spears. Certainly a sale twelve days later for $4,000 enabled CFS to recover $2500 more than it risked in the transaction it made when it advanced $1250 to Spears.
We agree with the chancellor that the sale price was so inadequate that it shocks the conscience of this Court. However, we are of the opinion that the decree should be modified to reduce the amount of recovery against CFS.
The chancellor ordered the difference between the fair market value, which he fixed at $6,000, and the amount bid by CFS be returned to Spears. CFS should not be required to suffer any pecuniary loss, which it would do under the decree of the chancellor. There is no evidence of any conspiracy between appellant and its vendees to defraud appellee by fixing the sales price below market value; rather, the sale was an arms length transaction. We are of the opinion, and hold, that the difference between the amount bid and the $4,000 received by CFS at the private sale twelve days later should be used in computing the amount due Spears.
The record shows that the total amount of the indebtedness due at the time of the foreclosure sale was $1,458.86. Interest on this amount at the rate fixed in the note for twelve days amounts to $13.51. CFS also paid off a $30 judgment lien against the property and is entitled to credit for the judgment lien. We therefore, reduce the chancellor's award to $2,497.63, computed as follows:
Sale price of the property
to Aycock and Stewart $4,000.00
LESS:
Amount of indebtedness $1,458.86
Judgment paid by CFS 30.00
Twelve days interest 13.51 1,502.37
______________________
$2,497.63
*406 AFFIRMED AS MODIFIED.
PATTERSON, C.J., WALKER, P.J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.
NOTES
[1] Myles v. Cox, 217 So. 2d 31 (Miss. 1968); Triplett v. Bridgforth, 205 Miss. 328, 38 So. 2d 756 (1949); Harris v. Bailey Avenue Park, Inc., 202 Miss. 776, 32 So. 2d 689 (1947); Home Owners Loan Corp. v. Wiggins, et al, 188 Miss. 750, 196 So. 240 (1940); Anthony v. Bank of Wiggins, 183 Miss. 885, 184 So. 626 (1938); Hardin v. Grenada Bank, 182 Miss. 689, 180 So. 805 (1938); Blacketor v. Cartee, 172 Miss. 889, 161 So. 696 (1935); Wheeler v. Cleveland State Bank, 174 Miss. 542, 164 So. 400 (1935); First Credit Co. v. Boleware, 163 Miss. 830, 142 So. 1 (1932); Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3 (1921); and Weyburn v. Watkins, 90 Miss. 728, 44 So. 145 (1907).
[2] Criticism from many sources has been leveled against the foreclosure sales procedure in Mississippi because the true market value of the property is seldom bid at such sales.
For example, Professor Guthrie T. Abbott, in an article in 50 Mississippi Law Journal, page 665, discussed some of the reasons for inadequate bids in the following language.
It has been the experience of this author that most power of sale foreclosures in Mississippi produce little, if any, bidding at the sale. The vast majority of such sales results in the beneficiary under the deed of trust being the only bidder, and the successful bid by the beneficiary is usually for the amount of the indebtedness or less. It is almost impossible to succeed in having such a sale set aside on the basis of an inadequate sale price because the test is that the inadequacy from such a forced sale must be so gross as to shock the conscience of the court or to amount to fraud. This stringent standard should require that every possible safeguard be built into the power of sale foreclosure procedure to ensure as high a sales price as possible, but this is certainly not the case in Mississippi. The notice requirements, as discussed above, do the very minimum to notify the debtor(s), much less to notify prospective bidders. One of the classic modes by which a junior lienor may protect his interest is to bid at the foreclosure sale so as either to obtain the property or to guarantee a sale at close to market price. However, in Mississippi, the junior lienor will often only obtain knowledge of the sale after it has concluded. The advertisements required by statute are buried in the legal notices section of the newspaper, and with the exception of the beneficiary's bid up to the amount of the indebtedness, the sale must be made for cash to be paid in full at the time of the sale. The cumulative effect of the deficient sales procedures described above is to ensure a severely depressed sales price at most Mississippi power of sale foreclosures. [50 M.L.J. at 680-81. (1979)].
[3] In Federal Credit Company v. Boleware, supra, note 1, Boleware defaulted in his truck payments and Federal Credit repossessed it. A public sale was held in accordance with the conditional sales contract and Federal Credit became the purchaser for $85, raising a $75 bid made by another. Federal Credit repaired the truck, painted it, outfitted it with tires, purchased insurance on the truck, and sold it later for $325. The total indebtedness was in excess of $220 at the time of the sale. The cost of the repairs was not shown. Federal Credit then sued Boleware for a deficiency of $138.08.
Boleware offered evidence that the truck was worth more money than it brought at the public sale and was worth enough more to discharge the indebtedness then existing. The Court held that mere inadequacy of price will not operate to set a sale aside, unless it is so gross as to furnish evidence of fraud, and there must be an inequality so strong, gross and manifest "that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it." This Court reversed and rendered, holding that Federal Credit was entitled to a peremptory instruction.
[4] Federal Credit Co. v. Boleware, 163 Miss. at 835, 142 So. at 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616494/ | 749 F. Supp. 118 (1990)
UNITED STATES of America, Plaintiff,
v.
ONE LOT JEWELRY, ONE 1987 MERCEDES BENZ SEDAN (VIN WDBEA26DXHA549914, and $6,763 IN UNITED STATES CURRENCY, Defendant.
No. C-C-89-314-P.
United States District Court, W.D. North Carolina, Charlotte Division.
October 22, 1990.
*119 B. Frederick Williams, Jr., Asst. U.S. Atty., Charlotte, N.C., for plaintiff.
Carrie Graves, Charlotte, N.C., pro se.
Keith M. Stroud, James H. Carson, Jr., James F. Wyatt, III, Charlotte, N.C., for defendant.
ORDER
ROBERT D. POTTER, Chief Judge.
THIS MATTER is before the Court on Plaintiff United States of America's (hereinafter "the Government") motions, filed August 24, 1990, for summary judgment and the entry of default judgment. The Government also filed a brief in support of the motions on August 24, 1990. Neither of the claimants, Belton Lamont Platt (hereinafter "Claimant B. Platt") or Delores Platt (hereinafter "Claimant D. Platt"), filed a response to the motions.
I. PROCEDURAL AND FACTUAL BACKGROUND.
The Court has carefully reviewed the record in this matter. On July 9, 1989, the Government filed its verified complaint seeking forfeiture of the Defendant property as proceeds of drug trafficking activities in violation of 21 U.S.C. § 801 et seq., and on the basis that Claimant B. Platt had used the property to facilitate in the distribution of cocaine. The Defendant property is thirteen (13) items of gold jewelry with an appraised value of $102,650.00 (hereinafter "jewelry"), a 1987 Mercedes Benz automobile with an appraised value of $23,500.00 (hereinafter "automobile"), and 6,763.00 in United States currency (hereinafter "currency"). United States Magistrate Paul B. Taylor, on August 9, 1989, found probable cause existed for the arrest of the property and subsequently issued an arrest warrant. Thereafter, the United *120 States Marshal Service effectuated the arrest of Defendant property.
On August 25, 1990, Claimant B. Platt made a claim of ownership on the currency and the jewelry, and Claimant D. Platt made a claim on the automobile.[1] Claimant B. Platt, on August 25, 1989, moved to dismiss on the ground that the complaint did not allege probable cause and for a protective order to preclude discovery until after completion of his pending drug trafficking criminal trial. The Government moved on October 6, 1989 for an order to compel compliance of the Claimants with discovery requests.
On November 7, 1989, Magistrate Taylor filed a Memorandum and Recommendation (hereinafter "M & R") recommending that the Court deny the motion to dismiss. The Court affirmed and adopted the Magistrate's recommendations on January 8, 1990. Claimant B. Platt failed to file within 10 days after the Court denied his motion to dismiss an answer to the complaint as provided in Rule 12(a)(1) of the Federal Rules of Civil Procedure. Claimant B. Platt has not filed an answer at any time to the complaint.
As to Claimant B. Platt's motion for a protective order, Magistrate Taylor entered a M & R on November 13, 1989 that recommended that the Court direct Claimant B. Platt to respond to all discovery requests which did not incriminate him, that discovery not be restricted with regard to any other party, and that within thirty (30) days of a finding of guilt or dismissal in the criminal case that Claimant B. Platt respond to all discovery requests that he previously claimed incriminated him. The Court, on February 7, 1990, accepted and adopted the recommendations of the Magistrate. A Judgment and Commitment order was filed on June 11, 1990 in the criminal procedure in which Claimant B. Platt received a term of imprisonment of 290 months.
In addition to not filing an answer in this matter, Claimant B. Platt has failed to respond to any of the Government's discovery requests as directed by this Court. Claimant D. Platt has failed to file an answer to the complaint and to respond to the Government's discovery requests.
II. APPLICABLE LEGAL STANDARD.
The Government has moved for summary judgment. Summary judgment is appropriate when the pleadings, responses to discovery, and the record reveal that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law. See Rule 56(c) of the Federal Rules of Civil Procedure. The party moving for summary judgment has the initial burden of showing that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986).
After the moving party has met its burden, the non-moving party must come forward with specific facts showing that evidence exists to support its claims and that a genuine issue for trial exists. Id.; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); see F.R. Civ.P. 56(e) (in response to motion for summary judgment, "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial"). When considering motions for summary judgment, courts must view facts and inferences in a light most favorable to the party opposing the motion for summary judgment. Matsushita, *121 475 U.S. at 587-88, 106 S.Ct. at 1356-57; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). When, however, the evidence from the entire record could not lead a rational fact-finder to find for the non-moving party, no genuine issue for trial exists and summary judgment is appropriate. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.
In order to prevail in its motion for summary judgment, the Government must show that it is entitled to judgment as a matter of law. The applicable law addressing the forfeiture of property that has been used in connection with drug trafficking is found at Title 21, United States Code, section 881. That statute provides in pertinent part:
(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(4) All conveyances, including ... vehicles .. which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale receipt, possession or concealment of property described in paragraph (1) or (2) ...
(6) All moneys ... or things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys ... to be used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without knowledge or consent of that owner.
(b) Any property subject to civil forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules For Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property ...
The procedure for a claimant attempting to assert a claim in forfeited property is found at Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. That rule provides:
(6) Claim and Answer; Interrogatories. The claimant of property that is the subject of an action in rem shall file a claim within 10 days after process has been executed ... and shall serve an answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action ...
The burden of proof on standing is on the claimant. See 19 U.S.C. § 1615 (stating that, "[I]n all suits or actions ... brought for the forfeiture of any vessel (or) vehicle ... where the property is claimed by any person, the burden of proof shall lie upon such claimant"). A claimant "[m]ust be able to show at least a facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirement ... This principle applies to all forfeitures". United States v. $321,470, 874 F.2d 298, 302 (5th Cir.1989).
Once a claimant has established standing, the burden of proof is placed on the government to establish probable cause for belief that a substantial connection exists between the forfeited property and the criminal activity defined in 21 U.S.C. § 881. See United States v. B & M Used Cars, 860 F.2d 121, 124 (4th Cir.1988); Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986). The definition of probable cause in a forfeiture context is the same as that used in connection with an application for a search warrant or a warrantless arrest. See generally United States v. Premises Known as 3639-2nd St., N.E., 869 F.2d 1093, 1095 (8th Cir.1989). One court as defined probable cause in a forfeiture action as meaning, "[R]easonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. $364,900.00 in U.S. Currency, 661 F.2d 319, 323 (5th Cir. Unit B 1981). *122 Evidence sufficient to shift the burden to claimants in a forfeiture proceeding need not provide conclusive proof, however, but rather a reasonable ground for belief. Id. at 324. As in other contexts, the determination of probable cause is one for the court and not the jury. See United States v. $93,685.61, 730 F.2d 571, 572 (9th Cir. 1984).
The Fourth Circuit has held that evidence of a single drug transaction, even though of a small quantity and not a part of a continuing drug business or ongoing operation, is sufficient to establish probable cause for forfeiture. See United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.1990). It is proper for a district court to examine the discrepancies in a claimant's legitimate income and the cost of acquired forfeited property in determining whether probable cause exists that the property was the proceeds of drug related activities. See In re One 1985 Nissan, 889 F.2d 1317, 1319 (4th Cir.1989).
Once the government has met its burden of showing probable cause, the burden shifts to the claimant to establish by a preponderance of the evidence that the forfeited property was not used in violation of the law or was not intended to be used unlawfully. See Boas, 786 F.2d at 609. An unrebutted showing of probable cause to believe that the property was exchanged for or intended to be exchanged for illegal controlled substances is sufficient by itself to warrant a forfeiture. United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1362 (9th Cir.1986); see also United States v. Little Al, 712 F.2d 133, 136 (5th Cir.1983). In other words, if a claimant fails to respond once the government has shown probable cause existed, forfeiture is warranted without further findings by the court.
III. DISCUSSION.
In this case, the Court believes that the Government has established probable cause that a substantial connection exists between the forfeited property and the criminal activity.[2] When Magistrate Taylor issued the Warrant for Arrest in rem, he found that there existed probable cause to believe that the Defendant property was forfeitable because of its use in violation of controlled substance laws and because it constituted proceeds from such violations. Moreover, the Court has also found probable cause existed in this case in the Order of January 8, 1990 affirming the recommendation of the Magistrate to deny Claimant B. Platt's motion to dismiss.
The Court has also reviewed the affidavit of FBI Special Agent Caylor that is attached *123 to the Government's motion for summary judgment. The Court is very familiar with the contents of the affidavit having presided over the criminal trial of Claimant B. Platt. The evidence from the trial demonstrated that Claimant B. Platt was a large scale drug dealer. During the tax years of 1987 and 1988, Claimant B. Platt filed a joint return with Claimant D. Platt that indicated income of less than $35,000.00 for the two year period. However, evidence at trial was produced that indicated Claimants maintained an extravagant life style that included the purchase of several residences, an interest in a restaurant, the purchase of several automobiles, the purchase of the jewelry, and the possession of the currency. Claimant B. Platt was unable at trial to provide a logical explanation for the discrepancy between his reported income and his assets. The jury, in considering this and other evidence, concluded that the discrepancy was a result of Claimant B. Platt's drug dealing activities.
Other evidence at trial indicated Claimant B. Platt used the automobile at issue in this matter to transport drugs. The evidence at trial also indicated the jewelry was utilized by Claimant B. Platt to enhance his status in the drug community and to launder drug proceeds. The currency was used by Claimant B. Platt to facilitate drug transactions.
Based on this evidence, the Court concludes that the Government has overwhelmingly carried its burden of establishing probable cause that a substantial connection exists between the forfeited property and Claimant B. Platt's criminal activities. Claimant D. Platt, as the wife of Claimant B. Platt, cannot obtain good title to the proceeds from drug related activity. See In re One 1985 Nissan, 889 F.2d 1317, 1320-21 (4th Cir.1989).
The Claimants have utterly failed to carry their burden of establishing by a preponderance of the evidence that the forfeited property was not used in violation of the law or was not intended to be used unlawfully. Claimants have not produced any evidence. Both Claimants have failed to answer the complaints and respond to discovery requests. Moreover, Claimants have failed to respond to the Government's motion for summary judgment. Accordingly, the Court concludes that the Claimants have abandoned their claim to the Defendant property and concede that the property was used to facilitate Claimant B. Platt's drug trafficking activities or that the property is traceable as drug trafficking proceeds.
Based on the failure of Claimants to rebut the Government's showing of probable cause, the Court holds that the Government's motion for summary judgment is meritorious and that the Government is entitled to an entry of default against the Claimants.
IV. ORDER OF THE COURT.
NOW, THEREFORE, IT IS ORDERED that the Government's motions for summary judgment and the entry of default judgment be, and hereby are, GRANTED.
JUDGMENT
In accordance with the Order entered simultaneously with this Judgment,
IT IS ORDERED, ADJUDGED, AND DECREED that:
(1) The Plaintiff United States of America's motions for summary judgment and for entry of default judgment are GRANTED; (2) The Defendant property and all rights, title, or interest in or to the Defendant property is hereby forfeited to Plaintiff United States of America, and no other right, title, or interest shall exist therein to Claimants Belton Lamont Platt, Delores Platt, or the world; (3) The United States Marshal is hereby directed to dispose of the forfeited Defendant property as provided by law; and (4) The Plaintiff United States of America and the Claimants Belton Lamont Platt and Delores Platt shall each pay its, his and her own costs.
NOTES
[1] Claimant D. Platt is the wife of Claimant B. Platt. Both Claimants, along with Carrie Graves, were listed in the complaint as persons that might have an interest in Defendant property. Each of the three persons were served with copies of the complaint. The Government also caused to be published in The Mecklenburg Times for three weeks a notice directing those persons with a claim in Defendant property to so make it.
As indicated herein, only Claimant B. Platt and Claimant D. Platt made claims on the Defendant property. The Court is unaware of any other persons that have claims in this property.
[2] The Government has urged the Court to find that the Claimants have failed to establish standing. In support of the argument, the Government states that Claimant B. Platt when arrested initially denied ownership in the currency and jewelry. Moreover, the Government contends that Claimant D. Platt gave evasive and implausible answers to the FBI regarding ownership of the automobile. The Government further states that both Claimants have failed to comply with discovery requests and that such a failure indicates that the Claimants have not met their burden of proof that they have standing.
The Court is uncertain whether this argument is meritorious. It is certainly understandable to the Court why Claimant B. Platt and Claimant D. Platt would deny ownership of Defendant property shortly after Claimant B. Platt's arrest. However, by filing a claim to the property, the Claimants apparently attempted to remedy their earlier denial of ownership. In its brief, the Government states, "[C]laimant(s) asserted ... ownership in their claim". The Government's Brief, filed August 24, 1990 at 27. Earlier, the Government argued, "Only owners have standing to challenge a forfeiture action under 21 U.S.C. § 881." Id. at 11 (citation omitted). While the Court does not believe that an unsupported claim of ownership is sufficient for a claimant to carry its burden of showing standing, the Court does believe that in this case the verification attached to the claims indicates that the Claimants have come close to meeting their burden.
The Government has failed to cite any legal authority in support of the argument that the Claimants failure to participate in the discovery process indicates that they have failed to establish standing. The Court believes that this argument is better made in support of the Government's argument that the Claimants have failed to show that the property was innocently acquired.
Resolution of the standing issues is immaterial based on the Court's conclusion infra. that the Claimants have failed to carry their burden in establishing innocent ownership of the property. Therefore, the Court declines to decide whether or not the Claimants had standing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920118/ | 921 So. 2d 676 (2006)
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, Appellant,
v.
STATE of Florida, John Ellis Bush as Governor, Appellee.
No. 1D04-5066.
District Court of Appeal of Florida, First District.
January 24, 2006.
Rehearing Denied March 2, 2006.
*677 Jerry G. Traynham of Patterson & Traynham, Tallahassee, for Appellant.
Michael Mattimore and Brian Koji of Allen, Norton & Blue, P.A. and Steve Godwin, Deputy General Counsel, Department of Management Services, Tallahassee, for Appellee.
VAN NORTWICK, J.
Florida Public Employees Council 79, AFSCME, AFL-CIO (the union) challenges a final order of the Public Employees Relations Commission (PERC) dismissing an unfair labor practice (ULP) charge against the State of Florida. The union charged, in pertinent part, that the state had committed a ULP by refusing to arbitrate a particular grievance concerning the layoff of some toll collectors working for the Department of Transportation (DOT). The union added that, as a matter of policy, it would constitute a ULP for the state to refuse to arbitrate any similar grievance which concerned the layoff provision contained in Article 8 of the parties' collective bargaining agreement (CBA). In the order appealed, PERC ruled that the layoff rule, which is part of Chapter 60K-17, Florida Administrative Code, a regulation incorporated by reference into Article 8, had been repealed by the "Service First" legislation, Chapter 2001-43, Laws of Florida. That legislation required the repeal of the career service rules, and, in particular, mandated the deletion of any layoff rule containing a "bumping" provision. See § 110.227(2), Florida Statutes (2001). As a result, PERC determined that Article 8 could no longer be enforced under the savings clause contained in Article 33 of the CBA, and, thus, the DOT workers had no grievance. We disagree and hold that, because Chapter 60K-17 remained valid during the applicable time governing the ULP charge brought by the *678 DOT toll collectors, PERC erred in dismissing the ULP.
The state and the union negotiated and ratified a master contract, the CBA, for the period July 1, 1998 through June 30, 2001. This contract contains the following two pertinent provisions:
Article 8
WORKFORCE REDUCTION AND PRIVATIZATION
SECTION 1Layoffs
(A) When unit employees are to be laid off as defined in the Florida Statutes, the State shall implement such layoff in accordance with the provisions of Chapter 60K-17 of the Personnel Rules of the Career Service System....
* * *
Article 33
SAVINGS CLAUSE
(A) If any provision of this Contract is in contravention of the laws or regulations of the United States or of this State, by reason of any court action or existing or subsequently enacted legislation; or if the appropriate governmental body having amendatory power to change a law, rule or regulation which is in conflict with a provision of this Contract fails to enact or adopt an enabling amendment to make the provision effective in accordance with section 447.309(3), Florida Statutes; then such provision shall not be applicable, performed or enforced; but the remaining parts or portions of this Contract shall remain in full force and effect for the term of this Contract.
(B) If any provision of this Contract is found to have the effect of causing the State to be denied funds otherwise available through federal funding, then such provision shall not be applicable, performed or enforced.
Chapter 60K-17, Florida Administrative Code, which formerly governed workforce reduction, contained a "bumping" provision in Rule 60K-17.004(3)(g). However, when the 2001 Legislature enacted the Service First legislation, section 110.227(2) was amended to read:
The department shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion and dismissal of employees in the career service. Except with regard to law enforcement or correctional officers, firefighters or professional health care providers, rules regarding layoff procedures shall not include any system whereby a career service employee with greater seniority has the option of selecting a different position not being eliminated, but either vacant or already occupied by an employee of less seniority, and taking that position, commonly referred to as "bumping." For the implementation of layoffs as defined in s. 110.203, the department shall develop rules requiring that consideration be given to comparative merit, demonstrated skills, and employee's experience. Such rules shall be approved by the Administration Commission prior to their adoption by the department.
Ch. 2001-43, § 21 at 196, Laws of Fla. (underlined to show revisions). This amendment became effective upon the act becoming law on May 14, 2001. Id. at § 50 at pg. 212. In section 42 of Chapter 2001-43, the legislature mandated the Department of Management Services to adopt rules to give effect to its amendments to Chapter 110. Section 42 provided:
The Department of Management Services shall adopt rules as necessary to effectuate the provisions of chapter 110, Florida Statutes, as amended by this act, and in accordance with the authority granted to the department in chapter *679 110, Florida Statutes. All existing rules relating to chapter 110, Florida Statutes, are statutorily repealed January 1, 2002 unless otherwise readopted.
Ch. 2001-43, § 42 at 208, Laws of Fla. (underlined to show revisions).
The union filed a grievance on behalf of certain toll collectors working for DOT on May 31, 2001, alleging a violation of Article 8 based on the state's failure to follow Chapter 60K-17 when it laid off toll collection employees assigned to the Miami-Dade Expressway Toll Plazas effective June 30, 2001.[1] A few months later, rule 60L-33.004 was adopted, effective January 1, 2002, implementing a new procedure for imposing layoffs.
The grievance proceeded through the designated steps to arbitration. Arbitration was stayed, however, pending the outcome of litigation challenging the constitutionality of the Service First legislation. After that litigation culminated in this court's opinion in Florida Public Employees Council 79, AFSCME v. Bush, 860 So. 2d 992 (Fla. 1st DCA 2003), the grievance was rescheduled for arbitration. Thereafter, the state refused to arbitrate taking the position "that DOT laid off the toll collector employees in accordance with Section 110.227(2), Florida Statutes, which became effective on May 14, 2001 and superceded Rule 60K-17, F.A.C. Therefore, the DOT did not violate Article 8 of the Master Contract."
The union filed a ULP alleging that the state had violated sections 447.501(1)(a), (c) and (f), Florida Statutes (2001). PERC's general counsel reviewed the charge pursuant to section 447.503(2) and rule 60CC-5.002. The general counsel accepted the reasoning of the state that Article 8, by requiring adherence to former Chapter 60K-17 and allowing "bumping" rights, was in contravention of section 110.227(2). Therefore, pursuant to Article 33, Article 8's adherence to Chapter 60K-17 could not be enforced. The general counsel determined that, by agreeing to Article 33, the union had contractually waived enforcement of Article 8 because it was in contravention of subsequently enacted law. See Florida Public Employee's Council 79, AFSCME v. State of Florida, 10 FPER ¶ 15208 at 413 (1984), affirmed, 472 So. 2d 1184 (Fla. 1st DCA 1985)("If AFSCME, through precise contractual language, conferred upon the State the power of unilateral decision on this particular term of employment, then a contractual waiver has occurred."). The general counsel reasoned that any bumping rights that existed were eliminated when Chapter 60K-17 was repealed effective May 14, 2001, ending the employees' rights under Article 8. The general counsel concluded that, because the matter could not be grieved, there was no ULP when the state refused to participate in the arbitration.
The union filed an amended ULP arguing PERC's longstanding precedent that, where a collective bargaining agreement adopts by reference a career service rule, the rule applies as though the text had been written verbatim into the contract as it existed on the date of ratification. See Florida Police Benevolent Ass'n v. State of Florida, 7 FPER ¶ 12051 at 121-22 (1980)(where the contract refers to career *680 service rules, the parties are bound by the personnel rules "as they existed at the time of the execution of the contract."). Accordingly, the union argued that the subsequent repeal of Chapter 60K-17 had no effect on the parties' contract as it existed both before its expiration or after, during the parties' "status quo" relationship. Further, attaching the affidavit of the union's labor lawyer, the union contended that the parties, in the past administration of their CBA, continued to apply old personnel rules regardless of the old rule's repeal or revision.
The general counsel issued an order of summary dismissal of the amended ULP rejecting the argument that the old personnel rules could be applied regardless of their repeal or revision. The general counsel reasoned that, because Article 33 expressly contemplated changes to the personnel rules by statute, there was a contractual waiver of the right to bargain the bumping provision. The general counsel concluded that Article 33 "conferred upon the State the power of unilateral decision on this particular term of employment." The union appealed.
In the order under review, PERC adopted the rationale of the general counsel for dismissing the case, stating as follows:
The Service First legislation enacted in 2001 repealed the State's personnel rules, including its layoff rule. As part of that legislation, section 110.227(2), Florida Statutes (2001), prohibited replacing the layoff rule with one that included bumping rights for career service employees other than law enforcement or correctional officers, firefighters, or professional health care providers. The State canceled AFSCME's pending grievance because it relied upon a layoff rule containing bumping rights that the State believed had been extinguished by the Service First legislation and, therefore, could no longer be enforced under the savings clause of the parties' collective bargaining agreement.
The General Counsel agreed with the State's interpretation of the law and the provisions of its contract with AFSCME and dismissed AFSCME's charge. The General Counsel concluded that an employer does not engage in an unlawful refusal to participate in the grievance procedure if the matter cannot be grieved. We adopt the General Counsel's rationale for dismissing this case.
On appeal, the union argues that, as a matter of labor law policy, the state agreed to be bound by Chapter 60K-17 as it existed when the parties executed their contract despite whatever changes the legislature subsequently made to the career service rules. See Florida Police Benevolent Ass'n v. State of Florida, 7 FPER ¶ 12051 at 121-22 (1980). However, the union submits that the court need not decide this broader issue, but can decide this case on the more narrow ground that, during the applicable time governing the ULP charge by the DOT toll workers, Chapter 60K-17 remained in effect and governed the conduct of the parties. We agree and focus our attention on that narrow question.
The state responds that PERC's interpretation of the Public Employees Relations Act (PERA) and labor law is entitled to substantial deference. As stated in City of Clearwater v. Lewis, 404 So. 2d 1156, 1162 (Fla. 2d DCA 1981):
Thus, an expert tribunal such as PERC is entitled to substantial deference in recognition of its special competence with dealing with labor problems. It is not our province to displace its choice between two conflicting views simply because we would have been justified in deciding the issue differently were it before us in the first instance.
*681 Therefore, the state urges this court to affirm PERC's decision that the layoff action in this case was administered in accordance with section 110.227(2), which became effective on May 14, 2001 and superseded Chapter 60K-17, because it is not clearly erroneous.
Our review in this case is de novo. See Miami-Dade County v. Government Supervisors Ass'n of Florida, OPEIU AFL-CIO Local 100, 907 So. 2d 591, 593 (Fla. 3d DCA 2005). While we acknowledge the case law that accords deference to PERC and warns that PERC's interpretation of the law should not be reversed unless clearly erroneous, we are persuaded that this case law is not applicable here. We do not have to accord deference to PERC's interpretation of the law where that interpretation conflicts with the plain and ordinary meaning of the statute. Id. at 593-94. See also City of Winter Springs v. Winter Springs Prof'l, 885 So. 2d 494 (Fla. 1st DCA 2004).
Article 8 of the parties' CBA expressly requires layoffs to be implemented pursuant to the provisions of Chapter 60K-17. Chapter 60K-17, containing the disputed layoff rule, was repealed by section 42, Chapter 2001-43, Laws of Florida, effective January 1, 2002. The state argues that the effect of the amendment to section 110.227(2) was to immediately repeal the bumping rule, effective May 14, 2001. We disagree with that reading of section 110.227(2). Instead, as PERC recognized in its own order, section 110.227(2) "prohibited replacing the layoff rule with one that included bumping rights for Career Service employees ..." Section 110.227(2) contemplated that the state's bumping rule would be replaced by a new rule that considered comparative merit, demonstrated skills, and the employee's experience.
When sections 21 and 42 of Chapter 2001-43 are read in pari materia, as they must be,[2] it is clear that the legislature intended Chapter 60K-17 to remain in effect until January 1, 2002, afterwhich the legislature intended that personnel rules would be adopted which precluded a "bumping" system. See the newly enacted Rule 60L-33.004, effective January 1, 2002. Thus, we agree with the union that, in alleging that the state failed to follow Chapter 60K-17 in laying off the DOT toll collection employees while the former layoff rule was still in effect, its ULP has stated a prima facie violation of section 447.501.
REVERSED and REMANDED for proceedings consistent with this opinion.
ALLEN and POLSTON, JJ., concur.
NOTES
[1] Although the parties' ratified contract expired on June 30, the union states without opposition that the parties remained in a "status quo" relationship. "Status quo" refers to the period that occurs between collective bargaining agreements. "[I]f the agreement expires and another has not been executed, the terms of the first contract survive the contract's expiration. Until a new agreement is negotiated, an employer is prohibited from unilaterally altering certain material terms in the expired contract." City of Delray Beach v. Prof'l Firefighters of Delray Beach, Local 1842, Int'l Ass'n of Firefighters, 636 So. 2d 157, 159 n. 3 (Fla. 4th DCA 1994).
[2] See Lincoln v. Florida Parole Comm'n, 643 So. 2d 668, 671 (Fla. 1st DCA 1994)("Statutes on the same subject and having the same general purpose should be construed in pari materia and the courts have a duty to harmonize related statutes passed during the same legislative session, giving meaning and effect to each, if possible.") | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616432/ | 425 So. 2d 878 (1983)
MARMEDIC, INC.
v.
INTERNATIONAL SHIP MANAGEMENT & AGENCY SERVICES, INC.
No. CA 0098.
Court of Appeal of Louisiana, Fourth Circuit.
January 3, 1983.
Philip A. Fant, Leach & Paysse, New Orleans, for appellant.
Hall, Lentini, Mouledoux & Wimberly, William W. Hall, Metairie, for appellee.
Before SCHOTT, CIACCIO and WILLIAMS, JJ.
CIACCIO, Judge.
The plaintiff, Marmedic, Inc., provided medical services to an injured seaman at the request of the defendant, International Ship Management & Agency Services, Inc. Plaintiff was not paid for the services and filed this suit to recover from defendant the amount owed plus interest and attorney's fees. From a judgment in favor of the plaintiff the defendant has appealed. We *879 affirm, except for the award of attorney's fees which is set aside.
The amount of the claim and the rendering of the services was stipulated by the parties. At the trial, although it was not affirmatively pleaded, defendant claimed that it was the agent of a disclosed principal, viz., the M/V Scorpion I (and its owners), the injured seaman's ship. Defendant contends that as agent it was not and cannot be personally liable.
The errors assigned and the issues presented by the defendant on appeal fall into two categories. Defendant argues that the trial court erred in finding it acted as an independent contractor and not as an agent. Additionally, defendant finds error in the trial court's refusal to enforce the parol evidence rule prohibiting the admission and consideration of evidence tending to prove an oral promise to pay the debt of another.
Mr. Jay Smith, the president and only shareholder of Marmedic, was the only witness at trial. He testified that employees of defendant initially contacted Marmedic requesting immediate medical services for an injured seaman. Marmedic provided the requested medical services and the seaman received all of the services for which plaintiff now seeks to be paid.
During the course of treatment Marmedic inquired of defendant as to who would be responsible for the bill. Mr. Smith testified that although defendant's employees guaranteed that the bill would be paid, they failed to provide a written guarantee despite at least six requests for same. Marmedic denies it was informed of any agency status of defendant, and, although plaintiff was aware of the name of the ship, the identity of the ship's owner was never disclosed.
Defendant argues that Marmedic's president, Mr. Smith, was well experienced in the local maritime industry and knew or should have known that defendant was acting as an agent for the ship and its owner.
The trial court stated its conclusions as follows:
The Court is of the opinion that the Defendant entered into a verbal contract with Plaintiff to supply medical services for a price to the injured seaman, and due to the exigency of the circumstances and Plaintiff's reliance on Defendant's assurances that Plaintiff would be paid, Plaintiff did, in fact, perform and provide said medical services.
It is clear to the Court that the relationship between the parties herein is more in the nature of an independent contractor whose business is to procure goods and services for a fee for various ships in port, rather than a principal-agent relationship, particularly since there was no evidence presented demonstrating any control over the Defendant nor the Plaintiff exercised by the ship owner, which right to control is the most important factor considered in determining the distinction between an independent contractor and an agent. R.S. Electric & Armature Works v. George Engine Co., Inc., 346 So. 2d 782 [783] (La.App. 1st Cir., 1977) Therefore, Defendant is liable to Plaintiff for this indebtedness.
Even assuming the above reasons are incorrect, there are other grounds on which the Defendant can be held liable. The unrebutted testimony of Plaintiff's president shows that on several occasions more than one employee of Defendant assured and promised Plaintiff that its bill would be paid. The witness stated that but for these assurances, he would not have continued to render services to the injured seaman.
The Court feels that Defendant's argument that such promises or guarantees to pay the debt of a third party must be in writing is untenable. First of all, assuming the Court is correct that the Defendant is an independent contractor, it was only guaranteeing payment of its own indebtedness. And, secondly, assuming that this Court is in error regarding the business relationships herein, these assurances were indeed oral promises to pay the debt of a third party, this Court is still of the opinion that the Defendant is personally obligated in view of the pecuniary *880 motive and interests of Defendant. The cases cited to this Court in Plaintiff's memorandum point out LSA-C.C. Article 2278 is subject to the exception that one may orally bind himself to pay the debt of another under circumstances as in the case before this Court. Paul M. Davison Petroleum Products v. L.T. Brown Contractor, Inc., 356 So. 2d 572 (La.App. 2nd Cir., 1978); Powell Lumber Company v. AFCO Corporation, 288 So. 2d 697 (La. App. 2d Cir., 1974).
The party claiming to have purchased as agent must establish that this capacity was made known to the seller, and also that an actual agency relationship existed by evidence beyond his own assertion. Absent disclosure of a special status, the law presumes that a person is acting in his individual capacity and holds him personally liable for his actions. The person who claims he is acting as an agent bears the burden of proof at trial to show his special status. J.T. Doiron, Inc. v. Lundin, 385 So. 2d 450 (La.App. 1st Cir., 1980); J.D. LeBlanc, Inc. v. Lomar Construction Company, et al., 194 So. 2d 426 (La.App. 4th Cir. 1967).
At trial, defendant presented no evidence but relied upon cross-examination of Mr. Smith to establish its case. Mr. Smith testified that he was uncertain of defendant's status, but rendered the requested services because of the assurances given that the bill would be paid. Defendant called no witness and offered no evidence to rebut this testimony. No evidence was presented at trial that an actual agency relationship existed between defendant and a principal. Even at this point the record contains nothing more than defendant's own assertion that there exists an agency relationship between defendant and the M/V Scorpion I and/or its owner.
The trial court was correct in holding that defendant failed to prove its agency defense.
Defendant objected to the admission of parol evidence of its guarantee that the bill would be paid. La.C.C. Art. 2278(3) provides that parol evidence shall not be received to prove any promise to pay the debt of a third person. Art. 2278(3) is subject to an exception. If the agreement to pay is not made primarily to answer for another but is impelled from the pecuniary or business motives of the promissor, then the promise to pay is, in effect, a new and independent agreement and parol evidence is admissible to establish same. Paul M. Davison Petroleum Products v. L.T. Brown, Contractor, Inc., 356 So. 2d 572 (La.App. 2d Cir., 1978), and cases cited therein.
We must determine whether defendant's promise to pay constituted a primary or collateral obligation. The decisive question which must be answered is: to whom was the credit extended? In order to determine to whom the credit was extended we must examine the relationship of the parties and the motive and pecuniary interest of the party making the promise. Seashell, Inc. v. Simon, 398 So. 2d 99 (La.App. 3d Cir., 1981); Star Sales Company v. Arnoult, 169 So. 2d 178 (La.App. 4th Cir., 1964). If credit was extended to defendant, then parol evidence is admissible to prove defendant's promise to pay, because the promise to pay constituted a primary obligation.
Mr. Smith testified and the trial court held that, except for defendant's promises that the bill would be paid, Marmedic would not have continued to render services to the injured seaman. The trial court found that plaintiff extended credit to the defendant as an independent contractor. The question of whether the obligation is primary or collateral is factual. Seashell, Inc. v. Simon, supra; Star Sales Company v. Arnoult, supra. As such, the finding of the trial court will not be disturbed in the absence of manifest error. No such error is apparent to us. The trial court did not err in admitting and considering the parol evidence.
For the above reasons the judgment of the trial court holding the defendant liable unto the plaintiff for the amount owed for the medical services rendered the injured seaman is affirmed.
*881 Plaintiff sued on open account and prayed for attorney's fees under the provisions of La.R.S. 9:2781. The trial court apparently treated the case as one on open account and awarded attorney's fees of twenty-five (25%) percent. Our review of the record reveals that plaintiff did not present evidence to prove compliance with the mandatory requisites for an award of attorney's fees under La.R.S. 9:2781. Absent such evidence we find that the trial court erred in awarding attorney's fees. We, therefore, reverse the award of attorney's fees.
The judgment of the trial court is affirmed, except insofar as it awards the plaintiff attorney's fees, which award is reversed and set aside. All costs are assessed to appellant.
AFFIRMED IN PART and REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616497/ | 749 F. Supp. 230 (1990)
TWIN CITY FIRE INSURANCE CO., Plaintiff,
v.
KING COUNTY, WASHINGTON, Defendant.
No. C90-684R.
United States District Court, W.D. Washington, at Seattle.
September 20, 1990.
Robert J. Bocko, Bradbury, Bliss & Riordan, Seattle, Wash., for plaintiff.
William Jones Price, Robert Gostin Mitchell, Karr Tuttle Campbell, Seattle, Wash., for defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COVERAGE AND STRIKING MOTION FOR BIFURCATION
ROTHSTEIN, Chief Judge.
THIS MATTER comes before the court on plaintiff's and defendant's cross-motions for summary judgment. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:
*231 I. BACKGROUND
Plaintiff Twin City Fire Insurance Company ("Twin City") initiated a declaratory action for determination of coverage on an insurance policy it issued to defendant King County. Twin City has now moved for summary judgment on the question of coverage. King County also moves for partial summary judgment on the coverage question, conditioned on the County's proof that it has reached the self-insured retention limit set forth in the policy.
Twin City issued a policy for excess general liability coverage to King County for the period of April 1, 1983 to April 1, 1984. The policy insures King County for liability and defense expenses arising from suits against the County, including liability associated with claims of personal injury alleged to have arisen from discriminatory treatment of County employees.
This policy is not a typical general liability policy. Twin City's obligation is limited to $14,700,000.00 per covered occurrence. King County must pay a "self insured retention" ("SIR") of $300,000.00 towards defense and settlement of each claim. The self insurance is limited to an annual aggregate of $1 million for all covered occurrences. Once the County's costs of defending and settling cases totals $1 million during the policy's coverage period, Twin City is obligated to pay King County all sums for which the County is found liable as a result of adjudication or settlement.
On November 26, 1986, Rick Azpitarte sued the County, alleging that the County had unlawfully discriminated against him in 1983-4 by breaching its duty to accommodate his physical handicap. Azpitarte also alleged national origin discrimination and unlawful retaliation stemming from grievances filed by Azpitarte against the County.
Three years later the case was tried and the jury returned a verdict for Azpitarte on November 3, 1989, awarding $275,000.00 in damages. The court further awarded $150,546.47 in attorney's fees and costs, and entered judgment of $425,546.47 on December 8, 1989. Immediately before trial, Azpitarte had offered to settle the case for $125,000.00 but King County refused. The County's highest settlement offer was $50,000.00.
On February 26, 1990, four months after the trial, after an appeal had been filed and one day before a court-arranged settlement conference, King County notified Twin City for the first time of the suit and its pending appeal. King County also simultaneously notified Twin City that it intended to settle the case prior to appeal. The case settled on March 14, 1990 for $402,000.00. The County believed it had reached its $1 million "self-insured retention" ("SIR") limit, and submitted a claim to Twin City for the costs associated with defense and settlement of the Azpitarte litigation.
Twin City refused to indemnify King County for those expenses, asserting that (1) the County has not yet incurred liability sufficient to satisfy the $1 million SIR required by the policy, and (2) that King County breached the terms of the policy by failing to notify Twin City of the suit until 1990. Twin City also argues that part of the awarded damages went to the claim of retaliation, which is a 1984 occurrence falling outside the covered period of the policy. Finally, the insurer claims that the discriminatory actions taken by the County were not covered by the policy because they were done by "executive officers" who are expressly excluded from the policy.
Both Twin City and the County now seek a summary judgment determination on the existence of coverage under the policy. The County's motion is conditioned on provision of proof that the $1 million SIR requirement has been met.[1]
II. DISCUSSION
A grant of summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the *232 opposing party, that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630-31 (9th Cir.1987); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985).
A. Policy Requirements
In addition to the limitations placed on Twin City's reimbursement amounts and the SIR limit, the policy also has specific provisions about notification of claims. Section 5 states as follows:
NOTICE OF OCCURRENCE. Whenever the authorized representatives of King County have information from which King County may reasonably conclude that an occurrence covered hereunder involved injuries or damages which, in the event that King County should be held liable, is likely to involve this policy, notice shall be sent to Twin City as soon as practicable.... (emphasis added)
Section 6 states:
ASSISTANCE AND COOPERATION. Twin City shall not be called upon to assume charge of the settlement and defense of any claim made or suit brought or proceeding instituted against King County but Twin City shall have the right and shall be given the opportunity to associate with King County in the defense and control of any claim, suit or proceeding relative to an occurrence where the claim or suit involves, or appears reasonably likely to involve Twin City, in which event King County and Twin City shall cooperate in all things in the defense of such claim, suit or proceeding.
Policy No. TXX111010 at 14-15 (emphasis added).
The policy defines "occurrence" to mean:
... An accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally result in personal injury ...
Id. at 12.
The definition of "personal injury" includes:
... (4) unlawful discrimination not committed by or at the direction of any executive officer of the Named Insured, but only with respect to the liability other than fines and penalties imposed by law; ...
Id. at 11.
B. Notification
As outlined above, the policy states that the County was required to give Twin City written notice "as soon as practicable" of any occurrence "likely to involve the policy." Policy at 15. Further, King County must also permit Twin City to participate in defense of claims if a claim "appears reasonably likely to involve" the insurer. Policy at 16.
The court finds that King County did have a duty to notify Twin City about the Azpitarte claim at the time it first arose. King County's explanation for the fact that it did not notify Twin City about the Azpitarte claim until February 26, 1990, is because until that time, the County did not believe, or was led by Twin City to not believe, that it had reached the $1 million SIR limit. The County states it did not believe Azpitarte would prevail at trial and also evaluated his claims as worth no more than the $50,000.00 offered at settlement. Based on this low assessment of the case, the County states it did not believe that the claim would be likely to trigger the policy. Therefore, it did not believe it owed any duty under the policy to notify Twin City any earlier than it did.
The court must evaluate the County's view of whether or not its policy from Twin City would likely be involved with the Azpitarte claim. To do this, the court looks at what information the County had available to it, and what it reasonably should have done in light of that information.
There are three strong factors persuading the court that the County should have notified its insurer on the contested claim. First, there is the letter sent on behalf of the County from William Price to Twin City, dated July 5, 1989, stating that the *233 County believed that it had, in fact, reached the SIR limit as of that date.
Second, in keeping with that belief, the County notified Twin City of at least six other claims during the same time period. Based on this clear evidence that the County believed it had reached the SIR limit, it was the County's obligation to notify Twin City about the Azpitarte claim and any other claim, since from the County's own evaluation, Twin City's policy would likely be involved from that point forward.
The County presents a significant amount of evidence to show that Twin City led the County to believe that Twin City did not think the County had reached the SIR limit. For example, King County cites to twelve different notifications it received from Twin City between August 21, 1989 and June 26, 1990, that flatly rejected any involvement with those other claims because Twin City did not believe, or "was unable to verify," that King County had reached its SIR limit. In at least one of those notifications, Twin City recommended that "King County should proceed with (resolving a certain claim) to protect its interests and should act in good faith to protect the interests of Twin City as an excess liability insurer by resolving the case as economically as possibly." Price Declaration, Exh. G. The County points to Twin City's consistent position of denying involvement with those claims as justification for its own omission of notification about the Azpitarte claim.
However, just because the County thought the insurer would dispute its claims does not remove the County's obligation of notification. Further, with all the other claims that the County had tendered in those same months, it seems very likely that the cumulative amount of liability was growing quickly. This should necessarily have alerted the County that the SIR limit may be approaching, and that therefore any claims at that time would be likely to involve the policy.
The third factor goes to the limitations on liability outlined within the policy. King County was obligated to pay up to $300,000.00 per occurrence, up to the annual aggregate SIR of $1 million. Even if the County had questionable grounds for not notifying Twin City of the Azpitarte suit before the trial, after the trial was completed and the judgment of $425,000.00 was awarded, the County should have immediately notified Twin City, since the insurer would have been potentially exposed to the excess liability above the County's share of $300,000.00 per occurrence. Yet the County waited even several months more to notify Twin City.
Despite Twin City's past history of responses to other County claims, the insurer should have been given the option of deciding whether it wanted to be involved with the defense in the Azpitarte suit, or wanted to take other actions such as insisting on special interrogatories at trial for apportionment of damages. Irregardless of the likelihood that Twin City would have declined to acknowledge liability, the County may not now rely on its assumptions or predictions about Twin City's behavior as a means to avoid its legal obligations of notification.
C. Prejudice
To be relieved of any duty to indemnify which might otherwise exist under an insurance policy because of breach of the notice, assistance and cooperation clauses, the insurer must show both the breach and prejudice resulting from it. Oregon Automobile Ins. Co. v. Salzberg, 85 Wash.2d 372, 376, 535 P.2d 816 (1975). The burden of proving prejudice rests with the insurer. Id. at 377, 535 P.2d 816.
The issue of prejudice resulting from an insured's breach of a policy is generally one of fact. Salzberg, supra at 377, 535 P.2d 816. However, prejudice may be presumed as a matter of law in cases where the breach is extreme. Sears, Roebuck & Co. v. Hartford Accident & Indemnity Co., 50 Wash.2d 443, 313 P.2d 347 (1957).
Twin City argues that this situation is one where the breach is extreme enough for prejudice to be presumed. Twin City cites Sears, supra, where the insured failed to notify the insurer of a claim for 13 *234 months and did so only one week before trial even though it knew it had insurance. The court stated, in dicta, that the insurer's failure to notify the insured of the claim until one week before trial constituted prejudice because the insured deprived the insurer of its contractual right to investigate, prepare and present a defense by counsel of its own choosing. See also, Felice v. St. Paul Fire & Marine Ins. Co., 42 Wash.App. 352, 711 P.2d 1066 (1985) (prejudice presumed where insured delayed notification of claim until after unfavorable trial and after appeal period had almost concluded).
The court finds that prejudice to Twin City is presumed in this case. Twin City was not informed of the Azpitarte claim until after the first settlement was rejected, the case was lost, the judgment was awarded and an appeal was filed, and one day before the court arranged a settlement conference. This certainly does not qualify as "notification as soon as practicable," and excuses Twin City from its obligations under the policy.
In denying that Twin City was prejudiced, King County argues that it doubts Twin City would have participated in the case in the first place, and that the County saved Twin City over $20,000.00 in the settlement process which was beneficial rather than prejudicial. This argument misses the point. King County's breach of its notification obligation deprived Twin City of its contractual right to participate in the case, if it chose, to protect its interests. As the court said in Transamerica Insurance Group v. Chubb & Son, Inc., 16 Wash. App. 247, 252, 554 P.2d 1080 (1976), "The course cannot be rerun, no amount of evidence will prove what might have occurred if a different route had been taken." Neither the court nor the County can know what course Twin City might have chosen if it had been notified of the Azpitarte claim months, if not years, earlier. For that reason, prejudice to the insurer is found in this situation.[2]
Finding that the County breached its duty to notify the insured, and finding that the insurer was prejudiced by the breach, the court concludes that no coverage exists for the County's claim.
NOW, THEREFORE, it is ordered that (1) plaintiff's motion for summary judgment is GRANTED; (2) defendant's cross-motion for partial summary judgment is DENIED; (3) plaintiff's motion for reconsideration of order striking reply brief is STRICKEN as moot; and (4) plaintiff's pending motion for bifurcation and stay of counterclaims is STRICKEN as moot.
NOTES
[1] The County admits that it has already collected $150,000 in reimbursement for Azpitarte defense costs from a different insurance company with which the County had a policy for occurrences between 1984 and 1985. The County agreed that any award from Twin City would be offset by this amount from the other insurer.
[2] Based on the finding of the County's breach and prejudice to the insurer, the court need not address whether or not the Azpitarte claim was excluded from coverage based on the charge that "executive officers" participated in Azpitarte's alleged discrimination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616533/ | 749 F. Supp. 133 (1990)
James SCOTT and Floretts T. Scott, as individuals and in the interest of Zimblis Scott
v.
The UNITED STATES VETERAN'S ADMINISTRATION and the United States of America.
Civ. A. No. 90-0763.
United States District Court, W.D. Louisiana, Alexandria Division.
August 20, 1990.
*134 Janet L. Dunn, Baton Rouge, La., for plaintiffs.
John R. Hallburton, Asst. U.S. Atty., Shreveport, La., for defendants.
RULING
LITTLE, District Judge.
This case arises out of the death of Zimblis Scott, a veteran with a long history of mental illness. On 1 April 1987 Scott was released from the Veterans Administration Medical Center in Alexandria, Louisiana; two days later, he was found lying dead by the Interstate highway in Jefferson Davis Parish. Plaintiffs, Scott's parents, initially pursued an administrative tort claim against the Veterans Administration. After considering their allegations, the District Counsel for the Department of Veteran Affairs wrote a letter to plaintiffs' attorney on 2 October 1989 advising her of his denial of liability.
On 2 April 1990 plaintiffs' attorney mailed a complaint to the Federal District Court for the Western District of Louisiana. Plaintiffs named both the United States and the Veterans Administration as defendants, alleging that Scott's death was due to the negligence of the Medical Center in releasing him. Plaintiffs sought damages under the 1871 Civil Rights Act (42 U.S.C. § 1983), the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.), and the eighth and fourteenth amendments to the United States Constitution. The complaint was received on 3 April 1990. Defendants have now moved for a dismissal of all claims pursuant to Rule 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure.
Initially, plaintiffs' complaint alleges that the government's actions violated 42 U.S.C. § 1983. Section 1983 applies to "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State" deprives anyone of a civil right. Defendants correctly note, however, that section 1983 does not provide a forum to redress actions taken by the United States government or its agencies under federal law. These entities are not "persons" that can be sued under the statute, and actions of the federal government are "facially exempt" from section 1983. District of Columbia v. Carter, 409 U.S. 418, 425, 93 S. Ct. 602, 606, 34 L. Ed. 2d 613 (1973); Zernial v. United States, 714 F.2d 431, 435 (5th Cir.1983); Accardi v. United States, 435 F.2d 1239, 1241 (3d Cir.1970); Garcia v. United States, 538 F. Supp. 814, 816 (S.D.Tex.1982); Broome v. Simon, 255 F. Supp. 434, 440 (W.D.La.1965). Accordingly, *135 defendants' unopposed motion to dismiss the section 1983 claim is GRANTED.
Plaintiffs' eighth amendment allegation is also meritless. The United States Supreme Court has held that the eighth amendment "was designed to protect those convicted of crimes," and the amendment does not apply outside of this context. Ingraham v. Wright, 430 U.S. 651, 654, 97 S. Ct. 1401, 1404, 51 L. Ed. 2d 711 (1977); Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.1987). Defendants' unopposed motion to dismiss plaintiffs' eighth amendment claim is therefore GRANTED.
The fourteenth amendment claim must suffer a similar fate. On its face, this provision applies to the states, and "actions of the federal government and its officers are beyond the purview of the [fourteenth] amendment." Carter, 409 U.S. at 424, 93 S.Ct. at 606. Defendants' unopposed motion to dismiss plaintiffs' fourteenth amendment claim is GRANTED.
Finally, defendants have also asked this court to dismiss the remaining allegations, which arise under the Federal Tort Claims Act. This statute states, in pertinent part:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b).
The time for computing the six-month limitation period begins running the day after notice of the denial of a claim is sent. Vernell v. United States Postal Service, 819 F.2d 108, 111 (5th Cir.1987). The Fifth Circuit follows the majority rule that the period runs through the day before the same calendar date six months later. Id.; McDuffee v. United States, 769 F.2d 492, 494 (8th Cir.1985); Kollios v. United States, 512 F.2d 1316, 1316-17 (1st Cir. 1975). Contra, Bledsoe v. Department of Housing and Urban Development, 398 F. Supp. 315, 318-21 (E.D.Pa.1975) (holding limitation period runs from day after the denial is sent to the same day six months later); Rodriguez v. United States, 382 F. Supp. 1, 2 (D.P.R.1974) (same).
In the case at bar, plaintiffs' administrative denial was mailed on 2 October 1989. Thus, the prescriptive period began on 3 October 1989 and ended on 2 April 1990, the day before the same calendar date six months later. Plaintiffs' attorney mailed the complaint to this court on 2 April 1990; it was received on 3 April 1990 and was subsequently filed on 1 May 1990. Both parties are correct in not focusing on 1 May. Jurisprudence has been somewhat liberal in determining what constitutes filing under Rule 5(e) of the Federal Rules of Civil Procedure, and actions are deemed to be filed when they are received by the clerk. See Hernandez v. Aldridge, 902 F.2d 386, 388 (5th Cir.1990) (complaint filed when clerk actually receives the document).
Plaintiffs urge the court to accept 2 April, the date of mailing, as the filing date. Unfortunately, courts have consistently noted that filing court papers does not occur when they are mailed. Filing occurs only when documents are "actually received by the clerk or when placed in the clerk's post office box." Torras Herreria y Construcciones, S.A. v. M/V TIMUR STAR, 803 F.2d 215, 216 (6th Cir.1986). Thus, "compliance with a filing requirement is not satisfied by mailing the necessary papers within the allotted time." Lee v. Dallas County Board of Education, 578 F.2d 1177, 1178 n. 1 (5th Cir.1978) (emphasis in original); Torras Herreria, 803 F.2d at 216; United States v. White 1981 Race Corvette, 704 F. Supp. 872, 878 (N.D.Ind. 1989); Wiss v. Weinberger, 415 F. Supp. 293, 294 (E.D.Pa.1976). Mailing court papers is "merely one mode of transporting the necessary papers to the clerk's office where the papers are to be filed by the Clerk." In re Strickland, 50 B.R. 16, 16-17 (Bankr.M.D.Ala.1985) (emphasis in original).
Because plaintiffs' complaint was not received until one day after the limitations *136 period had ended, it is untimely. Accordingly, the motion to dismiss the claims under the Federal Tort Claims Act is GRANTED. An appropriate judgment shall issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616544/ | 38 So. 3d 1041 (2010)
LOUISIANA COMMERCE & TRADE ASSOCIATION-SIF (Self Insured Fund)
v.
Jose H. CRUZ.
No. 2009 CA 2014.
Court of Appeal of Louisiana, First Circuit.
May 7, 2010.
*1042 Patrick H. Patrick, New Orleans, LA, for Plaintiff/Appellant, Louisiana Commerce & Trade Association-SIF.
C. Ray Murry, Slidell, LA, counsel for Defendant/Appellee, Jose J. Cruz.
Before WHIPPLE, HUGHES, and WELCH, JJ.
WHIPPLE, J.
Appellant, Louisiana Commerce & Trade Association-SIF (Louisiana Commerce), appeals a judgment of the Office of Workers' Compensation (OWC), maintaining an exception of prematurity filed by appellee, Jose H. Cruz and dismissing without prejudice Louisiana Commerce's claim for controversion of the employee's entitlement to benefits. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 2, 2009, Mardi Gras Productions, Inc., Cruz's employer at the time of the injury in question, and Louisiana Commerce, the workers' compensation insurer of Mardi Gras Productions, filed a disputed claim for compensation, seeking a determination that Cruz was no longer entitled to SEBs or other workers' compensation benefits, which they had been voluntarily paying him. In their claim, Mardi Gras Productions and Louisiana Commerce alleged that on May 8, 2007, Cruz, while discarding old carpet as an employee of Mardi Gras Productions, Inc., fractured his left hip when another employee pulled the piece of carpet upon which Cruz was standing, causing Cruz to fall approximately eight feet. Mardi Gras Productions and Louisiana Commerce further alleged that, at the time of the filing of their disputed claim, Cruz was being paid more than the maximum percentage of wages to which he was entitled in that he was capable of working at 90% or more of his pre-injury average weekly wage. They based this assertion on their allegation that Cruz had neither sought nor received medical treatment since early 2008.
Cruz responded by filing exceptions of prematurity, no right of action, and no cause of action. Cruz also sought sanctions in the form of attorney's fees. In support of his exceptions, Cruz argued that LSA-R.S. 23:1314 provides the exclusive list of grounds upon which a disputed claim can be filed and that the filing of a petition shall be premature unless one of those four enumerated grounds are alleged to support the claim. According to Cruz, Mardi Gras Productions and Louisiana Commerce had failed to plead any of these specifically enumerated allegations. Cruz further asserted that if Mardi Gras Productions and Louisiana Commerce believed that Cruz was not entitled to the compensation they were paying him, their remedy was to stop paying compensation at that rate and to file the requisite Form 1003, stating the reason for the change in compensation rate, rather than to "file a disputed claim" at a time when benefits were still being paid "for the [improper] purpose of attempting to force [Cruz] to prematurely *1043 propound discovery and proceed with litigation."[1]
Cruz further argued that if an employer were allowed to proceed in this fashion, by filing a disputed claim when benefits were still being voluntarily paid, the employer would be able to force the employee to bear the cost of litigation while the employer seeks an advisory response from the OWC as to the disability status of an injured employee. Accordingly, Cruz averred that Mardi Gras Productions and Louisiana Commerce engaged in abuse of process by forcing Cruz into litigation of this claim prematurely and that sanctions should therefore be imposed pursuant to LSA-C.C.P. art. 863.
Following a hearing on the exceptions and motion for sanctions, the OWC judge maintained Cruz's exceptions of no right of action, no cause of action, and prematurity and dismissed the disputed claim of Mardi Gras Productions and Louisiana Commerce without prejudice. However, the judgment was silent as to (and thereby denied) Cruz's request for sanctions in the form of attorney's fees. From this judgment, Louisiana Commerce appeals, contending that the OWC judge erred as a matter of law in: (1) dismissing the disputed claim of Mardi Gras Productions and Louisiana Commerce, filed in accordance with LSA-R.S. 23:1310, 23:1310.3, and 23:1314, when the disputed claim alleged that the employee was "not being paid maximum percentage of wages to which employee is entitled," but "rather he is being paid more"; and (2) finding that the disputed claim of Mardi Gras Productions and Louisiana Commerce, which alleged that the employee was being paid more than the maximum percentage of wages to which he was entitled, failed to state a bona fide dispute under LSA-R.S. 23:1310 and 23:1310.3. Cruz answered the appeal, contending that the OWC judge improperly ruled that he was not entitled to sanctions in the form of attorney's fees for the unwarranted filing of the disputed claim and further seeking damages and attorney's fees for frivolous appeal.
DISCUSSION
Exception of Prematurity
In the instant case, the judgment on appeal maintained Cruz's exceptions of no right of action, no cause of action, and prematurity. However, the statutes cited by Cruz in support of his exceptions actually address therein the prematurity of a workers' compensation claim. Thus, we will first consider whether the OWC judge erred in dismissing without prejudice the claim of Mardi Gras Productions and Louisiana Commerce on the basis that the claim was premature.
Workers' compensation law sets forth that either the employee or the employer (or insurer) may file a claim with the OWC to resolve a dispute arising between the parties. See LSA-R.S. 23:1310(A). The statute provides that "[i]f ... a bona fide dispute occurs, the employee or his dependent or the employer or insurer may file a claim ... on a form to be provided by the director." LSA-R.S. 23:1310(A) (emphasis added). Additionally, LSA-R.S. 23:1310.3(A) provides that "[a] claim for *1044 benefits, the controversion of entitlement to benefits, or other relief under the Workers' Compensation Act shall be initiated by the filing of the appropriate form with the office of workers' compensation administration." (Emphasis added).
Nonetheless, LSA-R.S. 23:1314 sets forth pleading requirements for a petition filed pursuant to LSA-R.S. 23:1310.3 and provides therein that if the petition does not include one of the four presented scenarios (all of which relate to situations wherein the employer has failed to meet its obligations under the Workers' Compensation Act), the petition shall be dismissed as premature. Specifically, LSA-R.S. 23:1314 provides as follows:
A. The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:
(1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or
(2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or
(3) The employee has not been furnished copies of the reports of examination made by the employer's medical practitioners after written request therefor has been made under this Chapter; or
(4) The employer or insurer has not paid penalties or attorney's fees to which the employee or his dependent is entitled.
B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the workers' compensation judge to be without reasonable cause or foundation in fact.
C. The workers' compensation judge shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.
(Emphasis added).
Thus, as noted by the Fourth Circuit, LSA-R.S. 23:1310(A) and 23:1310.3(A) clearly purport to allow both employees and employers (or insurers) to bring a claim before the OWC, but the pleading requirements of LSA-R.S. 23:1314 do not reflect this dual ability to bring an action. See Michaels Store, Inc. v. Hart, XXXX-XXXX (La.App. 4th Cir.3/20/02), 815 So. 2d 201, 203-204. Both the Fourth and Fifth Circuits have addressed "the anomaly" created by the current versions of LSA-R.S. 23:1310.3 and 23:1314 as they apply to employers and insurers and have concluded, reading the clear wording of the statute, that LSA-R.S. 23:1314 applies equally to employer-initiated LDOL-WC-1008 forms. Clement v. Blanchard, 2005-531 (La.App. 5th Cir.2/14/06), 924 So. 2d 295, 297-298; Bank One v. Johnson, XXXX-XXXX (La.App. 4th Cir.8/11/04), 882 So. 2d 30, 32-33. As noted by those courts, a trial court's duty is not to make law, but merely to implement pre-existing law in the current proceeding. Clement, 924 So.2d at 297; Michaels Store, Inc., 815 So.2d at 204.
We agree with the Fourth and Fifth Circuits that any inconsistency in these workers' compensation statutes as applied to employers is a matter for the legislature, not the courts, to correct. An attempt by this court to reconcile the statutes at issue would require either the deletion or the addition of substantive language to one of the statutes. Clearly, this is the job of the legislature, not the courts. Accordingly, under the clear *1045 wording of LSA-R.S. 23:1314, Mardi Gras Productions and Louisiana Commerce, in order to survive an exception of prematurity, had to plead one of the four scenarios listed therein.
Indeed, as noted by counsel for Louisiana Commerce at oral argument, Louisiana Commerce does not argue herein that the pleading requirements of LSA-R.S. 23:1314 do not apply to it as an insurer. Rather, it asserts that even applying the mandatory pleading provisions of LSA-R.S. 23:1314, the claim filed herein by Mardi Productions and Louisiana Commerce met those pleading requirements. Specifically, Louisiana Commerce notes that the LDOL-WC-1008 form[2] filed by Louisiana Commerce and the employer contained the following allegation: "Employer and carrier allege employee is not being paid maximum percentage of wages to which employee is entitled; rather he is being paid more." Louisiana Commerce asserts that the allegation that Cruz was being paid more than that to which he was entitled equates to or encompasses the allegation that Cruz was not being paid maximum percentage of wages to which he is entitled. Thus, Louisiana Commerce contends that it pleaded the specific scenario set forth in LSA-R.S. 23:1314(A)(1) and, accordingly, that the OWC judge erred in dismissing the claim as premature.[3] Louisiana Commerce further argues that allowing it to proceed with its claim while it continues to pay benefits to Cruz fosters the policies of the workers' compensation statutory scheme by encouraging voluntary payments to a claimant.
While we recognize Louisiana Commerce's attempt to artfully argue its claim to fit within the confines of the pleading requirements of LSA-R.S. 23:1314(A), we cannot agree that an allegation that a claimant is being paid more than the maximum weekly benefits to which he is entitled encompasses the allegation that he is not being paid the maximum amount to which he is entitled. Rather, if a claimant is being paid more than the maximum to which he is entitled, he also is necessarily being paid the "maximum percentage of wages to which [he] is entitled." Thus, we find no merit to the argument that the claim filed by Louisiana Commerce and Mardi Gras Productions met the pleading requirements of LSA-R.S. 23:1314. Accordingly, applying LSA-R.S. 23:1314 to the disputed claim filed by Louisiana Commerce and Mardi Gras Productions, we must conclude that the OWC judge's dismissal of the claim without prejudice on the basis of prematurity was correct.[4]
*1046 Exceptions of No Right of Action and No Cause of Action
In dismissing the claim filed by Louisiana Commerce and Mardi Gras Productions, the OWC judge also maintained Cruz's exceptions of no right of action and no cause of action. As stated above, these exceptions were based upon the same argument concerning the applicability of LSA-R.S. 23:1314(A) to employer- and insurer-initiated claims. Because we have determined that the OWC judge did not err in dismissing without prejudice the petition of Louisiana Commerce and Mardi Gras Productions on the basis of Cruz's exception of prematurity, we pretermit discussion of the remaining exceptions as moot.
Sanctions
In his answer to appeal, Cruz contends that the OWC judge erred in failing to award sanctions in the form of attorney's fees pursuant to LSA-C.C.P. art. 863.[5] He further requests that this court award him sanctions against Louisiana Commerce for frivolous appeal. However, given the apparent inconsistency or lack of clarity in the above-cited workers' compensation statutes, we decline to award the relief sought by Cruz in his answer to appeal.
CONCLUSION
For the above and foregoing reasons, the August 4, 2009 judgment of the OWC, dismissing without prejudice the claim filed by the employer and its insurer, is affirmed. Costs of this appeal are assessed against Louisiana Commerce & Trade Association-SIF.
AFFIRMED.
NOTES
[1] A Form LWC-WC-1003 is a stop-payment form by which the employer or insurer formally advise the OWC and the employee that the employer or insurer is terminating benefits and the reason therefor. See LSA-R.S. 23:1201(H) and Glover v. General Motors, 38,805 (La.App. 2nd Cir.8/18/04), 880 So. 2d 172, 173-174. Additionally, a Form LWC-WC-1002 is to be utilized by the employer or insurer to notify the OWC and the employee of any modification in the payment of benefits, such as a reduction in payments or a change to SEBs. See LSA-R.S. 23:1201(H) and Comeaux v. City of Ville Platte, 617 So. 2d 1313, 1317 (La.App. 3rd Cir.1993).
[2] The LDOL-WC-1008 form is a "Disputed Claim for Compensation" form.
[3] As further support for its contention that the OWC judge erred in dismissing its claim, Louisiana Commerce cites the First Circuit opinion of Our Lady of Lake Regional Medical Center v. Matthews, XXXX-XXXX (La.App. 1st Cir.9/26/07), 971 So. 2d 354, 356, wherein an employer, while continuing to pay benefits, brought an action seeking a determination that the employee was no longer disabled. However, the issue of prematurity (and the applicability of LSA-R.S. 23:1314(A) to employer- and insurer-initiated claims) was not before the court in that case. If the objection of prematurity is not raised by the timely filing of a dilatory exception, the exception is waived. Wilson v. St. Mary Community Action, 2000-2106 (La.App. 1st Cir. 12/28/01), 803 So. 2d 1106, 1111-1112. Thus, Matthews is inapposite to the prematurity issue raised herein.
[4] In so concluding, we note, as did the OWC judge, that our holding herein does not leave an employer or insurer without a remedy where it has determined that the employee is being overpaid benefits. Rather, the employer or insurer has non-judicial remedies, as outlined in footnote one supra, of reducing or terminating the payment of benefits where the employer or insurer has actually determined that a modification is warranted, unlike the circumstances presented herein.
[5] This court has applied the provisions of LSA-C.C.P. art. 863 to workers' compensation claims. See Bracken v. Payne and Keller Company, Inc., XXXX-XXXX (La.App. 1st Cir.9/5/07), 970 So. 2d 582, 590-591. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616511/ | 38 So. 3d 188 (2010)
Anthony WILLIAMS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-1978.
District Court of Appeal of Florida, Fifth District.
May 28, 2010.
*189 James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
*190 Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant was convicted of first-degree felony murder and armed burglary of a dwelling. His sole argument on appeal is that the trial court erred when it denied his motion to suppress statements taken in violation of his right to counsel under the Sixth Amendment of the United States Constitution, and article I, section 16 of the Florida Constitution. We affirm.
Appellant and two co-defendants broke into a Brevard County home to commit a theft. The homeowner was home at the time of the break-in and was fatally shot. After being indicted on first-degree felony murder and armed burglary of a dwelling charges, Appellant fled the state and was eventually arrested on unrelated charges in New York. Law enforcement officers in New York contacted the Brevard County Sheriff's Office, which began the extradition process. The New York court appointed counsel to represent Appellant on the New York charges, as well as in the extradition proceedings.
Two officers from the Brevard County Sheriff's Office went to the Riker's Island jail in New York to interview Appellant about the murder and burglary. The officers did not notify Appellant's New York counsel, and counsel was not present during the interview. Before speaking with Appellant, however, the officers read Appellant his Miranda[1] rights. Appellant waived his rights and gave a recorded statement.
Appellant later moved to suppress his statement, arguing that it was obtained in violation of his right to counsel under the Sixth Amendment and article I, section 16 of the Florida Constitution. He claimed that because his right to counsel had attached and been invoked, his waiver during the police-initiated interview was invalid because his counsel was not present. The trial court denied the motion, concluding that simply accepting counsel's representation for the extradition proceedings did not equate to an invocation of the right to counsel on the underlying criminal charges. Finding that he voluntarily and knowingly waived the right to counsel, the court allowed the prosecution to introduce the statement at trial. Appellant was subsequently convicted of both charges and sentenced to life imprisonment on each charge. On review, Appellant urges this Court to reject the trial court's ruling, and instead hold that a defendant invokes his right to counsel on the underlying criminal charges by accepting court-appointed counsel for purposes of extradition.
After Appellant filed this appeal, the United States Supreme Court decided Montejo v. Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009), in which it overruled Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986). As a result, Appellant's counsel candidly acknowledged at oral argument that his Sixth Amendment argument is meritless. Nevertheless, Appellant urges that, because his right to counsel under the Florida Constitution is more pervasive than the Sixth Amendment, suppression is still compelled.
In Jackson, the United States Supreme Court held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." 475 U.S. at *191 636, 106 S. Ct. 1404. The Florida Supreme Court subsequently adopted the bright-line rule set forth in Jackson. It held that once the right to counsel has attached and been invoked, any waiver in the absence of counsel during police-initiated questioning is invalid. Owen v. State, 596 So. 2d 985, 989 (Fla.1992); see also Smith v. State, 699 So. 2d 629, 640 (Fla.1997); Traylor v. State, 596 So. 2d 957, 968 (Fla.1992) ("Evidence obtained by the State in contravention of these guidelines violates the Florida Constitution and may not be used by the State.").
In Montejo, the United States Supreme Court held that Jackson's bright-line rule was too detrimental to the truth-seeking process to justify its continuation. 129 S.Ct. at 2091. There, the defendant was arrested and charged with first-degree murder. The court appointed counsel to represent him, but before the defendant met with his attorney, police detectives visited the defendant at the prison and requested that he accompany them to locate the murder weapon. After being read his Miranda rights, the defendant agreed to go along. While he was with the detectives, the defendant wrote a letter of apology to the victim's widow, in which he incriminated himself. The trial court admitted the letter over the defendant's objection, and he was subsequently convicted of first-degree murder and sentenced to death. Id. at 2082.
The defendant argued that the letter should have been suppressed under Jackson, asserting that his right to counsel had attached and been invoked. He claimed that his subsequent waiver during the police-initiated interrogation was invalid because it was obtained without counsel present. Id. at 2083. The Louisiana Supreme Court rejected the defendant's argument, finding that Jackson did not apply because the defendant simply accepted court-appointed counsel, without making a request or assertion. The United States Supreme Court rejected such a distinction between defendants who actually request counsel and those who simply accept court-appointed counsel, but take no affirmative action to invoke the right to counsel. Id. It also rejected the defendant's approach, however, that once a defendant is represented by counsel, police may not initiate any further interrogation, noting that "[s]uch a rule would be entirely untethered from the original rationale of Jackson." Id. at 2085. Thus, the Court went on to consider whether Jackson should be overruled.
The Court addressed the strength of Jackson's reasoning by weighing the rule's benefits against its costs. The benefits of Jackson were that the police were prevented from badgering defendants into waiving their previously asserted rights, and that no fruits of interrogations made possible by such badgering-induced involuntary waivers were erroneously admitted at trial. Id. The costs of the Jackson rule were that voluntary confessions given after proper readings of Miranda rights would nonetheless be invalidated, that law enforcement would be deterred from even trying to obtain voluntary confessions, and that guilty and dangerous criminals would go free. Id. at 2090-91.
In balancing the benefits against the costs, the Court reasoned that even without Jackson's bright-line rule, few, if any, badgering-induced involuntary statements would be admitted at trial because a defendant's constitutional rights were adequately protected by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990). Montejo, 129 S.Ct. at 2090.
*192 Under the Miranda-Edwards-Minnick line of cases ... a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but "badgering" by later requests is prohibited. If that regime suffices to protect the integrity of a "suspect's voluntary choice not to speak outside his lawyer's presence" before his arraignment, it is hard to see why it would not also suffice to protect that same choice after arraignment, when the Sixth Amendment rights have attached.
Id. (internal citations omitted). The Court acknowledged that these Fifth Amendment cases provide a narrower constitutional protection than Jackson because they only apply during custodial interrogation. It noted, however, that noncustodial interrogations "do not involve the `inherently compelling pressures,' that one might reasonably fear could lead to involuntary waivers." Id. (quoting Miranda, 384 U.S. at 467, 86 S. Ct. 1602). The Court concluded that the marginal benefits of Jackson were outweighed by the substantial costs to the truth-seeking process, and, therefore, overruled Jackson. Id. at 2091.
Although Montejo resolved the issue under Sixth Amendment jurisprudence, the Supreme Court acknowledged that the states were free to continue prohibiting these types of police-initiated interrogations under their own constitutions. Montejo, 129 S.Ct. at 2089. Thus, Montejo does not resolve the issue under article I, section 16 of the Florida Constitution. Since Montejo, our supreme court has not addressed whether it will continue to apply the bright-line Jackson rule under article I, section 16.
There is nothing in our Florida Constitution that requires us to interpret the right to counsel in accordance with the United States Supreme Court. Indeed, Florida may afford greater right-to-counsel protections than those afforded by the Sixth Amendment. See, e.g., State v. Kelly, 999 So. 2d 1029, 1040, 1041 (Fla.2008) (holding that unlike search and seizure jurisprudence, Florida may give broader right to counsel under article I, section 16 than that provided by Sixth Amendment). In interpreting the right to counsel, our supreme court suggests that we should consider Justice Brennan's admonishment:
"[T]he decisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees."
Kelly, 999 So.2d at 1042 (emphasis in original) (quoting William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 502 (1977)).
Our state precedent on this issue was based solely on the Supreme Court's holding in Jackson, with no independent reasoning under our state law. See, e.g., Smith, 699 So.2d at 639; Owen, 596 So.2d at 989; Traylor, 596 So.2d at 968 n. 30. Although we think the Court's cost-benefit analysis in Montejo to be well-reasoned and logical, and agree that a defendant's *193 constitutional rights are adequately protected through Miranda, Edwards and Minnick, we are bound by the precedent established by our state's high court. Hoffman v. Jones, 280 So. 2d 431, 433-34 (Fla.1973). Therefore, we must consider the state constitutional claims of Appellant under the assumption that our high court will adhere to its precedent, despite Montejo. Under this analysis, we affirm, nevertheless, because Appellant did not invoke his right to counsel on the murder and burglary charges, and he waived his right to counsel prior to the interview with the sheriff's officers.
Article I, section 16, of the Florida Constitution provides the accused with the right to counsel, which attaches at the earliest of the following points: "when the accused is formally charged with a crime via the filing of an indictment or information; as soon as feasible after custodial restraint; or at first appearance." Smith, 699 So.2d at 638. There is no question that Appellant's right to counsel had already attached at the time of the interview. The question is whether he had invoked the right.
The right to counsel is not self executing. Thus, the fact that the right to counsel has attached is not alone enough to trigger its constitutional protections. Rather, an accused must invoke the right to counsel. Id.; see also Patterson v. Illinois, 487 U.S. 285, 290, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988) (noting that "[p]etitioner... at no time sought to exercise his right to have counsel present"); Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985) ("Once the right to counsel has attached and been asserted, the State must of course honor it." (emphasis supplied)). Additionally, the right to counsel is offense-specific; the attachment and invocation of the right on one charge does not amount to the invocation of that right on other charges against the same defendant. Owen, 596 So.2d at 989 (citing McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991)).
The right to counsel only applies in the criminal context. Extradition is not a criminal offense. The purpose of an extradition proceeding is simply to bring suspects to trial in the state where the alleged offense was committed. State v. Soto, 423 So. 2d 362, 364 (Fla.1982). It is a civil proceeding related to a criminal proceeding in another jurisdiction. Thus, extradition proceedings do not carry the Sixth Amendment right to counsel. See United States v. Yousef, 327 F.3d 56, 142 n. 66 (2d Cir.2003); Chewning v. Rogerson, 29 F.3d 418, 421 (8th Cir.1994); Judd v. Vose, 813 F.2d 494, 497 (1st Cir.1987). Appellant argues that although extradition itself does not carry the right to counsel, it cannot be separated from the underlying criminal charges for purposes of that right. He contends that, therefore, by accepting counsel's representation for extradition, he invoked his right to counsel for the underlying criminal charges. We reject this argument.
Even if we were to accept Appellant's legal premise, however, the facts belie his argument. There is no evidence to demonstrate that Appellant considered the appointment of counsel or counsel's appearance at the extradition hearing to extend to the murder and burglary charges. At the time, Appellant denied that he was the person being sought by Florida authorities. At the hearing on Appellant's motion to suppress, the State introduced a signed affidavit from Appellant's New York counsel. She avowed that she was appointed by the court to represent Appellant only on the New York charges and during the extradition proceedings. There was no testimony at the hearing to contradict that statement. There was also no evidence that counsel discussed the underlying murder and burglary charges with Appellant. *194 Additionally, Appellant never indicated to the sheriff's officers that he was represented by counsel and never requested to speak with his New York counsel or to have her present during questioning. Appellant never requested representation of any kind. Instead, he simply signed the Miranda waiver and spoke with the officers.
We hold, therefore, that Appellant did not invoke his right to counsel on the murder and burglary charges. The mere appearance of counsel for purposes of an extradition proceeding does not amount to an invocation of the right to counsel on the underlying criminal charges. Accord Chewning, 29 F.3d at 422 (holding that mere appearance of counsel at extradition hearing could not reasonably be considered positive enough assertion, without other supporting evidence, to amount to invocation of right to counsel on underlying criminal charge); People v. Makiel, 263 Ill.App.3d 54, 200 Ill. Dec. 602, 635 N.E.2d 941, 953 (1994) (holding mere acceptance of counsel for extradition insufficient to invoke right to counsel on underlying criminal charge). Having concluded that Appellant did not invoke his right to counsel, we now consider whether his waiver of that right was valid.
A defendant may waive the right to counsel so long as the waiver is made voluntarily, knowingly and intelligently. Patterson, 487 U.S. at 291, 108 S. Ct. 2389. Generally, where the defendant is advised of his Miranda rights, the waiver is considered knowing and intelligent. Id. at 293-94 (reasoning that Miranda warnings informed defendant of right to counsel and of consequences of waiving that right); see also Traylor, 596 So.2d at 972 (finding valid waiver under article I, section 16 where defendant was read Miranda rights). The record is clear that Appellant's waiver of his right to counsel was voluntary, knowing and intelligent. He was adequately informed of his Miranda rights prior to questioning, and he voluntarily waived those rights when he agreed to speak to the sheriff's officers without counsel present.[2] We hold, therefore, that the trial court properly denied Appellant's motion to suppress.
We certify to the Florida Supreme Court the following question of great public importance:
Should Article I, Section 16 of the Florida Constitution, be interpreted in accordance with the Sixth Amendment analysis set forth in Montejo v. Louisiana, ___ U.S. ___, 129. S.Ct. 2079, 173 L. Ed. 2d 955 (2009), such that police officers may initiate interrogation of an accused without counsel present after the right to counsel has attached and been invoked?
AFFIRMED; QUESTION CERTIFIED.
TORPY, LAWSON and EVANDER, JJ., concur.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] At the beginning of the interview, the officers read a form entitled "Advice of Rights" to Appellant:
[L]et me read this to you. It says ... "I have the right to remain silent. Anything I say can and will be used against me in a court of law. I have a right to talk to a lawyer and have him present with me while I'm being questioned. If I cannot afford to hire a lawyer, one will be appointed to represent me before any questioning if I wish one. And I understand that this interview and interrogation can and will be stopped at any time upon my request."
At the bottom of the form, where it states "I understand each of these rights have been explained to me and knowing these rights I do or do not wish to talk with you at this time," Appellant wrote the word "do" and then signed his name. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616577/ | 38 So. 3d 143 (2010)
McROY
v.
STATE.
No. 2D10-1199.
District Court of Appeal of Florida, Second District.
June 23, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920202/ | 921 So.2d 725 (2006)
Cecelia W. HARRIS d/b/a C.W. Harris Bus, Leon C. Harris, d/b/a L.C. Harris School Bus, Renee Harris d/b/a Renee Harris School Bus, Robin Harris d/b/a Robin Harris School Bus, Ruth Harris d/b/a M.C. Harris Bus Service, Inc., Janice Johnson d/b/a J.R. Johnson Bus, Inc., Appellants,
v.
SCHOOL BOARD OF DUVAL COUNTY, Florida, Appellee.
No. 1D05-0984.
District Court of Appeal of Florida, First District.
February 17, 2006.
*726 Albert H. Mickler, Esquire of the Law Offices of Mickler & Mickler, Jacksonville, for Appellants.
William R. Mabile, III, Esquire and William D. Horgan, Esquire of Fuller, Johnson & Farrell, P.A., Tallahassee, for Appellee.
BENTON, J.
Plaintiffs below, former school transportation contractors who sought to recover damages as partial reimbursement for moneys they expended to purchase school buses, appeal the trial court's grant of summary judgment against them and in favor of the Duval County School Board. We affirm.
For decades, rather than buying its own school buses and hiring its own school bus drivers, the School Board has contracted with individuals and other private entities to transport students to and from schools. Deposition testimony dated the first of such contracts to shortly after World War II, when the School Board asked people to purchase buses and provide student transportation on a contract basis, so the School Board would not have to buy several buses at once itself.
*727 This initial decision led to a succession of annual contracts between individual transportation contractors and the School Board,[1] contracts which were renegotiated and entered into anew each school year. By contracting year after year, deposition testimony indicated, at least one appellant had been providing bus transportation services to the School Board from the start of the 1957-1958 school year until the 2000-2001 school year came to a close, and with it the era in which school transportation contracts were let without competitive bidding. None of the appellants was awarded a contract for the 2001-2002 school year.
I.
After taking office in August of 1998, a new superintendent convened a special task force to review the cost efficiency of the School Board's bus transportation program. Among other things, the task force recommended implementing a competitive bidding procedure to ensure the School Board got the lowest price for transportation services. The report also projected cost savings, estimating that using "national contractors" could save the School Board between three and seven million dollars a year.
The School Board then requested an opinion from the City of Jacksonville's office of the general counsel as to whether the School Board was required by law to bid the school transportation contracts competitively. The office of the general counsel rendered an opinion on April 17, 2000, that school transportation contracts were not exempt from competitive bidding requirements.
Accordingly, the School Board implemented a competitive bidding process for the 2001-2002 school year, dividing the county up into five geographic areas for purposes of competitive bidding.[2] The local contractors were too small to bid on contracts to provide such extensive transportation services on their own, but some of the local contractors combined to make consolidated bids. In the aggregate, bids submitted by entities comprised of former local bus transportation providers were millions of dollars higher than their competitors'. Not one combination of former local bus transportation contractors submitted a winning bid.
II.
Each of the contracts the appellants had last signed, entitled "2000-2001 Contract for Transportation of School Children," took effect "the 1st day of July, 2000" and expired "June 30, 2001." Designated "Contractor" in the form agreement, each appellant undertook to operate approved buses on assigned routes. The contracts provided:
The Contractor shall transport public school students by bus, for the period of time hereinafter specified, over an assigned route(s), and for other approved school transportation needs as may be required. No specific route(s) shall be *728 guaranteed to any Contractor at any time.[3]
The contracts required each appellant to operate buses on a specific time schedule, provided by the School Board's Department of Transportation,[4] and to keep records of the trips.
A.
Contractors had to register all bus drivers with the transportation office. Each driver had to be licensed, and had to keep licensing and certain other information on file in the transportation office. Bus drivers had to be approved by the Superintendent of Schools, and the contractor had to require drivers to attend safety and training meetings required by the Superintendent.
The contracts established requirements for the buses, including inspections. No bus provided by a contractor was allowed to transport students until the bus was approved by the Superintendent of Schools (or his designee). Each contractor had to see that the bus was inspected monthly. The contracts provided:
Failure of a bus to pass inspection, or any safety or any mechanical failure that requires the removal of the bus from service,[[5]] and when not replaced by the Contractor's own backup bus or a bus approved by the Director of Transportation, or his designee, shall result in a pro rata deduction and loss of compensation to the Contractor for the period of time the bus is out of service.
All buses were subject at all times to inspection by the Superintendent. The contracts required each contractor to procure workers' compensation coverage, and required the School Board to procure automobile liability insurance coverage for bodily injury and property damage in specified amounts.
The contracts addressed student discipline, and conferred on bus drivers the same powers of control as teachers, except that drivers were not allowed to punish school children. (The bus driver had to report misbehavior to the principal.) Section "L" of the contracts was devoted to the employment of bus attendants.
No one had authority to modify the contracts except the School Board by order. The contractor was not free to sell, assign or transfer a contract without prior written consent of the School Board: a contract would have terminated if it had been *729 sold, assigned or transferred without the School Board's consent. If assigned with the School Board's consent, all rights and obligations under the contract would have survived the assignment intact.
The contracts allowed the School Board to suspend a contractor for failure to comply with any of the contract terms, or in the event a contractor was charged with a felony or with any misdemeanor that seriously affected the best interests of the School Board. If any contractor had actually been convicted of a felony, the contract was to have been terminated. Even conviction of a misdemeanor could have supplied grounds to terminate the contract.
The contracts allowed the School Board to cancel outright if it discontinued a bus route to consolidate routes, close a school, or discontinue a grade, class, or program. Additionally, the School Board could terminate the contract if it discovered that the contractor had made false representations or concealed a material fact in connection with the contract, or if the contractor refused, without good cause, to take any additional trip to or from the assigned school. If a contractor failed to fulfill contractual obligations, the contractor forfeited all right to payment.
B.
Section "I" of the contracts addressed compensation owed to the transportation contractors in detail, as follows:
(1) The Contractor shall receive compensation on a 20 [school] day pay cycle basis for the transportation of students in accordance with the rates set forth in Appendix A, attached hereto, for all services hereunder which have been properly approved.
(2) In addition, the Board shall provide a bus replacement allotment of nine (9) payments (one per pay cycle, commencing in September) in the amount set forth in Appendix B for each bus of the year of manufacture indicated. It is the intention of the Board that its first priority in future compensation will be to fund the bus replacement schedule by adding a new year at the top of the schedule and drop buses which are older than ten (10) years from the schedule for payment. The schedule is intended to reflect increased cost, if any, of new buses purchased from the State of Florida school bus bid pool at the prevailing average rate of interest for purchase of buses through Duval County financial institutions. Payment of the bus replacement allotment shall begin on the day a bus enters into active service, and partial payments shall be calculated on a pro rata basis for the pay period in which the bus is brought into service. ALL CHANGES IN BUSES FROM THOSE SPECIFICALLY CONTRACTED FOR DURING THE 2000-2001 SCHOOL YEAR MUST BE APPROVED, IN ADVANCE, BY THE DIRECTOR OF TRANSPORTATION. It is the further intention of the Board that all regular school buses shall be replaced on no more than a thirteen-year replacement cycle,[[6]] except as *730 otherwise provided for special classifications of buses .... This replacement schedule is to be fully implemented at the beginning of the 2000-2001 school year (See Schedule "C-2"). Adjustments for payment of 2000 model buses shall be made at the beginning of the 2000-2001 school year, even if purchased during the 1999-2000 school year. Model 2000 buses brought into service during the 2000-2001 school year shall be paid as 2000 model buses for the remainder of the 2000-2001 school year. The year of the model shall be as recorded on the bus title.
(3) If the Director of Transportation, or his designee, requires a bus to return to a school to pick up a student through no fault of the driver, the Contractor will be paid twenty dollars ($20.00)....
The final paragraph of the contract reads: "This contract shall be effective for the period of time beginning July 1, 2000 and ending June 30, 2001."
Appendix "A" set "basic capacity rates" for different types and sizes of buses. It provided that an insurance premium of $153 would be deducted monthly and that fuel expense would be reimbursed at market price; established the amount of compensation for over-mileage, partial runs, activity runs, back-up buses, field trips, and modified programs; set the amount the contractor would receive to cover the salary of each authorized bus attendant; and established a time limit in which contractors had to apply for payment.
Appendix "B" is a chart entitled "Allotted for School Bus Replacement 2000-2001." The chart reads:
Model Per Bus Per Bus
Year Per Year Per Month
1991 450.00 50.00
1992 540.00 60.00
1993 630.00 70.00
1994 720.00 80.00
1995 810.00 90.00
1996 1530.00 170.00
1997 1530.00 170.00
1998 1530.00 170.00
1999 1530.00 170.00
2000 1530.00 170.00
(Asterisks omitted.) Testimony characterized these payments as "incentives" for contractors to purchase new buses.
III.
The appellants filed in circuit court on January 29, 2002, alleging breach of contract.[7] In their first amended complaint, they claimed that custom and practice entitled each bus contractor to compensation from the School Board for providing a bus (and operator) for each assigned route, and that the contractors should receive compensation for buses over a term equal to *731 the "replacement life" of each bus assigned to a route. They alleged that the written contracts were not integrated agreements, but supplemented oral contracts and gave meaning to the terms of the oral contracts. The first amended complaint alleged, in essence, that custom and practice reflected the parties' mutual understanding that the School Board would pay for their buses, and that the School Board had breached these unwritten contracts by terminating unilaterally.
After discovery, the School Board filed a motion for summary judgment on grounds that the parties' written contracts governed, and unambiguously provided for expiration on June 30, 2001. The School Board maintained that, when the contracts expired on June 30, 2001, all contractual obligations had been discharged, and that it had no duty to enter into new contracts with the appellants for transportation services. The School Board argued that the written contracts were integrated agreements that specified a definite ending date, and should be given effect.
The appellants responded that the written contracts were ambiguous, and that other evidence should be looked to for the parties' intent. They specifically pointed to what they called an "inclusion clause," set out supra note 4, and to the contracts' reference to amounts allotted for school bus replacement, specifically Appendix "B", which lists bus model years and corresponding incentive payment amounts. They argued that the language of the contracts referring to "future" funding and incorporation of Appendix "C" created ambiguity by evidencing an intent to continue the parties' relationship after the contracts expired.
On June 5, 2003, the trial court granted the School Board's motion for summary judgment, ruling:
Testimony and evidence presented at the hearing on the Motion for Summary Judgment revealed that this school bus transportation contract was renewed yearly through private negotiations, and that beginning in the school year 2001-2002, the Duval County School Board began soliciting school bus contractors through the State-mandated competitive bidding process. Evidence also revealed that the contract required Plaintiffs to purchase buses on a replacement schedule that existed well beyond the contract's effective period of one year. As such, Plaintiffs, based on prior practices, spent a considerable amount of money to comply with the bus replacement requirement as specified by the contract. However, this Court finds that based on the clear terms of the contract that it expired on June 30, 2001.
While granting summary judgment on the first amended complaint, however, the trial court allowed appellants thirty days to amend anew.
In their second amended complaint, the appellants alleged breach of an implied covenant of good faith and fair dealing, claiming that prior to the 2000-2001 school year, the School Board had indicated it would continue its past policies relating to transportation contracts in force. The School Board filed a motion to dismiss the second amended complaint on grounds that no claim for breach of implied covenant of good faith could be maintained absent an allegation that an express term of the contract had been breached by the School Board. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1098 (Fla. 1st DCA 1999) ("[T]he implied obligation of good faith cannot be used to vary the express terms of a contract."); Ament v. One Las Olas, Ltd., 898 So.2d 147, 149 (Fla. 4th DCA 2005) ("[A] duty of good faith must relate to the performance of an express term of the contract and is not an *732 abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements.") (quoting Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998)). The trial court granted the School Board's motion to dismiss the second amended complaint, but did so without prejudice to the appellants' filing still another complaint.
The appellants filed a third amended complaint on November 14, 2003, again alleging breach of contract and breach of implied covenant of good faith and fair dealing, but also alleging new theories, including promissory estoppel. On motion addressed to the third amended complaint, the trial court dismissed all counts, except for the promissory estoppel count. This count alleged that School Board representatives orally promised appellants that the School Board would use their buses until they needed replacement; that the appellants had reasonably relied on these promises to their detriment when they purchased the buses; that the School Board benefitted from this arrangement; and that the appellants did not have any other adequate remedy.
The School Board filed a motion for summary judgment on the one surviving count, the promissory estoppel claim, arguing that the School Board itself never made any promises to the appellants; that reliance on any promises employees may have made was unreasonable as a matter of law; and that the payments purportedly promised would have been illegal, absent competitive bids. The School Board argued that appellants' actual knowledge that the contracts for 2001-2002 were going to be competitively bid was not in dispute; that promissory estoppel was not available because there was an express written contract; and that the claim was barred both by the statute of frauds and by the doctrine of sovereign immunity.
In entering final summary judgment for the School Board, the court ruled no evidence supported the claim that the School Board had promised to reimburse appellants for the cost of school buses the appellants purchased; and that, to the extent that lower-level employees of the School Board attempted to make such promises, any reliance by the appellants on their promises was unreasonable as a matter of law because appellants knew, or should have known, that fulfillment of such promises would unlawfully foreclose competitive bidding.
The court ruled that promissory estoppel could not alter the terms of the parties' written contracts, which made no mention of reimbursement for the buses. The court also ruled that, even if promissory estoppel were otherwise available, it could not be invoked in this case because doing so would create, not remedy, an injustice; and because promissory estoppel can not be used to circumvent the statute of frauds. The trial court also ruled the doctrine of partial performance inapposite because appellants had simply purchased "tools of the trade" when they bought buses, to enable them to perform services for which they were fully compensated by payments under written contracts.
IV.
On appeal, the arguments for reversal are twofold. Appellants contend they should have been permitted to go to the jury on their theory that the School Board breached putative contracts that did not track the written contracts the parties executed. They also argue that they were entitled to a trial on the theory of promissory estoppel they stated for the first time in their third amended complaint.
*733 A. Breach of Contract
The appellants argue, in essence, that separate and divisible contracts, distinct from, if not entirely different than, the lengthy written contracts they each executed, entitled them to continued payments, notwithstanding the written contracts' expiration provisions[8]and notwithstanding cessation of the appellants' services as school transportation contractors. Otherwise stated, they argue first that an ambiguity in the written contracts required considering other evidence of the parties' intent regarding the termination of the School Board's contractual obligations. Then, on this premise, they assert that they identified evidence which should have precluded summary judgment on their claim that the School Board has an ongoing obligation to make payments related to the cost or value of the school buses that the contractors purchased to perform the school transportation contracts.
We find no ambiguity in the contracts in the present case regarding the date the School Board's obligation to make payments ceased, viz., June 30, 2001. Unless an ambiguity exists because contractual terms cannot be reconciled, a court need not (and should not) look to extrinsic sources to determine the parties' intent. See Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla.1998); see also Dune I, Inc. v. Palms N. Owners Ass'n, Inc., 605 So.2d 903, 905 (Fla. 1st DCA 1992); Thrasher v. Arida, 858 So.2d 1173, 1175 (Fla. 2d DCA 2003). Where the language of a contract is unambiguous, there is no occasion for judicial construction. Clear contract language controls. See Dune I, 605 So.2d at 905; Thrasher, 858 So.2d at 1175. Courts should first try to reconcile apparently conflicting contract clauses. See Thrasher, 858 So.2d at 1175. Only where a contract contains mutually repugnant clauses that actually conflict does an ambiguity exist.
The appellants argue that the written contracts are ambiguous as to expiration mainly because of a stated "intention":
In addition, the Board shall provide a bus replacement allotment . . . . It is the intention of the Board that its first priority in future compensation will be to fund the bus replacement schedule by adding a new year at the top of the *734 schedule and drop buses which are older than ten (10) years from the schedule for payment.
(Emphasis added.) But this vague, aspirational language can easily be reconciled with the one-year term of the contract.
If anything, the emphasized language put them on notice that the scheduled incentive payments might not have been funded, even if the parties had entered into transportation contracts in succeeding years. While the language expresses the School Board's intention to make the schedule's continued funding "its first priority in future compensation," it makes no promise that any contract will be renewed, or that the School Board will contract with any particular transportation contractor in the future. The language in question is fully compatible with the clearly stated, limited duration of these one-year contracts, and does not require resort to parol evidence.
Equally fundamentally, nothing in the contract language or evidence lends support to the appellants' hypothesis that the bus replacement incentive schedule is divisible from the remainder of the contract. The School Board contracted for certain services, and the school transportation contractors agreed to provide them. Under the parties' agreements, if a school transportation contractor failed to take students to and from school as agreed, the contractor did not receive compensation of any kind.
The appellants all testified that they were promised only the right to continue to provide transportation services, not some entitlement to payments for buses that were no longer used for school transportation. No evidence supported a contrary view. Ms. Renee Harris herself testified that the school bus replacement allotments were an incentive to transport school children in newer buses, an incentive that did not give rise to any right to compensation apart from contractually defined compensation.
Under no view of the evidence was there an undertaking by the School Board to pay for the contractors' buses. New school buses cost between $55,000 and $70,000, the evidence showed, while the maximum bus replacement incentive payment amounted to a mere $1530 per year. Plainly, the School Board never agreed to buy the contractors' buses.
B. Promissory Estoppel
Pleading in the alternative, as they were entitled to do, see Doe v. Univision Television Group, Inc., 717 So.2d 63, 65 (Fla. 3d DCA 1998) ("[W]e ... hold that plaintiff may plead the contract and promissory estoppel claims in the alternative."), the school transportation contractors eventually stated a promissory estoppel claim. For purposes of this claim, they took the position that, while no contract required any reimbursement for buses, School Board employees had orally promised the contractors they would be reimbursed for buses they had purchased. They alleged that they had reasonably and detrimentally relied on such promises and that an injustice could be avoided only by enforcing the promises against the School Board. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 302 (Fla. 1st DCA 1999) ("To state a cause of action for promissory estoppel, a plaintiff must allege facts that, if taken as true, would show 1) that the plaintiff detrimentally relied on a promise made by the defendant, 2) that the defendant reasonably should have expected the promise to induce reliance in the form of action or forbearance on the part of the plaintiff or a third person, and 3) that injustice can be avoided only by enforcement of the promise against the defendant.").
*735 But appellants point to no evidence of a promise to reimburse the cost of any bus, apart from making payments specified in the written contracts. The appellants' Initial Brief gives the following language from Cecelia Harris' affidavit as an example of the promises on which appellants rely:
I would meet with Gene Blackwood, the director of transportation.... I would discuss the purchase of equipment and the bus for the assigned bus route. I would discuss the cost of reimbursement with Mr. Blackwood.... When the assigned route was discussed with Mr. Blackwood or one of his assistants, I would ask how these bus purchase requirements and other equipment requirements would be paid. Mr. Blackwood said that I would be working on that route long enough that the bus and equipment would pay for itself.
(Emphasis added.) Putting to one side the question of Mr. Blackwood's authority to speak for the School Board or his ability to bind the School Board orally, see generally County of Brevard v. Miorelli Eng'g, Inc., 703 So.2d 1049 (Fla.1997), the language Ms. Harris attributed to him contemplated nothing more than compensation for transportation services in accordance with the terms of the written contracts.
Reliance on any promise to make payments not called for by the comprehensive, integrated written contracts (or on any oral promise to renew the written contracts indefinitely)[9] would not, moreover, be reasonable as a matter of law. A contract entered into in violation of statutes and rules[10] requiring competitive bids "is absolutely void, and ... no rights can be acquired thereunder by the contracting party." Wester v. Belote, 103 Fla. 976, 138 So. 721, 724 (1931). A person who contracts with the government is presumed to know the law, including whether a particular contract requires competitive bidding. See Armco Drainage & Metal Prods., Inc. v. County of Pinellas, 137 So.2d 234, 236 (Fla. 2d DCA 1962).
Competitive bidding requirements are designed to protect the public from collusive contracts and from the ill effects of official favoritism in public procurement; and to ensure fair competition among bidders for the public good. See Wester, 138 So. at 724. The Second District Court of Appeal has explained:
Where two persons with equal knowledge and equally participating in the fault, have entered into an illegal agreement, one of them has obtained by the other's voluntary act all the benefit of it for himself, his refusal to perform his own part is, generally considered in itself alone, unjust and inequitable; but the law sustains him in this position, because it takes into account the interests of society and of the state, which demand the complete suppression of such agreements.
Armco, 137 So.2d at 238 (quoting Schaal v. Race, 135 So.2d 252, 257 (Fla. 2d DCA *736 1961)); see also Mayes Printing Co. v. Flowers, 154 So.2d 859, 864 (Fla. 1st DCA 1963) ("The law is clear that competitive bidding statutes are designed to secure fair competition on equal terms for all bidders, among other things to avoid favoritism and to secure public improvements at the lowest reasonable cost to the taxpayers.") (quoting with approval the trial judge's opinion).
Affirmed.
ALLEN and VAN NORTWICK, JJ., concur.
NOTES
[1] The School Board did not meet with each contractor individually. Instead, agents of a group representing all of the transportation contractorsthe Duval County Bus Contractors Associationmet with School Board representatives and negotiated the terms of the contracts for the upcoming school year. After negotiations produced a form contract, each contractor and the School Board signed a copy, agreeing to be bound by the terms the School Board and the Association had negotiated for the succeeding school year.
[2] The School Board's original plan was to implement competitive bidding after the 1999-2000 school year, but the School Board put it off for a year at the request of its local transportation contractors to allow them extra time to prepare for the competitive bidding process.
[3] Another section of the contracts dealt with how bus routes were to be assigned, and provided that only the Director of Transportation or his designee could change a route. It also provided that, if a bus contractor ceased to do business with the School Board, the routes that were assigned to that bus contractor would be offered to existing contractors first on the same terms and conditions.
[4] The contracts provided:
All specifications, documents and conditions heretofore filed in the transportation office pertaining to the transportation of school children and each instrument executed by, or on behalf of, the Contractor pursuant to said specifications, documents and conditions are hereby made a part of this contract to the same extent as if set forth herein, anything herein to the contrary notwithstanding.
[5] Another contract provision explained what constituted "satisfactory performance" of the bus and provided:
Repeated failure of a bus to perform satisfactorily, in any way, due to mechanical deficiencies, unauthorized adjustments to a route, or using an improper or non-approved bus on a route at a time and in a manner not approved by the Director of Transportation, or his designee, may result in a requirement to replace the bus, as determined solely by the Superintendent, or his designee. If the bus is not replaced, then the entire contract may be terminated, according to the provisions of Section (B), Paragraph (8) of this contract.
[6] Appendix "C" reads as follows:
A. It is understood that the Board approved for the 2000-2001 school year a twelve (12)-year replacement cycle for buses in all Florida Department of Education school bus body classifications, other than "D" class and certain 1988 models with prior approval from the Duval Transportation Department. The 2000-2001 school year bus replacement schedule will be implemented according to the following schedule.:
By July 1, 2000:
All 1989 and newer models approved for "Regular Status Service" and certain 1988 models with prior approval from the Duval Transportation Department.
All 1986-78 models approved for "Spare Bus Status Only" service during the 2000-2001 school year.
B. All buses approved as "D" body classification by the Florida Department of Education and placed on "A" use status by the Duval County School Board will be replaced on a fifteen (15)-year replacement cycle. Thereafter, they may be used for "Contractor Spare" bus purposes for two years beyond the normal replacement cycle.
[7] Other lawsuits were filed alleging breach of other school transportation contracts in Duval County. On April 3, 2003, the trial court denied a motion by the School Board to consolidate all of these cases, noting that each of the other cases was "currently abated" except for mediation purposes.
[8] Appellants' argument flies in the teeth of the Statute of Frauds, section 725.01, Florida Statutes (2001), which provides that "[n]o action shall be brought . . . upon any agreement that is not to be performed within the space of 1 year from the making thereof, . . . unless the agreement or promise . . . [is] in writing . . . ." The purpose of the statute of frauds is to "intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos." Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937)).
We are not concerned in the present case with a contract of indeterminate length capable of being fully performed within one year. See generally Byam v. Klopcich, 454 So.2d 720, 721 (Fla. 4th DCA 1984). Appellants alleged an oral contract requiring payments over a period of more than one year. Any such contract would fall within the purview of the statute of frauds, and be deemed invalid as a matter of law. See Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937).
Acknowledging the duration of the oral contract they allege, appellants argue that they fall within the exception the statute of frauds recognizes for part performance: If one party to an oral contract discharges its obligations under the contract, the statute of frauds does not countenance the other party's accepting the benefits of the agreement while walking away from its own undertakings. See Burke v. Napieracz, 674 So.2d 756, 758 (Fla. 1st DCA 1996). Here, however, the School Board has paid all it owes for transportation services furnished on or before June 30, 2001, and appellants do not allege that they performed any services after that date.
[9] The doctrine of promissory estoppel cannot be used to circumvent the statute of frauds. See Tanenbaum, 190 So.2d at 778-79.
[10] Rule 6A-1.012(6) of the Florida Administrative Code (2001) states: "Except as authorized by law or rule, bids shall be requested from three (3) or more sources for any authorized purchase or contract for services exceeding the amount established in Section 287.017, F.S., for purchasing category two." See also § 287.057(1), Fla. Stat. (2001) ("Unless otherwise authorized by law, all contracts for the purchase of ... contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO shall be awarded by competitive sealed bidding."). In 2001, the category two purchasing threshold amount was $25,000. See § 287.017(b), Fla. Stat. (2001). An individual contract for bus transportation services is more than $25,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/97196/ | 216 U.S. 504 (1910)
J.J. McCASKILL COMPANY
v.
UNITED STATES.
No. 103.
Supreme Court of United States.
Argued January 25, 1910.
Decided February 28, 1910.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*505 Mr. W.W. Flournoy for appellant.
Mr. Assistant Attorney General Russell for the United States.
MR. JUSTICE McKENNA delivered the opinion of the court.
This suit was brought by the United States to cancel a patent issued to one William Josiah Ward and a deed made by him and his wife to J.J. McCaskill & Company, and by the latter to the J.J. McCaskill Company, the appellant. The allegations of the bill are that the N. 1/2 of the N.E. 1/4, S.W. 1/4 of the N.E. 1/4, and S.E. 1/4 of N.W. 1/4 of section 8, township 1 N., 17 W., in the county of Walton, State of Florida, being public lands of the United States, William Josiah Ward, on the eighteenth of September, 1900, filed his application upon them for a homestead in the land office in Gainesville, Fla. That he subsequently commuted the entry by paying the Government price therefor, making proof of settlement, cultivation and improvement for the period of time required by law, and that on January 13, 1903, a cash entry certificate No. 18,026 was issued to him and a patent on the third of June, 1903. It is alleged, with detail of circumstances, that the statement of Ward and the proof presented by him on the hearing for final proof were false, fraudulent and untrue. The allegations will be given later. The bill further alleges that the land embraced in the patent was conveyed by Ward to J.J. McCaskill & Company (the bill as originally filed alleged that the conveyance had been made to the McCaskill Company), a copartnership composed of J.J. McCaskill and E.L. McCaskill, then engaged in the manufacture of lumber at Freeport, Fla. That they afterward incorporated by the corporate name of the J.J. McCaskill Company, with the said J.J. McCaskill as president and Robert E.L. McCaskill as secretary, owning a large majority of the stock of the corporation, with the entire management *506 and control of its business and affairs. That the company took over from the said J.J. McCaskill or J.J. McCaskill & Company the homestead entry of Ward, with full knowledge of its president and secretary of the negotiations between the company and the entryman by Warren Ward, an agent of the company, "and with all the knowledge and notice of the said McCaskill & Company of the fraud and duplicity practiced by William Josiah Ward in obtaining the patent from the United States."
The answer of the company alleged that conveyance was made by William Josiah Ward to J.J. McCaskill after the patent was issued for the sum of four hundred and twenty-five dollars; that McCaskill, for a valuable consideration, sold and conveyed the same to the McCaskill Company; that the conveyance was made in good faith, without notice or knowledge of any kind whatsoever of any irregularity or fraud upon the part of Ward, if any there was, and that he was a bona fide purchaser of the property; and that the company was a bona fide purchaser, for a valuable consideration from J.J. McCaskill, and without knowledge or notice of any irregularity or fraud practiced by Ward. The usual replication was filed and an examiner was appointed to take the proofs on the issues made.
Upon report to the court a decree was entered overruling the objections of the company to the evidence and the motion to strike it out, and adjudged and decreed that the patent be declared null and void, and that it be surrendered by the company, the decree finding it to be in its possession, to the clerk of the court, to be inscribed by him "null and void." It was further adjudged and decreed that the deed from William Josiah Ward to J.J. McCaskill & Company and the deed from the latter to the J.J. McCaskill Company be vacated and annulled, and the company be enjoined forever from setting up or claiming title to the land by reason of the patent or any of the conveyances from Ward. The decree was affirmed by the Circuit Court of Appeals.
*507 There are twenty-three assignments of errors, eighteen of which are addressed to rulings on evidence and five attack, in general terms, the decree cancelling the patent and the conveyance by Ward. These five were alone discussed in the oral argument and in the brief on file under the following divisions:
"1. Are the averments of the bill of complaint sufficient to give the court of equity jurisdiction?
"2. Do the facts proved by the Government sustain the averment that the final proof of the entryman was false, fraudulent and untrue?
"3. Will this court review decisions by the land office officials upon questions of fact?
"4. Does the appellant occupy the position of an innocent purchaser and is the Government precluded because of his rights as such?"
1. To support the first proposition it is urged that the bill does not allege the facts upon which the charge of fraud in obtaining the patent was based and therefore "presents no issue for trial and should fail upon demurrer." But there was no demurrer filed to the bill. The only answer to paragraphs four and five (set out below) was that as to the facts of the former the company was not advised; that as to the facts of the latter it had "no knowledge," and denied, therefore, that they were true, and demanded strict proof of them. The first and only explicit objection to the bill for insufficiency is made in the brief filed in this court. But, conceding it covered by the assignments of error discussed by counsel and entertaining it, we think that it is without foundation. The following are its averments:
"Your orator shows unto your honor that the said William Josiah Ward, in the commutation proof taken on the 29th day of December, 1902, alleged himself, and made it appear by the testimony of others, that he had established a residence upon said land on March 10th, 1901, and that he continuously resided thereon from that date until and up to the date of submission of final proof, except for absences on two or three *508 occasions of not exceeding three months, due to the illness of his wife; that he had improved the tract by erection of a house thereon and by cultivating one-half acre for two seasons, and the whole amount of improvements being alleged to be of the value of forty ($40.00) dollars, and that he had complied with the law entitling him to a patent to said lands.
"Your orator further shows unto the court that the statement of the said Ward and the proof presented by him on the hearing for final proof was false, fraudulent and untrue; that he did not have the improvements that he alleged that he had on said premises, and had not cultivated the said land; that the improvements accomplished on said entry consisted of nothing more than a pine-pole cabin, never completed, without floor, door or chimney; that there was absolutely no means of entrance or exit thereto or therefrom, unless through the unenclosed gable ends of said cabin; that the interstices between the poles of said cabin were never closed in any fashion; that the only ground on said entry which had undergone cultivation was a space within an enclosure of thirty by thirty-five feet; that the said Ward never resided upon said land, but during the period allowed for residence on the homestead entry, entryman actually resided at his home, where for a long time he had maintained his residence, three and one-half miles distant from said entry."
Appellant relies for its contention upon United States v. Throckmorton, 98 U.S. 61; Vance v. Burbank, 101 U.S. 514; United States v. Maxwell Land Grant, 121 U.S. 325, and other cases of like kind. We will not take the time to review them. It is enough to say that it was pointed out in United States v. Minor, 114 U.S. 233, that they do not apply to a case like that at bar, where the charge is that there was fraud and perjury in ex parte proceedings before the land office. See also United States v. San Jacinto Tin Company, 125 U.S. 273; Moffat v. United States, 112 U.S. 24; United States v. Iron Silver Mining Company, 128 U.S. 673; Colorado Coal Company v. United States, 123 U.S. 307; United States v. Beebe, 127 *509 U.S. 338; United States v. Budd, 154 U.S. 15; United States v. American Bell Company, 167 U.S. 224.
2. This division involves the sufficiency of the evidence to sustain the decree. The argument at bar has not kept this division separate from the first or the first from it. They are manifestly different. The first concerns the sufficiency of the bill, this the sufficiency of the evidence. In other words, whether the evidence has established the averments of the bill, assuming them to be sufficiently specific, by clear and satisfactory proof. And it may be conceded that that is the degree of proof that the cases require. It was said in United States v. Maxwell Land Grant, supra, "that when a court of equity is asked to set aside a patent for fraud or mistake, the testimony on which this is done must be clear, unequivocal and convincing, and cannot be done upon a bare preponderance of evidence which leaves the issue in doubt."
Does the case at bar fill the measure of proof required by the cases? In this inquiry we start with the finding of the two lower courts in the affirmative. Appellant attacks the finding, but, as we have said, does not keep the discussion of this inquiry separate from the consideration of the sufficiency of the bill. In both stress is put upon the same proposition. It is contended that the allegations of the bill that the proofs submitted by Ward to the land office were fraudulent and untrue was a mere legal conclusion, and that besides it was solely the province of the land office officials to determine such matter, and "thus may, in their discretion, issue patents to persons upon evidence of improvement and cultivation of greater or less value and extent, the extent in value of the improvement being solely in their discretion." It is further argued that "the statutes governing the disposition of the public lands required neither a limited amount of improvement nor an absolute continuous residence," and "that when an entryman has clearly set forth the amount of the improvements, however small, and the department has issued a patent thereupon, then the question of the amount, or extent, is forever *510 put at rest." The purpose of the law, it is further argued, "is to give a part of the public domain to the poor man, and that therefore temporary abandonment, for the purpose of earning a livelihood or support his family, or to secure funds with which to make improvements, or on account of sickness, as in the case at bar, is permissible." The value and amount of improvement, it is finally urged, is immaterial except to detract from the good faith of the entryman, "and then only when accompanied with evidence of the ability of the entryman to make more improvements than in fact were made." These tests may be accepted, arguendo, and the fraud of Ward is established.
The averment of the bill is that he deceived the land office by false testimony of the extent of his improvements, cultivation and residence, and secured his patent by that deception. In other words, that the judgment and discretion of the land office were invoked, not upon the actual extent of his improvements, cultivation and residence, but upon a misrepresentation of their extent. See United States v. Minor, supra.
It may be well here to consider what the law requires. It gives the right of entry of 160 acres of land as a homestead, upon the condition, however, which must be established by affidavit, that the "application is honestly and in good faith made for the purpose of actual settlement and cultivation and not for the benefit of any other person." That applicant will honestly endeavor to comply with the requirements of settlement and cultivation, and does not apply to enter the same for the purpose of speculation. The purpose of the law, therefore, is to give a home, and to secure the gift the applicant must show that he has made the land a home. Five years of residence and cultivation for the term of five years he must show by two credible witnesses.
Residence and cultivation of the land are the price that is exacted for its payment. It is in the power of the settler to modify the terms somewhat. He may substitute for a residence and cultivation for five years a residence and cultivation *511 for not less than fourteen months, but he must make "proof of settlement and of residence and cultivation for such period of fourteen months," and pay the price provided by law for the land entered. This is known as the "commutation" of his homestead entry.
In view of these provisions of law we may judge of what Ward did. He entered the land as a homestead, and on the eighth of September, 1900, filed the affidavit required, stating that he made his application honestly and in good faith, for the purpose of actual cultivation and settlement, and not for the benefit of any other person. On the twenty-ninth of December, 1902, he produced two witnesses to establish his residence, cultivation and character of his improvements, one of whom testified that he was well acquainted with Ward and the land embraced in Ward's claim; that it was "low piney woods land, very wet in rainy seasons." His testimony as to Ward's residence and cultivation of the land is best exhibited by the following questions and answers:
"Q. 5. When did claimant settle upon the homestead, and at what date did he establish actual residence thereon?
"A. About the 9th of March, 1901.
* * * * * * * *
"Q. 6. Have claimant and family resided continuously on the homestead since first establishing residence thereon?
"A. I don't think they have continuously. I have seen them absent from it a time or two.
"Q. 7. For what period or periods has the settler been absent from the land since making settlement, and for what purpose; and, if temporarily absent, did claimant's family reside upon and cultivate the land during such absence?
"A. I have known of their being absent a time or two, but he has not been off of it over three months at the longest period. His wife is very feeble, and the land is so low and wet that, on account of her health as well as to make a support, he was compelled to be absent. I presume he has been on it nearly every week."
*512 The other witness was even more definite. Answering a question as to the continuity of the residence of Ward and his family on the land, he said that he could not say "whether continuous or not, have not been there all the time, they were there every time I have been there, but on one or two occasions have seen them off the land." And further, as to the absence of Ward and his family, he said: "I don't know exactly how long, but am satisfied they have not been absent over six months at the longest for the purpose of making a support, and on account of the land being so low and wet and unfit for cultivation." Both witnesses gave the extent of cultivation to be one-half acre for two years and the improvement to consist of a house and garden of the value of forty or fifty dollars.
Ward himself testified that he established his residence on the tenth of March, 1901, and that his improvement consisted of a small dwelling house and a garden of about one-half acre of land, worth about forty dollars. He testified further as follows:
"Q. 5. Of whom does your family consist; and have you and your family resided continuously on the land since first establishing residence thereon?
"A. Myself and wife. No, not continuously; that is, not every day and night.
* * * * * * * *
"Q. 6. For what period or periods have you been absent from the homestead since making settlement, and for what purpose; and, if temporarily absent, did your family reside upon and cultivate the land during such absence?
"A. Was absent two or three times, not over three months at longest period, on account of my wife's health. She is very feeble, and the land is so low and wet, that it was impossible to keep her on the place all the time."
And he further testified that he had not sold, conveyed or mortgaged any portion of the land. This testimony would have established, if true, that Ward with his family took up *513 his residence on the land on the tenth of March, 1901, that his improvement consisted of a small dwelling house, fit for habitation, and a garden of one-half acre, cultivated two seasons, and that after making his settlement he was absent only "two or three times, not over three months," at longest, "on account of his (witness') health." This was the testimony upon which the land department acted. What is the evidence in this case? His two sons never saw him on the land, but always saw him at his residence, four or five miles from the land. He testifies himself that he never moved his family there; that the house was built of pine poles, was twelve by fourteen in dimensions, had no floor, no chimney, no "ceiling or boards on between the poles or the interstices;" that he fenced and cultivated "a small piece, not larger then the house," and this was enclosed by rails and poles and planted two years. His residence upon the land is described in the following questions and answers:
"Q. Did you ever have your family there on any night? Ever spend any night with your family there?
"A. I stayed there at night myself. My wife did not go there. She was very sickly.
"Q. About how many nights in the week did you spend there?
"A. I do not think I stayed in the same week more than one night in the week."
And there is other testimony showing that the house was unfit for habitation. A special agent of the General Land Office inspected the place. He found, he said, "a little pole cabin, 11 x 13, not completed, and there was no door to go in and out of. There was no window, no chimney, the openings between the poles were not closed, the gable ends were not closed." He further testified that there was no evidence of any residence or habitation there at all. And further, "there was a little enclosure, 30 x 35 feet, a little amount that was about a quarter of a mile from the house." This witness also testified to the conversation with Ward, in which the latter told *514 him that he (Ward) had not lived on the homestead entry, and that he thought that he was going to lose it. We think that this testimony sustains the averments of the bill that the patent was obtained by fraud. This is not a case where the courts are undertaking to review the decisions of the land office officials on questions of fact nor to reverse their discretion properly exercised. It is a case of fraud upon them and obtaining a patent by means of that fraud.
Does appellant occupy the position of the innocent purchaser, and is the Government precluded from receiving the relief prayed for in the bill because of such fact? The answer to the question depends upon a proposition of law, and whether J.J. McCaskill had knowledge of the fraudulent acts of Ward. This knowledge was, in effect, found by both the lower courts, and, giving to their finding the strength that should be accorded to it, we pass to the consideration of the proposition of law that the knowledge of J.J. McCaskill, though president of the McCaskill Company, cannot be imputed to it because, as appellants' argument is, while the knowledge of an agent is the knowledge of the principal, an "exception to the rule is that if the agent is acting in a matter in which he has a personal interest, or in communication with which he is interested with a third person, the presumption is that he will not communicate the facts in controversy." And it is urged that "the rule should be more rigidly applied in cases of fraud or torts." For these propositions appellant cites Clark v. Metropolitan Bank, 3 Duer (N.Y.), 241; Frenkel v. Hudson, 82 Alabama, 162; Allen v. South. P.R.R. Co., 150 Massachusetts, 200; Innerarity v. Mer. Natl. Bank, 139 Massachusetts, 332; Atlantic National Bank v. Harris, 118 Massachusetts, 147; Loring v. Brodie, 134 Massachusetts, 453; Hightstown v. Christopher, 40 N.J.L. 435.
Undoubtedly a corporation is, in law, a person or entity entirely distinct from its stockholders and officers. It may have interest distinct from theirs. Their interests, it may be conceived, may be adverse to its interest, and hence has arisen *515 against the presumption that their knowledge is its knowledge, the counter presumption that in transactions with it when their interest is adverse their knowledge will not be attributed to it. But while this presumption should be enforced to protect the corporation it should not be carried so far as to enable the corporation to become a means of fraud or a means to evade its responsibilities. A growing tendency is therefore exhibited in the courts to look beyond the corporate form to the purpose of it and to the officers who are identified with that purpose. Illustrations are given of this in Cook on Corporations, §§ 663, 664 and 727. The principle was enforced in this court in Simmons Creek Coal Company v. Doran, 142 U.S. 417. In that case a corporation claimed title to land through a deed of its corporators, one of whom became its president, Of the effect of this the court said: "Associated together to carry forward a common enterprise, the knowledge or actual notice of all these corporators, and the president was the knowledge or notice of the company, and if constructive notice bound them it bound the company."
The case at bar is within the principle. The bill alleges that J.J. McCaskill and Robert E.L. McCaskill were copartners and engaged in the manufacture of lumber at Freeport, Fla. They incorporated this business, it is alleged, under the laws of Florida, "by the corporate name of J.J. McCaskill Company, with the said J.J. McCaskill as president and the said Robert E.L. McCaskill as secretary, owning a large majority of the stock of said corporation, with the entire management and control of the business and affairs of said corporation." There is no denial of this allegation. The interest of the corporators and the corporation thus shown to be identical, not adverse, we think the ruling in Simmons Creek Coal Company v. Doran is applicable.
This discussion disposes of the five assignments of error which were presented at the oral argument. The other assignments of error are based on rulings upon the admission of evidence.
*516 These assignments are grouped by counsel in two classes: (1) one to three being based upon the action of the trial court in admitting the testimony of Antonine Paul, which we have given; (2) four to eighteen attack the ruling of the court in admitting testimony of the purchase by the company of other homestead claims.
To support the contention that the court erred in its ruling admitting the testimony of Paul it is urged that no foundation had been laid for it by an indication of time, place and circumstances. The record shows that these conditions were satisfied. The witness' attention was drawn to the statement by him to Paul, and he himself testified that it was made at his dwelling house, and testified that he signed the statement.
It is clear, therefore, that the witness was given opportunity to explain. The circumstances and occasion of making the statement were drawn to his attention and the person to whom it was made. He knew that Paul was a Government agent, seeking the exact facts as to his, the witness', settlement upon the land. He could not have underrated the importance of the relation of the statement to his testimony and the necessity of a clear explanation of it.
The statement was made the basis of a report to the land office and was introduced in evidence over the objection of the company's counsel. This seems more to have been done for a connected statement of the facts than for proof of them. The facts were testified to by Paul. We cannot see that there was prejudicial error in the ruling of the court.
The assignments of error in the second class are also without merit. The purpose of the testimony of other transactions, counsel say, was "to show a systematic course of dealing by McCaskill, such as would support a contention that he had guilty knowledge of whatever fraud might exist in the procurement of the patent in litigation." It is admitted that the testimony was competent for such purpose, but it is contended it should have been accompanied by evidence showing that such other transactions were false and fraudulent, and this, *517 it is insisted, was not done. If so, the testimony was harmless. In other words, if the testimony was not followed up by other testimony which was necessary to give it effect we may assume that the court below gave to it no value or probative strength. It must be kept in mind that the case was tried by the court.
Decree affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97197/ | 216 U.S. 517 (1910)
BOARD OF ASSESSORS OF THE PARISH OF ORLEANS, THE CITY OF NEW ORLEANS,
v.
NEW YORK LIFE INSURANCE COMPANY.
No. 112.
Supreme Court of United States.
Argued January 27, 1910.
Decided February 28, 1910.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.
Mr. Geo. H. Terriberry, Mr. H. Garland Dupre and Mr. Harry P. Sneed for appellants.
Mr. James H. McIntosh, with whom Mr. Charles S. Rice and Mr. Richard B. Montgomery were on the brief, for appellee.
*521 MR. JUSTICE HOLMES delivered the opinion of the court.
This is a bill in equity to restrain the collection of a tax from the plaintiff, the appellee, on the ground that the tax is contrary to the Fourteenth Amendment. The plaintiff had a decree and the defendants appealed to this court. 158 Fed. Rep. 462. The tax is based upon an assessment of the plaintiff for credits amounting to $568,900, whereas, the plaintiff says, that it has no credits in the State; and for money on deposit, distinct from what the plaintiff admits to be taxable, amounting to $50,700. There is no dispute about the facts and the issue as to each sum is upon matter of law.
The so-called credits arise out of transactions denominated Policy Loans and Premium Lien Note Loans, which are explained at length by the judge below, but which may be summed up more shortly here. When the plaintiff's policies have run a certain length of time and the premiums have been paid as due, the plaintiff becomes bound ultimately to pay what is called their reserve value, whether the payment of premiums is kept up or not, and this reserve value increases as the payments of premiums go on. A policy-holder desiring to keep his policy on foot and yet to profit by the reserve value that it has acquired, may be allowed at the plaintiff's *522 discretion to receive a sum not exceeding that present value, on the terms that on the settlement of any claim under the policy the sum so received shall be deducted with interest, (the interest representing what it is estimated that the sum would have earned if retained by the plaintiff); and that on failure to pay any premium or the above-mentioned interest the sum received shall be deducted from the reserve value at once.
This is called a loan. It is represented by what is called a note, which contains a promise to pay the money. But as the plaintiff never advances more than it already is absolutely bound for under the policy, it has no interest in creating a personal liability, and therefore the contract on the face of the note goes on to provide that if the note is not paid when due it shall be extinguished automatically by the counter credit for what we have called the reserve value of the policy. In short, the claim of the policy-holder on the one side and of the company on the other are brought into an account current by the very act that creates the latter. The so-called liability of the policy-holder never exists as a personal liability, it never is a debt, but is merely a deduction in account from the sum that the plaintiffs ultimately must pay. In settling that account interest will be computed on the item for the reason that we have mentioned, but the item never could be sued for, any more than any other single item of a mutual account that always shows a balance against the would-be plaintiff. In form it subsists as an item until the settlement, because interest must be charged on it. In substance it is extinct from the beginning, because, as was said by the Judge below, it is a payment, not a loan. A collateral illustration of the principle will be found in Starratt v. Mullen, 148 Massachusetts, 570, and cases there cited.
Instead of receiving an advance the policy-holder may draw upon the reserve value for a premium due, again giving a note, but the transaction is similar in legal characteristics to that which we have described. It is unnecessary to set out the documents at length, because, although the same language *523 is not used in all, there is no nice question of construction, no doubt possible as to the effect and import of the contracts. In none of the cases is there a loan and therefore there are no credits to be taxed. In Metropolitan Life Ins. Co. v. New Orleans, 205 U.S. 395, so far as appeared, the Insurance Company made loans, properly so called, to its policy-holders, and the question now before the court was not raised or discussed.
What we have said disposes of the item of $568,900. The other consists of a bank account of $50,700, kept separate from a small account for current expenses, admitted to be taxable. The account in question consists of deposits made solely for transmission to New York and not used or drawn against by any one in Louisiana. We shall not inquire whether it would or would not be within the constitutional possibilities for a State to tax a person outside its jurisdiction for a bank deposit that only became his or came into existence as property at the moment of beginning a transit to him, and that thereafter left the State forthwith. It is enough to say we should not readily believe that the Supreme Court of the State would interpret the statutes of Louisiana as having that intent. See Metropolitan Life Ins. Co. v. Newark, 62 N.J. Law, 74. The Louisiana cases cited as contrary and as showing the purpose of the legislature to reach such a deposit as this do not seem to us to sustain the appellants' point. Bluefields Banana Co. v. Board of Assessors, 49 La. Ann. 43. Parker v. Strauss, 49 La. Ann. 1173. The statute purports to levy a tax upon all property within the State, and enumerates different kinds. Act 170 of 1898. We see no indication that it intended to include under that head property that becomes such only to leave the State at once.
Decree affirmed.
MR. JUSTICE BREWER dissents, believing that the case is controlled by the decision in Metropolitan Life Ins. Co. v. New Orleans, 205 U.S. 395. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1616586/ | 668 N.W.2d 418 (2003)
257 Mich. App. 477
PANHANDLE EASTERN PIPE LINE COMPANY, Plaintiff-Appellant,
v.
Virgil MUSSELMAN and Margaret Musselman, Defendants-Appellees.
Docket No. 237106.
Court of Appeals of Michigan.
Submitted May 6, 2003, at Lansing.
Decided May 20, 2003.
Approved for publication July 10, 2003, at 9:00 a.m.
Released for Publication September 9, 2003.
*419 Bodman, Longley & Dahling LLP (by Robert G. Brower, James A. Smith, and Thomas P. Bruetsch), Detroit, for the plaintiff.
Halm, Christian & Prine, PC (by Thomas A. Halm), and Mark Smiley PLLC (by Mark C. Smiley), Howell, Howell, for the defendants.
Before: Bandstra, P.J., and Gage and Schuette, JJ.
PER CURIAM.
Plaintiff Panhandle Eastern Pipe Line Company (Panhandle) initiated an action seeking to enjoin defendants Virgil and Margaret Musselman from obstructing plaintiff's easement on defendants' property. Both parties filed motions for summary disposition, and the trial court granted summary disposition to defendants. Plaintiff now appeals as of right. We reverse and remand.
I
Plaintiff is a natural gas company under the Natural Gas Act, 15 USC 717 et seq., and holds Certificates of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission for its interstate natural gas transmission system. Plaintiff owns and operates a natural gas transmission pipeline system that crosses defendants' property. Plaintiff acquired a right-of-way with regard to the property from defendants' predecessors on May 15, 1962. Specifically, the right-of-way permits plaintiff to "lay, construct, maintain, alter, inspect, repair, replace, relocate, change the size of, operate, and remove a pipe line," and grants plaintiff "the right of ingress and egress, to, on, from and over" the premises. Further, the right-of-way provides that the grantor "shall not place anything over or so close to any pipe line or other facility of Grantee as will be likely to interfere with Grantee's access thereto by use of equipment or means customarily employed in the maintenance of pipe lines."
Over the course of time, trees and shrubbery have grown and been planted on the property by defendants. Plaintiff wished to clear the property to accommodate maintenance, repair, and testing of the pipeline, but defendants refused to allow plaintiff to clear the property.
Plaintiff filed its complaint and thereafter sought a preliminary injunction on May 9, 2000. Plaintiff argued that the failure to permit clearing of the property violated the provisions of the right-of-way agreement and created an unwarranted risk of harm to the adjacent landowners, which in turn jeopardized the continued supply of natural gas to consumers. Plaintiff asserted that the easement property must be cleared and maintained to allow immediate access by vehicles and heavy equipment in the event of a gas leak and to allow plaintiff to conduct aerial patrols over the pipeline pursuant to federal law. Defendants argued that plaintiff did not need to remove trees in order to accommodate any maintenance, repair, or testing of the pipeline. Defendants argued that the right-ofway grant does not indicate that plaintiff can make a thirty-foot clearing on either side of the pipeline and contended that no necessity could be shown for plaintiff's request for injunctive relief.
The trial court denied injunctive relief, finding that the right-of-way agreement does not provide for a clearing of the property. The court found that plaintiff failed to establish that clearing the property was necessary for safety patrol purposes and that aerial surveillance, while more convenient, was not necessary. Finally, the court found that plaintiff merely wanted to inspect the property, but it had *420 inspected the property since 1962 without incident and, thus, clearing was not necessary.
Before the court ruled on the preliminary injunction, the parties submitted a stipulated order to convert the proceedings to allow motions for summary disposition. The parties thereafter filed cross-motions for summary disposition based on similar arguments as presented during argument for the preliminary injunction. The trial court thereafter granted defendants summary disposition. In its decision, it incorporated its previous five-page written opinion in which it denied the preliminary injunction.
II
Although the trial court stated in its order that it granted summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), because it appears the court relied on documentary evidence, as opposed to only the pleadings, in rendering its decision, we will review it under MCR 2.116(C)(10). A motion brought under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). When deciding the motion, the trial court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists to warrant trial. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999). On appeal, this Court reviews de novo a trial court's decision regarding a motion for summary disposition. Spiek, supra at 337, 572 N.W.2d 201.
On appeal, plaintiff argues that it has the right, pursuant to the grant itself as well as federal law, to clear trees, vegetation, and other development of its easement in order to patrol the easement by air as part of its surveillance and maintenance program, and to obtain immediate access to the pipeline in case of an emergency. This access and maintenance allegedly requires a thirty-foot clearance on both sides of the pipeline. According to plaintiff, the undisputed facts establish that emergency repair is impossible because of trees planted by defendants, that aerial surveillance is the customary and most efficient manner of inspection required by federal regulation, that inspection for corrosion is hampered by the trees, and that the tree roots growing around a pipeline can damage the protective coating, causing corrosion and leaks.
Defendants argue that plaintiff has failed to take any action with regard to the property for thirty-eight years. Defendants contend that a sixty-foot clear-cut right-of-way is not a matter of necessity for plaintiff, but is merely a convenience. According to defendants, a sixty-foot clear-cut right-of-way did not exist at the time of the installation of the pipeline and many of the trees sought to be removed actually predate the installation of the pipeline. Finally, defendants contend that plaintiff has several other viable options available to it, such as negotiating with defendants or initiating eminent domain proceedings.
III
The rights of the holder of an easement are defined by the easement agreement. Great Lakes Gas Transmission Co. v. MacDonald, 193 Mich.App. 571, 575, 485 N.W.2d 129 (1992). Further, the grantee has all rights that are incident or necessary to the reasonable and proper enjoyment of the easement. Unverzagt v. Miller, 306 Mich. 260, 265, 10 N.W.2d 849 (1943). It has been held that, in Michigan, an owner of a pipeline easement is entitled to reasonable access to the land for maintenance *421 and repair purposes. Eyde v. Michigan, 82 Mich.App. 531, 541, 267 N.W.2d 442 (1978).
Although federal law does not grant plaintiff any more rights over the property than does the grant of the right-of-way itself, federal law defines plaintiff's duties with regard to the maintenance of its pipelines and, thus, addresses what is required of plaintiff with regard to the right-of-way. Federal law preempts the regulation of interstate piplines. MCL 483.160. Pipeline safety is regulated by the federal Department of Transportation under 49 USC 60101 et seq. Under 49 USC 60102(a)(1)(B), the Department of Transportation has the authority to prescribe the minimum safety standards for transporters of natural gas. The Department of Transportation regulations are codified in the Code of Federal Regulations, title 49, subtitle B, chapter 1, subchapter D, part 192 et seq. Section 192.703 regulates emergency plans for pipelines and provides, "each operator shall establish written procedures to minimize the hazard resulting from a gas pipeline emergency...." With regard to pipeline maintenance, subsection 192.705(a) provides that "[e]ach operator shall have a patrol program to observe surface conditions on and adjacent to the transmission line right-ofway for indications of leaks, construction activity, and other factors affecting safety and operation." Subsection 192.705(c) further provides that "[m]ethods of patrolling include walking, driving, flying or other appropriate means of traversing the rightof-way."
IV
Plaintiff does not argue that the right-of-way agreement explicitly grants plaintiff a sixty-foot-wide right-of-way. Instead, plaintiff essentially argues that the agreement grants plaintiff the right-of-way to install and maintain the pipeline and that a sixty-foot clearance is necessary for its maintenance. The parties put a great deal of emphasis on the necessity of aerial surveillance as a means of maintaining the pipeline.
Plaintiff submitted several affidavits in support of its argument that the right-ofway must be cleared to allow for proper maintenance and inspection. Tim Walter, plaintiff's senior right-of-way representative, and Mitchell Putnam, plaintiff's senior engineer at its Indianapolis division office, both averred that plaintiff must maintain an unobstructed easement to (1) allow aerial surveillance of each pipeline on a weekly basis, (2) allow immediate vehicle access to the line and nearby areas, (3) monitor corrosion prevention programs, (4) perform gas leakage surveys, (5) clearly mark the route of every pipeline, (6) allow foot and vehicle patrol, and (7) permit immediate excavation for repair in case of leakage from or damage to the line. Specifically with regard to aerial inspection, Walter averred that aerial patrol is the only productive, cost-efficient method he knows to survey thousands of miles of pipeline on a weekly basis. With regard to the necessary width of clearing of the easement, both Walter and Putnam averred that because the excavation, spoil piles, and truck access would be prevented by the presence of encroachment, vegetation, trees, and brush on the pipeline, at least an area of thirty feet on each side of the pipeline must be cleared to permit the excavation where longer sections of pipeline are to be repaired.
Donald Sharp, a pilot in plaintiff's Indianapolis division, averred specifically to aerial surveillance of the pipelines. He flies aerial surveillance over plaintiff's pipeline rights-of-way in Illinois, Indiana, Ohio, Michigan, Kentucky, and Tennessee twice a week during the construction season and *422 once a week in the winter. He stated that aerial surveillance is performed from an airplane flying approximately five hundred feet above ground at approximately 150 miles an hour. Sharp averred that it is important to have unobstructed rights-ofway so that a surveillance pilot can look down the right-of-way and observe the sides of the right-of-way for possible activity that could result in damage to the pipeline. According to Sharp, he has flown over defendants' property twice a week in the summer and once a week in the winter for over three years. During that time, the trees on defendants' property have obstructed his visual surveillance of the right-of-way so that he has been unable to detect leaks, construction activity, or soil erosion. Further, according to Sharp, if a significant leak went undetected or construction activity made contact with the line, a catastrophic accident could occur.
V
Although this issue has not been extensively addressed in Michigan, the law in Michigan regarding easements is clear. The extent of the easement is defined in the easement agreement and the grantee of an easement has all rights to the reasonable and necessary use of the right-ofway within the purpose of the easement.[1]
Initially, with regard to aerial surveillance, the federal regulations establish that aerial surveillance is a recognized method of patrolling the right-of-way. Plaintiff produced evidence that although it is not the only method of surveillance, aerial surveillance is the only productive and cost-efficient method of surveilling all the existing pipelines. Plaintiff not only has defendants' property to inspect, but evidence establishes that plaintiff has thousands of miles of pipeline to inspect. While foot patrol is available, aerial patrol is the more practical and efficient means of inspection. Defendants have produced little evidence to establish that aerial surveillance is not the most reasonable means of inspecting the property.[2]
Plaintiff produced evidence establishing that the trees and shrubbery that have grown over the right-of-way have obstructed the visual surveillance of the right-ofway. Plaintiff also produced evidence that an unobstructed right-of-way is necessary to permit immediate repair of the pipeline in the event repair is required. Although defendants produced photographs of the property to establish that the right-of-way is not obstructed, Donald Sharp's affidavit explicitly states that the trees on the property have obstructed his visual surveillance.
We conclude that the trial court erred in conclusively determining that plaintiff has no right to clear the property. The rightof-way agreement expressly states the purpose of the grant, which is to operate a pipeline. The parties' agreement specifically permits plaintiff to inspect and repair the pipeline. The agreement would even permit plaintiff to relocate or change the *423 size of the pipeline. Moreover, by the express language in the agreement, defendants cannot place anything on or near the right-of-way or in any way interfere with plaintiff's maintenance of the right-of-way. Accordingly, plaintiff has all rights that are incident or necessary to conduct these acts, including clearing the property to ensure maintenance and inspection.[3]
We find that the right-of-way agreement itself permits plaintiff to clear the property to an extent necessary for reasonable maintenance, repair, and inspection, including aerial inspection, which is a customary means of inspection for plaintiff. We further find that evidence has been produced that in its present state, the property is not sufficiently clear to allow for reasonable maintenance, repair, and inspection. However, we are troubled by defendants' claim that many of the trees that are near the right-of-way existed at the time the pipeline was constructed. Plaintiff claims that defendants planted the trees and shrubbery that obstruct the right-of-way. The evidence, however, is very minimal with regard to how long the trees have existed. Defendants claim that they have very meticulously manicured their property, including the land near the right-of-way; however, the extent to which they have planted trees and shrubbery near the right-of-way is unclear. Therefore, because questions remain with regard to how much of the vegetation defendants planted and how much the vegetation creates an obstruction for plaintiff, remand is necessary to determine the extent of the obstruction that must be cleared.
We are also concerned with the extent of the right-of-way with regard to its width. Although Tim Walter and Mitchell Putnam averred that easements must be cleared to a minimum of sixty feet to permit excavation, this is the only evidence that establishes the necessity of a sixty-foot-wide right-of-way.[4]
The trial court erred in granting summary disposition to defendants. Questions remain with regard to the extent of the obstruction of the right-of-way. Under the circumstances, remand to the trial court is necessary to determine the extent of the obstruction and the necessary width of the right-of-way.[5]
Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] Several other jurisdictions have addressed very similar issues and have held that if a landowner plants trees or in some other way interferes with the maintenance or surveillance of a pipeline, the pipeline owner may act to remove the interference. See Rueckel v. Texas Eastern Transmission Corp., 3 Ohio App. 3d 153, 444 N.E.2d 77 (1981); Avery v. Colonial Pipeline Co., 213 Ga.App. 388, 444 S.E.2d 363 (1994); Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538 (C.A.3, 1995).
[2] The grant itself states that defendants shall not place anything over or so close to any pipeline that is likely to interfere with plaintiff's access by use of equipment or "means customarily employed in the maintenance of pipe lines." Plaintiff provided evidence that aerial surveillance is the customary means for inspecting the property.
[3] Maintenance includes maintaining the property in the appropriate condition so that it is accessible in the event that repair of the pipeline is required.
[4] It appears that over the past several years, plaintiff has been clearing most of the rightsof-way that it possesses for the very purposes that it claims in this case.
[5] We note that in their brief on appeal, defendants allege that summary disposition in their favor was proper because plaintiff has other alternatives such as negotiating with defendants or bringing eminent domain proceedings. We find no merit to this argument. Defendants provide no legal support for this argument. Although the right-of-way grant provides something similar to arbitration if damages are incurred as a result of plaintiff's construction or repair of the pipeline, nothing suggests that plaintiff must negotiate with defendants in a situation such as this where plaintiff seeks to enjoin defendants from obstructing its access to the property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616594/ | 958 S.W.2d 799 (1997)
Ronald Richard HARRIES, Appellant
v.
STATE of Tennessee, Appellee
Court of Criminal Appeals of Tennessee, at Knoxville.
July 30, 1997.
Permission to Appeal Denied November 24, 1997.
*800 Michael J. Passino, Lassiter, Tidwell & Hildebrand, Nashville, Peter Alliman, Lee & Alliman, Madisonville, for Appellant.
John Knox Walkup, Attorney General and Reporter, Amy Tarkington, Assistant Attorney General, (On Appeal), Glenn R. Pruden, Assistant Attorney General (At Hearing), Nashville, H. Greeley Wells, Jr., District Attorney General, Blountville, for Appellee.
Permission to Appeal Denied by Supreme Court November 24, 1997.
OPINION
BARKER, Judge.
In this capital case, appellant, Ronald Richard Harries, appeals as of right the denial by the Sullivan County Criminal Court of his second petition for post-conviction relief. He argues that the trial court erred in finding that the jury's application of the felony-murder aggravating circumstance in violation of the rule announced in State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), was harmless beyond a reasonable doubt. In that respect, he also contends the trial court erred by concluding that evidence of his alcohol and drug intoxication at the time of the offense was not a mitigating factor within the statute and that appellant's history of drug addiction was not sufficient mitigating evidence which would have resulted in a lesser punishment absent the application of the invalid aggravating circumstance.
After a thorough review of the record, including the trial transcript and the transcript from the hearing on appellant's first post-conviction petition, we are of the opinion that the use of the invalid felony-murder aggravating circumstance was harmless beyond a reasonable doubt. The trial court's denial of appellant's petition is affirmed.
PROCEDURAL HISTORY
Appellant was convicted in 1981 of the felony murder of Rhonda Greene, an eighteen-year-old cashier at a convenience store in Kingsport.[1] At the sentencing phase of the trial, the jury imposed a sentence of death, finding the presence of two statutory aggravating circumstances which were not outweighed by the mitigating evidence. Specifically, the jury found that the defendant had been previously convicted of one or more felonies, other than the present charge, which involved the use or threat of violence to the person, and the murder was committed while the defendant was engaged in committing a robbery. See Tenn. Code Ann. § 39-2404(i)(2), (7) (Supp. 1981). On direct appeal to the supreme court, appellant's conviction and death sentence were affirmed. State v. Harries, 657 S.W.2d 414 (Tenn. 1983). No permission was sought for a writ of certiorari to the United States Supreme Court.
Appellant's first post-conviction petition was filed in March of 1986. That petition raised thirty-five (35) issues, including claims of ineffective assistance of counsel at trial and on appeal; unconstitutionality of the Tennessee death penalty statute; numerous errors in voir dire and the selection of grand and petit juries in Sullivan County; inadequate *801 evaluation of appellant's mental condition; and incorrect application of the felony-murder aggravating circumstance. Following a three-day evidentiary hearing, the trial court denied relief on the petition. On appeal, that judgment was affirmed by this Court. Ronald Richard Harries v. State, No. 833, 1990 WL 125023 (Tenn. Crim. App. at Knoxville, August 29, 1990), perm. to appeal denied (Tenn. 1991).
The current petition was filed September 9, 1993, alleging constitutional error in the application of the felony-murder aggravating circumstance to appellant's conviction for felony murder. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). No other grounds for relief were raised. After conducting an evidentiary hearing, the trial court issued a thorough statement of its findings of fact and conclusions of law.
The trial court found: (1) that the evidence supporting the remaining valid aggravating factor was uncontradicted and overwhelming; (2) that the prosecutor placed little emphasis on the invalid aggravator during his closing argument; and (3) that no additional evidence supporting the invalid aggravating circumstance was introduced at the sentencing phase. In evaluating the evidence offered in mitigation, the trial court found that any mitigation from appellant's drug addiction was negated by proof that appellant committed numerous crimes to support his habit. The trial court further found that evidence that appellant was under the influence of drugs and alcohol at the time of the crime was insufficient to demonstrate that he was substantially impaired. See Tenn. Code Ann. § 39-2404(j)(8) (Supp. 1981). It also found that appellant's claims of remorse for the crime were belated and lacked sincerity and were not supported by the factual record. However, the trial court did accord some weight to that claim and also to appellant's claim that the shooting was accidental. The trial court also considered a list of ten additional mitigating factors submitted after the filing of the petition. Considering all the above, the trial court concluded that the Middlebrooks error was harmless beyond a reasonable doubt. See State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994). Appellant's petition for relief was denied.
STANDARD OF REVIEW
The parties have raised the question of the proper standard of review for this Court to apply in reviewing the Howell harmless error analysis performed by the trial court. A review of Tennessee case law reveals that this question has not been squarely addressed. Our supreme court has had eight opportunities to consider whether application of the felony-murder aggravator in violation of Middlebrooks was harmless beyond a reasonable doubt. See State v. Hines, 919 S.W.2d 573 (Tenn. 1995), cert. denied ___ U.S. ___, 117 S. Ct. 133, 136 L. Ed. 2d 82 (1996); State v. Walker, 910 S.W.2d 381 (Tenn. 1995), cert. denied ___ U.S. ___, 117 S. Ct. 88, 136 L. Ed. 2d 45 (1996); Hartman v. State, 896 S.W.2d 94 (Tenn. 1995); State v. Smith, 893 S.W.2d 908 (Tenn. 1994), cert. denied ___ U.S. ___, 116 S. Ct. 99, 133 L. Ed. 2d 53 (1995); Barber v. State, 889 S.W.2d 185 (Tenn. 1994), cert. denied 513 U.S. 1184, 115 S. Ct. 1177, 130 L. Ed. 2d 1129 (1995); State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791 (1995); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied 513 U.S. 1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995); State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994). Procedurally, however, it has not had the opportunity to review findings of fact and conclusions of law following a trial court's Howell harmless error analysis. In fact, the supreme court has reviewed the issue in the context of post-conviction only twice and both times without the benefit of a post-conviction court's findings on the issue. See Hartman, 896 S.W.2d at 96; Barber, 889 S.W.2d at 186.
This Court has rendered decisions in capital cases in this procedural posture at least twice. See Tommy L. King v. State, No. 01C01-9512-CC-00415, 1997 WL 59464 (Tenn. Crim. App. at Nashville, February 12, 1997), appeal granted (Tenn. July 7, 1997); Michael J. Boyd v. State, No. 02C01-9406-CR-00131, 1996 WL 75351 (Tenn. Crim. App. at Jackson, February 21, 1996), appeal *802 granted (Tenn. November 25, 1996). In Boyd, a panel of this Court discussed the trial court's analysis of the Howell issue, but did not explicitly rely upon the trial court's findings or discuss the standard of review. The trial court's findings were not addressed in King.
We are mindful of the well-established standard of review generally applicable to denials of post-conviction petitions. The trial court's findings of fact and conclusions of law are given the weight of a jury verdict and accorded a presumption of correctness. This Court is bound by those factual findings unless the evidence within the record preponderates against the judgment. See, e.g., Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1994); Alley v. State, 882 S.W.2d 810, 817 (Tenn. Crim. App. 1994); Rhoden v. State, 816 S.W.2d 56, 59-60 (Tenn. Crim. App. 1991); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim. App. 1988); Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988); Vermilye v. State, 754 S.W.2d 82, 84 (Tenn. Crim. App. 1987); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983); Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied 441 U.S. 947, 99 S. Ct. 2170, 60 L. Ed. 2d 1050 (1979); Long v. State, 510 S.W.2d 83, 86 (Tenn. Crim. App. 1974). The supreme court recently applied this standard of review in a capital case when reviewing a lower court's determination on the ineffective assistance of counsel. Goad v. State, 938 S.W.2d 363, 368-69 (Tenn. 1996).
Applying these principles, we conclude that the factual findings of the trial court inherent in a harmless error analysis are entitled to a presumption of correctness. For example, the emphasis that the prosecutor placed on the invalid aggravating circumstance in closing argument, as well as the number of remaining valid aggravating circumstances, should be considered factual findings. Determinations on the quality of mitigating evidence are also entitled to the presumption. See Parker v. Dugger, 498 U.S. 308, 316-19, 111 S. Ct. 731, 737-38, 112 L. Ed. 2d 812 (1991) (concluding that a state appellate court's determination that the trial judge found no mitigating circumstances in a capital trial is an issue of historical fact in habeas corpus proceedings and entitled to presumption of correctness if fairly supported by the record).
However, a trial court's ultimate conclusion of harmlessness is not entitled to a presumption of correctness, but rather requires a de novo review. See Yates v. Evatt, 500 U.S. 391, 405-06, 111 S. Ct. 1884, 1894, 114 L. Ed. 2d 432 (1991) (evaluating the harmlessness of a constitutional error requires consideration of the entire record) (citations omitted); Arizona v. Fulminante, 499 U.S. 279, 294-96, 111 S. Ct. 1246, 1257, 113 L. Ed. 2d 302 (1991) (stating that the Supreme Court has power to review the record de novo to determine error's harmlessness). This is due, in part, because the issue of harmlessness is a mixed question of law and fact. See Deputy v. Taylor, 19 F.3d 1485, 1496 (3d Cir.), cert. denied 512 U.S. 1230, 114 S. Ct. 2730, 129 L. Ed. 2d 853 (1994) (finding that state court's conclusion of harmlessness is a mixed question of law and fact, not entitled to a presumption of correctness); Suniga v. Bunnell, 998 F.2d 664, 667 (9th Cir.1993) (determination by state appellate court that instructional error was harmless is mixed question of law and fact to be reviewed de novo). See also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995), cert. denied 516 U.S. 1096, 116 S. Ct. 822, 133 L. Ed. 2d 765 (1996) (finding that mixed question of law and fact is not entitled to deference).
Furthermore, it is impossible to determine the impact of an error and evaluate its harmlessness without evaluating it in the context of the entire record. Our rules of appellate procedure require as much: "A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." See Tenn. R.App. P. 36(b) (emphasis added). Moreover, Howell directs the reviewing *803 court to examine the entire record for factors which potentially influenced the jury's decision. 868 S.W.2d at 260. This is necessary to satisfy the constitutional demand of individualized sentencing considerations in capital cases. Stringer v. Black, 503 U.S. 222, 229-30, 112 S. Ct. 1130, 1136, 117 L. Ed. 2d 367 (1992).
In reaching these conclusions, we are guided by the approach used in federal courts for habeas corpus proceedings.[2] In such proceedings, factual findings of the state courts are entitled to a presumption of correctness, just as we grant deference to the post-conviction court. See 28 U.S.C. § 2254(e)(1) (Supp. 1997). This deference is equally applicable to findings of a state appellate court. Sumner v. Mata, 449 U.S. 539, 546-48, 101 S. Ct. 764, 769, 66 L. Ed. 2d 722 (1981). However, when determining the harmlessness of an error, review of the record should be de novo with no presumption of correctness. See Miller v. Fenton, 474 U.S. 104, 110-12, 106 S. Ct. 445, 450, 88 L. Ed. 2d 405 (1985) (concluding that ultimate question of admissibility of confession is not factual determination entitled to presumption of correctness). It is within this context that we review appellant's assigned errors.
MIDDLEBROOKS ERROR
Appellant argues that his death sentence is infirm as a result of the jury's application of the felony-murder aggravating circumstance to his conviction for first degree felony murder. He contends that such error cannot be considered harmless in light of the substantial mitigating evidence presented at trial and the presence of only one valid aggravating circumstance. We disagree.
When a defendant is convicted of first degree murder solely on the basis of felony murder, use of the aggravating circumstance that the murder was committed during the perpetration of a felony fails to sufficiently narrow the class of death-eligible murderers. State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992). Because use of this aggravating circumstance in a felony-murder conviction to assess the death penalty duplicates the elements of the offense, it violates the Tennessee Constitution. Id. Thus, in order to support death as a penalty for the crime of felony murder, a finding of at least one of the other statutory aggravating circumstances is necessary. Id at 346-47. This rule has been held to apply retroactively. Barber v. State, 889 S.W.2d 185, 186 (Tenn. 1994), cert. denied 513 U.S. 1184, 115 S. Ct. 1177, 130 L. Ed. 2d 1129 (1995).[3]
It is apparent on the face of the record that a Middlebrooks error occurred in appellant's case. Appellant shot and killed Rhonda Greene during the course of a robbery of the Jiffy Market where she worked. As a result, the jury found him guilty of first degree felony murder. The jury's application of the felony-murder aggravating circumstance was duplicative of the elements of the crime. As a result, this circumstance cannot be used to support appellant's death sentence.
Such error, however, does not automatically mandate a reversal of appellant's death sentence or require a new sentencing hearing. This Court must review the record of the evidence at trial and evaluate whether the error is harmless beyond a reasonable doubt. See State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994). To perform that analysis, our supreme court delineated certain factors which potentially influence the sentence imposed at trial. Id at 260. These relevant factors include: (1) the number and strength of the remaining valid aggravating circumstances; (2) the extent to which the prosecutor emphasized the invalid aggravating circumstance during closing *804 argument; (3) the evidence admitted to establish the invalid aggravator; and (4) the nature, quality, and strength of the mitigating evidence. Id at 260-61. If the reviewing court determines that the jury would have imposed the same sentence had it given no weight to the invalid aggravating circumstance, the error is harmless and the sentence may be affirmed. Id at 262.
HOWELL ANALYSIS
A. Remaining Aggravators
At appellant's trial, the jury found one other aggravating circumstance in addition to the felony-murder aggravator: appellant had previous convictions of felonies involving the use or threat of violence to the person.[4] Tenn. Code Ann. § 39-2404(i)(2) (Supp. 1981). In support of this aggravating circumstance at the sentencing phase, the State introduced testimony and certified copies of convictions to substantiate three previous violent felonies from the state of Ohio: robbery, armed robbery and kidnapping.[5]
Although the number of valid aggravators is relevant, the crucial inquiry is the qualitative nature of the aggravating circumstance, its substance and persuasiveness, and the quantum of proof supporting it. Howell, 868 S.W.2d at 261. In this respect, our supreme court has determined that the prior violent felony aggravator is more qualitatively persuasive and objectively reliable than others. Id. Moreover, the influence of this aggravating circumstance increases if there is proof of multiple felony convictions. Id. See also State v. Nichols, 877 S.W.2d 722, 738 (Tenn. 1994), cert. denied 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791 (1995).
Appellant's previous robbery conviction arose from the hold-up of a dairy store in Cuyahoga Falls, Ohio. The victim, an eighteen-year-old clerk at the store, testified that appellant entered the store and demanded money. He had his hand in his pocket and she was unsure if he was armed.[6] The armed robbery conviction and kidnapping arose in Canton, Ohio. Appellant was armed and entered a restaurant. As he was robbing a waitress, a police cruiser drove into the restaurant parking lot. Appellant took the waitress hostage to make his escape. He and his accomplice held her for ten hours and then released her. The victim testified at trial, stating that appellant threatened her life more than once while she was being held, but that she was not physically harmed. She added that appellant did not want to release her and his accomplice eventually convinced him to do so. Appellant pled guilty to all three crimes and served approximately seven and one half years in an Ohio state prison.[7]
The record supports the trial court's finding that the remaining aggravating circumstance in appellant's case was supported by uncontradicted and overwhelming proof. The appellant testified to the substance of these crimes during the guilt phase, the State introduced certified copies of the convictions, and the victims of the crimes testified at the sentencing phase of appellant's trial. Due to the objective nature of this aggravating circumstance and the quantum of proof supporting it, we believe it significantly influenced the jury's verdict.
Appellant argues that the admission of non-violent criminal acts during the penalty phase of the trial undermines confidence in the jury's determination on the previous violent felony aggravating circumstance. At the sentencing phase, the State introduced proof of convictions for malicious breaking and mail fraud. The circumstances surrounding *805 those offenses demonstrate that they did not involve violence or the threat of violence. A panel of this Court recently held that the admission of non-violent felonies at the penalty stage of a capital trial does not necessarily require a new sentencing hearing, but may be considered harmless error. State v. Perry A. Cribbs, No. 02C01-9508-CR-00211, 1997 WL 61507 (Tenn. Crim. App. at Jackson, February 14, 1997). See also State v. Campbell, 664 S.W.2d 281, 284 (Tenn. 1984), cert. denied 469 U.S. 920, 105 S. Ct. 302, 83 L. Ed. 2d 236 (1984). But see State v. Johnson, 661 S.W.2d 854 (Tenn. 1983) (determining that admission of non-violent felonies in support of the aggravating circumstance was so prejudicial that it required a new sentencing hearing). In holding that any error at appellant's trial in this respect was harmless, we concur in the conclusion of Cribbs that the rationale of Johnson is inapplicable in light of subsequent United States Supreme Court holdings. See Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) (permitting harmless error review when jury has relied on invalid aggravating circumstance in imposing death penalty).
We are confident in the jury's finding on this aggravating circumstance in light of the substantial proof offered to support it. Moreover, the trial court instructed the jury to only consider the robbery, armed robbery and kidnapping convictions when evaluating the aggravating circumstance. It specifically directed that no other previous convictions could be considered on the aggravator.[8] In light of these attendant facts and the overwhelming proof submitted on the prior violent felonies, we do not find that the introduction of these two non-violent crimes affected the jury's verdict. Any error in their admission was harmless.[9]
B. Prosecution's Closing Argument
We next consider the prosecutor's closing argument and the extent to which it emphasized the invalid felony-murder aggravating circumstance. Our review of the record does not indicate that the district attorney placed any undue emphasis on this aggravating circumstance. The State sought to prove six statutory aggravating circumstances. The prosecutor's argument walked the jury through each of the aggravators and also addressed the mitigating circumstances. The prosecutor referred to the felony-murder aggravator only twice.
If any emphasis can be detected in the argument, it was devoted to the "witness killing" aggravator. Tenn. Code Ann. § 39-2404(i)(6) (Supp. 1981) ("the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another"). This theory was a substantial component to the State's proof, beginning at the guilt phase of the trial. In response to questions by the prosecution, appellant acknowledged that the victims of his previous violent crimes identified him as the perpetrator. In light of that, the State implied that appellant intended to leave no witnesses to the robbery of the Jiffy Market to reduce the possibility of identification. That theory was additionally supported by proof that the appellant fired upon the other cashier at the market and circumstantial proof that appellant believed Greene was the only clerk in the store at the time of the robbery. See State v. Harries, 657 S.W.2d 414, 417 (Tenn. 1983).
Appellant acknowledges that only a small portion of the State's argument focused on the felony-murder aggravating circumstance, but argues that a substantial portion of the argument was devoted to the "witness elimination policy of the felony murder aggravator." He attempts to equate the felony-murder aggravator with the witness-elimination aggravator.[10]Compare Tenn. Code Ann. *806 § 39-2404(i)(7) (Supp. 1981) and Tenn. Code Ann. § 39-2404(i)(6) (Supp. 1981). This Court has previously rejected such a contention. State v. Leroy Hall, Jr., No. 03C01-9303-CR-00065, 1996 WL 740822 (Tenn. Crim. App. at Knoxville, December 30, 1996). Similarly, claims that use of these two aggravators constitute double weighing have also been rejected. State v. James Blanton, No. 01C01-9307-CC-00218, 1996 WL 219609 (Tenn. Crim. App. at Nashville, April 30, 1997).
The legislature's delineation of these two separate aggravators is sufficient to rebut appellant's claim. A finding of either can be used to support the imposition of the death penalty. See Tenn. Code Ann. § 39-2404(g) (Supp. 1981). In addition, the plain language of these aggravating circumstances signify that they seek to target two different groups of murderers. The witness-elimination aggravating circumstance, Tennessee Code Annotated section 39-2404(i)(6), enhances the punishment when it can be proven that at least one motive for the killing was the threat of defendant's apprehension. State v. Smith, 868 S.W.2d 561, 580 (Tenn. 1993), cert. denied, 513 U.S. 960, 115 S. Ct. 417, 130 L. Ed. 2d 333 (1994). In contrast, the felony-murder aggravator is used to target those murderers who cause the death of the victim while committing, attempting to commit or fleeing from certain enumerated felonies. Tenn. Code Ann. § 39-2404(i)(7) (Supp. 1981). As such, different proof is necessary to support the imposition of each. Although it may be argued that in many felony murders the purpose is to eliminate witnesses, State v. Terry, 813 S.W.2d 420, 423 (Tenn. 1991), such a blanket assertion does not apply to every felony murder. It cannot be said that every murder committed during the course of a felony is for the purpose of eliminating witnesses. State v. Teresa Deion Smith Harris, No. 02C01-9412-CC-00265, 1996 WL 654335 (Tenn. Crim. App. at Jackson, November 12, 1996). Each case must stand on its individual factual circumstances. Appellant's argument on this issue fails.
C. Evidence Supporting Invalid Circumstance
Also relevant to our determination is the evidence which was admitted to establish the invalid aggravating circumstance. We must consider whether an invalid aggravator was established by evidence that was materially inaccurate or admissible only to support the invalid aggravator, or whether the evidence was otherwise admissible in the guilt or sentencing phases. Howell, 868 S.W.2d at 261. Evidence that the murder was committed during the commission of a felony came during the State's case-in-chief at the guilt phase and resulted in appellant's conviction of felony murder. No additional evidence to support the invalid aggravator was introduced in the sentencing phase of the trial. An aggravating factor which duplicates the elements of the underlying crime, as in appellant's case, has less relative tendency to prejudicially affect the sentence imposed. Id. Appellant conceded this point at the post-conviction hearing.
D. Mitigation Evidence
Finally, we must consider all the relevant mitigating evidence, including its nature, strength, and quality. Howell, 868 S.W.2d at 262. Appellant's case is replete with information offered as mitigation, primarily pertaining to his history of drug and alcohol abuse and addiction. Indeed, at trial, drug and alcohol abuse was the primary theory of appellant's defense. Appellant contended that he was high on drugs at the time of the offense and unaware of his actions.
Appellant testified during the guilt phase of the trial. In addition to testimony of his previous crimes and periods of confinement, appellant detailed his use of drugs and alcohol during his teenage years that continued throughout his adult life. He stated that he unsuccessfully tried to overcome his drug habit while incarcerated.[11] In addition to alcohol, appellant provided detailed descriptions of the amount and types of drugs he was using in the days before and the day of *807 the shooting. Appellant's convicted accomplice and alleged drug supplier, Charles Wade Stapleton, attested to appellant's use of drugs and alcohol before the crime.[12]
Furthermore, appellant testified that he did not intend to kill Greene and that the shooting was accidental. He explained that the gun was cocked when he entered the store. As he pointed the gun at Greene, he claimed that another patron in the store startled and jostled him, causing the gun to discharge. Another aspect of appellant's testimony intended to be mitigating was that the gun did not belong to him. Appellant claimed that he obtained the gun from Ralph Page, a mutual friend of appellant and Stapleton, and that Page was the moving force behind the robbery. Appellant concluded his testimony by expressing remorse for the crime.
Appellant did not testify at the sentencing portion of the trial, relying on his earlier testimony as mitigation. Instead he introduced documentary evidence in mitigation at the sentencing phase. A report from Dr. Herbert Bockian, a psychiatrist who evaluated appellant's competency to stand trial and screened him for drug use, was read into the record. That drug screen, performed the week of the trial, revealed a trace amount of barbiturates in appellant's blood. The test was performed in response to appellant's claims that he was obtaining and taking drugs while confined. Apparently, the report was intended to corroborate appellant's testimony of his drug addiction.
A report from the Southern Ohio Correctional Facility was also introduced. The 1977 report reflected that appellant possessed a syringe and one pill of Creptodigin while in jail. Prison guards also observed fresh needle marks on appellant's arms at that time. Again, this was intended to corroborate appellant's testimony of drug abuse and addiction, specifically his claims that it continued throughout his confinement in penal institutions.
We view such evidence as having little, if any, value in lessening appellant's culpability in the eyes of the jury. Most of the evidence depicted an undesirable lifestyle, painting a picture of a man who "caroused" at night, slept during the day, and failed to maintain employment. In contrast, there was absolutely no evidence introduced in support of appellant's good character. State v. Howell, 868 S.W.2d 238, 262 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994).
The jury obviously gave little weight to appellant's testimony that he was "spaced out" or high on drugs at the time of the crime. Appellant possessed a clear recollection of the events of that evening. Proof reflected that appellant and his accomplice drove around for some time before the crime to find a good place to rob. Appellant entered the store and waited for another customer to leave before he committed the crime. In addition, he had no difficulty fleeing from the crime scene, meeting his accomplice at an appointed place, and later counting the money and separating it from food stamps. After counting the money, he buried the money bags behind Stapleton's house and later that night gave the food stamps to Stapleton's niece. Those activities indicate a keen appreciation for the wrongfulness of his conduct. Moreover, the day following the crime, appellant, Stapleton, and Page traveled to North Carolina to dispose of the gun used in the murder. Following that trip, they had planned an elaborate scheme for the three of them to rendezvous in Florida.
The appellant argues that the trial court erred by finding the proof insufficient to sustain a determination that appellant was substantially impaired. Tenn. Code Ann. § 39-2404(j)(8) (Supp. 1981). As stated, we find the trial court's conclusion on substantial impairment supported by the record. However, he argues that even if the proof did not satisfy that statutory mitigator, the information could still have been considered in mitigation. See Tenn. Code Ann. § 39-2404(j) (Supp. 1981) (mitigation evidence not limited *808 to statutory mitigating circumstances).[13]See also Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (holding that evidence at the sentencing phase cannot be limited to statutory mitigating circumstances). Contrary to appellant's assertion, the trial court did not find that the evidence could not be considered in mitigation. Rather, it gave it little weight in mitigation when considering it in light of the quality of the proof supporting the valid aggravating circumstance. Howell, 868 S.W.2d at 262. Even though the evidence may have been considered by the jury, its questionable value was necessarily considered by the trial court in weighing the harmlessness of the Middlebrooks error. Hartman v. State, 896 S.W.2d 94, 104 (Tenn. 1995) (concluding that credibility of witness is relevant when weighing harmlessness of invalid aggravating factor).
Moreover, the trial court found that evidence of appellant's drug addiction was not persuasive in mitigation; there was virtually no factual proof offered in support of that claim. There was no medical evidence that appellant was addicted to drugs or alcohol, nor did the psychological evaluations indicate that appellant was addicted. His testimony on the issue, corroborated only by accomplice testimony and thin documentary evidence from four years before the crime, is hardly convincing or significant in light of the other proof.
The trial court also found by the appellant committing violent crimes to support a drug habit, any mitigation from which the appellant might benefit was negated. Appellant characterizes this conclusion as rank conjecture. Again, it was the trial court's duty to consider the quality and persuasiveness of the mitigating evidence in the weighing of harmless error. Howell, 868 S.W.2d at 262.
Other mitigation evidence offered by appellant lacked credibility. Appellant never disputed that he shot Rhonda Greene, but claimed that it was accidental. However, this was contradicted by other witnesses. Appellant claimed that Scott Fletcher, another store patron, startled him and jostled his arm causing the gun to fire. In contrast, Fletcher's statements to law enforcement and unequivocal testimony at trial reflected that he was standing outside the store in the parking lot at his car when he heard the gunshots. Additionally, the surviving store cashier testified that she saw Fletcher exit the store and moments later heard the gunshot.
Finally, appellant's remorse for Greene's death was of little value in mitigation. As the post-conviction trial court noted, this sorrow developed well after the crime was committed. After shooting Greene, appellant exhibited no remorse. He did not attempt to aid the victim, but instead fired a shot at the other clerk. He then repeatedly demanded the money from her and did not permit her to seek medical assistance for Greene.
We are aware that appellant has offered evidence throughout his post-conviction proceedings that he suffers from brain damage. He argues that this should be considered in mitigation of his crime. However, we note that such evidence was not before the jury and could not have played a role in its decision. In addition, the evidence of brain damage primarily consists of a letter from a New York psychiatrist,[14] dated five years after the crime. Although appellant has been evaluated on numerous occasions by both psychologists and psychiatrists,[15] the record before us *809 does not indicate that other doctors have reached a similar conclusion.[16]
Appellant broadly attacks the Howell harmless error analysis because the jury is not required to specify the mitigating circumstances it considered. He contends that it is virtually impossible to determine harmlessness without knowing which facts the jury considered in mitigation. Our supreme court, acknowledging that juries do not specify mitigating circumstances, has nevertheless found that a harmless error analysis can be performed. The court quoted with approval from Clemons v. Mississippi, 494 U.S. 738, 756, 110 S. Ct. 1441, 1452, 108 L. Ed. 2d 725 (1990):
Nor are we impressed with the claim that without written jury findings concerning mitigating circumstances appellate courts cannot perform their proper role. In Fonzeo and Proffit, we upheld the Florida death penalty scheme permitting a trial judge to override a jury's recommendation of life, even though there were no written jury findings. An appellate court also is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings.
Howell, 868 S.W.2d at 260. Appellant's argument is without merit.
Appellant argues that his death sentence cannot be upheld in light of the supreme court's ruling in State v. Walker, 910 S.W.2d 381 (Tenn. 1995). In Walker, a direct appeal of a death sentence, the court was unable to find the Middlebrooks error harmless where the only valid remaining aggravator was a previous violent felony conviction. Id at 398. However, Walker is readily distinguishable from appellant's case. At the Walker trial, the remaining aggravator was supported by only one voluntary manslaughter conviction. Cf. Michael J. Boyd v. State, No. 02C01-9406-CR-00131, 1996 WL 75351 (Tenn. Crim. App. at Jackson, February 21, 1996), appeal granted (Tenn. November 25, 1996) (finding in review of post-conviction proceeding that use of felony-murder aggravating circumstance harmless beyond a reasonable doubt where remaining valid aggravator, prior violent felonies, was supported by one conviction for second degree murder). Here, however, the aggravator at appellant's trial was supported by proof of three previous violent felonies and a portion of that proof was appellant's own testimony. Therefore, the nature and the quantum of proof supporting the aggravator was far more substantial than in Walker.
In fulfilling our duty to evaluate the mitigating evidence, we find that the evidence proffered was of little consequence in lowering appellant's culpability. Appellant admitted shooting the victim and his claims in mitigation did little to ameliorate his liability for the crime. On two separate occasions, the supreme court has considered similar mitigating evidence presented on behalf of defendants and found it insufficient to require a new sentencing hearing in the context of harmless error. See State v. Hines, 919 S.W.2d 573, 584 (Tenn. 1995); Howell, 868 S.W.2d at 262. Considering the substantial proof presented on the remaining valid aggravator and the nature of that proof, coupled with the prosecutor's argument and absence of inadmissible proof of the invalid aggravator, we find that the jury would have imposed the death penalty had it not considered the invalid felony-murder aggravating circumstance.
CONCLUSION
The trial court's findings of fact on the individual factors considered in Howell are fully supported by the record. Moreover, our de novo review indicates that the error in applying the felony-murder aggravator to appellant's case was harmless beyond a reasonable *810 doubt. The judgment of the trial court dismissing the appellant's post-conviction petition is affirmed. Unless stayed by a court of competent jurisdiction, the appellant's sentence of death by electrocution shall be carried out on February 10, 1998.
WADE and CURWOOD WITT, JJ., concur.
NOTES
[1] A full recitation of the factual circumstances surrounding the offense is contained in the supreme court's opinion in appellant's case on direct appeal. State v. Harries, 657 S.W.2d 414 (Tenn. 1983).
[2] This Court has previously held that post-conviction review is comparable in scope to federal habeas corpus review. Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982).
[3] Ordinarily, the statute of limitations would have expired on July 1, 1989, thereby preventing this late-filed post-conviction petition. Tenn. Code Ann. § 40-30-102 (repealed 1995). See also State v. Masucci, 754 S.W.2d 90, 91 (Tenn. Crim. App. 1988). However, with regard to affording appellant the right to litigate the Middlebrooks issue, his present petition was timely under the rule announced in Burford v. State, 845 S.W.2d 204 (Tenn. 1992).
[4] At trial, appellant conceded the presence of these two aggravators in his closing argument.
[5] Appellant testified about his previous convictions during his direct testimony at the guilt phase of the trial.
[6] The characterization of this crime as a violent felony used to support the aggravating circumstance was challenged on direct appeal. The victim's testimony was that she was placed in fear because appellant's hand was in his pocket in a manner indicating that he had a weapon. Considering that fact, our supreme court found that it was not error to admit the conviction. Harries, 657 S.W.2d at 421.
[7] Upon release, appellant was immediately incarcerated in federal prison for mail fraud. Appellant committed the instant offense less than two months after his December 12, 1980, release from confinement.
[8] As a corollary, the trial court further instructed the jury that all of appellant's previous convictions could be considered to rebut any claim or potential claim in mitigation that appellant had no significant history of prior criminal activity. See Tenn. Code Ann. § 39-2404(c) (Supp. 1981).
[9] Introduction of the mail fraud conviction was challenged on direct appeal. The supreme court found that its admission was harmless error. Harries, 657 S.W.2d at 421-22.
[10] Although argued by the State, the jury did not find the witness-elimination aggravating circumstance.
[11] Appellant testified that when he was nearing release from prison, he sought methadone treatment from the prison doctor. This claim was not corroborated by any other evidence in the record.
[12] The State contended that this was in exchange for favorable testimony appellant had already given on behalf of Stapleton at his trial.
[13] Appellant's brief cites "Section 39-2404(j)(9)" which allegedly "provided that the jury could consider `any other evidence you find to be mitigating circumstances.'" We note that subsection (j)(9) was not a part of the 1981 statute. However, the trial court's instructions to the jury advised that the jury could consider any facts or circumstances in mitigation.
[14] This evaluation was the basis of a 1984 ruling by a federal district court that appellant was incompetent to waive his post-conviction rights and proceed to execution. See Groseclose ex rel. Harries v. Dutton, 594 F. Supp. 949, 956 (M.D.Tenn. 1984).
[15] Appellant's competency to stand trial was evaluated twice before the trial, as well as his ability to appreciate the wrongfulness of his conduct at the time of the offense. No personality disorders or defects were discovered. We also note that, according to testimony from appellant's trial counsel, appellant was vehemently opposed to pursuing an insanity defense and instructed his attorneys not to consider it. Moreover, appellant's competency to proceed in the instant proceeding was evaluated at the trial court level.
[16] We acknowledge that a report from a boys' home may have alluded to brain damage. However, this testing was done in 1962 and testimony at the first post-conviction hearing attacked the credibility of this finding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616636/ | 201 So. 2d 277 (1967)
250 La. 1023
STATE of Louisiana
v.
Amos BROWN.
No. 48530.
Supreme Court of Louisiana.
June 30, 1967.
*278 Donald R. Miller, Shreveport, for defendant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Billy R. Robinson, City Atty., for appellee.
HAMLIN, Justice:
Defendant, Amos Brown, was charged by affidavit alleging that on November 13, 1966 he "did commit the crime of Vagrancy in that he is a person who does loaf the streets habitually or who frequent the streets habitually at late or unusual hours of the night, or who loiter around any public place of assembly, without lawful business or reason to be present." LSR-R.S. 14:107.[1] After trial, he was adjudged guilty and sentenced to serve nine months imprisonment in the parish jail. He appealed.
No perfected bills of exceptions appear in the record, nor was the testimony of the witnesses recorded or transcribed. There is nothing in the trial of the case itself before the Court. Defendant filed no brief in this Court. Hence, we review the case only for errors patent on the face of the record. LSA-R.S. 15:502; State v. Bennett, 235 La. 987, 106 So. 2d 443, and the authorities therein cited; State v. Bowen, 248 La. 549, 180 So. 2d 700; State v. Sanford, 248 La. 630, 181 So. 2d 50.
Our examination of the record discloses no such error.[2]
*279 We now pass to a discussion of defendant's motion for new trial.
The record discloses that on November 13, 1966, a warrant was issued for the arrest of defendant. On December 1, 1966, he appeared in open court and requested a continuance to December 15, 1966; the continuance was granted. On December 15, 1966, defendant was arraigned and pleaded not guilty. After trial on said date, the court found the defendant guilty and remanded him for sentence on December 22, 1966. On that date, Donald R. Miller, Attorney, appeared on behalf of defendant and was granted a continuance to December 29, 1966. On December 29, 1966, Mr. Miller filed a motion for new trial; the motion was denied and defendant was sentenced to serve the term supra.
The motion for new trial is based upon the following grounds:
"I.
"Defendant was initially arrested and brought to the Bossier City Police Station where he was subjected to the customary processing accorded arrested prisoners and submitted to intensive interrogation and subsequently incarcerated, all without the benefit of counsel and with disregard of his constitutional right to have an attorney appointed for him and with disregard of his constitutional right to have an attorney explained to him, all to the detriment of the defendant herein.
"II.
"Subsequently your defendant was tried on December 15, 1966, and convicted of vagrancy in spite of the fact that the defendant had no opportunity to call witnesses of his own, whose testimony would have been materially helpful to his defense and would in fact exonerate him from the charge of vagrancy, all of which circumstances the defendant could have undoubtedly avoided and/or made provision for had he had the benefit of an intelligence defense provided by either a Court appointed attorney, or an attorney of his own choosing."
The record further discloses that on December 1, 1966, and prior to the arraignment and trial of the defendant on December 15, 1966, the trial judge delivered the following remarks in open court to all who were to be tried before him that day, at which time defendant was present:
"Ladies and Gentlemen * * *
"To protect your interests as well as those of this Court, I want to acquaint you with the procedure of this Criminal Court Session and to fully inform you of your legal rights before your case is called.
"Whether you have been a defendant before and whether you are represented by an attorney, I urge you to listen carefully to avoid misunderstanding later on.
"The charge against you is identical to the charge set out in the complaint that has been filed in this Court. If you do not understand this charge, ask to have it explained to you when you come before the bench.
"You must answer the charge by making a formal plea of guilty or not guilty. If you plead guilty, it means you admit the charges are true. At an impartial hearing you will have an opportunity to inform the Court of the circumstances pertinent to the charge. Your case will then be disposed of according to the law.
*280 "If you plead not guilty, it means that you honestly believe you did not violate the law as charged and that your conduct was justified. Since the law entitles you you to an impartial hearing or trial, you should not hesitate to plead `not guilty' if you are in doubt.
"Regardless of how you plead, you have certain legal rights. Among them are * * * the right to engage a lawyer, if you wish, and if you do, you should consult him as soon as possible. You may request a continuance of your case so you can hire a lawyer and he can have time to prepare a proper defense in your behalf.
"You also have the right to call any witnesses to testify for you, and if necessary, the Court will issue and serve subpoenaes to assure the appearance of your witnesses.
"If your case goes to trial, you have the right to testify or not to testify in your own defense. Since no two cases are exactly alike, you may have other rights which may be brought to light during your trial. Do not hesitate or be afraid to ask about them or to assert your rights as a defendant.
"If you plead `not guilty', the prosecution is required to produce its witness or witnesses to testify as to the charges against you.
"You, or your lawyer, has the right to cross-examine any witnesses against you. You will have ample opportunity to present your defense after the prosecution closes its case.
"When all the evidence has been presented, the prosecutor and you, or your lawyer, have the right to give a brief, final argument before the Court. Based the Court will render a verdict of guilty on the evidence and according to law or not guilty.
"If the finding is not guilty, the complaint against you will be dismissed and you will be discharged. If the verdict is guilty, this Court will take into consideration the seriousness of the violation and extenuating or mitigating circumstances, if any, before determining the degree of punishment.
"When your name is called, advance promptly in front of the bench and answer to your name."
The extracts from the Minutes appearing in the record disclose that the above opening remarks were delivered by the trial judge on December 22, and 29, 1966, also.
We find that defendant was advised of his rights and of his right to have counsel.[3] Cf. Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
For the reasons assigned, the conviction and sentence are affirmed.
NOTES
[1] "(7) Persons who loaf the streets habitually or who frequent the streets habitually at late or unusual hours of the night, or who loiter around any public place of assembly, without lawful business or reason to be present; or
"* * *
"Whoever commits the crime of vagrancy shall be fined not more than two hundred dollars, or imprisoned for not more than nine months, or both. * * *" LSA-R.S. 14:107.
[2] During argument the State conceded that the offenses enumerated in the statute were not charged conjunctively, LSA-R.S. 15:222, but it correctly urged that if the affidavit is duplicitous, the objection of duplicity cannot now be urged, as no demurrer or motion to quash the affidavit was filed before the taking of evidence or the rendition of the judgment of guilty. LSA-R.S. 15:221; State v. Scott, 48 La. Ann. 293, 19 So. 141.
[3] It is not our understanding that Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, applies to misdemeanor cases. Cortinez v. Flournoy, 249 La. 741, 190 So. 2d 909, certiorari denied, 385 U.S. 925, 87 S. Ct. 314, 17 L. Ed. 2d 222; State v. Thomas, 249 La. 742, 190 So. 2d 909. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616642/ | 266 Wis. 2d 498 (2002)
2003 WI App 173
668 N.W.2d 743
STATE of Wisconsin, Plaintiff-Respondent,
v.
ST. CROIX COUNTY, Defendant-Appellant.
No. 02-1645.
Court of Appeals of Wisconsin.
Submitted on briefs December 9, 2002.
Decided July 10, 2003.
*500 On behalf of the defendant-appellant, the cause was submitted on the briefs of Gregory A. Timmerman, corporation counsel for St. Croix County of Hudson.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lorraine C. Stoltzfus, assistant attorney general, and James E. Doyle, attorney general.
Before Roggensack, Deininger and Lundsten, JJ.
¶ 1. ROGGENSACK, J.
At the State's direction, St. Croix County passed a zoning ordinance (the riverway ordinance) to regulate the portion of the Lower St. Croix River that lies within the County. Later, the County amended the riverway ordinance so that it did not apply to the portion of the Lower St. Croix River that is under federal administration. This left that portion of the river without riverway zoning adequate to meet the State's mandate to the County. Therefore, the State sued to nullify the County's amendment. As a defense to the State's action, the County claims that the federal government preempted the regulation of the Lower St. Croix River in the federally administered area; the State lacks authority to regulate in the federal *501 zone; and WIS. STAT. § 30.27 (2001-02),[1] which required the passage of the riverway zoning in the first instance, is no longer valid. The circuit court granted summary judgment to the State. Because we conclude that the Wild and Scenic Rivers Act did not preempt State and local governmental regulation of the Lower St. Croix River; the State has authority to exercise its police power in the federal zone; and § 30.27 remains in full force and effect, we affirm the judgment of the circuit court.
BACKGROUND
¶ 2. In 1968, Congress enacted the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. It declared as the policy of the United States that certain selected rivers shall be preserved and protected because of their scenic beauty, recreational, geological, historic, culture and other positive values. The initial provisions included the St. Croix River from Taylor Falls, Minnesota to Gordon, Wisconsin, but not the southern part of the St. Croix River south of Taylor Falls. However, in 1972, Congress enacted the Lower St. Croix River Act as an amendment to the Wild and Scenic Rivers Act, and included the 52-mile section of the St. Croix River below Taylor Falls to the confluence with the Mississippi River as part of the National Wild and Scenic River System.[2] 16 U.S.C. § 1274(a)(9). According to the Act, the upper 27-mile segment of the Lower St. Croix River is to be administered by the federal government *502 and is referred to as the "federal zone." The lower 25-mile segment is to be administered by the states of Minnesota and Wisconsin and is referred to as the "state zone."
¶ 3. In response to the Act's amendment, the Wisconsin Legislature enacted WIS. STAT. § 30.27. Section 30.27(2) directed the Wisconsin Department of Natural Resources to adopt by rule, as soon as possible, guidelines and specific standards for riverway zoning ordinances for the banks, bluffs and bluff tops of the Lower St. Croix River. Section 30.27(3) requires counties, cities, villages and towns to adopt riverway zoning that complies with the DNR's guidelines and standards. Section 30.27(3) also permits the DNR to adopt an ordinance for a city, county, village or town if a city, county, village or town does not adopt a riverway zoning ordinance within the time prescribed, or the DNR determines that the ordinance that was adopted does not satisfy its requirements.
¶ 4. The DNR adopted the required guidelines and standards as WIS. ADMIN. CODE ch. NR 118. In 1975, St. Croix County adopted St. Croix Ordinance § 17.36 as riverway zoning to regulate the Lower St. Croix River. However, in 1977, the DNR determined that the County's ordinance was not restrictive enough and the DNR replaced the initial ordinance with a version it drafted, but which the County continued to be required to administer.
¶ 5. The ordinance affected more than the state-administered portion of the river. It also extended into the federal zone that lies within the County. For reasons not explained in this appeal, in February 2000, the County decided to amend § 17.36 so that it would not affect county lands in the federal zone, as well as lands outside of the riverway district, but within the "total *503 visibility zone."[3] It did so by changing the boundaries of the area affected by its riverway zoning, as follows:
[S]ec. 17.36, St. Croix County Zoning Ordinance, is hereby amended by correcting the Lower St. Croix Riverway district boundaries to be those areas within the 25-mile State administered portion of the riverway district consistent with the master plan boundaries, published in the Code of Federal Regulations, and attached hereto.
¶ 6. The master plan referred to in the County's amended ordinance is required by the Act, which provides that the Secretary of the Interior is to prepare a development plan for the St. Croix River in consultation with appropriate agencies in Wisconsin and Minnesota. 16 U.S.C. § 1281(e). The master plan includes a determination of lands, waters and interest therein to be acquired, developed and administered by the agencies or political subdivisions of the states of Wisconsin and Minnesota. The master plan provides for state administration of the state zone and for the continued administration by the states of such state parks and fish hatcheries that lie in the federal zone.
¶ 7. In response to the County's ordinance amendment, the State filed a lawsuit seeking a declaration that the County's ordinance amendment was null and void as it affects the federal zone of the riverway district. The State asserted that the amendment was passed in violation of WIS. STAT. § 30.27(3) and that the riverway zoning that had been in place prior to the *504 amendment was still in full force and effect. The State sought an order enjoining the County from removing that portion of the Lower St. Croix district known as the "federal zone" from the reach of riverway zoning and requiring the County to continue to enforce the ordinance in the federal zone, as it had previously. On cross motions for summary judgment, the circuit court granted the State's motion and the County appeals.
DISCUSSION
Standard of Review.
[1, 2]
¶ 8. Because this appeal is from summary judgment granted to the State, our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). As part of our review, we must interpret statutes and apply them to undisputed facts. The interpretation of statutes and their application to undisputed facts are also questions of law on which we do not defer to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 365-66, 560 N.W.2d 315, 317 (Ct. App. 1997).
Federal and State Law Interaction.
¶ 9. The County contends that the State is prohibited from enacting statutes requiring ordinances that control the portion of the St. Croix River that is federally administrated under the Act because Congress preempted regulation in this zone and also because Congress did not specifically state that local governments could regulate in the federal zone. The County relies on the provisions in the Act that specifically empower the State of Wisconsin and the State of *505 Minnesota to continue to administer state parks and fish hatcheries that are within the federal zone, and to acquire lands in the federal zone, the use of which is consistent with the master development plan required by the Act. It is the County's position that these specified activities exclude other activities not specifically mentioned, such as those set out in the riverway zoning that it repealed. In contrast, the State contends that federal administration does not encompass zoning regulation; that local and federal regulations can co-exist in the federal zone so long as the local regulations do not conflict with the Act; and that there is no conflict here. We agree with the State.
[3, 4]
¶ 10. Federal and local governments often share the regulation of areas and activities, unless there is a clear and manifest congressional indication of an intent to preempt the field. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). When the local regulation is in an area where local police powers are typically exercised, as in zoning, we assume those historic police powers were not superceded by federal law. Id. Although local governmental regulation cannot conflict with federal law regulating the same area or activity, "courts are not to seek out conflicts between [local] and federal regulation where none clearly exist." Pacific Legal Found. v. State Energy Res. Conservation & Dev. Comm'n, 659 F.2d 903, 919 (9th Cir. 1981). Additionally, the Wisconsin Supreme Court has held that federal law preempts state action in only three situations: (1) where Congress expressly requires no state or local regulation; (2) where Congress implicitly demonstrates its intent to occupy the field; or (3) where state law conflicts with federal law. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 34, 563 N.W.2d 460, 464 (1997).
*506 1. Relevant Federal Law.
¶ 11. We begin with a review of the federal law that bears on this issue. The Act has many river-components and each one has a designated federal administrator. The Department of the Interior, operating through the National Parks Service, is the administrator of the federal zone of the St. Croix River. 16 U.S.C. § 1274(a)(6); WIS. ADMIN. CODE § NR 118.02(1). "Administration" is not defined in the act, but the Act does empower the federal administrator to enter into cooperative agreements with state and local governments for "the planning and administration of components of the system which include or adjoin State- or county-owned lands." 16 U.S.C. § 1281(e). However, the federal administrator must retain oversight authority under all cooperative agreements. See National Park & Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7, 20 (D.D.C. 1999) (concluding that federal administrator cannot lawfully delegate all its oversight duties to local governments).
¶ 12. The master plan for the Lower St. Croix River also requires local governments "to `develop zoning controls along the St. Croix that are consistent with the purposes of the Wild and Scenic Rivers Act' and contains recommended zoning provisions for state and local governments." VoiceStream Minneapolis, Inc. v. St. Croix County, 212 F. Supp. 2d 914, 929 (W.D. Wis. 2002) (citation omitted). These provisions of the master plan apply in both administration zones. See Kiernat v. County of Chisago, 564 F. Supp. 1089 (D. Minn. 1983) (upholding county zoning authority exercised in the federal zone of the St. Croix in Minnesota). Furthermore, the Act specifically provides in 16 U.S.C. *507 § 1284(d)[4] that state jurisdiction over the waters included in the Act is unchanged. Waters subject to state jurisdiction are in both the state and the federal zones.
2. Relevant State Law.
[5]
¶ 13. WISCONSIN STAT. § 30.27(2) requires the DNR to adopt, by rule, guidelines and specific standards for local zoning ordinances that will apply to the banks, bluffs and bluff tops of the Lower St. Croix River. Section 30.27(3) provides for the implementation of the DNR's guidelines and standards created under § 30.27(2). Subsection (3) states:
IMPLEMENTATION. Counties, cities, villages and towns lying, in whole or in part, within the areas affected by the guidelines adopted under sub. (2) are empowered to and shall adopt zoning ordinances complying with the guidelines and standards adopted under sub. (2) within 30 days after their effective date. If any county, city, village or town does not adopt an ordinance within the time limit prescribed, or if the department determines that an adopted ordinance does not satisfy the requirements of the guidelines and standards, the department shall immediately adopt such an ordinance. An ordinance adopted by the department shall be of the same effect as if adopted by the county, city, village or town, and the local authorities shall administer and enforce the ordinance in the same manner as if the county, city, village or town had adopted it. No zoning ordinance so adopted may be modified nor may any variance therefrom *508 be granted by the county, city, village or town without the written consent of the department, except nothing in this section shall be construed to prohibit a county, city, village or town from adopting an ordinance more restrictive than that adopted by the department.
¶ 14. As a starting point, we note that all administration, state and federal, must be in keeping with the preservation policy underlying the Act, as expressed in 16 U.S.C. § 1271:
It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.
The County does not contend that prior to amendment, the riverway zoning was not an appropriate response to the State's directive or that the State's directive is in conflict with specific provisions of the Act. Additionally, the County has not identified any areas in which the federal policy is not being promoted by the riverway zoning at issue here, and we have identified none. Furthermore, the County has offered no precedent to show that the State has lost its ability to zone in the federal zone of the riverway district. In this regard, we conclude that the reasoning of the district court in Kiernat is persuasive. In Kiernat, county zoning was upheld in the federal zone of the St. Croix River in Minnesota because the master plan, prepared as a cooperative plan by state and federal administrators, contained recommended zoning provisions for local and state governments. Kiernat, 564 F. Supp. at 1094. The *509 same master plan provisions for state and local governments pertain here. Accordingly, we conclude the State retains the power to authorize zoning in the federal zone at issue here. Furthermore, given the Act's stated areas of federal and state cooperation, the absence of any explicit or implicit statement of federal preemption and the cooperation evidenced in the master plan, we conclude that the federal government has not preempted the regulation of the Lower St. Croix River in either the federal or the state zone.
State Statute's Effect on County.
[6]
¶ 15. The County also contends that once the master plan was implemented, the purpose of WIS. STAT. § 30.27 was fulfilled, and the statute no longer has any effect on the County's actions in regard to riverway zoning. In essence, the County contends that § 30.27 has an unstated sunset provision. It cites no authority for this novel argument, and we could find none. Additionally, the current master plan, itself, specifically relies on local zoning ordinances. It states, in part:
Local governments adopt zoning ordinances based on state rules. Special zoning guidelines are needed in the riverway to protect the river's outstanding values as discussed in the Cooperative Management Plan.
[7, 8]
¶ 16. When we interpret statutes, our goal is to determine the intent of the legislature. Truttschel, 208 Wis. 2d at 365, 560 N.W.2d at 317. We begin with the language chosen by the legislature. Id. Here, the legislature gave no indication that WIS. STAT. § 30.27 will expire or become ineffective at some future date. Additionally, the County has identified no statutory language *510 or case law on which it relies. We may decline to fully address issues that are not adequately developed with legal argument, State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992), and we do so here. Accordingly, we conclude that the formation of the master plan has no effect on the validity of § 30.27, and it remains in full force and effect.
[9]
¶ 17. Counties are creatures of the State, and as such they have no authority to refuse to follow a statutory directive, absent a showing that the statute is unconstitutional or is infirm in some other respect. See Silver Lake Sanitary Dist. v. DNR, 2000 WI App 19, ¶ 8, 232 Wis. 2d 217, 607 N.W.2d 50. No meritorious arguments in this regard have been made relative to WIS. STAT. § 30.27. Section 30.27(3) requires that an ordinance adopted by the DNR shall have the same effect and shall be administered by the County just as though the County had drafted the ordinance. Accordingly, the riverway zoning put in place by the DNR for the Lower St. Croix remains effective, and we affirm the judgment of the circuit court nullifying the amendment to the County's riverway zoning because it was enacted in excess of the power granted to the County by the State.
CONCLUSION
¶ 18. Because we conclude that the Wild and Scenic Rivers Act did not preempt State and local governmental regulation of the Lower St. Croix River; the State has authority to exercise its police power in the federal zone; and WIS. STAT. § 30.27 remains in full force and effect, we affirm the judgment of the circuit court.
*511 By the Court.Judgment affirmed.
NOTES
[1] We use the 2001-02 version of the statute because it is virtually unchanged from what the legislature passed in 1974. Additionally, all further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] We refer to the amended Wild and Scenic Rivers Act as "the Act" throughout this opinion.
[3] The "total visibility zone" includes all lands that can be seen from the river, but it is broader than what Congress authorized as part of the riverway system. The State agrees the County had the authority to remove these lands from the effect of riverway zoning.
[4] 16 U.S.C. § 1284(d) provides:
State jurisdiction over included streams. The jurisdiction of the States over waters of any stream included in a national wild, scenic or recreational river area shall be unaffected by this Act ... to the extent that such jurisdiction may be exercised without impairing the purposes of this Act ... or its administration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616631/ | 749 F. Supp. 159 (1990)
Joyce Reynolds BLACKBURN, Plaintiff,
v.
FLOYD COUNTY BOARD OF EDUCATION By and Through its members, James D. ADAMS, Arville Duff, Mary Hall, Tommy Boyd and Ray Campbell and Ronald Hager, Individually and in His Official Capacity as Superintendent of Floyd County Schools, Defendants.
Civ. A. No. 89-203.
United States District Court, E.D. Kentucky.
August 17, 1990.
*160 Ned B. Pillersdorf, Prestonsburg, Ky., Phillip J. Shepherd, Frankfort, Ky., for plaintiff.
Bryan, Fogle & Chenoweth, Mt. Sterling, Ky., Francis, Kasee & Francis, Prestonsburg, Ky., John G. Prather, Somerset, Ky., for defendants.
HOOD, District Judge.
This matter is before the court on the defendants' motion for summary judgment against the civil rights complaint of the plaintiff, Joyce Reynolds Blackburn [Blackburn]. They have objected to the Report and Recommendation of the United States Magistrate recommending that the motion be denied. [Record No. 33]. The parties have also filed supplemental briefs addressing recent case law developments and their potential effect on this case. The court has reviewed de novo the record as developed.
Blackburn brought this action under 42 U.S.C. § 1983 alleging that her First Amendment right of free expression was violated by the defendants' refusal to rehire her as a teacher in the Floyd County, Kentucky school system. The defendants are the Floyd County Board of Education, through its board members [Board], and Floyd County Schools Superintendent Ronald Hager [Hager]. The defendants' motion for summary judgment presents two primary arguments which are also reflected in a number of similar § 1983 actions against Kentucky school boards and superintendents: (1) is a local board of education in Kentucky a state agency or "arm of the state" entitled to immunity from suit under the Eleventh Amendment to the United States Constitution; and (2) does the complaint allege acts by Hager outside of his "official" capacity to sufficiently support an "individual" capacity claim for relief. The defendants object to the Magistrate's conclusion against them on both of these grounds.[1]
*161 The court will first consider the Board's Eleventh Amendment argument. The Magistrate concluded that, although there is oversight by the state, a local school board in Kentucky retains substantial control over the operation of its district. Thus, local school boards in Kentucky are not merely state agencies. In reaching this result, the Magistrate adopted the same analysis and conclusion reached in Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 572, 50 L. Ed. 2d 471 (1977), and Cunningham v. Grayson, 541 F.2d 538, 543 (6th Cir.1976), cert. denied, 429 U.S. 1074, 97 S. Ct. 812, 50 L. Ed. 2d 792 (1977). Cunningham specifically involved Kentucky schools.
The Board continues to argue that "tumultuous" developments in Kentucky law since Cunningham now force an opposition conclusion. They particularly point to the recent Kentucky Supreme Court ruling that the Commonwealth's system of schools violates the Kentucky Constitution. Rose v. The Council for Better Education, Inc., 790 S.W.2d 186 (Ky.1989) [Record No. 9, Exhibit]. There, the court held that the legislature was required not only to establish the school system, but to continually monitor and supervise it. Id. at 211.
The Board also relies on Clevinger v. Board of Education of Pike County, Kentucky, 789 S.W.2d 5, 10-11 (Ky.1990), in which the Kentucky Supreme Court reaffirmed that local school boards in Kentucky are entitled to state law sovereign immunity and, in so doing, stated that "[t]here has never been any question about the status of a local school board as an agency of state government...." The court appeared to interpret the United States Supreme Court decision in Will v. Michigan Dep't of State Police, 491 U.S. ___, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), as holding that local government units protected by state sovereign immunity are not "persons" under § 1983.
The court must first point out that the United States Supreme Court has recently rejected the Kentucky court's view of Will. Howlett v. Rose, ___ U.S. ___, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990). The Court held that state law sovereign immunity does not, alone, operate to preclude a federal civil rights complaint from being heard. "A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise...." Id. at ___, 110 S.Ct. at 2443 (quoting Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S. Ct. 553, 558 n. 8, 62 L. Ed. 2d 481 (1980). The Court confirmed that the issue is one to be determined by federal law. The Court in Howlett did not reach the issue of whether a Florida local school district was an arm of the state. ___ U.S. at ___ n. 24, 110 S.Ct. at 2445 n. 24.
Will does stand for the proposition that entities which are agencies or arms of the state, thus protected by Eleventh Amendment immunity, cannot be "persons" within the scope of liability under § 1983. The Kentucky Supreme Court in Clevinger believed this principle to be applicable to Kentucky schools, although it did not discuss the factors which must be utilized under federal law. Under Howlett, the Kentucky court's opinion on this matter is not controlling.
The Sixth Circuit has utilized a method of analysis adopted from the Third Circuit for determining whether a governmental entity, particularly an educational institution, is an "arm of the state" for Eleventh Amendment immunity purposes:
[L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff *162 prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations.
Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 302 (6th Cir.1984) (quoting Blake v. Kline, 612 F.2d 718, 722 (3rd Cir.1979), cert. denied, 447 U.S. 921, 100 S. Ct. 3011, 65 L. Ed. 2d 1112 (1980)). The Hall court noted, albeit in dictum, that "[m]unicipalities, counties and other political subdivisions (e.g. public school districts) do not partake of the state's Eleventh Amendment immunity." 742 F.2d at 301 (emphasis added).
Some of the Hall factors were referenced in the Cunningham court's finding that the Jefferson County, Kentucky Board of Education [JCBE] was not the "state" or its alter ego. "JCBE, `a body politic and corporate with perpetual succession,' inter alia may sue and be sued, contract, purchase, receive, hold and sell property, and issue bonds, establish curriculum and employment standards, and, most importantly, levy school taxes through the county fiscal court." Cunningham, 541 F.2d at 543. Kentucky schools continue to retain these powers. Nonetheless, the Board argues that the broader factors reflected in Hall, combined with recent Kentucky school law developments, yield a different conclusion.
In its argument, the Board relies primarily on two factors from the Hall analysis the degree of local autonomy and the extent to which the local board is independently financed. These elements were focused upon in the only two cases cited by the defendants as holding local school boards to be protected by Eleventh Amendment immunity. Martinez v. Board of Education of Taos Mun. School Dist., 748 F.2d 1393 (10th Cir.1984) (New Mexico schools); Martinez v. Board of Education of Emery County School Dist., 724 F. Supp. 857 (D.Utah 1989) (Utah schools). The Board attempts to parallel these systems to the Kentucky scheme of public schools. Although there are some comparable points, this court is convinced that local school boards in Kentucky are vested with sufficient autonomy to preclude Eleventh Amendment immunity.
New Mexico's constitution itself creates a state department and board of education, expressly vesting the state board with control, management, and direction of all public schools. Taos Mun. School Dist., 748 F.2d at 1394. The Kentucky Constitution provides only that "[t]he General Assembly shall ... provide for an efficient system of common schools...." Ky. Const. § 183. Although this section was interpreted in Rose to require state supervision of school management, this is not inconsistent with actual decision-making on a local level.
The Kentucky legislature mandates that "[e]ach school district shall be under the management and control of a board of education." KRS 160.160 (emphasis added). As earlier stated, the Cunningham court relies on the powers enumerated in this statute. Such powers have been relied upon elsewhere to find local boards to be autonomous bodies. Minton v. St. Bernard Parish School Board, 803 F.2d 129, 132-33 (5th Cir.1986). In Minton, the court found that Louisiana's local school boards "exercise a great deal of discretion in performing their functions and addressing their innately local concerns...." Id.
The Kentucky legislature has, likewise, set up local school boards to address "innately local concerns". At KRS 160.290, local boards, again, are given "general control and management" of the public schools within each district. The statute goes on to list powers such as establishing schools, providing courses and services, controlling and managing funds, appointment of officers, agents, and employees. The defendants offer a list of statutes providing for *163 state supervision over the exercise of authority by school boards and minimum standards in certain areas. See, e.g., KRS 160.030, 160.460, 160.530, 162.010; 162.060; 702 KAR 4:050, 4:090, 3:020. However, the underlying theme in all of these statutes and regulations is that the actual decision is made by the local school board, not the state.
There is no evidence that the local decisions operate in effect as mere recommendations. It is the local boards which hold the substantial decision-making authority in regard to the local concerns for which they are established. Although the state does establish guiding rules and policies for the "efficient" administration of the public schools, "being a steward of state education policy does not make the school district an alter ego of the state". Fay v. South Colonie Central School Dist., 802 F.2d 21, 27 (2nd Cir.1986) (refusing Eleventh Amendment immunity for New York school boards); Rosa R. v. Connelly, 889 F.2d 435, 437 (2nd Cir.1989) (quoting Fay and finding Connecticut school boards are not state agencies).
The Board refers to the fact that a substantial portion of Floyd County's school budget is funded by the state, inferring that a judgment against them in this case would be satisfied by state funds. There is no evidence in the record to overall funding levels for Kentucky schools. It would be inappropriate to reach such a conclusion for all Kentucky school boards on the basis of the Floyd County Board's local fundraising decisions.
The Hall analysis cites whether the judgment will have to be paid out of the state treasury as "perhaps the most important" factor. 742 F.2d at 302. However, a corresponding element is whether the Board has the "funds or power to satisfy the judgment". Although the defendants allude to the possibility that state funds may be used to pay any judgment in this case, it is clear that the Board has and exercises the power to levy taxes. Thus, it has funds and a source of funds to satisfy any judgment locally. There is no evidence that the Floyd County Board could not satisfy the judgment from local funds. The denomination of such monies as "state funds" by Kentucky courts is of no effect here. The money is retained and spent locally.
The Eleventh Amendment does not apply simply because the local board receives a substantial part of its financing from state funds. Rosa R., 889 F.2d at 437-38 (citing Fay, 802 F.2d at 27). This principle would apply even if the state fully reimbursed the local board for judgments. Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 945 (7th Cir.1986) (holding Illinois school boards not to be cloaked with Eleventh Amendment immunity). The Gary A. court found that, where local school boards have powers to issue bonds and levy taxes, "[i]t is irrelevant that a state provides some funds that may be used to pay judgments." 796 F.2d at 945.
The foregoing analysis under Hall and similar cases from other jurisdictions compels this court to agree with the plaintiff. Kentucky local boards of education are not arms of the state and, thus, they are not entitled Eleventh Amendment immunity. This result necessarily precludes the Board's argument, under Will, that it is not a "person" under § 1983.
The next question presented is whether the complaint alleges acts which support the plaintiff's claims against Hager in his individual capacity. Hager urges that the plaintiff has not shown how his act of refusing to recommend Blackburn for rehiring was somehow "unofficial". Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 942 (6th Cir.1990) (quoting Rice).[2] Unlike the evidence in Cowan and Rice, the plaintiff's evidence here raises at least circumstantial and inferential evidence of retaliation by Hager sufficient to overcome summary judgment. Crutcher v. Kentucky, 883 F.2d 502, 504 (6th Cir.1989).
*164 Blackburn, after four years of teaching, was not rehired. This action directly followed her vocal criticism of school management, including Hager. This criticism was voiced in a television interview and in a letter to Hager. Blackburn was an organizer and highly visible participant in a community organization protesting alleged conditions in the Floyd County school system, including retaliatory hiring practices. Retaliation by Hager against Blackburn for these actions would clearly be "individual" acts beyond the scope of his official position.
Hager maintains that these actions by the plaintiff were not within a "clearly established constitutional right". Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). He does not believe Blackburn actually spoke out on matters of "public concern" within First Amendment protection. The record, as noted in the Report and Recommendation, refutes this contention.
Blackburn criticized the management of the school system. Although she also noted salary concerns, that conduct was only part of the overall scheme of her actions, particularly through the advocacy group. Such commentary is clearly within the scope of First Amendment protection. Although he has not had the opportunity to raise such this point, it is certain that the defendant would argue the "novelty" of the Rutan decision. Regardless of the outcome in Rutan relating to patronage, it has long been held that persons cannot be retaliated against in their employment for the exercise of constitutional rights. See, e.g., Mount Healthy, 429 U.S. at 283-84, 97 S.Ct. at 574-75; Rankin v. McPherson, 483 U.S. 378, 383-84, 107 S. Ct. 2891, 2896-97, 97 L. Ed. 2d 315 (1987). The individual capacity claims against Hager in this action must go forward. Accordingly, the court being advised.
IT IS ORDERED HEREIN AS FOLLOWS:
(1) That the defendants' objections to the Magistrate's Report and Recommendation be, and the same hereby are, OVERRULED.
(2) That the Magistrate's Report and Recommendation, as supplemented by the Memorandum Opinion herein, be, and the same hereby is, ADOPTED by and for the opinion of this court.
(3) That the defendants' motion for summary judgment be, and the same hereby is, DENIED.
NOTES
[1] The defendants had originally argued also for summary judgment on the basis that Blackburn failed to allege a First Amendment violation. The recent United States Supreme Court ruling in Rutan v. Republican Party of Illinois, ___ U.S. ___, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990), overruled Messer v. Curci, 881 F.2d 219 (6th Cir.1989), and Rice v. Ohio Dept. of Transportation, 887 F.2d 716 (6th Cir.1989), on which the defendants had relied. As a result, they now admit the alleged refusal to reemploy the plaintiff states a cause of action for First Amendment violations. [Record No. 46].
[2] Although Rice was overruled by the United States Supreme Court in Rutan, the court did not touch upon this point. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616654/ | 668 N.W.2d 916 (2003)
Wayne HAUSCHILDT, et al., Appellants,
v.
Dennis J. BECKINGHAM, et al., Respondents.
No. A03-218.
Court of Appeals of Minnesota.
September 23, 2003.
*917 Thomas J. Lyons, Thomas J. Lyons & Associates, Little Canada, MN, and Guy M. Burns, Jonathan S. Coleman, Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Tampa, FL, for appellants.
Vernon J. Vander Weide, Thomas V. Seifert, Head, Seifert & Vander Weide, Minneapolis, MN, for respondents.
Considered and decided by HUDSON, Presiding Judge, RANDALL, Judge, and MINGE, Judge.
OPINION
RANDALL, Judge.
In this appeal from a dismissal of their complaint for failure to state a claim on which relief can be granted, appellants argue that the district court improperly: (1) held that collateral estoppel barred their action; (2) held that there could be no fiduciary relationship as a matter of law; and (3) determined that class certification was improper. Because the district court based its dismissal on defensive collateral estoppel, the rule 12 dismissal is reversed and the complaint reinstated.
FACTS
Appellants were members of West's Publishing Employees Preferred Stock Association (WPSA) who filed suit against the current WPSA board members (respondents). In a previous case, another group of WPSA depositors alleged that WPSA breached duties owed them by improperly distributing funds from WPSA's investments to all West employees and not just depositors. Davies v. West Publishing, 622 N.W.2d 836 (Minn.App.2001), review denied (Minn. May 29, 2001). There, the depositors attacked the propriety of these distributions (dating from 1967-1996) and the distribution made following the decision to terminate WPSA after West was bought by The Thomson Corporation. Id. at 839.
This court answered questions certified by the district court and held that the statute of limitations applied to the claims that the distributions were improper and that the 16 distributions were separate occurrences, so the continuing violation doctrine could not apply. Id. at 841-42. We also held that the employees had no claim of misrepresentation regarding the nature or source of the distributions and, therefore, the doctrine of equitable estoppel did not apply to defeat West and WPSA's statute-of-limitations defense. Id. at 842.
Based upon our answers to the certified questions, the district court granted partial summary judgment in favor of the WPSA board members as to the distributions. That matter is still in litigation.
*918 The present case is brought by a slightly different class of West employees (and former employees) against the members of the board of directors of WPSA instead, of WPSA itself and West. This class is composed of:
All WPSA depositors who had funds on deposit on December 18, 1992 in an amount sufficient to be entitled to receive a distribution in excess of $150 if the distribution paid on that date had been calculated and paid pro rata, based upon the amount on the depositors' accounts balances.
The complaint alleges that distributions were made in 1992 and 1996 that were not in accordance with state or federal regulations. Because of WPSA's noncompliance with securities laws, litigation counsel for West and WPSA suggested termination of WPSA rather than trying to bring it into accordance with state and federal securities regulations. (It is not clear whether it was West or WPSA that realized the problem and brought in the law firm that they both use.) "No action" letters were sent to both the state and federal regulators explaining the situation and proposing that WPSA distribute its surplus to depositors on a pro rata basis "as nearly in accordance with applicable law as can be done at this time." The complaint alleges that in October 1998, WPSA's board took actions including consultations with counsel and no-action letters. Further, it alleges that the board members failed to act prior to December 17, 1998, and allowed the statute of limitations to run out on any claim relating to the 1992 distribution before giving notice of the legal problems to WPSA members. (This is why the class now is composed of those who had something at stake at the time of the 1992 distribution). Finally, the complaint alleges negligence by the board members in their failure to tell depositors that nothing would be done to restore the prior "improper" distributions. Appellants assert that these omissions and non-disclosures should toll the statute of limitations and equitably estop any such defense.
The district court, on a rule 12 motion, concluded that the present claims were barred under a defensive-collateral-estoppel theory by the judgment of the district court after remand in Davies. The district court concluded that the issue in both actions was the same, namely the propriety of the 1992 distribution. Because this issue was fully litigated in Davies, the court concluded that the substitution of new defendants did not defeat collateral estoppel.
The court also concluded that defendants owed no duty of disclosure to plaintiffs. The court stated that even if some duty existed, the plaintiffs were estopped from denying that they had sufficient information to bring a timely claim because of this court's decision in Davies. The court also noted the timing of the disclosure that WPSA was not in compliance with the law, and stated that the plaintiffs "had two months after being put on notice of potential claims arising from WPSA's non-compliance to bring any claims."
Finally, the district court concluded that no fiduciary relationship existed between WPSA and its members, instead characterizing the relationship as debtor/creditor. In so doing, the court noted the "special circumstances" exception to the general rule that a depositor in a bank does not have a fiduciary relationship, but concluded that the plaintiffs failed to plead any such special circumstances. Also due to the lack of a fiduciary relationship, the court rejected plaintiffs' argument that WPSA misrepresented the law regarding the statute of limitations on potential claims.
ISSUE
Does the complaint state a claim upon which relief can be granted?
*919 ANALYSIS
We will not uphold a dismissal for failure to state a claim if "it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Minn.2000) (quotation omitted). Minnesota adheres to notice pleading for all claims except fraud or mistake, which must be pleaded with particularity. Minn. R. Civ. P. 8.01, 9.01.
The district court based its dismissal on a collateral estoppel theory. "Collateral estoppel precludes the relitigation of a right, question, or fact distinctly put in issue and directly determined in a prior adjudication." Coughlin v. Radosevich, 372 N.W.2d 817, 819 (Minn.App. 1985), review denied (Minn. Nov. 1, 1985). Collateral estoppel applies when
(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.
Cook v. Connolly, 366 N.W.2d 287, 290 n. 2 (Minn.1985) (quotations omitted).
Res judicata operates to bar a subsequent suit on the same cause of action determined by a previous judgment, "regardless of what issues were actually raised or litigated in the previous suit." McBroom v. Al-Chroma, Inc., 386 N.W.2d 369, 372 (Minn.App.1986). Thus, if the cause of action is the same in the subsequent suit, all matters that were litigated or could have been litigated in the previous suit are precluded. Wilson v. Comm'r. of Revenue, 619 N.W.2d 194, 198 (Minn.2000). Two actions are the same if the parties are the same, the cause of action is the same, and the original judgment was on the merits. Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 447 (Minn.2000).
Neither res judicata nor collateral estoppel bars appellants' claims in this case. Collateral estoppel fails because the parties are neither the same nor in privity with one another. The classes in the present case and the Davies case do have some members in common, but they are not the same. In addition, the complaint alleges breaches of fiduciary duty that occurred in 1998, after the Davies case was filed. This does not speak to the strength of the 1998 claim, but for purposes of considering a rule 12 motion, it speaks to the issue of whether the claims are different. The issues in Davies were predicated on similar facts, but the issues were not identical to the issues in the present litigation. In the Davies case, the cause of action was primarily for breach of duty in making the distributions themselves. Davies, 622 N.W.2d at 839. The present case is for breach of duty, negligence, and gross negligence in failing to act in WPSA depositors' best interests, specifically including an alleged cover-up in 1998 to shield past improprieties. Thus, res judicata fails because the causes of action are different in the two cases.
Finally, we note that the district court's conclusions on the existence of a fiduciary duty and whether the class could be properly certified were premature. We express no opinion on the merits of these issues, as they are more properly addressed after discovery has been completed and at a later motion hearing/trial.
DECISION
Appellants alleged enough to survive a rule 12 motion to dismiss. Neither collateral estoppel nor res judicata bar their claims, at this stage. We reverse the decision *920 of the district court and reinstate the complaint.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616659/ | 668 N.W.2d 357 (2003)
257 Mich. App. 303
Estella KING, Dennis Kochan, Denise Reed, and Charles Porter, Plaintiffs-Appellees,
v.
FORD MOTOR CREDIT COMPANY, General Motors Acceptance Corporation, Chrysler Financial Company, LLC, Riverside Ford Sales, Incorporated, Merollis Chevrolet Sales & Service, Incorporated, Village Jeep Eagle, Incorporated, and Zubor Buick, Incorporated, Defendants-Appellants.
Docket No. 233931.
Court of Appeals of Michigan.
Submitted May 20, 2003, at Detroit.
Decided June 24, 2003, at 9:30 a.m.
Released for Publication August 20, 2003.
*359 Mantese Miller and Shea, P.L.L.C. (by E. Powell Miller and Gerard Mantese) and Consumer Legal Services, P.C. (by Christopher M. Lovasz and Mark Romano), Troy, Garden City, for the plaintiffs.
Miller, Canfield, Paddock & Stone (by Thomas G. Parachini and Lindsay L. Bray Andreuzzi), Detroit, for Ford Motor Credit Company.
Bodman, Longley & Dahling LLP (by Lloyd C. Fell and Sandra L. Jasinski), Cheboygan, for General Motors Acceptance Corporation.
Garan Lucow Miller PC (by Peter L. Diesel), Grand Blanc, for Riverside Ford Sales, Inc.
Kemp, Klein, Umphrey & Endelman, PC (by James P. Davey), Troy, for Merollis Chevrolet Sales & Service, Inc.
Colombo & Colombo, P.C. (by Robert Y. Weller, II), Bloomfield Hills, for Village Jeep/Eagle, Inc., and Zubor Buick, Inc.
Dickinson Wright PLLC (by Barbara H. Erard and Paul R. Bernard), Detroit, for Chrysler Financial Company, LLC.
Colombo & Colombo, P.C. (by Robert Y. Weller, II), Bloomfield Hills, for Detroit Auto Dealers Association.
Willingham & Cote (by Raymond J. Foresman), East Lansing, for Michigan Auto Dealers Association.
Before: JANSEN, P.J., and KELLY and FORT HOOD, JJ.
*358 FORT HOOD, J.
Defendants[1] appeal by leave granted from the trial court's order granting in part and denying in part cross-motions for *360 summary disposition. We reverse and remand for entry of an order granting defendants' motion for summary disposition and denying plaintiffs' motion for summary disposition.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiffs filed a class action complaint and demand for a jury trial alleging violations of the Michigan Motor Vehicle Sales Finance Act (MVSFA), M.C.L. § 492.101 et seq., and a violation of the Michigan Consumer Protection Act (MCPA), M.C.L. § 445.901 et seq. In 1997, plaintiff King entered into a retail installment contract with defendant Riverside Ford for the purchase of a new 1998 Ford Windstar with an extended service contract purchase price of $1,165. In 1998, plaintiff Kochan entered into a retail installment contract with defendant Merollis for the purchase of a new 1997 Chevrolet Venture with an extended service contract price of $520. In 1997, plaintiff Reed entered into a retail installment contract with defendant Village Jeep for the purchase of a new 1997 Plymouth Voyager with an extended service contract price of $1,495. Defendants Ford Credit, GMAC, and CFC provided the financing for the purchase of the vehicles and the service contracts. Each dealership received a portion of the price of the service contract. Plaintiffs brought suit on behalf of themselves and "thousands" of other consumers who have financed the purchase of a motor vehicle and extended service contract through a retail installment contract, alleging that defendants engaged in a scheme to sell motor vehicle service contracts to car buyers at inflated prices to include car dealer commissions in violation of statutory and common law. It was alleged that the financing of the purchase of a motor vehicle and the service contract in the retail installment contract violated the MVSFA. Any charge in excess of the dealers' cost for the service contracts also was an alleged violation of the MVSFA. It was alleged that the holders of the retail installment contracts, defendants Ford Credit, GMAC, and CFC, were liable to the same extent as the car dealerships. Lastly, plaintiffs alleged that the contracts violated the MCPA.
In lieu of answering dispositive motions filed by defendants, plaintiffs filed a first amended complaint. This complaint added plaintiff Porter. In 1998, plaintiff Porter entered into a retail installment contract with defendant Zubor for the purchase of a Buick Century, which included a service contract price of $1,090, financed by defendant GMAC. Plaintiffs' first amended complaint alleged five counts: (I) violation of provisions of the MVSFA that preclude a car dealer from extending credit to a car buyer to finance service contracts;[2] (II) that even if a car dealer may extend credit to a car buyer to finance a service contract, the car dealer is prohibited by the MVSFA from directly or indirectly receiving part of the sale price; (III) defendants Ford Credit, GMAC, and CFC were also liable under the MVSFA for directly or indirectly receiving part of the sale price of the service contracts and financing service contracts; (IV) reformation/breach of contract on the basis that the retail installment contracts created contractual relationships between the parties and the contracts, in violation of the MVSFA, resulting in illegal and unenforceable payments; and (V) unjust enrichment on the basis that defendants received *361 and continued to receive the benefit of unlawful payments from plaintiffs.[3]
Both parties filed cross-motions for summary disposition. Defendants alleged that the MVSFA did not prohibit the sale and financing of extended-protection service plans. Defendants noted that the Division of Financial Institutions, the body charged with the administration and oversight of the statute, consistently concluded that automotive dealerships may sell and finance extended service protection, and the Legislature had acquiesced in that determination. Rather, the only requirement imposed by administrative bulletins was that the cost of the warranty be expressed as a separate item. It was further alleged that the extended service contract qualified as a travel-emergency benefit, an item that was offered to the buyer through the principle of liberty of contract. The buyer was not required to purchase the extended service contract, which was the result of a negotiation between the car buyer and seller. Lastly, defendants alleged that a private right of action was not provided for in the MVSFA.
Plaintiffs alleged that the MVSFA was enacted in 1950 to regulate retail and installment sales of motor vehicles and eliminate the abuse occurring in the transactions. The abuse included unreasonable and unjust finance charges, failure to disclose exact fees, "kickbacks," inadequate remedies to purchasers, and inadequate insurance protection for purchasers. While a manufacturer's suggested retail price for a new car must be disclosed to consumers, there was no comparable disclosure requirement with respect to an extended service contract. Plaintiffs alleged that "[c]onsumers d[id] not regularly bargain over the price of a service contract, but pa[id] whatever the dealer ask [ed]." Consequently, the dealer charged as much as six to twelve times the dealer cost for a service contract. Plaintiffs alleged that the MVSFA precluded the seller from collecting fees in excess of premium costs, fees, and expenses that were authorized by the act. By statute, the Legislature had not authorized the service contract as a cost to the buyer; therefore, it could not be included in an installment sale contract. Additionally, any fee or cost was limited to the actual charge. Thus, the dealer could not earn a profit on the sale of an extended service contract. Plaintiffs alleged that because the contracts were illegal, plaintiffs were entitled, as a matter of law, to a refund or credit for the excess charges collected by defendants. Plaintiffs also alleged that defendants were liable on the basis of unjust enrichment.
Plaintiffs filed a response to defendants' motions, alleging that the statute, by referencing enforcement of a judgment, did, in fact, provide for a private cause of action against defendants. Plaintiffs also asserted that an extended service contract could not qualify as an option, accessory, or travel-emergency benefit. Options and accessories were hardware features that were physically installed on a vehicle. Furthermore, the claim of unjust enrichment could proceed as an alternative theory to the claim of breach of contract in the event it was not upheld.
A written order granting in part and denying in part the cross-motions for summary disposition was entered. The trial court held that the MVSFA did not prohibit the sale or financing of the extended service contracts by the dealers. Therefore, defendants prevailed on that issue, and count I of plaintiffs' first amended complaint was dismissed. The trial court further held that the MVSFA did not limit *362 the price that defendants could charge and that they could finance a travel-emergency benefit component of an extended service contract. Therefore, to the extent that count II of the first amended complaint alleged a violation for the sale of an extended service contract at a profit for the component part of travel-emergency benefits, the count was dismissed. The trial court held that the MVSFA limited the price of nontravel-emergency benefits of extended service contracts, and defendants could not charge and finance an amount in excess of the actual cost of the nontravel-emergency benefit component. Thus, plaintiffs' motion for summary disposition with regard to this portion of count II was granted and defendants' motion was denied. The trial court further held that, to the extent that a profit was earned in excess of the cost of nontravel-emergency benefits of extended service contracts, defendants breached their contracts with plaintiffs, and summary disposition in favor of plaintiffs with respect to count IV was proper. Lastly, the trial court held as a matter of law that the MVSFA did provide for a private right of action.
II. STANDARD OF REVIEW AND RULES OF STATUTORY CONSTRUCTION
The trial court's grant or denial of summary disposition is reviewed de novo. Stone v. Michigan, 467 Mich. 288, 291, 651 N.W.2d 64 (2002). This issue also presents a question of statutory construction. Issues of statutory construction present questions of law that are reviewed de novo. Cruz v. State Farm Mut. Automobile Ins. Co., 466 Mich. 588, 594, 648 N.W.2d 591 (2002). The primary goal of statutory interpretation is to give effect to the intent of the Legislature. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). This determination is accomplished by examining the plain language of the statute. Id. If the statutory language is unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed and further judicial construction is neither permitted nor required. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000). Statutory language should be reasonably construed, keeping in mind the purpose of the statute. Draprop Corp. v. Ann Arbor, 247 Mich.App. 410, 415, 636 N.W.2d 787 (2001).
If reasonable minds could differ regarding the meaning of a statute, judicial construction is appropriate. Adrian School Dist. v. Michigan Pub. School Employees' Retirement Sys., 458 Mich. 326, 332, 582 N.W.2d 767 (1998). When construing the statute, a court must look at the object of the statute in light of the harm it is designed to remedy and apply a reasonable construction that will best accomplish the purpose of the Legislature. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). Michigan recognizes the maxim "expressio unius est exclusio alterius" that the express mention in a statute of one thing implies the exclusion of other similar things. Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285, 298, 565 N.W.2d 650 (1997). However, this maxim is merely an aid to interpreting legislative intent and will not govern if the result would defeat the clear legislative intent. Grand Rapids Employees Independent Union v. Grand Rapids, 235 Mich.App. 398, 406, 597 N.W.2d 284 (1999). The legislative history of an act may be examined to ascertain the reason for the act and the meaning of its provisions. DeVormer v. DeVormer, 240 Mich.App. 601, 607, 618 N.W.2d 39 (2000). A preamble is not to be considered authority for construing an act, but it is useful for interpreting statutory purpose and scope. *363 Malcolm v. East Detroit, 437 Mich. 132, 143, 468 N.W.2d 479 (1991). In 2A Singer, Sutherland Statutory Construction (6th ed), § 47:04, pp 219-226, the following statements addressing preambles are instructive:
A preamble consists of statements which come before the enacting clause in a statute. It usually gives reasons for the operative provisions which follow....
* * *
The preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty. If the statute is clear and the whole act method of interpretation is used, the true meaning is derived from all parts of the act regardless of whether the preamble is more or less extensive than the purview. Whole act interpretation produces a more defensible result than exclusion of the preamble even though the result may be the same.
The preamble may be employed to extend the meaning of an ambiguous statute beyond the limited language of the purview. This rule must be qualified by the explanation that the result must be consistent with other rules of interpretation.
III. HISTORICAL STATUTORY CREATION AND ANALYSIS
According to the Michigan Legislature's website,[4] a resolution is
[a] document expressing the will of the House or the Senate (or both, in the case of concurrent resolutions). Resolutions are used to urge state agencies or the Congress to take certain actions; to formally approve certain plans of governmental agencies; to conduct certain legislative business; or to establish study committees to examine issues. Some resolutions are also offered by members as an expression of congratulations, commemoration or tribute to an individual or group.
On January 31, 1950, a meeting of the Senate Committee to Investigate Motor Vehicle Financing resulted in the following resolution:
Whereas, This Committee has conducted an investigation into the cost of financing and purchasing motor vehicles, pursuant to the provisions of Senate Resolution No. 34 of the 1949 Session of the Michigan Legislature; and
Whereas, The investigation of this Committee has disclosed that abuses by finance companies engaged in financing the purchase of motor vehicles by the public, as heretofore reported by a prior committee which was created during the 1948 Special Session of the Legislature pursuant to Senate Concurrent Resolution No. 14, are continuing; and
Whereas, A recent study of this Committee has disclosed that as regards finance charges arising from the installment sale of motor vehicles within the state of Michigan, 28.48% of such charges are in excess of 25%, 14.7% of such charges are in excess of 50%, 7.66% of such charges are in excess of 75%, and 5% of such charges are in excess of 100%; and
Whereas, It is the sense of this Committee that all finance charges in excess of 25% are unreasonable and unjust and constitute an usurious practice inimical to the public interest; and
Whereas, The investigation of this Committee indicates that finance companies *364 in Michigan, among other things, are not required by law to make a just rebate to purchasers of finance charges which are unearned and which arise when purchasers of motor vehicles discharge their retail installment retail contracts, in nearly all instances, in advance of the maturity date, and that, in some instances, the failure to rebate such unearned finance charges results in interest rates in excess of 1000% in the purchase of motor vehicles; and
Whereas, The investigation of this Committee indicates that there is no disclosure of the exact amount of finance charges and automobile insurance to the purchaser of a motor vehicle at the time and place of sale, and that as a result of said non-disclosure, free competition in the financing of motor vehicles is discouraged and, in most cases, the purchaser is mislead [sic] as to the exact amount of finance charges which are being included in the purchase contract; which constitutes, in the judgment of this Committee, a practice inimical to the public interest; and
Whereas, The investigation of this Committee discloses that retail installment sales contracts of motor vehicles contain concealed charges in the nature of "kickbacks", which are in no way regulated as to amount and are payments made by finance companies to motor vehicle dealers for the purpose of securing business from such dealers, and are in the nature of concealed charges and a deceptive trade practice in the judgment of this Committee; and
Whereas, The investigation of this Committee discloses that, under the present law, purchasers of motor vehicles are not properly protected in the repossession procedure, in that the seller is not required to give notice of the amount necessary to redeem a repossessed motor vehicle, and in that the law contains no requirements establishing the place of resale of such motor vehicle; and
Whereas, The investigation of this Committee discloses that the purchasers of motor vehicles on retail installment sales contracts are given inadequate legal and equitable remedies under the present law, in that actions to maintain their rights are costly, time consuming, and are often fraught with the necessity of costly and ineffective disclosure proceedings to uncover dealings between finance companies and motor vehicle sales agencies, as a result of which few actions are brought to enforce the right of purchasers and the regulation of abuses is consequently imperfect and ineffectual and it is the sense of this Committee that laws and regulations should be instituted and made effective to provide a remedy for an aggrieved purchaser procuring redress short of court action; and
Whereas, The investigation of this Committee has revealed that, in the retail installment sales of motor vehicles, all too frequently insurance is provided to the purchaser which only insures the interest of the finance company in the unpaid balance of retail installment sales contracts, which practice is not unjust provided that the purchaser know and realize the nature of the insurance so provided, but which information is all too frequently found in small print and is not disclosed to the purchaser; and
Whereas, It is the sense of this Committee that legislation should be enacted to control and regulate retail and installment sales of motor vehicles and to eliminate the abuses some of which are hereinbefore set forth, now therefore be it
Resolved by the Committee of the Senate, created by Senate Resolution *365 No. 34 of the 1949 Regular Session of the Michigan Legislature, That the Governor of the State of Michigan, G. Mennen Williams, be requested to include in his message to the 1950 Special Session of the Michigan Legislature, a recommendation that the Legislature consider the enactment of legislation to control and regulate retail installment sales of motor vehicles; and be it further
Resolved, That said committee does also recommend the enactment of an act similar to that contained in Senate Bill No. 60, as originally introduced in the 1949 Session of the Michigan Legislature by Senator Harry F. Hittle, and as passed by the Michigan State Senate, and does further suggest that the Governor of the State of Michigan include such recommendations in his message to the Legislature at the forthcoming Session, if such be the Governor's desire.
The Legislature did, in fact, act with respect to the resolution. The Motor Vehicle Sales Finance Act became effective on March 31, 1951. The act contains the following preamble:
AN ACT defining and regulating certain installment sales of motor vehicles; prescribing the conditions under which such sales may be made and regulating the financing thereof; regulating and licensing persons engaged in the business of making or financing such sales; prescribing the form, contents and effect of instruments used in connection with such sales and the financing thereof; prescribing certain rights and obligations of buyers, sellers, persons financing such sales and others; limiting charges in connection with such instruments and fixing maximum interest rates for delinquencies, extensions and loans; regulating insurance in connection with such sales; regulating repossessions, redemptions, resales and deficiency judgments and the rights of parties with respect thereto; authorizing extensions, loans and forbearances related to such sales; authorizing investigations and examinations of persons engaged in the business of making or financing such sales; transferring certain powers and duties with respect to finance companies to the commissioner of the financial institutions bureau; and prescribing penalties. [1950 PA 27, amended by 1970 PA 114, effective July 23, 1970.]
Thus, an examination of the resolution underlying the impetus for the legislation and the preamble to the legislation, Marquis, supra; Malcolm, supra, indicates that the MVSFA was designed to address usurious fees and improper conduct that occurred in the financing of an automobile. The act does not place any constraints or limitations on the profit earned from the sale of a motor vehicle and any accessories or purchaser options that may be included or negotiated with the sale.
Furthermore, review of the statute reveals that its predominant purpose is to set forth licensing and procedural requirements governing a motor vehicle installment sale. Briefly, a person may not engage in the sale of motor vehicles under installment contracts unless the seller is licensed in accordance with the terms of the act. MCL 492.103. An application for a license to engage in installment sales must be in writing to the administrator, M.C.L. § 492.104, with the administrator defined as the commissioner of the Financial Institutions Bureau, Department of Commerce. MCL 492.102(17). Renewal of existing licenses must occur annually. MCL 492.104(e). In order to obtain the license, a bond must accompany the request to the administrator, M.C.L. § 492.105, and the fees to be charged the applicant are set forth by statute. MCL *366 492.106. Upon receipt of a license, it must be posted in a conspicuous place in the business, the license is not transferable or assignable, and the rejection of any application may be appealed to the circuit court. MCL 492.107; MCL 492.108.
The administrator has the authority to revoke or suspend any license if he finds various violations. MCL 492.109. Significantly, the administrator has the right to revoke where the "licensee has violated any provisions of this act...." M.C.L. § 492.109(a)(2). In conjunction with that authority, the administrator is authorized to investigate and examine the business records of any licensee or any person engaged in business contemplated by the act. MCL 492.110(a). The administrator is also "empowered" to require the attendance and testimony of witnesses and the production of records, and, if disobedience occurs, the administrator may seek aid from any circuit court to obtain an order that requires a witness to obey. Any failure to obey the order may be punished as a contempt of court. MCL 492.110(b). The administrator also has the authority to "make rules and regulations relating to the enforcement of this act." MCL 492.110(c).
The act also precludes an acceleration clause, places limitations on repossession, and prohibits the inclusion of certain provisions in the installment sale contract. MCL 492.114. Notice of any sale, transfer, or assignment must be given to the buyer. MCL 492.115. While the buyer may be required to obtain insurance under the installment sale contract, there are limitations. MCL 492.116. The statute contains additional regulations regarding extension of the contract, refinancing charges, defaults, collection, prepayment, payment, and the requirement that the act comply with the Federal Truth in Lending Act, 15 USC 1601 et seq. MCL 492.119, 492.120, 492.121, 492.122, 492.122a. An entity that operates under the act without a license or a licensee that violates the act may be found guilty of a misdemeanor and sentenced to pay a fine of not more than $500 for the first offense, and face imprisonment, not to exceed a year, for subsequent offenses. MCL 492.137. Thus, an overall review of the statute reveals that it is regulatory, setting forth the licensing and procedural fees charged in the sale of a motor vehicle through an installment sale contract without restricting the parties' ability to negotiate the terms of the sale or the profit margin earned on the sale.
The issue in this litigation is whether the dealerships are entitled to earn a profit on the sale of extended service contracts or extended warranties in light of provisions of the MVSFA that regulate fees. Following review de novo, Stone, supra, we conclude that the challenge to the profit earned on an extended service contract is not governed by the MVSFA. Section 17 of the MVSFA, M.C.L. § 492.117, concerns installment sale contracts and additional costs and fees relating thereto, and provides:
(a) In addition to the cost of insurance premiums and travel emergency benefits authorized in the preceding section of this act, the seller of a motor vehicle under an installment sale contract may require the buyer to pay certain other costs incurred in the sale of a motor vehicle under such contract as follows:
1. Fees, payable to the state of Michigan, for filing a lien or encumbrances on the certificate of title to a motor vehicle sold under an installment sale contract or collateral security thereto.
2. Fees, payable to a public official, for filing or recording and satisfying or releasing the installment sale contract or *367 instruments securing the buyer's obligation.
3. Fees for notarization required in connection with the filing and recording or satisfying and releasing a mortgage, judgment lien or encumbrance.
(b) The seller of a motor vehicle under an installment sale contract may also contract with the buyer to pay, on behalf of the buyer, such other costs incidental to the sale of a motor vehicle and contracted for voluntarily by the buyer as follows:
Fees, payable to the state of Michigan for registration of the motor vehicle and issuance or transfer of registration plates.
(c) The foregoing costs may be charged, contracted for, collected or received by the seller from the buyer independently of the installment sale contract, or the seller may extend credit to the buyer for the amount of such costs and include such amount in the principal amount financed under the installment sale contract.
(d) Such other costs paid or payable to the buyer shall not exceed the amount which the seller expends or intends to expend therefor. Any such costs which the seller has collected from the buyer, or which have been included in the buyer's obligation under the installment sale contract which are not disbursed by the seller, as contemplated, shall be immediately refunded or credited to the buyer.
On the basis of the plain language of subsection 17(a), In re MCI, supra, extended service contracts or extended warranties are not covered by the statute because they are not an item that the buyer is required to purchase. Rather, like the sale of a motor vehicle, the extended service contract is the result of a negotiation between the buyer and the seller.[5] The resolution leading to the enactment of the act, the preamble to the act, and the text of the act demonstrate that it was designed to prevent the addition of usurious fees and costs following the negotiation of a purchase price of a motor vehicle, not to limit profit margins for items sold in conjunction with a motor vehicle.
Plaintiffs allege that the plain language of subsection 17(b) precludes a dealership seller from contracting for the sale of extended warranties because it identifies "other costs" as permissible, but then limits the list of "other costs" to registration and license-plate fees. Thus, under the maxim of expressio unius est exclusio alterius, plaintiffs allege that extended warranties may not be offered by the seller at a profit. However, this rule regarding the delineation of one thing implying the exclusion of other similar things will not govern if the result would defeat the clear legislative intent. Grand Rapids Employees Independent Union, supra. To apply this maxim, as urged by the plaintiffs, would defeat the purpose of the statute. The MVSFA was not designed to limit the freedom of contract regarding the profit made on a motor vehicle and negotiated additions to the vehicle. In essence, the MVSFA is a regulatory statute designed to set forth a procedure and place restrictions on the fees and costs, not the profits, associated with an automotive installment sale contract.
Alternatively, plaintiffs allege that profits may not be earned on the sale of an extended warranty or service contract in light of M.C.L. § 492.131:
*368 (a) A licensee under this act shall not charge, contract for, collect, or receive from the buyer, directly or indirectly, any further or other amount for costs, charges, examination, appraisal, service, brokerage, commission, expense, interest, discount, fees, fines, penalties, or other thing of value in connection with the retail sale of a motor vehicle under an installment sale contract in excess of the cost of insurance premiums, other costs, the finance charges, refinance charges, default charges, recording and satisfaction fees, court costs, attorney's fees, and expenses of retaking, repairing, and storing a repossessed motor vehicle which are authorized by this act.
* * *
(d) Whenever in an installment sale contract under this act the seller or any subsequent holder has charged, contracted for, collected, or received from the buyer prohibited costs or charges in connection with the contract, all the costs and charges in connection with the contract, other than for insurance, shall be void and unenforceable and any amounts paid by the buyer for such costs and charges, other than insurance, shall be applied on the principal of the contract.
Again, plaintiffs rely on general, undefined, and broad language such as "other costs" to allege that defendants may not earn a profit on the sale of an extended service contract. However, the reference to "other costs" is utilized in conjunction with statutory provisions outlining what the dealer may or may not require with respect to the amount of insurance and the amount of fees. The plain language of the statute in no way alters the profit margin the dealership may receive on the sale of a motor vehicle and any additions the purchaser selects. In re MCI, supra. Additionally, there is no indication that the freedom of contract to negotiate luxury items or warranties was intended to be altered by the creation of the MVSFA. Rather, on the basis of the language of the resolution and the preamble, it is clear that the MVSFA was designed to address what was occurring after the price of a car and any accessories had been negotiated. Specifically, after the purchaser negotiated a price, hidden charges and fees would then be added on to the sale contract. The act, it appears, was designed to remedy the price gouging with respect to procedural fees that were being added after the negotiation.
The trial court's conclusion that the MVSFA was violated was based on § 16 of the MVSFA, M.C.L. § 492.116. Subsection 16(a) provides, in relevant part:
The buyer of a motor vehicle under an installment sale contract may be required to provide insurance on such motor vehicle at the buyer's expense for the protection of the seller or subsequent holder. Such insurance shall be limited to insurance against substantial risk of damage, destruction or theft of such motor vehicle: Provided, however, That the foregoing shall not interfere with the liberty of contract of the buyer and seller to contract for travel emergency benefits pertaining to the operation of the automobile or other or additional insurance as security for or by reason of the obligation of the buyer, and inclusion of the cost of such insurance premium and said travel emergency benefits in the principal amount advanced under the installment sale contract.
Although the statute contains a definitional section, M.C.L. § 492.102, it does not define travel-emergency benefits. The trial court noted that the extended service contracts contained language to indicate that *369 coverage for rental vehicles and towing repairs was included in the extended service contracts. Therefore, to the extent that these items were not regulated with respect to profits because of liberty of contract, the trial court held that the travel-emergency benefits portion of the extended service contracts was not a violation of the statute. However, the sentence in subsection 16(a) at issue also contains the undefined terms "other" and "additional insurance":
Such insurance shall be limited to insurance against substantial risk of damage, destruction or theft of such motor vehicle: Provided, however, That the foregoing shall not interfere with the liberty of contract of the buyer and seller to contract for travel emergency benefits pertaining to the operation of the automobile or other or additional insurance as security for or by reason of the obligation of the buyer, and inclusion of the cost of such insurance premium and said travel emergency benefits in the principal amount advanced under the installment sale contract. [Emphasis added.]
The parties fail to address how an extended service contract or warranty operates. We note that the extended service contract is, in effect, insurance. Insurance is a contract in which one party, for consideration, assumes delineated risks of the other party. St Paul Fire & Marine Ins. Co. v. American Home Assurance Co., 444 Mich. 560, 564, 514 N.W.2d 113 (1994).[6] That is, the purchaser of a motor vehicle buys an extended service contract to cover parts and labor for problems that may arise after the expiration of the manufacturer's warranty. There is no guarantee that the purchaser will ever seek service following the purchase of the extended service contract and thus derive a benefit from the consideration paid. However, in the event that vehicle maintenance is required, the purchaser is protected against contingencies delineated in the extended service contract. The statute provides that "liberty of contract" is not affected with respect to "additional insurance as security for or by reason of the obligation of the buyer...." M.C.L. § 492.116(a). Consequently, if the buyer chooses to purchase an extended service contract, the plain language of the statute provides that limitations on the ability to contract for this type of insurance option are not governed by the MVSFA. In re MCI, supra. Thus, the trial court erred in dividing extended service contracts into travel-emergency benefits and nontravel-emergency benefits and concluding that the profit on an extended service contract violated the provisions of the MVSFA. A division of the extended service contract into travel-emergency benefits and nontravel-emergency benefits is inappropriate where the statute expressly provides that "other or additional insurance" items pertaining to the operation of a motor vehicle are not affected because it would cause an interference with liberty of contract.[7]
*370 Plaintiffs contend that consumers need the protections of the MVSFA to prevent price gouging with respect to extended service contracts. However, an educated consumer has options to negotiate the purchase price of an extended service contract. Extended warranties may be purchased from the automobile manufacturer, new and used car dealerships, and independent companies or third parties.[8] Extended warranties may be purchased online[9] and may extend for a period past that offered by a dealership or manufacturer. Consumers are urged to research whether an extended warranty is necessary in light of the cost. Indeed, Michigan's Attorney General has issued a warning in a consumer alert on the Attorney General's website[10] regarding extended service contracts that provides:
Some dealers offer "extended service contracts" to supplement the protection of new vehicle warranties. These contracts should be reviewed with great caution. Many companies that provide extended service contracts have no affiliation with the vehicle dealership. They have less incentive to encourage repeat business. The benefits of an extended service contract usually do not become effective until your vehicle's manufacturer's warranty expires. Unlike manufacturer's warranties, extended service contracts are usually not comprehensive. Rather than listing components and claims that are excluded from coverage, extended service contracts may identify a short list of components and claims that are covered. These contracts may also place an upper limit on the amount that will be paid on a claim. They may also impose complicated procedures for obtaining approval for covered repairs, including a requirement that the vehicle be inspected by the company selling the contract. Consumers should also be wary of contracts that exclude coverage for "preexisting conditions" as well as those that require the consumer to pay the cost of diagnosing the cause of a component failure. On the whole, extended service contracts provide substantially less protection than manufacturer's warranties and are riskier. You should carefully consider whether the total costs of such a plan outweighs the likely benefits. [Emphasis in original.]
Thus, it is noteworthy that the Attorney General has not issued a plea to the Legislature to regulate the sale of extended service contracts or warranties and does not take action on behalf of consumers or urge the consumer to take action consistent with the MVSFA.[11] Rather, the statement by the Attorney General, notes, in essence, the maxim "caveat emptor," or let the purchaser take care of his own interests. See Achenbach v. Mears, 272 Mich. 74, 78, 261 N.W. 251 (1935). The trial court erred in concluding that the protections against fees and costs offered by the MVSFA governed the sale of an extended service contract. The profit margin of an extended service contract *371 was not contemplated by the Legislature, Marquis, supra, and the plain language of the statute forecloses the regulation of extended service contracts, which operate as an additional form of insurance for the purchaser. In re MCI, supra; St Paul, supra.[12]
The trial court also held that the violation of the MVSFA provided plaintiffs with an action for breach of contract. Following review de novo, Stone, supra, we disagree. Review of the first amended complaint reveals that the alleged breach of contract was based on the statutory violation. The sale of an extended service contract at a profit is not in violation of the statute.[13] Therefore, the claim of breach of contract on that basis also fails. Furthermore, a contract will not be implied under the doctrine of unjust enrichment where a written agreement governs the parties' transaction. Barber v. SMH (US), Inc., 202 Mich.App. 366, 375, 509 N.W.2d 791 (1993). Because the parties' transactions were governed by written documentation, plaintiffs cannot rely on a claim of unjust enrichment, and our reversal of the trial court's order does not result in reinstatement of this claim.
Reversed and remanded for entry of an order granting defendants' motion for summary disposition and denying plaintiffs' motion for summary disposition. We do not retain jurisdiction.
NOTES
[1] Defendants Riverside Ford Sales, Incorporated (Riverside Ford), Merollis Chevrolet Sales & Service, Incorporated (Merollis), Village Jeep Eagle, Incorporated (Village Jeep), and Zubor Buick, Incorporated (Zubor), are the automotive dealerships from which plaintiffs purchased their vehicles. Plaintiffs Estella King, Dennis Kochan, Denise Reed, and Charles Porter are individual car purchasers and, for ease of reference, will be referenced by their last names. Defendants Ford Motor Credit Company (Ford Credit), General Motors Acceptance Corporation (GMAC), and Chrysler Financial Company, LLC (CFC), were the financing agencies utilized by plaintiffs and defendant dealerships.
[2] The trial court ultimately ruled against plaintiffs on this issue, and plaintiffs have not filed a cross-appeal. Therefore, we do not address it.
[3] The amended complaint did not pursue any claim based on the MCPA.
[4] www.michiganlegislature.org
[5] Plaintiffs did not, by allegation in the complaint or through documentary evidence, dispute that the purchase of the extended service contract was the result of a negotiation between the buyer and the seller.
[6] See also Allstate Ins. Co. v. Elassal, 203 Mich.App. 548, 555, 512 N.W.2d 856 (1994), noting additional definitions of insurance: (1) "`coverage by contract whereby one party undertakes to indemnify or guarantee another against loss by a specified contingent or peril,'" (2) "`the sum for which something is insured,'" and (3) "`any means of guaranteeing against loss or harm.'" (further citations omitted.)
[7] We note that plaintiffs cite a study by the attorney general of New York in 1990 that identified a significant "mark up" charged by dealerships over the manufacturer's suggested retail price of the extended service contract or warranty. While the study identified a significant price increase and noted that customers frequently do not barter over the price of the extended service contract, the study failed to identify the actual profit margin earned following the expiration of the service-contract period.
[8] See http://auto.consumerguide.com/auto/editorial/ features/index.cfm/act/feature14
[9] However, California, Florida, and Wisconsin prohibit the online purchase of certain auto warranties. http://auto.consumerguide.com/auto/editorial/features/index.cfm/act/feature14
[10] See http://www.michigan.gov/ag/0,1607,7-164-17343 XXXXX-XXXXX,00.html
[11] The consumer advisory is merely noteworthy and is not referenced as authoritative in any regard. See Danse Corp. v. Madison Hts., 466 Mich. 175, 182 n. 6, 644 N.W.2d 721 (2002).
[12] We also note that proposed and enacted amendments of the MVSFA do not aid plaintiffs' position. The proposed amendment in 1995, House Bill 5659, would have removed unclear references to a "judgment" by expressly providing for a cause of action to be brought by the Attorney General, county prosecuting attorney, or person injured. This proposed amendment was not enacted. The MVSFA was amended in 2002, House Bill 6446, 2002 PA 699, to provide for increased document preparation fees that could be charged by installment sellers despite opposition from the administrator of the act. The administrator noted that language to modernize the act was being prepared and a bill to increase fees to consumers without other necessary changes was premature. This activity regarding the MVSFA, while not dispositive or controlling, demonstrates that the extension of consumer protections beyond regulatory fees and costs has not been realized despite the potential for price gouging in the sale of extended service contracts.
[13] Because of our conclusion that extended service contracts do not fall within the purview of the MVSFA, we need not address the circumstances under which a private right of action may be maintained under the MVSFA, leaving resolution of that issue for another day. In re MCI, supra at 424 n. 4, 596 N.W.2d 164; Van v. Zahorik, 460 Mich. 320, 331 n. 3, 597 N.W.2d 15 (1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616741/ | 104 S.W.3d 686 (2003)
Keith KIDWELL, Appellant,
v.
George C. BLACK, Jr. d/b/a Dallas Mortgage Company, Appellee.
No. 2-01-393-CV.
Court of Appeals of Texas, Fort Worth.
March 20, 2003.
Rehearing Overruled June 5, 2003.
*687 Danny Burns, Fort Worth, for appellant.
Jones Allen & Fuquay, L.L.P., Stephen A. Grimmer, Dallas, for appellee.
PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.
OPINION
LEE ANN DAUPHINOT, Justice.
I. INTRODUCTION
This case involves the reformation of a series of deeds and related instruments *688 that contain an incorrect legal description of a parcel of property. Appellee George C. Black d/b/a Dallas Mortgage Company ("Black") sued Appellant Keith Kidwell and Lincoln Financial, Inc. ("Lincoln"), K. Wayne Fontenot, Edna Faye Williamson, and Wallace Simpson, seeking reformation of various deeds, deeds of trusts, and assignments. A Rule 11 Agreement was executed that resulted in the trial court signing a partial judgment in which it found that Black had a valid lien against the property as to Williamson and that Lincoln did not own any interest in the property at any time after October 10, 1990. Kidwell was not a party to the agreement.
Kidwell and Black proceeded to a bench trial, after which the trial court signed a judgment that ordered the reformation of all the necessary documents in favor of Black. Kidwell appeals from the trial court's judgment. We affirm.
II. FACTUAL SUMMARY
The property at issue is correctly described as "Lot 14, Block 2, PASADENA HEIGHTS, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the plat, recorded in Volume 310, page 4, Deed Records of Tarrant County, Texas." The dispute arose out of an incorrect legal description of the property that was carried forward through several transfers. The facts regarding the transfer of the property were undisputed at trial:
On July 18, 1988, Lincoln purchased "Lot 14, Block 2" receiving a Trustee's Deed. [Emphasis added.]
On October 10, 1990, Lincoln transferred the property via Special Warranty Deed to Fontenot. The property was incorrectly described as "Lot 14, Block 7." [Emphasis added.]
Also on October 10, 1990, Fontenot executed a Special Warranty Deed to Williamson, retaining a vendor's lien. Once again, the property was incorrectly described as "Lot 14, Block 7." [Emphasis added.]
On October 17, 1990, Williamson executed a Deed of Trust for the benefit of Fontenot, and the property was incorrectly described as "Lot 14, Block 7." [Emphasis added.]
On July 1, 1992, Fontenot transferred his lien to First Approach Financial via a Transfer of Lien. The property was correctly described as "Lot 14, Block 2." [Emphasis added.]
On October 28, 1993, First Approach Financial transferred the lien to Simpson. The transfer documents correctly described the property as "Block 2." [Emphasis added.]
On April 25, 1995, Simpson transferred the lien to Black incorrectly describing the property as "Lot 14, Block 7." [Emphasis added.]
On June 1, 1999, Kidwell purchased a Sheriff's Deed which purported to transfer "Block 2, Lot 14" from Lincoln. [Emphasis added.]
Upon learning of Lincoln's foreclosure, but before buying the property, Kidwell researched the deed records and found that Lincoln was the record owner of the "Lot 14, Block 2" property. Kidwell also found that the property taxes had been paid on the property. There is no "Lot 14, Block 7" property in the Pasadena Heights addition. Furthermore, either Williamson, her family, or her tenants have continuously occupied, maintained, and insured the Block 2 property since October 10, 1990.
III. LEGAL ANALYSIS
Kidwell raises six points on appeal, arguing that (1) the trial court lacked jurisdiction to reform the deeds because the statute of limitations had expired; (2) *689 Black lacked standing to file suit because he was not in privity with Kidwell; (3) the trial court could not reform the deeds without giving notice to the other interested defendants; (4) the trial court granted more relief than was requested in the pleadings; (5) the trial court did not properly follow the Texas recording statutes when it held Kidwell to a higher standard of notice than Black; and (6) Kidwell was an innocent bona fide purchaser for value.
A. Final Judgment
We address Kidwell's third point first to determine this court's jurisdiction to hear this appeal.[1] Kidwell argues that the trial court's judgment is not final because necessary parties to the suit were either not served with notice or not included in the trial court's judgment. Specifically, Kidwell argues that Fontenot and Simpson were necessary parties to the lawsuit who were sued but never served with process. Therefore, Kidwell argues that because the judgment of the trial court does not include Fontenot and Simpson, the judgment is invalid and must be reversed.
As a general rule, an appeal may be taken only after a final judgment has been signed.[2] "A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record."[3] However, when a named defendant is not served with process and does not file an answer, and when the plaintiff fails to exhibit any indication that he expects to obtain service over the defendant, the defendant is considered to have been nonsuited.[4] Under such circumstances, the judgment is considered final and appealable.[5]
Neither Fontenot nor Simpson was served with process, and neither filed an answer with the trial court.[6] Black included Fontenot and Simpson in its first amended petition, but failed to include them in his motion for summary judgment or in any other pleading filed in the trial court. The trial court even stated in its judgment that Fontenot and Simpson had not been served and were not before the trial court. We hold that the trial court's judgment was final and overrule Kidwell's third point.
B. Statute of Limitations
Kidwell argues in his first point that the trial court lacked jurisdiction to hear the case because Black's reformation cause of action was barred by the statute of limitations. Even though Kidwell incorrectly argues that his statute-of-limitations defense is jurisdictional,[7] we address his argument that the limitations had expired and that Black's cause of action is time-barred.
Regarding the statute of limitations, when a mutual mistake is made as to the legal effect of a deed, the statute of limitations begins to run either when the *690 mistake is discovered or when, in the exercise of reasonable diligence, the mistake should have been discovered.[8] The question of when a mistake should have been discovered is a fact question.[9]
If an appellant is attacking the legal sufficiency of an adverse answer to an issue on which he had the burden of proof, the appellant must overcome two hurdles.[10] First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law.[11]
Kidwell contends that when the lien documents were transferred to Black on April 25, 1995, Black deliberately changed the property description in the documents to reflect "Block 7" instead of "Block 2." Therefore, according to Kidwell, Black had notice of the problems in the deeds when the deed of trust was transferred to him. Kidwell's references to the record do not, however, substantiate this allegation, and the record is void of any attempt by Black to correct or change the property description from "Block 2" to "Block 7" when he purchased the deed of trust.
Kidwell also argues that because Black acquired a title insurance policy and because the title policy would have revealed the error in the deeds, Black had notice of the error in the description of the property. Black testified, however, that he relied on the title policy to prepare the property description in the transfer documents. He also testified that he was not aware of any problems with the title of the property until June 1, 1999.
The trial court found that Williamson is the owner of the property and that Black is the owner of a valid lien against the property. The trial court did not address Kidwell's statute-of-limitations defense in the judgment. As a result, the trial court implicitly found that the statute of limitations had not run. Ignoring all contrary evidence, we hold that Black's testimony supports the trial court's implicit finding.[12] We overrule Kidwell's first point.
C. Standing
In his second point, Kidwell argues that Black lacked standing as a matter of law because there was no privity between Kidwell and Black. A party's standing to file a lawsuit requires a real controversy between the parties, and the resolution of that controversy is dependent upon the judgment sought from the trial court.[13]
Black's standing is based on his interest in the deed of trust, which is dependent upon the validity of Williamson's interest in the property.[14] In opposition to Black's claim, Kidwell maintains that his interest in the property is valid. Because of the obvious conflict, we hold that Black had standing to bring this suit and overrule Kidwell's second point.
D. Relief Granted
Kidwell argues in his fourth point that the trial court erred in granting Williamson relief because she did not file any *691 pleadings with the trial court requesting the relief that was granted.
Kidwell correctly points out that nothing in the record indicates that Williamson requested any relief in the trial court. Black alleged in his pleadings, however, that Lincoln did not own any interest in the property at any time after October 10, 1990; therefore, it had no interest in the property to transfer to Kidwell at the sheriff's sale. Black requested the trial court to reform the deeds to reflect the correct property description. Black also requested a declaratory judgment that Williamson acquired title to the property by adverse possession.
"The judgment of the court shall conform to the pleadings [and] the nature of the case proved ... and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity."[15] The trial court's judgment grants all the relief requested by Black.
Because Black had standing to bring this suit due to the controversy existing between Black and Kidwell, we hold that the trial court's judgment is supported by the pleadings. We overrule Kidwell's fourth point.
E. Notice and Bona Fide Purchaser Status
Kidwell argues in his fifth point that there is no evidence to support the trial court's finding that Kidwell had notice of the discrepancies in the property descriptions. Specifically, Kidwell argues that the trial court improperly followed the Texas recording statute by holding Kidwell to a higher standard of notice than Black.[16] Kidwell argues in his sixth point that the trial court incorrectly reformed the instruments to the detriment of Kidwell because Kidwell is an innocent bona fide purchaser for value. Both of these arguments depend on Kidwell's status as an innocent bona fide purchaser for value.
Kidwell acquired his title via a sheriff's deed. The deed states that the Sheriff conveyed to Kidwell "all the estate, right, title and interest which ... Lincoln... had [in the property] on the 9th day of April A.D.1999." The deed contains no covenant of warranty and only attempts to convey whatever interest Lincoln may have held.[17] Thus, the deed is a quitclaim deed.[18]
The purchaser of a quitclaim deed takes the deed "with notice of all defects in the title and equities of third persons."[19] Because Kidwell is the grantee of a quitclaim deed, he cannot be a bona fide purchaser.[20] Therefore, Kidwell had notice of the defects in the title as a matter of law.[21] We overrule Kidwell's fifth and sixth points.
IV. CONCLUSION
Having overruled each of Kidwell's six points, we affirm the trial court's judgment.
NOTES
[1] See Rape v. M.O. Dental Lab, 95 S.W.3d 712, 714-15 (Tex.App.-Fort Worth 2003, pet. filed) (addressing appellate court's jurisdiction before reaching merits of case).
[2] Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2003); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001).
[3] Lehmann, 39 S.W.3d at 195.
[4] Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex.1962); see also Rape, 95 S.W.3d at 715 (holding that under similar facts a summary judgment was final for purposes of appeal).
[5] Youngstown, 363 S.W.2d at 232.
[6] See id.
[7] See In re Marriage of Collins, 870 S.W.2d 682, 684 (Tex.App.-Amarillo 1994, writ denied) (describing section 16.004 as a general statute of limitations that is not jurisdictional).
[8] Brown v. Havard, 593 S.W.2d 939, 944 (Tex.1980).
[9] Id.
[10] Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991).
[11] Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).
[12] See Victoria Bank & Trust, 811 S.W.2d at 940.
[13] Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).
[14] See id. (explaining the general test for standing).
[15] Tex.R. Civ. P. 301.
[16] Tex. Prop.Code Ann. § 13.001 (Vernon Supp.2003).
[17] See Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 291 (1951).
[18] See id.; see also Diversified, Inc. v. Hall, 23 S.W.3d 403, 407 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (op. on reh'g).
[19] Woodward, 237 S.W.2d at 291-92; see also Diversified, 23 S.W.3d at 407.
[20] Diversified, 23 S.W.3d at 407.
[21] See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616798/ | 201 So. 2d 824 (1967)
Bertha Belle ZABNER, Appellant,
v.
HOWARD JOHNSON'S, INCORPORATED, Appellee.
No. 568.
District Court of Appeal of Florida. Fourth District.
August 25, 1967.
*825 Horace E. Beacham, Jr., Palm Beach, for appellant.
John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellee.
CROSS, Judge.
Appellant (plaintiff) appeals from a final summary judgment entered in favor of the appellee (defendant) in an action for damages for breach of an implied warranty and negligence.
Plaintiff, a patron of Howard Johnson's Restaurant, ordered a dish of maple walnut ice cream, and while consuming it at the restaurant a piece of walnut shell concealed therein punctured plaintiff's upper gums, fractured and damaged some of her teeth.
The trial court considered both causes of action were controlled by the same principles of law and entered a final summary judgment for the defendant. The judgment was entered on the theory that the harmful substance was natural to the product sold and could not be called a foreign substance. The trial judge applied the so-called foreign-natural test.
There are jurisdictions which represent the view that as a matter of law a harmful substance present in food which is natural to it cannot be a legal defect or a breach of the implied warranty of reasonable fitness of such food. Mix v. Ingersoll Candy Co., 1936, 6 Cal. 2d 674, 59 P.2d 144. This case was brought both on the theory of implied warranty and of common-law negligence. There the plaintiff was injured by a chicken bone in chicken pot pie. On demurrer the court held the defendant was not liable *826 under either theory because chicken bones were natural to the meat served and not a foreign substance, and it was common knowledge chicken pies occasionally contain chicken bones, and therefore their presence ought to be anticipated and guarded against by the consumer.
The reasoning of the Mix case has been followed by four intermediate appellate courts: Silva v. F.W. Woolworth Co., 1938, 28 Cal. App. 2d 649, 83 P.2d 76 (implied warranty and negligence alleged), a turkey bone imbedded in the dressing of a special plate of roast turkey; Lamb v. Hill, 1952, 112 Cal. App. 2d 41, 245 P.2d 316 (negligence alleged), a fragment of chicken bone in chicken pie; Goodwin v. Country Club of Peoria, 1944, 323 Ill. App. 1, 54 N.E.2d 612 (implied warranty and negligence), a bone in creamed chicken made from turkey meat (query: whether a turkey bone is natural to creamed chicken); Norris v. Pig'n Whistle Sandwich Shop, Inc., 1949, 79 Ga. App. 369, 53 S.E.2d 718 (negligence), a particle of bone in a barbecued pork sandwich; and Davison-Paxon Co. v. Archer, 1954, 91 Ga. App. 131, 85 S.E.2d 182 (negligence), turkey bone in creamed turkey.
The naturalness doctrine was also applied in Brown v. Nebiker, 1941, 229 Iowa 1223, 296 N.W. 366 (implied warranty and negligence), a sliver of a bone in a pork chop swallowed by the deceased; in Adams v. Great Atlantic & Pacific Tea Co., 1960, 251 N.C. 565, 112 S.E.2d 92 (implied warranty), a partially crystallized grain of corn in corn flakes; and in Shapiro v. Hotel Statler Corp., S.D.Cal. 1955, 132 F. Supp. 891 (implied warranty), a fish bone in Hot Barquette of Seafood Mornay, made of several kinds of fish. The rule was recognized but held not applicable in Arnaud's Restaurant, Inc. v. Cotter, 5 Cir.1954, 212 F.2d 883 (negligence and implied warranty), crab shell in fish dish.
The "foreign-natural" test as applied as a matter of law by the trial court does not recommend itself to us as being logical or desirable.
The reasoning applied in this test is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served. It does not logically follow that every product which contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin. Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption. A nutshell natural to nut meat can cause as much harm as a foreign substance, such as a pebble, piece of wire or glass. All are indigestible and likely to cause the injury. Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.
It is true one can expect a t-bone in t-bone steak, chicken bones in roast chicken, pork bone in a pork chop, pork bone in spare ribs, a rib bone in short ribs of beef, and fish bones in a whole baked or fried fish, but the expectation is based not on the naturalness of the particular bone to the meat, fowl, or fish, but on the type of dish served containing the meat, fowl, or fish. There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken.
The test should be what is "reasonably expected" by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.
*827 The "reasonable expectation" test as applied to an action for breach of the implied warranty is keyed to what is "reasonably" fit. If it is found that the shell of the walnut ought to be anticipated in walnut ice cream and guarded against by the consumer plaintiff, then the ice cream was reasonably fit under the implied warranty. As applied to the action for common-law negligence, the test is related to the foreseeability of harm on the part of the defendant. The defendant is not an insurer but has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against.
When a patron orders and pays for a meal or food at a public restaurant, there is a sale of such food, and there exists an implied warranty that the food so sold is reasonably fit for human consumption. We deem that a patron of a restaurant ordering a meal or food thereby makes known to the seller the particular purpose for which the food is required and by that act relies on the seller's skill and judgment in preparing such food. The sales theory applies whether one is eating a la carte, table d'hote, in a restaurant or in a cafeteria, automat or drive-in, and whether the food is eaten on or off the premises. This view is known as the Massachusetts-New York rule. Friend v. Childs Dining Hall Co., 1918, 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Temple v. Keeler, 1924, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920.
The test of "reasonable expectation" has been followed in other jurisdictions. In Wood v. Waldorf System, Inc., 1951, 79 R.I. 1, 83 A.2d 90 (negligence), the plaintiff swallowed a chicken bone while eating chicken soup which contained chicken meat and vegetables. Recovery was allowed on the theory that, while a chicken bone was natural to chicken, it was not necessary, natural, or customary for bones to be allowed to remain concealed in this type of soup. The question was whether the presence of the bone in the soup was to be expected by the consumer. See Paolinelli v. Dainty Foods Manufacturers, Inc., 1944, 322 Ill. App. 586, 54 N.E.2d 759 (negligence), bone in noodle soup mix. Likewise, in Bonenberger v. Pittsburgh Mercantile Company, 1942, 345 Pa. 559, 28 A.2d 913, 143 A.L.R. 1417 (warranty case), where the plaintiff was injured swallowing a sharp oyster shell about the size of a 25-cent piece while eating oyster stew made from a can of oysters, the court held it was for the jury to pass on the evidence, and it could not hold as a matter of law that the oysters as furnished were reasonably fit for human consumption.
In Bryer v. Rath Packing Company, 1959, 221 Md. 105, 156 A.2d 442, 443, 77 A.L.R. 2d 1 (negligence), a child's throat was injured by a small chicken bone while she was eating chow mein in a school cafeteria which purchased the chow mein in sealed cans which were advertised as "Ready to Serve Boned Chicken." While stressing the advertising on the container as boned chicken, the court after reviewing authorities decided the fact situation was more nearly akin to the reasonable expectation cases than to the naturalness cases and involved the question of whether due care was exercised by the defendant and what the plaintiff had a right to reasonably expect under the circumstances. Gimenez v. Great Atlantic & Pacific Tea Co., 1934, 264 N.Y. 390, 191 N.E. 27 (implied warranty), held the plaintiff could recover for eating canned crab meat containing small crystals. It is not clear from the opinion whether the crab meat contained struvite, a natural salt crystal formed after canning from the juices of the meat. The court merely stated that the substance was deleterious. However, in O'Hare v. Petersen, 1940, 174 Misc. 481, 21 N.Y.S.2d 487, involving struvite in shrimp, after discussing the Gimenez case it was held that even though the elements were natural to the meat, they were harmful and rendered the food unfit for consumption. See also *828 Betehia v. Cape Cod Corporation, 1960, 10 Wis. 2d 323, 103 N.W.2d 64 (implied warranty and negligence), restaurant patron sustained injuries caused by a chicken bone in a chicken sandwich; the court held that it was a question for the jury as to whether the food, although containing the questioned substance, was nevertheless reasonably fit; and Lore v. De Simone Bros., 1958, 12 Misc. 2d 174, 172 N.Y.S.2d 829 (implied warranty), recovery allowed for fragment of bone in a piece of salami; bone not natural to the product as distinguished from the meat in the product.
The question of whether food is fit for the purpose intended although it contains walnut shells or other natural substances must be based on what the consumer might reasonably expect to find in the food as served and not on what might be natural to the ingredients of that food prior to preparation and what is reasonably expected by the consumer is a jury question in most cases.
Reversed and remanded.
MINNET, JAMES F., Associate Judge, concurs.
ANDREWS, J., concurs specially, with opinion.
ANDREWS, Judge (concurring specially).
I concur in the decision and agree with Judge Cross' opinion insofar as it rejects the foreign-natural test and substitutes a reasonable expectation standard, but wish to add these observations.
The difficulty with the foreign-natural test lies not in its theory but in its artificial application. It seems to me that what is natural to a substance is what is reasonably expected to be found therein. Only by a strained construction of the term can a shell be considered natural to ice cream. The foreign-natural test is too often applied at a preliminary stage of production and with reference to a single ingredient rather than to the final consumer product. By moving the focus of the test to the consumable item the foreign-natural distinction as measured by the consumer's reasonable expectations becomes a valid and relevant standard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619708/ | 13 So. 3d 83 (2009)
Sam Jerome WILSON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-888.
District Court of Appeal of Florida, Second District.
May 20, 2009.
*84 SILBERMAN, Judge.
Sam Jerome Wilson appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because Wilson's motion was facially insufficient and because he may be able to correct the deficiency, we reverse the order denying his motion and remand for entry of an order striking the motion, thereby affording him an opportunity to amend it if he is able to do so.
Wilson entered a no contest plea to charges of sale and possession of cocaine. In his sworn motion for postconviction relief, he alleged that his trial counsel was ineffective for failing to file a motion to compel disclosure of the identity of the confidential informant (CI). Wilson claimed that he did not sell cocaine to anyone, that he was not present during the drug transaction, and that the CI would have assisted in establishing a misidentification defense. He stated that he entered his no contest plea after counsel told him that there were no legal grounds to file the motion and that if he lost at trial rather than accepting the State's plea offer of 34.5 months in prison, he would be sentenced to 30 years' imprisonment.
The postconviction court concluded that Wilson's claim was too speculative because Wilson did not purport to know the identity of the CI or the substance of the CI's testimony. The court observed that Wilson was speculating that the CI possessed favorable testimony that would have prompted Wilson to proceed to trial with a misidentification defense rather than entering his plea.
Florida Rule of Criminal Procedure 3.220(g)(2) provides that "[d]islosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant's identity will infringe the constitutional rights of the defendant." In Miller v.State, 729 So. 2d 417, 419 (Fla. 4th DCA 1999) (citations omitted), the Fourth District stated as follows:
Disclosure of a confidential informant is required if an informant's identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant's testimony is material and helpful. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.
If the defendant meets his "initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense." State v. Roberts, 686 So. 2d 722, 723 (Fla. 2d DCA 1997). Sworn allegations supporting a misidentification defense for which the CI's testimony would be helpful are sufficient to make the initial showing requiring production of the CI for an in camera hearing. Miller, 729 So.2d at 420; Roberts, 686 So.2d at 722-23; see also McCray v. State, 730 So. 2d 817, 817 (Fla. 2d DCA 1999) (involving a sworn motion that alleged the CI knew the defendant, the CI was present when the crime occurred, the undercover officer misidentified the defendant as the perpetrator of the crime, the CI's testimony was essential to a misidentification defense, and the defendant was not involved in the crime).
In his sworn motion for postconviction relief, Wilson alleged a colorable misidentification defense, stating that he did not sell cocaine to anyone and that he was not *85 present during the underlying transaction. See Miller, 729 So.2d at 418-20. Further, he alleged that the CI's testimony would be helpful to establish that he was not present during the drug transaction. However, Wilson did not allege, and our record does not reveal, whether the CI was present at the time of the drug transaction, what role the CI played in the transaction, or how the CI's testimony would help establish that Wilson was not involved in or present at the transaction.
Our limited record does not establish that Wilson would be unable to allege a facially sufficient claim for postconviction relief. Wilson may be able to allege the CI's involvement in the drug transaction and how that involvement would assist Wilson in establishing a misidentification defense. If Wilson makes such allegations, the postconviction court could then determine whether trial counsel's failure to move for disclosure of the CI's identity was deficient performance and whether Wilson was prejudiced by any such deficient performance.
Because the motion was facially insufficient and because Wilson may be able to amend the motion to state a facially sufficient claim, the postconviction court should have stricken the motion, thereby allowing Wilson an opportunity to amend it. See Spera v. State, 971 So. 2d 754, 761 (Fla.2007). We note that the two-year time period in which Wilson may file a proper motion for postconviction relief has not yet expired. See Fla. R.Crim. P. 3.850(b). Thus, if Wilson timely files an amended motion correcting the deficiencies, it shall not be treated as successive under rule 3.850(f) unless the postconviction court finds that Wilson's conduct constitutes an abuse of procedure as described in that rule.[1] Accordingly, we reverse the order denying Wilson's motion and remand for entry of an order striking the motion.
Reversed and remanded.
FULMER and WHATLEY, JJ., Concur.
NOTES
[1] Wilson states in his motion that he previously filed a rule 3.850 motion but that "it was returned" and "was facially insufficient." Wilson does not refer to any order that was entered as to that motion, and the postconviction court made no reference to any prior filing by Wilson. Our record does not reflect what was contained in that earlier motion, and it is unclear whether that motion was actually accepted for filing or was returned without being filed. Further, it is unclear whether Wilson has actually been afforded an opportunity to correct the deficiencies discussed in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920221/ | 91 B.R. 97 (1988)
In re Patricia L. OBERST, etc., Debtor.
Kieran James OBERST, Plaintiff,
v.
Patricia L. OBERST, etc., et al., Defendants.
Bankruptcy No. LA 86-22788-GM.
United States Bankruptcy Court, C.D. California.
September 29, 1988.
*98 Michael Leight, Seal Beach, Cal., for plaintiff Kieran Oberst.
Elliott Gayer, Costa Mesa, Cal., for defendant Patricia Oberst.
MEMORANDUM OF OPINION
GERALDINE MUND, Bankruptcy Judge.
On November 26, 1986, Patricia Oberst, former spouse of Kieran Oberst, transferred by grant deed a one-half interest in her home to George Templin, III, simultaneously executed a new deed of trust to Home Savings of America for the sum of $82,000, and executed a second deed of trust to James Dunk for $7,000. By the refinance with Home Savings and the new second deed of trust, Ms. Oberst effectively removed all of the non-exempt equity of her home. During the next six days she spent all of the proceeds of the two loans (approximately $14,000) and on December 3, 1986, she filed this bankruptcy petition.
Kieran Oberst filed a complaint to declare that the transfer to Templin was a fraudulent transfer, and to deny Patricia Oberst a discharge for removing assets of the estate in contemplation of bankruptcy and with intent to hinder, delay or defraud her creditors, and also to deny discharge on grounds that she did not disclose these transfers in her bankruptcy schedules and statement of affairs.
The Court heard testimony and reviewed the evidence and ruled that the transfer to George Templin was for purposes of obtaining the refinance of the house and not with any intent to transfer an actual interest to him. This was known to Home Savings and was not relied upon by them. The property is property of the estate and, in fact, Templin had executed a quitclaim deed to debtor (which had not been recorded so as to prevent triggering of a due-on-transfer clause). The Court ruled that title to this property was in the debtor and in the debtor's estate.
As to the transfer to James Dunk, the Court found that there was adequate consideration for that transfer and that the transfer could not be set aside.
As to the allegation that the debtor swore a false oath in failing to reveal her transfers in her statement of affairs, the Court ruled in favor of the debtor. Although the debtor did not reveal these transfers in paragraph 14 of the statement of affairs, the grant deed to Templin was not a "transfer" or a gift and did not really fit the category as described in paragraph 14. The deed of trust to Dunk was revealed in schedule A of the bankruptcy petition and the failure to place it in paragraph 14b of the statement of affairs does not appear to have been done with intent.
The Court submitted the matter on the issue of whether discharge should be denied for the actions of November 26, 1986 when Ms. Oberst refinanced the property, took a second deed of trust, and then spent the proceeds before filing bankruptcy. The facts that the Court found on this are as follows:
Kieran Oberst had obtained a judgment of dissolution against the debtor in 1984. The order of dissolution required Ms. Oberst to pay her husband the sum of $16,833.34 as her half of the community indebtedness on a fishing boat. She did not pay this and on September 9, 1986, Kieran Oberst filed a motion for issuance of a writ of execution. The hearing was scheduled for October 22, 1986, at which time Ms. Oberst requested a continuance so that she could seek legal counsel. The *99 continuance was granted and it is this request for a writ of execution that triggered the refinance and then the bankruptcy.
Had the writ of execution been granted, there was sufficient non-exempt equity in the house to pay the entire judgment against her. It is this equity that she removed just prior to the bankruptcy. She then transferred some of the equity into preferential payments (such as payment of prior legal fees). She also transferred much of the money into exempt items (i.e., an IRA, household goods and furnishings, and a florist's refrigerator and supplies). The rest was used to pay minor bills, for gifts to the couple's daughter, and to prepay various types of insurance.
As soon as the money was spent, she filed this bankruptcy petition.
Had the money been secreted or the property been transferred for less than fair consideration, the law is clear that discharge should be denied. But this case is somewhat unusual because the money was openly spent for apparently proper purposes and the issue here is whether the fact that she reacted to the possible creation of a lien by her ex-husband is sufficient to meet the requirements of Section 727(a)(2).
The Court has looked for guidance in this grey area between "bankruptcy planning" and "intent to hinder, delay or defraud a creditor." The recent opinion of In re Marvin Jerry Fine, 89 B.R. 167 (Bankr. Kansas 1988), deals with the tension between the Congressional intent that a prospective debtor take full advantage of his exemptions by converting non-exempt property into exempt property before bankruptcy (H.R.Rep. No. 595, 95th Cong., 1st Sess. 361 (1977); S.Rep. No. 989, 95th Cong., 2nd Sess. 76 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5861, 6316), and the requirement that the transfer cannot be with the intent to hinder, delay or defraud a creditor.
In analyzing the current state of the law, the court noted the following:
"To determine whether the debtor converted non-exempt assets to exempt assets with the intent to hinder, delay, or defraud a creditor, courts rely on so-called `badges' or `indicia' of fraud, such as: (1) the objecting creditor had a `special equity' in the non-exempt property which is converted into exempt property; (2) the debtor and the transferee enjoyed a family, friendship, or close associate relationship; (3) the debtor retained the possession, benefit, or use of the property in question; (4) the debtor engaged in a sharp pattern of dealing immediately before bankruptcy; (5) the debtor became insolvent as a result of the transfers (financial condition); (6) the conversion occurred after the entry of a large judgment against the debtor; (7) the debtor received inadequate consideration. See Collier on Bankruptcy, supra. While not every circumstance need be shown, there must be sufficient indicia to rise to the level of clear and convincing evidence that the debtor intended to hinder, delay, or defraud creditors."
In re Fine, at 174.
In many cases there is an actual creditor who is about to force payment of an obligation and then the transfer of assets takes place. When this happens, the courts have usually denied discharge. See for example, In re Marcus, 45 B.R. 338 (Bankr. S.D.N.Y.1984); In re Ford, 773 F.2d 52 (4th Cir.1985) In re Schmit, 71 B.R. 587 (Bankr.Minn.1987).
The decision in In re Johnson, 80 B.R. 953 (Bankr.Minn.1987) is the exception to the rule. In that case the debtor had substantial income. Due to some business debts he was the defendant in various collection cases and judgments had been entered against him in several of these matters. Judgment debtor examinations were proceeding at the time that he transferred non-exempt assets into exempt assets (all for fair consideration) and then filed bankruptcy. The Court found that § 727(a)(2) serves "a punitive function, by denying discharge to debtors who have committed serious wrongdoing. . . . The most the record shows is that the Debtor engaged in a conscious, directed effort to maximize the benefit of statutory exemptions available to him, without engaging in any fraud. . . . *100 Intent of a character so malign as to merit the harshest sanction in bankruptcy should not be attributed to a debtor who does this, and nothing more." Ibid at 960-1.
The Court in the Johnson case agonized because of the tension between the right of the debtor to participate in estate planning and the requirement that he not do so with the intent to hinder, delay or defraud a creditor. The court resolved it by requiring the plaintiff to prove almost a criminal level of wrongdoing and a malign intent. Unfortunately, this was not the requirement established by Congress and for that reason this Court believes that there is a lower level of proof; only the requirement of clear and convincing evidence that the debtor intended to remove the asset from the grasp of her creditor.[1]
In this case the intent of the debtor to remove the asset from the possible execution by the ex-husband is clear. She delayed the state court proceeding and then took almost every cent of non-exempt equity out of the house. She made preferential transfers with the money, pre-paid items for her future benefit, and created as many exemptions as she could with the monies available. Then she filed bankruptcy and now seeks a discharge so that she will no longer have to pay the state court judgment.
The most similar set of circumstances reported by an appellate court is that of In the Matter of Reed, 700 F.2d 986 (5th Cir. 1983). There the debtor liquidated non-exempt assets and used the proceeds to reduce the mortgages and thereby create a better homestead exemption. This was done during the two weeks prior to bankruptcy and was during a period of agreed-upon delay with his principal creditor. Reed had requested a moratorium from his creditor and it was during that hiatus period that the liquidation and ultimately the bankruptcy took place. It was a combination of the delay and the liquidation, followed immediately by bankruptcy, that the court found to show that there was an intent to hinder, delay, or defraud a creditor. After looking at the legislative history of § 727(a)(2), the court went on to state the following:
"In this respect, 11 U.S.C. § 727(a)(2) is absolute: the discharge shall be denied a debtor who has transferred property with intent to defraud his creditors. The legislative history of the exemption section, as noted above, does not mean that conversion is never fraudulent as to creditors, but simply that, as under prior law, mere conversion is not to be considered fraudulent unless other evidence proves actual intent to defraud creditors. While pre-bankruptcy conversion of nonexempt into exempt assets is frequently motivated by the intent to put those assets beyond the control of creditors, which is, after all, the function of an exemption, evidence of actual intent to defraud creditors is required to support a finding sufficient to deny a discharge." In the Matter of Reed, supra, at 991.
The Reed Court particularly found that the intent to defraud was inferred by the fact that the debtor had arranged with his creditors to be free of payment of obligations until the following year and then rapidly converted non-exempt assets into exempt ones by reducing the mortgages on his home. His fraudulent intention was further confirmed by the fact that he diverted the daily business receipts into an unknown account and then used those receipts to repay a loan that had permitted him to convert from non-exempt to exempt. The Court therefore denied discharge.
While this Court is sympathetic to the emotions created by a dissolved marriage, it cannot condone what is essentially an act of fraud and spite. The behavior by Ms. Oberst was an attempt to drain her estate of assets, create preferences around the obligation to her ex-spouse, and protect her future while delaying him in his acts of collection. This cannot be condoned.
*101 This Court cannot agree with the holding of the Johnson case for such a holding negates the statute. While the Court finds it very difficult to locate the exact line between bankruptcy planning and hindering creditors, Congress has decided that the key is the intent of the debtor. If the debtor has a particular creditor or series of creditors in mind and is trying to remove his assets from their reach, this would be grounds to deny the discharge. If the debtor is merely looking to his future wellbeing, the discharge will be granted. This is an uncomfortable test and does not seem equitable; but it is the law.
In the Ninth Circuit the case of In re Adeeb, 787 F.2d 1339 (9th Cir.1986) indicates that the intent can be vitiated by reliance on advice of counsel, complete disclosure, and then reversing the transfers so that the creditors can recover substantially all of the transferred property. There is no showing in the case before this Court that Ms. Oberst relied on the advice of counsel in setting up these transfers, nor that she replaced the money at the disposal of her creditors.
Because of the foregoing, this Court finds that the debtor withdrew virtually all of the non-exempt equity from her home for the purpose of hindering her ex-spouse from collecting on the judgment that he was seeking from the Superior Court. Therefore, she is denied discharge pursuant to 11 U.S.C. § 727(a)(2).
This Memorandum of Opinion together with the Findings made orally at trial constitutes the Findings of Fact and Conclusions of Law.
JUDGMENT DENYING DISCHARGE
The Complaint of Kieran Oberst to deny Patricia Oberst a discharge for removing assets of the estate in contemplation of bankruptcy and with intent to hinder, delay and defraud her creditors, to declare that the transfer of assets to George Templin, III was a fraudulent transfer, and to deny the discharge of Patricia Oberst on grounds that she did not disclose these transfers in her bankruptcy schedules and statement of affairs came on for trial on May 12, 1988, at 1:30 P.M. in Courtroom "G" of the above entitled Court, the Honorable Geraldine Mund presiding. The Court heard the evidence and ruled on the record concerning the transfer to George Templin and the disclosure of the transfers in the bankruptcy schedules. However, the Court submitted the matter concerning the denial of discharge for removing assets of the estate with intent to hinder, delay or defraud a creditor. Simultaneously herewith the Court files its Memorandum of Opinion which, with the findings previously made on the record, constitutes findings of fact and conclusions of law on this matter.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS;
1. As to the claim that the transfer to George Templin, III was a fraudulent transfer, judgment is granted to the defendant on the grounds that the transfer was for purposes of obtaining the refinance of the house and not with any intent to transfer an actual interest to George Templin, III. Title to this property is in the debtor and in the debtor estate.
2. As to the transfer to James Dunk, adequate consideration exists for that transfer and that transfer cannot be set aside.
3. As to the claim that the debtor swore a false oath in failing to reveal these transfers in her statement of affairs, judgment is granted to the debtor.
4. As to the claim that the debtor should be denied discharge for removing assets of the estate in contemplation of bankruptcy and with the intent to hinder, delay or defraud a creditor, judgment is granted to the plaintiff and the debtor is hereby denied discharge pursuant to 11 U.S.C. § 727(a)(2).
NOTES
[1] There is no dispositive case in the Ninth Circuit on the level of proof. However, there is a determination that the discharge statute is to be construed liberally in favor of debtor. In re Devers (9th Cir.1985), 759 F.2d 751. This requires more than a mere preponderance on the evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920079/ | 245 Pa. Superior Ct. 134 (1976)
369 A.2d 329
COMMONWEALTH of Pennsylvania
v.
Joseph BROWN, Appellant.
Superior Court of Pennsylvania.
Submitted June 16, 1976.
Decided November 22, 1976.
Menno B. Rohrer, Lancaster, for appellant.
Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.
*135 Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge:
This appeal challenges the use of the allegedly uncorroborated testimony of a robbery suspect to convict the appellant-defendant, Joseph Brown, of hindering apprehension or prosecution in violation of the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5105.[1]
At appellant's non-jury trial, one Louella MacNeil testified that she and appellant had planned the robbery of a store and on February 4, 1975, she carried out the robbery armed with a knife she had taken from appellant's home. Fleeing the scene, she returned directly to appellant's house where she and appellant sat down to count the proceeds of the job. When the police arrived at the house, MacNeil fled upstairs and followed appellant's instructions to change her clothes while appellant took steps to hide the money. Two other witnesses for the Commonwealth also testified to some of these events and further indicated that the police were refused consent to search initially, but eventually appellant permitted their search. Appellant demurred to the evidence and was convicted of hindering apprehension or prosecution.
Appellant argues only that the evidence is not sufficient to support the conviction because there is no proof that a crime was committed independent of the testimony of Louella MacNeil. This testimony cannot support the *136 corpus delicti, it is contended, because MacNeil was appellant's accomplice in the robbery and the uncorroborated testimony of an accomplice is not sufficient to establish the corpus delicti of the underlying offense. Appellant's argument is not convincing, however, because we have determined that the perpetrator of the robbery was not appellant's accomplice in the crime of hindering apprehension with which he was charged.
"An accomplice is one who `could be indicted and punished for the crime with which the accused is charged.' Commonwealth v. Hopkins, 165 Pa.Super. 561, 564, 69 A.2d 428, 430 (1949)." Commonwealth v. Staudenmayer, 230 Pa.Super. 521, 525, 326 A.2d 421, 423-24 (1974). Under the new Crimes Code a person is expressly not an accomplice when "the offense is so defined that his conduct is inevitably incident to its commission" unless otherwise provided by the Crimes Code or the law defining the offense. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 306(f)(2).[2] In the present case the existence or participation of an individual suspected of criminal conduct is clearly a necessary component of the accused's offense of hindering the apprehension of another for crime. Because Section 5105 makes no provision for finding those inevitably involved in the accused's conduct culpable as accomplices, they fall within *137 the exception stated in Section 306(f) (2) and cannot be considered accomplices.
We must conclude, therefore, that Louella MacNeil was not an accomplice in the offense of hindering her own apprehension. Consequently, no basis has been advanced to us on which we might require corroboration of her testimony or a cautionary instruction. Commonwealth v. Whyatt, 235 Pa.Super. 211, 340 A.2d 871 (1975); Commonwealth v. Staudenmayer, supra.
Judgment of sentence affirmed.
SPAETH, J., files a concurring opinion in which HOFFMAN, J., joins.
SPAETH, Judge, concurring:
The charge is that appellant hindered the apprehension of a robber. The Commonwealth proved that there was a robbery by the robber's own testimony. The robber and appellant were accomplices, for they planned the robbery together, and agreed that the robber should use appellant's home as her base of operations.
Appellant argues for a rule that a defendant may not be convicted when the only evidence of the corpus delicti is uncorroborated testimony of an accomplice. The majority seems to accept at least the possibility of such a rule, for its opinion responds to appellant's argument by saying that the rule does not apply here "because. . . the perpetrator of the robbery was not appellant's accomplice in the crime of hindering apprehension with which he was charged." Majority opinion at 330.
Regarding the case (for the sake of discussion) as does the majority, I cannot accept the majority's reasoning. In order to make out its case the Commonwealth had to prove that appellant intended "to hinder the apprehension, prosecution, conviction or punishment of another for crime . . . ." Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5105. The "crime" was the *138 robbery. Thus, when the Commonwealth proved the robbery by the testimony of the robber, it proved an essential element of the charge against appellant by the testimony of an accomplice. It seems odd to say that if appellant had been charged with robbery, the robber would have been an accomplice, but because appellant is charged with a crime arising from and dependent upon the robbery, the robber is not an accomplice. So far as concerns considerations of whether criminal responsibility should be imposed, the two cases are the same. I therefore see no reason to apply one rule to one case, and another rule to the other case.
I nevertheless agree with the majority's result. As appellant concedes, there is no general rule in Pennsylvania that forbids a jury to convict solely on the uncorroborated testimony of an accomplice. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972); Commonwealth v. Bruno, 316 Pa. 394, 175 A. 518 (1934); Commonwealth v. Didio, 212 Pa.Super. 51, 239 A.2d 883 (1968). I see no reason (nor does appellant suggest any) for a special rule as to the proof of the corpus delicti. We have before, in dictum, rejected appellant's contention: "Proof of the corpus delicti in [this] case. . . does not rest wholly on the testimony of an accomplice. And it would be no objection if it did. The testimony of an accomplice may relate to any of the facts in issue including corpus delicti." Commonwealth v. Brown, 158 Pa.Super. 226, 227, 44 A.2d 524, 525 (1945). Here, we need only convert this dictum to a holding. Thereby we should avoid becoming entangled in the implication of the majority's opinion, that proof of the corpus delicti may not rest wholly on the testimony of an accomplice.
HOFFMAN, J., joins in this opinion.
NOTES
[1] The offense is defined as follows: "A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he: (1) harbors or conceals the other; . . . (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence; (4) warns the other of impending discovery or apprehension, except that this clause does not apply to a warning given in connection with an effort to bring another into compliance with law . . . ." Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5105.
[2] For an analysis for the reason for this exception to the general rule of culpability of accomplices, see the Model Penal Code § 2.04(5), Comment (Tent.Draft No. 1, 1953), which explains that rather than create a systematic legislative resolution to what must necessarily be many diverse fact situations, the legislature can rule in each instance whether participation in a crime involving by definition interaction with one or more others is to be criminally punished. The drafters of the Model Penal Code noted that there are "situations where conflicting policies and strategies, or both, are involved in determining whether the normal principles of accessorial accountability ought to apply. One factor that has weighed with some state courts is that affirming liability makes applicable the requirement that testimony be corroborated; the consequence may be to diminish rather than enhance the law's effectiveness by making any convictions unduly difficult." (Footnote omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/584305/ | 966 F.2d 555
UNITED STATES of America, Plaintiff-Appellee,v.Henry WILLIAMS, Jr., Defendant-Appellant.
No. 91-1371.
United States Court of Appeals,Tenth Circuit.
June 1, 1992.
Michael J. Norton, U.S. Atty., and Gregory C. Graf, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.
Michael G. Katz, Federal Public Defender, and Mark J. Rosenblum, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.
Before MOORE, TACHA, and BRORBY, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
1
Defendant Henry Williams, Jr., was a military pay account technician in the Defense Finance Accounting Service-Denver Center, Lowry AFB, Colorado. On August 22, 1990, Mr. Williams fraudulently manipulated the automated pay system at Lowry AFB, causing a check to be issued in the amount of $1,704.12 to his friend, Jimmy Mahomes. Defendant entered a leave cancellation into Mr. Mahomes' master military pay account to give the appearance that Mr. Mahomes was entitled to the payment.
2
On November 23, 1990, and February 15, 1991, the defendant again manipulated the automated pay system and issued checks to Mr. Mahomes in the amount of $4,627.94. While using the computer to issue the November 23rd check, Mr. Williams used the initials "M.L." next to the transaction in Mr. Mahomes' master military pay account. The initials "M.L." belong to Mitch Logan, a separations pay clerk at Lowry AFB.
3
Because the November 23, 1990, and February 15, 1991, checks were issued without any justifying paperwork, a negative balance was showing in Mr. Mahomes' master military pay account. Therefore, on March 1, 1991, Mr. Williams entered a debt cancelation on this account.
4
An audit conducted on Mr. Mahomes' account resulted in an Air Force OSI investigation of the defendant. Mr. Williams subsequently pled guilty to embezzlement of public money and was sentenced to four months' imprisonment, followed by eight months' supervised release. He contends the district court erred by increasing his offense level based on abuse of trust and on more than minimal planning, as defined in the United States Sentencing Guidelines. We affirm.
I.
5
Section 3B1.3 of the Guidelines mandates a two-level upward adjustment of a defendant's base level "[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense." The Guidelines do not define "position of trust," but the commentary to § 3B1.3 provides some guidance on applying the enhancement:
6
The position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity which could as easily have been afforded to other persons. This adjustment, for example, would not apply to an embezzlement by an ordinary bank teller.
7
U.S.S.G. § 3B1.3, comment. (n. 1). Abuse of a position of trust is "a sophisticated factual determination that will be affirmed unless clearly erroneous." United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 788, 112 L.Ed.2d 851 (1991). Accord United States v. Helton, 953 F.2d 867, 869 (4th Cir.1992).
8
In determining whether a defendant was in a "position of trust" courts have considered a number of factors. These include: the extent to which the position provides the freedom to commit a difficult-to-detect wrong, and whether an abuse could be simply or readily noticed;1 defendant's duties as compared to those of other employees;2 defendant's level of specialized knowledge;3 defendant's level of authority in the position;4 and the level of public trust.5
9
Mr. Williams contends that his embezzlement as a military pay account technician is no different from embezzlement by an ordinary bank teller and that the opportunity his position provided him to commit the crime could as easily have been taken advantage of by other employees. We believe, however, there are significant differences between Mr. Williams' situation and that of an ordinary bank teller.
10
The Finance Center is a restricted access area which requires employees to possess a "line badge" and pass through a secured entryway. The Center is broken up into many different limited access function areas to prevent fraud and embezzlement. In Mr. Williams' section, the functions were divided into two groups. The line technicians can access individual accounts and make inputs to those accounts. Before any payment is issued, the changes must be approved by an auditor and then sent to the payment section. The payment section then issues the check.
11
As an auditor, Mr. Williams had greater authority and greater access to the master military pay accounts than line technicians. Because of his expertise, special training, and the trust placed in him by his supervisors, defendant was given access to both the line and payment sections so that he could act as a liaison and troubleshooter between the two. Defendant's unique position allowed him to circumvent the Center's checks and balances. It is clear that defendant occupied a position of trust within the Center and that he used this position both to facilitate commission of the crime and to conceal it. Therefore, the trial court has not clearly erred.
II.
12
Section 2B1.1(5) of the Guidelines mandates a two-level upward adjustment of a defendant's base level when the offense involved more than minimal planning. "More than minimal planning" is defined in the Guidelines as
13
more planning than is typical for commission of the offense in a simple form. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense, ...
14
"More than minimal planning" is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.
15
....
16
In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries.
17
U.S.S.G. § 1B1.1, comment. (n. 1(f)). The trial court's finding of the amount of planning involved in an offense is essentially a factual determination which will not be disturbed on appeal absent a showing that it is clearly erroneous. United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990); United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991).
18
Mr. Williams contends that because his embezzlements were accomplished in an extremely simple manner, the trial court erred in applying the enhancement. He claims each embezzlement only took seconds to complete, and there was no need to engage in elaborate planning prior to commission of the offense. Further, he argues that use of the initials "M.L." on one occasion does not constitute the taking of significant steps to conceal the offense. Finally, he asserts each instance of the crime was purely opportune.
19
We reject Mr. Williams' contentions. To complete these embezzlements, Mr. Williams was required to access and make computer entries on Mr. Mahomes' master military pay account in the separation sections of the Finance Center. Next, using a second access code, he had to access a second computer in the payroll area to cause the checks to be issued. Last, he needed to complete several items of paperwork for each transaction.
20
Additionally, more than minimal planning is deemed present in any case involving repeated acts over a period of time. The embezzlements at issue transpired over a period of six months and involved numerous computer entries. Finally, Mr. Williams' use of Mitch Logan's initials and use of his various positions within the center to conceal his activities were significant steps taken to conceal the embezzlements. Under these facts, the trial court's finding of more than minimal planning is not clearly erroneous.
21
AFFIRMED.
1
See, e.g., United States v. Hill, 915 F.2d 502, 506-07 (9th Cir.1990); United States v. Helton, 953 F.2d 867, 869-70 (4th Cir.1992), United States v. Castagnet, 936 F.2d 57, 62 (2d Cir.1991); United States v. Drabeck, 905 F.2d 1304, 1305 (9th Cir.1990), aff'd, 946 F.2d 629 (9th Cir.1991)
2
See, e.g., United States v. Lange, 918 F.2d 707, 709-10 (8th Cir.1990); United States v. Parker, 903 F.2d 91, 104 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990)
3
See, e.g., United States v. Milligan, 958 F.2d 345, 346 (11th Cir.1992); United States v. Ehrlich, 902 F.2d 327, 331 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 788, 112 L.Ed.2d 851 (1991)
4
See, e.g., United States v. Georgiadis, 933 F.2d 1219, 1227 (3d Cir.1991); United States v. McMillen, 917 F.2d 773, 774-75 (3d Cir.1990); United States v. McElroy, 910 F.2d 1016, 1027-28 (2d Cir.1990); United States v. Ehrlich, 902 F.2d at 331; United States v. Zamarripa, 905 F.2d 337, 340 (10th Cir.1990)
5
See, e.g., United States v. Rehal, 940 F.2d 1, 5 (1st Cir.1991); United States v. Brown, 941 F.2d 1300, 1304 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); United States v. Pascucci, 943 F.2d 1032, 1037 (9th Cir.1991); United States v. Foreman, 926 F.2d 792, 795 (9th Cir.1990) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1920148/ | 921 So. 2d 51 (2006)
Claddie SAVAGE d/b/a Piney Woods Game Club and Ark-La-Tex Game Club, Inc.
v.
Steve PRATOR, Sheriff of Caddo Parish and the Caddo Parish Commission.
No. 2004-C-2904.
Supreme Court of Louisiana.
January 19, 2006.
Rehearing Denied March 10, 2006.
Charles Carr Grubb, Parish Attorney, Alex James Washington, Jr., Assistant Parish Attorney, for applicant.
Lunn, Irion, Salley, Carlisle & Gardner, Charles W. Salley, Richard B. King, Jr., Shreveport; Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Edwin Henry Byrd, III, Shreveport, for respondent.
Jonathan R. Lovvorn, Don A. Rouzan, Mary Ellen Roy, New Orleans, for amicus curiae Humane Society of the United States.
JOHNSON, J.
This matter is before the Court on the issue of whether a Caddo Parish animal cruelty ordinance, which extends its protections to "fowl," contradicts the State animal cruelty statute, LA.REV.STAT. § 14:102.1, which exempts "fowl" from its applicable provisions. The trial court granted Plaintiffs' petition for a preliminary *52 injunction, finding that Caddo Parish Ordinance No. 2432, Section 4-14, conflicted with LA.REV.STAT. § 14:102.1, and thus, the ordinance improperly infringed upon the State's inherent police powers. The trial court made no ruling regarding the Plaintiffs' requests for a declaratory judgment and for a permanent injunction, but rather, those requests were deferred until a trial on the merits. The court of appeal affirmed the trial court's ruling. For the reasons that follow, we reverse the rulings of the lower courts, we vacate the preliminary injunction, and we remand the case to the trial court for further proceedings not inconsistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Plaintiffs, Claddie Savage, d/b/a Piney Woods Game Club, and Ark-La-Tex Game Club, Inc. (hereinafter referred to as "Savage" and "Ark-La-Tex" respectively) filed a Petition for Declaratory Judgment and Injunctive Relief on January 12, 2004, after being informed by the Caddo Sheriff's Office that a pre-existing Parish ordinance prohibiting cockfighting would be enforced. The Caddo Parish Commission enacted Ordinance No. 2432, codified as Section 4-14, "Cruelty to Animals Prohibited," in 1987. Savage testified at the preliminary injunction hearing that he purchased Piney Woods Game Club in September 2003; however, Savage stated that cockfighting tournaments had been held on the property since approximately 1990. Allen Nix, president of the Ark-La-Tex Game Club, Inc., testified that Ark-La-Tex Game Club had been conducting similar tournaments (or "farm meets," which were described as "fights between the fowls") since 1997. Ark-La-Tex Game Club, Inc. usually conducted sixteen (16) meets between November and June/July.[1] At issue is Section 4-14(b), which provides:
No person shall beat, cruelly ill-treat, torment, overload, abandon, overwork or otherwise abuse an animal, or cause, instigate or permit any dog fight, bullfight, or other combat between animal or between animals and humans.
Under the definitions applicable to Ordinance No. 2432, the Parish defined "fowl" as an animal:
Animal shall mean any living vertebrate creature except human beings, including but not limited to mammals, birds, fowl, reptiles and fish....
Plaintiffs sought a judgment declaring Caddo Parish Ordinance No. 2432 "to be unconstitutional and as such unenforceable." In addition, Plaintiffs requested that the trial court issue a preliminary injunction enjoining Defendants "from any further threatened or actual enforcement of Caddo Parish Ordinance No. 2432." The trial court set a hearing on the Plaintiffs' request for preliminary injunction for February 2, 2004.
At the hearing for preliminary injunction, Plaintiffs alleged that Caddo Parish Ordinance No. 2432 is in contravention of the general law of Louisiana and that the ordinance is violative of the police power reserved to the State. LA.REV.STAT. § 14:102.1 is the state statute which criminalizes misdemeanor and felony cruelty to animals. LA.REV.STAT. § 14:102.1 provides:
*53 § 102.1. Cruelty to animals; simple and aggravated
A. (1) Any person who intentionally or with criminal negligence commits any of the following shall be guilty of simple cruelty to animals:
(a) Overdrives, overloads, drives when overloaded, or overworks a living animal.
(b) Torments, cruelly beats, or unjustifiably injures any living animal, whether belonging to himself or another.
(c) Having charge, custody, or possession of any animal, either as owner or otherwise, unjustifiably fails to provide it with proper food, proper drink, proper shelter, or proper veterinary care.
(d) Abandons any animal. A person shall not be considered to have abandoned an animal if he delivers to an animal control center an animal which he found running at large.
(e) Impounds or confines or causes to be impounded or confined in a pound or other place, a living animal and fails to supply it during such confinement with proper food, proper drink, and proper shelter.
(f) Carries, or causes to be carried, a living animal in or upon a vehicle or otherwise, in a cruel or inhumane manner.
(g) Unjustifiably administers any poisonous or noxious drug or substance to any domestic animal or unjustifiably exposes any such drug or substance, with intent that the same shall be taken or swallowed by any domestic animal.
(h) Injures any animal belonging to another person without legal privilege or consent of the owner.
(i) Mistreats any living animal by any act or omission whereby unnecessary or unjustifiable physical pain, suffering, or death is caused to or permitted upon the animal.
(j) Causes or procures to be done by any person any act enumerated in this Subsection.
D. For purposes of this Section, fowl shall not be defined as animals. Only the following birds shall be identified as animals for purposes of this Section:
(1) Order Psittaciformes-parrots, parakeets, lovebirds, macaws, cockatiels or cockatoos.
(2) Order Passeriformes-canaries, starlings, sparrows, flycatchers, mynah or myna.
Plaintiffs suggested that LA.REV.STAT. § 14:102.1(D) legislatively excluded "fowl" from the provisions of the statute, indicating the Legislature's implicit endorsement of cockfighting.
On February 3, 2004, the trial court issued a written ruling on the request for preliminary injunction, finding that Plaintiffs had made a prima facie showing that the Parish had usurped or improperly invaded the police power reserved to the State under the Louisiana Constitution. Plaintiffs' request for a declaratory judgment and for a permanent injunction were deferred until a trial on the merits. The trial court's final judgment was signed on March 1, 2004.
On March 11, 2004, Caddo Parish filed an appeal to the Second Circuit Court of Appeal. On October 6, 2004, after reviewing briefs and hearing oral argument, the appellate panel affirmed the trial court ruling. The appellate court held that the Parish ordinance conflicted with an act of the State Legislature, since the Parish ordinance declared illegal an activity that the State deemed to be legal. Savage v. Prator, 38,955 (La.App. 2 Cir. 10/6/04); 886 *54 So.2d 523, rehearing denied 10/29/04. However, in his dissent, Judge Stewart remarked:
The majority opinion concludes that Section 4-14 of the Caddo Parish Code of Ordinances conflicts with state law. However, in my view, there is no conflict between Section 4-14 and La. R.S. 14:102.1 which supports injunctive relief. I respectfully dissent from the majority opinion. Because cockfighting is not defined as a felony under state law, the parish ordinance is not prohibited by La. R.S. 14:143, which provides that "no governing authority of a political subdivision shall enact an ordinance defining as an offense conduct that is defined and punishable as a felony under state law." Moreover, La. R.S. 14:102.1 is silent as to cockfighting. The legislature simply chose not to define fowl as animals in the provision criminalizing cruelty to animals. State law neither expressly authorizes, prohibits, nor attempts to regulate cockfighting. In the absence of state law on the matter, the parish ordinance is not invalid on its face. It does not contravene state law.
Id. at 527 (Stewart, J., dissenting). Caddo Parish timely sought a writ of certiorari from this Court to review the appellate court's affirmation of the trial court ruling, and the writ was granted by this Court. Savage v. Prator, 04-2904 (La.2/18/05); 896 So. 2d 13.
DISCUSSION
A. HOME RULE CHARTER AUTHORITY
"Article VI of the Louisiana Constitution of 1974 includes a complicated set of provisions governing the powers of `local governmental subdivision[s],' a term that covers both parishes and municipalities." Kenneth M. Murchison, Local Government Law, 64 LA. L.REV. 275, 279 (2004). LA. CONST. art. VI, § 5 allows any parish or municipality to adopt a home rule charter. The powers of home rule charter governments, established subsequent to the adoption of the 1974 Louisiana Constitution, are governed by LA. CONST. art. VI, § 5(E), which provides:
Structure and Organization; Powers; Functions. A home rule charter adopted under this Section shall provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution. (Emphasis added).
Caddo Parish is governed by a home rule charter which became effective January 9, 1984. Thus, Caddo Parish may exercise any power and/or perform any function granted by law. Kenneth M. Murchison, Local Government Law, 64 LA. L.REV. 275, 280 (2004). Notwithstanding the home rule charter government's broad authority to regulate local affairs not proscribed by general law, home rule charter authority is limited by LA. CONST. art. VI, § 9(B), which provides that "the police power of the state shall never be abridged."
1. Municipal Ordinances Invalid When In Contravention of General Law
Prior to the enactment of the 1974 Constitution, Louisiana courts did not hesitate to invalidate local ordinances containing any measure of conflict with the provisions of any general law enacted by the Legislature. For example, in National Food Stores of Louisiana, Inc. v. Cefalu, a grocery store sought injunctive relief to prevent the Town of Amite from enforcing its "Sunday closing ordinance." National *55 Food Stores of Louisiana, Inc. v. Cefalu, 280 So. 2d 903, 906 (La.1973). Although the state Sunday Closing Law contained an exemption for "public and private markets," the town ordinance contained no such exemption. Id. at 906. This Court found that "the exemption provided in the state statute indicates that the Legislature expressly considered application of the Sunday Closing Law to supermarkets, but found that this type of business should not come within the law's prohibitions." Id. at 908. Accordingly, the City's Sunday closing ordinance was held to be inconsistent with general state law and thereby invalid. Id.
In reaching its decision, this Court relied upon an analogous earlier case, City of Alexandria v. LaCombe, 220 La. 618, 57 So. 2d 206 (La.1953). In LaCombe, several defendants were arrested for violating the provisions of a City ordinance which prohibited all gambling "without reference as to how the same shall be conducted or operated." Id. at 207. The state criminal statute, however, prohibited only gambling conducted "as a business." Id. The Court found that the State intended to occupy the field on the issue of gambling, as the State had "in its latest enactment removed from a municipality the power which it had previously given to it to define gambling and itself passed a law specifically defining it." Id. at 210. The LaCombe court found that the Legislature, by prohibiting only gambling conducted "as a business," implicitly exempted recreational gambling from criminal enforcement. Id. at 209-10. Thus, although the City possessed concurrent jurisdiction to regulate gambling, its municipal authority was limited by the parameters of the State's definition of criminal conduct, as a municipality "has not the right to extend or enlarge upon the definition adopted by the Legislature." Id. at 209.
However, in cases decided subsequent to the enactment of the 1974 Louisiana Constitution, in recognition of a new philosophy of the state-local government relationship which struck a balance in favor of home rule, Louisiana courts have allowed home rule municipalities greater autonomy to regulate local affairs where the local ordinance is not in direct conflict with applicable state law. City of New Orleans v. Board of Commissioners of the Orleans Levee District, 93-0690 (La.7/5/94); 640 So. 2d 237, 252. In Restivo v. City of Shreveport, for example, the City's Plumbing and Gas Piping Code prohibited licensed journeyman plumbers from practicing plumbing unless qualified as a master plumber by the City or employed by a City-qualified master plumber. Restivo v. City of Shreveport, 566 So. 2d 669, 670 (La. App. 2 Cir.1990). The State, however, tested and licensed only journeyman plumbers and placed no limitations on a journeyman plumber's ability to work independently. Id. at 670.
The Restivo Court recognized the long-standing jurisprudence prohibiting a municipality from enacting ordinances inconsistent with or in contravention of state law. Id. at 671 (citations omitted). However, the Court found that a municipal ordinance which goes further in its prohibitions than a state statute is valid so long as it does not forbid what the Legislature has expressly or implicitly authorized. Id. (citing City of Shreveport v. Curry, 357 So. 2d 1078 (La.1978)); National Food Stores of Louisiana, Inc. v. Cefalu, 280 So. 2d 903 (La.1973). Under the facts present in Restivo, the Court found that:
[S]ince neither the Legislature nor the State Plumbing Board has provided for testing the qualifications of those persons desiring to progress to the status of a master plumber, it appears that the state has not preempted this area of *56 regulation and there is no conflict between the City Code and the state law in this respect.
Id.
More recently, in City of Baton Rouge v. Williams, this Court upheld a municipal ordinance which provided for a penalty greater than that imposed by the State. City of Baton Rouge v. Williams, 95-0308 (La.10/16/95); 661 So. 2d 445, 450. In that case, the defendant was issued a citation for disturbing the peace by fistic encounter, a misdemeanor violation of a Baton Rouge City ordinance. Id. at 447. Williams argued that the city ordinance, under which he was charged, was unconstitutional, as it imposed a penalty in excess of that imposed by the State for the same offense. Id. The city prosecutor argued that its home rule charter granted the City the authority to enact ordinances and provide for penalties not to exceed the maximum penalties allowed under state law for offenses falling within the jurisdiction of the city court. Id. This Court held that the ordinance was not in conflict with the general law of the State, as "there exists no statute which specifically places a ceiling on the penalty that a municipality may set for disturbing the peace." Id. at 449 (emphasis added). The Williams Court ultimately held that the ordinance was a proper exercise of the City's home rule charter authority, as the ordinance did not conflict with the general law of the State, did not abridge the State's police power, did not violate the equal protection clause, nor did it overstep the limits of the City's home rule charter. Id. at 452.
Turning to the instant matter, it is clear that the State Legislature has not enacted any general law which either explicitly or implicitly authorizes or provides criminal sanctions for fighting cocks and chickens. LA.REV.STAT. § 14:102.1 is silent with regard to cockfighting, as well as all other sports or amusements involving animals; therefore, the present case is distinguishable from National Food Stores of Louisiana, Inc. and LaCombe. In National Food Stores of Louisiana, Inc., grocery stores were explicitly exempt from criminal enforcement of the State's `Sunday Closing Law.' Here, there is no applicable state law which explicitly authorizes that cockfighting events may be staged, or specifically prohibits home rule charter municipalities from enacting ordinances which proscribe cockfighting events. Similarly, the state law applicable in LaCombe explicitly defined gambling, and thus, any activities not encompassed by the definition were implicitly exempt. Here, LA. REV.STAT. § 14:102.1 makes no mention of any sporting event involving animals as a form of cruelty for which a participant or promoter may be prosecuted; therefore, the failure to mention cockfighting does not rise to the level of implicit authorization of the activity.
The Legislature has simply chosen to exclude "fowl" as animals warranting protection under the applicable statute criminalizing cruelty to animals. Such silence cannot be construed to mean that cockfighting has thereby been authorized by the Legislature. The court of appeal erred in holding that LA.REV.STAT. § 14:102.1(D) was amended in response to a controversy surrounding cockfighting. Savage v. Prator, 38,955 (La.App. 2 Cir. 10/6/04); 886 So. 2d 523, 525, rehearing denied 10/29/04. The legislative history associated with the amendment reflects no such controversy.[2]
Further, although dogs are subject to the protection of LA.REV.STAT. § 14:102.1, *57 the Legislature enacted LA.REV.STAT. § 14:102.5, which prohibits dogfighting and all incidents thereof.[3] In addition, sporting events involving combat between one or more domestic or feral canines or hogs are prohibited by LA.REV. STAT. § 14:102.19, even though these animals are not exempt from the protection of LA.REV.STAT. § 14:102.1. If LA.REV.STAT. § 14:102.1 contemplated any form of animal combat, as Respondents submit, then statutes prohibiting dogfighting and dog-hog fighting would be superfluous. Conversely, while the Legislature has authorized and provided for the regulation of horse racing[4] and prohibited dog racing,[5] Louisiana Revised Statutes Title 4, governing "Amusements and Sports," is silent with regard to cockfighting. Thus, a local ordinance which prohibits cockfighting is not in conflict with any general state law authorizing the sport.
*58 This matter is closely analogous to the decisions reached in Restivo and Williams. In Restivo, the Second Circuit held that the Shreveport ordinance was not in conflict with applicable state law, as the State had not preempted the field by providing testing and licensing for master plumbers. Similarly, in Williams, this Court required the existence of a specific state law which placed a ceiling on the penalty that a municipality may set for the violation of a misdemeanor. Here, the State has passed no general law which may be interpreted as an attempt to preempt the field with regard to authorizing, prohibiting, or regulating cockfighting. Further, no specific state law prohibits cockfighting, or authorizes that cockfighting tournaments be permitted. Local governments therefore may authorize or prohibit the conduct of cockfighting tournaments within municipal boundaries.
CONCLUSION
For the foregoing reasons, we conclude that Caddo Parish Ordinance No. 2432, Section 4-14 prohibiting cockfighting does not offend a Louisiana constitutional or statutory provision. Louisiana has no law which authorizes, explicitly or implicitly, cockfighting, nor does the State have a law which prohibits a local government from establishing an ordinance regulating cockfighting. Accordingly, without any such prohibition or offense to Louisiana's Constitution or current and applicable statutes,[6] there is no unconstitutionality or illegality regarding the ordinance, and therefore, an absence of one of the three mandatory requirements necessary to support a preliminary injunction.[7] Accordingly, we reverse the rulings of the lower courts, vacate the preliminary injunction, and remand this case to the trial court for further proceedings not inconsistent with this opinion.
REVERSED; INJUNCTION VACATED; REMANDED TO DISTRICT COURT.
NOTES
[1] We note that forty-eight (48) states ban cockfighting, and thirty-one (31) states make cockfighting a felony offense. Motion for Leave to Appear as Amicus Curiae and to File Amicus Curiae Brief in Support of the Defendants-Applicants, Steve Prator, Sheriff of Caddo Parish and the Caddo Parish Commission at 1, Claddie Savage d/b/a Piney Woods Game Club and Ark-La-Tex Game Club, Inc. v. Steve Prator, Sheriff of Caddo Parish and the Caddo Parish Commission, No. 04-2904 (La.2/18/05); 896 So. 2d 13.
[2] In 1982, the Legislature revised former article LA. REV. STAT. § 14:102, reenacted as LA. REV.STAT. § 14:102.1 through LA.REV.STAT. § 14:102.5. During a committee meeting, Representative Bruneau discussed Senate Bill 180 and explained "that the bill provided with respect to the prohibition of cruelty to animals, defines cruelty and provides penalties. It also provided for seizure of cruelly treated animals and for search warrants and other methods of seeing that animals are properly treated. He further explained that Louisiana was known as a `dogfighting state'. Laws have been passed in many other states similar to Senate Bill 180." Louisiana State Senate, Committee on Administration of Criminal Justice, Verbatim Minutes of Meeting, June 24, 1982.
During a May 18, 1982 committee meeting, "Senator Ginn moved that fighting cocks and chickens be excluded from the penalties of Senate Bill No. 180, and the suggested amendment was adopted, without objection." No additional statements were made with regard to the exclusion or inclusion of fowl under the provisions of the statute. Louisiana State Senate, Committee on Judiciary, Section C, Verbatim Minutes of Meeting, May 18, 1982. The final version of Acts 1982, No. 431, which became LA.REV.STAT. § 14:102.1(C) stated, "This Section shall not apply to the lawful hunting or trapping of wildlife as provided by law, accepted veterinary practices and activities carried on for scientific or medical research governed by accepted standards. For purposes of this Section, fowl shall not be defined as animals."
In 1983, LA.REV.STAT. § 14.102.1(C) was amended. During a committee meeting, Representative Bruneau stated that House Bill No. 4 "was technical in nature and was designed to correct a typographical error in the provision providing exceptions for herding of domestic animals." Louisiana State House of Representatives, Committee on Administration of Criminal Justice, Verbatim Minutes of Meeting, January 5, 1983. The final version of Acts 1983, 1st Ex.Sess. No. 6, § 1 included the additional language "herding of domestic animals" injected between the provisions for lawful hunting and accepted veterinary practices. Further, the provision excluding fowl was re-designated as Subsection D, although the language was the same as that included in Acts 1982, No. 431.
In 1995, the Legislature amended LA.REV. STAT. § 14:102.1(D) by including several species of birds which are defined as animals and thereby protected from acts of animal cruelty. However, when Senator Brinkhaus offered the amendment, no comments regarding cockfighting were made. Louisiana State Senate, Senate Judiciary Committee, Section C, Verbatim Minutes of Meeting, June 6, 1995.
[3] A. No person shall intentionally do any of the following:
(1) For amusement or gain, cause any dog to fight with another dog, or cause any dogs to injure each other.
(2) Permit any act in violation of Paragraph (1) to be done on any premises under his charge or control, or aid or abet any such act.
(3) Promote, stage, advertise, or be employed at a dogfighting exhibition.
(4) Sell a ticket of admission or receive money for the admission of any person to any place used, or about to be used, for any activity described in Paragraph (2).
(5) Own, manage, or operate any facility kept or used for the purpose of dogfighting.
(6) Knowingly attend as a spectator at any organized dogfighting event.
(7)(a) Own, possess, keep, or train a dog for purpose of dogfighting.
[4] LA.REV.STAT. § 4:141 et seq.
[5] LA.REV.STAT. § s4:249.
[6] Art. VI § 5(e) of the Louisiana Constitution prohibits a local ordinance that contradicts general law.
[7] A court should not grant a preliminary injunction when criminal action is threatened unless the plaintiff shows with reasonable certainty that (1) the statute is manifestly unconstitutional, (2) irreparable injury is threatened, and (3) existing property rights will be destroyed by enforcement. Knights of Columbus, Chapter No. 2409 v. Louisiana Department of Public Safety & Corrections, Division of State Police, 548 So. 2d 936 (La.1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920169/ | 921 So. 2d 283 (2005)
Demarcus SMITH, A Minor, and Kiara Smith, A Minor, and Tevon Smith, A Minor, Deceased and/or Estate of Tevon Smith by Carl Smith, Personal Representative, Natural Father and Next Friend, All by their Natural Father and Next Friend, Carl Smith, Individually, and as a Wrongful Death Beneficiary of Tevon Smith, and Carl Smith on Behalf of All of Tevon Smith's Wrongful Death Beneficiaries
v.
Cassandra L. HOLMES, Individually and as Natural Guardian and Next Friend of Demarcus Holmes and Kiara Holmes, and as Personal Representative of the Estate of Tevon Holmes, Deceased; and Boone Express, Inc.
Demarcus Smith, A Minor, and Kiara Smith, A Minor, and Tevon Smith, A Minor, Deceased and/or Estate of Tevon Smith by Carl Smith, Personal Representative, Natural Father and Next Friend, All by their Natural Father and Next Friend, Carl Smith, Individually, and as a Wrongful Death Beneficiary of Tevon Smith, and Carl Smith on Behalf of all of Tevon Smith's Wrongful Death Beneficiaries
v.
Boone Express, Inc. and Michael Dale.
Nos. 2004-CA-01920-SCT, 2004-CA-02116-SCT.
Supreme Court of Mississippi.
December 15, 2005.
Rehearing Denied March 2, 2006.
*284 Daniel A. Seward, attorney for appellants.
B. Humphreys McGee, III, Michael N. Watts, Oxford. Todd B. Murrah, attorneys for appellees in No. 2004-CA-01920-SCT.
Todd B. Murray, for appellees in No. 2004-CA-02116-SCT.
EN BANC.
WALLER, Presiding Justice, for the Court.
¶ 1. These consolidated appeals raise issues of parental immunity, priority jurisdiction, a fiduciary's conflict of interest, and joinder of wrongful death beneficiaries. We find that (1) Glaskox ex rel. *285 Denton v. Glaskox, 614 So. 2d 906, 909 (Miss.1992), abrogated the doctrine of parental immunity for a parent who negligently causes injuries to his or her child in an automobile accident; (2) under Long v. McKinney, 897 So. 2d 160 (Miss.2005), only one wrongful death complaint may be filed the one that is first filed; (3) under Long, all wrongful death beneficiaries have a right to be joined in the wrongful death lawsuit; (4) under Long, the personal representative of an estate in a wrongful death suit has a fiduciary relationship to the wrongful death beneficiaries; and (5) a fiduciary should not have any conflicts of interest.
FACTS
¶ 2. An automobile accident occurred in Tunica County, Mississippi, between an automobile operated by Cassandra L. Holmes and an eighteen-wheeler truck owned by Boone Express, Inc., and operated by Michael Dale. Witnesses to the accident aver that Cassandra turned left in front of oncoming traffic. Cassandra's children, Demarcus Smith, Kiara Smith and Tevon Smith, were injured in the accident, and Tevon was killed.
¶ 3. Cassandra filed a wrongful death and personal injury lawsuit against Boone Express and Dale on September 18, 2002. On October 21, 2002, Carl Smith, the natural father of all of the children, filed his own wrongful death lawsuit and a separate motion to intervene and/or join in Cassandra's lawsuit. Finding that Carl was not a necessary party, the circuit court denied the motion to intervene and/or join. The circuit court dismissed Carl's wrongful death lawsuit on the basis that only one wrongful death action can be filed. From these two orders, Carl appeals.[1]
DISCUSSION
I. PARENTAL IMMUNITY.
¶ 4. The circuit judge denied Carl's motion to intervene on the basis that Carl wished to raise negligence and wrongful death claims against Cassandra and that such claims would be barred due to parental immunity. We find that the circuit judge erred. The principle of parental immunity, which bars an unemancipated minor from suing his or her parent for injuries caused by the negligence of the parent, has been abrogated in this State, insofar as the negligent operation of motor vehicles is concerned. Glaskox ex rel. Denton v. Glaskox, 614 So. 2d 906, 909 (Miss.1992); see also Ales v. Ales, 650 So. 2d 482, 486 (Miss.1995). The Glaskox court held as follows: "We hold that the judicially created doctrine of parental immunity has outlived its purpose and adopt the majority view abrogating the principle as it applies to the negligent operation of a motor vehicle." Glaskox, 614 So.2d at 912. Accordingly, we find that the circuit court erred in denying Carl's motion to intervene.
II. MOTION TO JOIN OR INTERVENE.
¶ 5. The denial of a motion to intervene is an appealable final order. Cohen v. Cohen, 748 So. 2d 91, 93 (Miss.1999) (citing Guar. Nat'l Ins. Co. v. Pittman, 501 So. 2d 377, 380 (Miss.1987)). Rule 24(a)(2) of the Mississippi Rules of Civil Procedure provides that anyone who "is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest" may intervene by right "unless the applicant's interest is *286 adequately represented by existing parties."
[4] ¶ 6. The circuit court denied Carl's motion to join Cassandra's lawsuit because, as a wrongful death beneficiary, Carl's interests would be protected in Cassandra's lawsuit. We have recently held that, if a wrongful death beneficiary wishes to join a wrongful death lawsuit, his motion to join should be granted: "[I]n wrongful death litigation, all claims shall be joined in one suit." Long v. McKinney, 897 So. 2d 160, 174 (Miss.2005). Therefore, under Long, Carl should have been joined as a party plaintiff because he is a wrongful death beneficiary. We note that the Long case was handed down after these appeals were filed, so the circuit court did not have the benefit of our holding when it denied the motion.
III. RACE TO THE COURTHOUSE.
¶ 7. There is no question that Cassandra filed a wrongful death complaint before Carl filed his own complaint. Both are Tevon's natural parents and are therefore wrongful death beneficiaries who are entitled to bring a wrongful death lawsuit under Miss.Code Ann. § 11-7-13 (Rev. 2004).[2]
¶ 8. It is clear under our jurisprudence that only one of the wrongful death beneficiaries may bring a wrongful death lawsuit. Long, 897 So.2d at 168. See also Jones v. Steiner, 481 F.2d 392 (5th Cir. 1973). Because only one wrongful death lawsuit may be filed, and two such lawsuits have been filed, the rule of prior jurisdiction comes into play:
It is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending. Hence a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged.
Long, 897 So.2d at 172 (quoting Lee v. Lee, 232 So. 2d 370, 373 (Miss.1970)); accord Harrison County Dev. Comm'n v. Daniels Real Estate, Inc., 880 So. 2d 272, 276 (Miss. 2004), overruled on other grounds, City of Jackson v. Estate of Stewart ex rel. Womack, 908 So. 2d 703 (Miss.2005). Here, the two complaints pertain to the same state of facts, subject matter and cause of action the infant child's death. Cassandra's lawsuit was pending in a court of competent jurisdiction within the same state as Carl's, and the two complaints involved the same parties all of Tevon's wrongful death beneficiaries and the alleged third-party tortfeasor. Because Carl's wrongful death complaint was filed after Cassandra's, we find that the circuit court's dismissal of Carl's complaint was eminently correct.
IV. PERSONAL REPRESENTATIVE AS FIDUCIARY.
¶ 9. One of the issues raised by Carl is that Cassandra allegedly has a conflict of interest which bars her from serving as personal representative for the wrongful death beneficiaries. This issue that is, whether Cassandra's role as an alleged tortfeasor would prejudice in any *287 way the other wrongful death beneficiaries' claims was raised in Carl's motion to intervene which was denied by the circuit court. Since the best interests of the minor children are involved, the conflict of interest issue must be considered.
¶ 10. One who brings a wrongful death suit as the personal representative acts in a fiduciary capacity:
The [wrongful death statute] speaks in terms of a litigant bringing the suit "for the benefit of all persons entitled under law to recover ..." and "for the benefit of all parties concerned...." Thus, bringing suit in such a representative capacity renders the named plaintiff a fiduciary to all he or she proposes to represent, much the same as in litigation instituted by the executor or executrix of an estate. Those being represented must trust the named plaintiff to properly prosecute the litigation, enter into fair settlement negotiations, and handle all funds recovered as trust funds for the benefit of those entitled to them.
Long, 897 So.2d at 169 (footnote omitted). If a trustee has a conflict of interest, "he has a duty to refuse the trust, resign, or remove the conflicting personal interest." Estate of Bodman v. Bodman, 674 So. 2d 1245, 1249 (Miss.1996); see also Jackson v. Jackson, 732 So. 2d 916, 921 (Miss.1999) (applying same duty to a conservator).
¶ 11. Because Cassandra is a fiduciary by way of her being the personal representative of the wrongful death beneficiaries, and Carl has raised a claim of conflict of interest, this issue must be considered by the circuit court. We therefore remand this issue to the circuit court for a determination of whether Cassandra should remain as personal representative and whether the children's interests would be best represented by a guardian ad litem or the appointment of another person as personal representative. The circuit court should consider the fact that cases with unnamed defendant tortfeasors are tried regularly and, seemingly, without jury confusion. See, e.g., Classic Coach, Inc. v. Johnson, 823 So. 2d 517 (Miss.2002). Moreover, Miss.Code Ann. § 11-7-15 (Rev.2004) provides that a person who "may have been guilty of contributory negligence" is not barred from recovery. This principle may be extrapolated so that a person who "may have been guilty of contributory negligence" is not barred from filing suit against other tortfeasors.
¶ 12. The circuit court should also consider any conflicts between Cassandra and Carl and whether Carl's interests would be prejudiced if Cassandra remains the personal representative.
CONCLUSION
¶ 13. We reverse the circuit court's denial of Carl Smith's motion to join, and we remand this case, No.2004-CA-01920-SCT, to the circuit court for further proceedings consistent with this opinion. We affirm the circuit court's dismissal of Carl Smith's complaint.
¶ 14. CASE NUMBER 2004-CA-01920-SCT: REVERSED AND REMANDED.
¶ 15. CASE NUMBER 2004-CA-02116-SCT: AFFIRMED.
SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.
NOTES
[1] Case number 2004-CA-01920-SCT is the appeal from the denial of the motion to intervene and/or join. Case number 2004-CA-02116-SCT is the appeal from the dismissal of Carl's wrongful death complaint. These two appeals are consolidated.
[2] Although the current version of the wrongful death statute was not in effect at the time of the accident (January, 2002), the list of those persons who may sue thereunder has not changed since 2002, even though the most recent amendment thereto was enacted in 2004. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304710/ | HOWELL, J.
This is a suit by Burford H. Tooley, a real estate agent, for $2,500' commissions upon the alleged sale of real estate belonging to the defendant W. H. Cook, in Macon County, Tennessee, growing out of a contract entered into on January 21, 1952 as follows:
“This contract entered this day 1-31-52 between Burford H. Tooley and W. H. Cook owner of the following, farm real estate lying and being in the 1 district of Macon County.
Bounded on the following sides by
“North by Crowder
“South by #52 Highway
‘ ‘ East by White
“West by Gross
“I hereby authorize Burford H. Tooley to sell the above described property, the price being agreed to by both parties to be $35,000.00. Owner agrees to give satisfactory deed and title to the above described property, and agrees to pay Burford H. Tooley agent -percent of the above .amount or all over $35,-000.00 for his services.
“This property is to be exclusive with the above named agent for a period of 120 days from the above date.
“Signed: Burford H. Tooley, Agent
“W. FI. Cook, Owner”
Upon the oral hearing the Chancellor found the facts in favor of the defendant and dismissed the bill. The *297complainant has appealed and has assigned this action of the Chancellor as erroneous.
The finding of facts by the Chancellor is in part as follows:
“The bill was filed July 29, 1952, by Burford IT. Tooley, a licensed real estate broker, to recover a commission of $25001.00 under a contract dated January 21, 1952, with the defendant W. H. Cook to sell his farm.
“Defendant denies liability. It is his insistence that the sale was not consummated, and that the failure of consummation was not his fault. Defendant claims that he was ready, willing and anxious to consummate the sale up until June 14,1952, but that complainant did not furnish a purchaser who was able, ready and willing to close the deal.
“The written contract between Tooley and Cook, which is filed in the record, gave complainant exclusive authority to sell defendant’s farm for a period of 120 days. The owner was to get $35,000.00, and Tooley was to get all over that amount as a commission for his' services.
“Defendant had two serious operations in January and February 1952; he was critically ill for some time and was confined to his bed until April 17. He was brought home from the hospital after the last operation on February 9th.
“OnFebruary 11 Dr. John R. Smith, as a prospective purchaser, looked over the farm with Mr. Tooley, and later that day Tooley returned and told Mr. Cook that Dr. Smith had decided to buy the farm, and Cook stated that he would execute the deed when he was able. The complainant entered into a written contract with Dr. Smith on February 11, to sell bim the *298farm for $37,500.00. Tooley advised Cook of the contract and he stated that his interest was available ,and that as soon as he was able he wonld get his attorney to arrange matters, suggesting that minor details be discussed. Later when Tooley was at defendant’s home Cook requested him to bring Dr. Smith out there with an attorney that he was ready to make the deed but that he was not physically able to go to LaFayette, which it appears Tooley agreed to do.
“On the following Saturday Cook went to La-F'ayette to see his Doctor and went by Tooley’s office and inquired why he had not been out to his house and Tooley gave a reason that Dr. Smith wanted his father-in-law there when the deed was made, and that he was waiting on him. Dr. Smith testified that his father-in-law had promised to furnish him the money to buy the farm.
“About May 20, Tooley visited Cook’s home again and advised him that Dr. Smith was on his vacation. So it appears that the matter was deferred by mutual consent, and again about June 1, Cook told Tooley at LaFayette that he would still let Dr. Smith have the place if he wanted it. Tooley was at Cook’s home again on June 10, and advised him why Dr. Smith had not been over. Whereupon Cook told him the trade would have to be closed by the following Saturday. Cook was to let his renter for 1953 know by a certain time whether he sold the farm. On the following Saturday Tooley was at Cook’s home in the morning and told him that Dr. Smith’s father-in-law was in Florida. Later in the day on Saturday, June 14th, Cook told D'r. Smith, about 1:00 o’clock, at his office in LaFayette, that if he wanted the farm the deed *299would have to be made that day, to wbicb Dr. Smith made no response.
“The proof shows that by that time Dr. Smith had ‘cooled off’ on the deal, and the following week Cook rented his place to Mr. Tony for the year 1953. Some effort was made thereafter by Mr. Tooley, but without success, to have him surrender his lease contract, and to try to get the deal through.
“The proof shows that Tooley did all he could do to consummate the deal, even after the written contract was obtained with Dr. Smith.
“I am of the opinion that under the facts of the case and the law that there can be no recovery. The contract executed by the parties contemplates commissions conditioned upon the consummation of the sale of the farm. ’ ’
######
“The weight of the proof in this case shows that the deal failed of consummation because the purchaser, Dr. Smith, ‘cooled off’ and did not desire to complete the transaction. The fact he was depending upon his father-in-law for the money may have contributed to his attitude in this respect. The preponderance of the proof does not show he was ready, able and willing. The burden of course in this respect is upon complainant.
“The preponderance of the proof does not show that the deal failed of consummation because of defendant’s fault. On the contrary the proof shows that he was ready and willing to close the deal up until June 14th. The proof further shows that he was ready and willing before the expiration of the 120 days expired in the contract. It may be that his ill*300ness delayed or held np the negotiations for a time, and that after his improvement in health he was not anxious to consummate the deal, but there is no showing of bad faith or stalling on his part.
“For these reasons I am therefore of the opinion that the hill should be dismissed at complainant’s cost.”
We have carefully examined the entire record and the evidence does not preponderate against the facts as found by the Chancellor. It is clear from the record that the complainant did not produce a purchaser who was ready, willing and able to purchase the property.
In the case of Stone v. Coffman, 33 Tenn. App. 601, 232 S. W. (2d) 555, 557, this Court in an opinion by Howard, Judge, said in part:
“The law applicable here is stated in 8 American Jurisprudence as follows:
“ ‘To entitle a broker to the compensation called for by his contract of employment, he must produce a person who is ready, able and willing both to accept and live up to the terms offered by his principal. * * *’ Sec. 174, p. 1090.
“* * The proposed purchaser must have legal capacity to purchase in addition to having sufficient financial ability not only to make the initial payment required to meet the terms of the seller, but also to complete the contract of purchase according to its terms, that is, to meet any deferred payments. To be able to pay does not simply mean that the purchaser have property upon which he could raise the amount of money necessary. A proposed purchaser is not able, when he is depending upon third parties who are in no way bound to furnish the funds, to make the purchase.’ Sec. 175, p. 1091. See also, 1 *301A. L. R. 530; 167 A. L. R. 607; 12 C. J. S., Brokers, § 85, p. 187; Cheatham v. Yarbrough, 90 Term. 77, 15 S. W. 1076; Woodall v. Foster, 91 Term. 195, 18 S. W. 241; Miller v. Bacon, 12 Tenn. App. 123.”
In the old case of Cheatham v. Yarbrough, 90 Tenn. 77, on page 79, 15 S. W. 1076, the Supreme Court said:
‘ ‘ The just and well-settled rule of law requires that the agent shall be paid his compensation when he procures a purchaser who is acceptable to the principal, and ready, able, and willing to buy on the agent’s terms, though, in fact, the sale be not ultimately consummated; provided its consummation is prevented by the fault, refusal, or defective title of the principal. ’ ’
It is insisted for the complainant that the defendant cannot raise the question as to whether or not the proposed purchaser was ready, willing and able to perform because a written contract was entered into between the proposed purchaser and the defendant through the agent, and this fact was communicated to defendant and the contract was approved by him.
In the case of McFadden v. Crisler, 141 Tenn. 531, 213 S. W. 912, 913, the Supreme Court said:
“We think it entirely clear that the contract of sole agency conferred by the owners upon defendant Johnson did not authorize him to make a contract of sale of any kind, and especially a contract of sale upon time.
******
“We are also of opinion that the agency of Johnson did not authorize him to execute a contract to sell. His agency was to sell; that is, to find a purchaser *302and consummate a deal. ’ ’
From an examination of this record we are satisfied that had Dr. John E. Smith been ready, able and willing to comply with his agreement to purchase, the trade' would have been closed. However, he was relying upon his father-in-law to furnish a large part of the money and he had ample opportunity to get the money and failed to do so.
The Chancellor reached the correct solution of the controversy and therefore the assignments of error are overruled and the decree of the Chancellor, dismissing the bill is affirmed.
The appellant and the sureties upon the appeal bond will pay the costs.
Affirmed.
Felts and Hickerson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1616773/ | 104 S.W.3d 331 (2003)
James PRICE, Appellant,
v.
Kevin Laroy FORD, Appellee.
No. 05-00-01651-CV.
Court of Appeals of Texas, Dallas.
April 30, 2003.
*332 Valencia Bush, Andrew Korn, Korn, Bowdich & Diaz, L.L.P., Dallas, for Appellant.
Thomas P. Jackson, The Law Office of Thomas P. Jackson, Dallas, for Appellee.
Before Justices MORRIS, JAMES, and FITZGERALD.
OPINION
Opinion By Justice MORRIS.
In this premises liability case, James Price appeals the trial court's judgment awarding damages to Kevin Ford for injuries Ford sustained when he was assaulted in Price's nightclub. Price raises two issues on appeal. First, he contends the trial court erred in rendering judgment for Ford on the premises liability claim because Ford's exclusive remedy arose under the Dram Shop Act. Second, he argues the evidence was legally insufficient to support the trial court's judgment. Concluding Ford's evidence of proximate cause was legally insufficient, we reverse the trial court's judgment and render judgment that Ford take nothing.
I.
On June 21, 1996, Ford and a friend were inside Price's nightclub in Dallas. Three other customers, believing Ford had insulted them, assaulted Ford and beat him with a pool cue and barstool. Ford's injuries were serious. Two of the three assailants were later convicted of the assault.
On the night in question, the nightclub employed four off-duty Dallas police officers outside the club and eight to ten security guards inside the club. Patrons passed through a metal detector before entering the club. Each patron was also patted down by a security guard upon entering the club.
Ford sued Price, owner of the nightclub, to recover damages for his injuries. He alleged a cause of action for premises liability, arguing the lack of adequate security in the club was a proximate cause of his injuries. Ford also alleged a violation of the Dram Shop Act, section 2.02 of the Texas Alcoholic Beverage Code, claiming the club served alcohol to the assailants when they were obviously intoxicated and their state of intoxication was a proximate cause of his injuries. During the non-jury trial, Ford dropped the Dram Shop Act claim and elected to proceed only on the premises liability claim.
The trial court signed a Rendition of Judgment in which it found the criminal assault against Ford was reasonably foreseeable and Price breached his duty to protect Ford against the assault because no security personnel saw or intervened to stop the attack. The trial court signed a final judgment awarding damages to Ford. This appeal followed.
II.
In the first issue Price presents, he argues the trial court erred in rendering judgment against him on the premises liability claim because Ford's exclusive remedy arose under the Dram Shop Act. In his second issue, he contends the evidence was legally insufficient to support the judgment. We begin with the second issue.
When reviewing a legal sufficiency point of error, we consider only the evidence and inferences that support the dispositive finding and disregard all evidence and inferences to the contrary. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 83 (Tex.App.-Dallas 1995, no writ). If there is more than a scintilla of evidence supporting the dispositive finding, we uphold it. Id.
*333 The elements of a premises liability cause of action are: (1) actual or constructive knowledge of some condition on the premises by the owner or operator; (2) the condition posed an unreasonable risk of harm; (3) the owner or operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or operator's failure to use such care proximately caused the plaintiff's injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). Premises liability is a negligence-based theory of liability. Ramirez v. H.E. Butt Grocery Co., 909 S.W.2d 62, 67 (Tex.App.-Waco 1995, writ denied).
Price argues the evidence presented by Ford is legally insufficient to support the trial court's findings of breach of the standard of care and proximate cause. We agree that Ford presented insufficient evidence of proximate cause. Proximate cause is composed of cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury and without which the injury would not have occurred. Id. Cause in fact cannot be established by mere conjecture, guess, or speculation. Id.
Here, the evidence of causation consisted solely of the testimony of Dick Roth, an expert witness hired by Ford. Roth stated security guards inside the nightclub should have responded more quickly to the altercation between Ford and his assailants. He testified security guards should have responded to the incident within thirty seconds and estimated the assault lasted from sixty seconds to three minutes. He did not testify that the guards could in fact have responded within thirty seconds. He simply opined that earlier intervention by security guards could have prevented some of Ford's injuries. Such evidence, without more, is not legally sufficient to prove proximate causation. See E. Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 469 (Tex.1970) (where plaintiff presented no evidence that additional security measures would have prevented injury, proximate causation element was not established).
Ford presented no evidence that if the security guards within the club had in fact responded to the assault within thirty seconds, as Roth testified they should have, Ford would not have been injured. The evidence presented was mere speculation that Ford's injuries would have been prevented if the guards had intervened. Moreover, Roth testified the proximate cause of Ford's injuries was being struck by a pool cue and barstool. After considering the evidence supporting the trial court's finding of proximate cause and disregarding all contrary evidence, we conclude the evidence is not legally sufficient to uphold the trial court's finding. We resolve Price's second issue in his favor.
Our resolution of the second issue makes it unnecessary for us to address Price's first issue.
We reverse the trial court's judgment and render judgment that Ford take nothing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920129/ | 245 Pa. Super. 27 (1976)
369 A.2d 276
COMMONWEALTH of Pennsylvania
v.
Robert GILMORE, Appellant.
Superior Court of Pennsylvania.
Submitted June 14, 1976.
Decided November 22, 1976.
*29 Gerald Jay Pomerantz, Philadelphia, for appellant.
Deborah E. Glass and Steven H. Goldblatt, Assistant District Attorneys, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
JACOBS, Judge:
Appellant, Robert Gilmore, appeals following a jury verdict of guilty of criminal conspiracy and not guilty of robbery and possession of an instrument of a crime. His sole allegation on appeal is that prejudicial comments made by the attorney for the Commonwealth in his closing address operated to deny him a fair trial. We agree and reverse.
The charges upon which appellant was arrested stemmed from the robbery of a doctor's office on December 6, 1974. The Commonwealth's evidence showed that appellant, together with two other youths, one of which was armed with a gun, entered the office of an eye doctor and threatened him with the gun, demanding money. Upon receiving $180 they bound and gagged him then fled with the money. The doctor as eyewitness specifically identified appellant as the assailant who threatened him with his own ophthalmoscope. Appellant's defense was that although he was present with the two others in the doctor's office, he was not aware that a robbery was planned and upon observing it taking place he was too *30 frightened to disassociate himself from the others. He denied threatening the doctor with his instrument.
In his closing address to the jury, the assistant district attorney made the following remarks in speaking of his own position and the testimony of his complaining witness: "I am interested in truth. You are interested in the truth. For part of my job is not only to prosecute the guilty, but to see that the innocent are speedily turned loose if they are innocent. In this case you saw [the complaining witness]. You observed his demeanor. You observed his testimony, and as one writer said. . . `Truth crushed to the earth must rise again.' In this case, the cross-examination is an attempt to crush truth to the ground. . . .
". . . .
"You were picked for one purpose. That purpose was to find the truth. I have faith in your finding the truth in this matter. The doctor had faith in your finding the truth, for he came before you. He testified truthfully, and the truth was that this Defendant, Robert Gilmore, participated actively, took part in the taking of money from him. . . .
". . . .
"The Commonwealth in this case has given you the truth. The Commonwealth in this case has given you the facts. Now, it is up to you." Following the closing argument, appellant's attorney specifically objected to these statements, but no curative instructions were given. Appellant now objects that these comments and others assailing the credibility of the appellant improperly illustrated to the jury the prosecuting attorney's personal belief in the guilt of the accused.
It has recently been clearly established that in this Commonwealth "a prosecuting attorney may not indulge in personal assertions of guilt of a defendant either by direct statement or indirectly by figure of *31 speech." Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975); accord, Commonwealth v. Lark, 399 Pa. 460, 333 A.2d 786 (1975); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974); see also, Code of Professional Responsibility, DR 7-106(C) (4), 438 Pa. xxv, ci-cii (1970); American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8(b) (Approved Draft, 1971). Such an argument by a district attorney gives grounds for reversal if its "`unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.' Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968)." Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975); accord, Commonwealth v. Chandler, 237 Pa.Super. 19, 346 A.2d 579 (1975).
The appellate courts of Pennsylvania have regularly noted the impropriety of a prosecutor's offering his personal belief in the guilt of an accused, or the truth of the testimony of the Commonwealth's witnesses as opposed to those of the defense, in the guise of assisting the jury in their duty to uncover the true facts. Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). Thus reversals have been obtained when the prosecutor argued that the jury could not acquit unless the accused murderer's victim came alive and walked into the courtroom,[1] when the prosecutor argued that the accused was attempting to deceive the jury,[2] when a district attorney testified as a witness that his personal investigations led him to the conviction that the accused was the guilty party,[3] and when the prosecutor characterized the accused's statements as malicious lies.[4]
*32 The district attorney as the representative of the Commonwealth has acquired with his position as a quasi-judicial officer an added measure of responsibility in ensuring that an atmosphere of fairness and impartiality be maintained when one accused of crime is tried, in the belief that only in such an environment can vindictive passions be weeded out to reveal the truth. "`It may be proper for us to say in this connection that, in his official capacity, clothed with the gravest responsibilities, and exercising functions in a measure judicial, the district attorney should ever be cautious in expressing to a jury his belief in the guilt of the accused. If convinced of it, his duty is to lead them to his own judgment by pointing out to them, intelligently and impartially, the evidence which cannot fairly justify any other conclusion.'" Commonwealth v. Toth, 455 Pa. 154, 158, 314 A.2d 275, 277-78 (1974) quoting Commonwealth v. Bubnis, 197 Pa. 542, 550, 47 A. 748, 749-50 (1901).
In the present case, the prosecutor informed the jury that it was his job and the jury's job to proceed impartially and discover the truth. He then pointed out that he had done his job by bringing the guilty party before them and identifying him with the truthful testimony of the Commonwealth's witnesses. The unavoidable effect of such statements would be to convince the jury that the individual whom the jury is told to recognize as the fairminded, unbiased advocate of the truth is convinced of the accused's guilt. In a case such as this, where the appellant did not deny his presence, but insisted that he did not participate in the offensive conduct and had no knowledge of his companions' intent, the credibility of the accused as opposed to the complaining witness is crucial. The prosecutor's use of his position of impartiality and special knowledge to give weight to his assertions of his belief in appellant's guilt, when such *33 comments cannot be excused by abuses or excesses engaged in by the defense, is highly prejudicial.
Judgment of sentence reversed and a new trial ordered.
WATKINS, President Judge, and CERCONE and VAN der VOORT, JJ., dissent.
NOTES
[1] Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).
[2] Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972).
[3] Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974).
[4] Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3103232/ | Affirm and Opinion Filed July 29, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01112-CV
DIBON SOLUTIONS, INC., Appellant
V.
JAY NANDA AND BON DIGITAL, INC, Appellees
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-02163
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Lewis
Opinion by Justice Bridges
Appellant Dibon Solutions, Inc. (“Dibon”) appeals from the trial court’s denial of a
temporary injunction against appellees Jay Nanda (“Jay”) and Bon Digital, Inc. (“BDI”). In a
single issue, Dibon argues the trial court erred in denying the temporary injunction where the law
holds such injunction is necessary and appropriate and does not implicate the First Amendment.
We affirm.
Background
Until November of 2011, Jay was a shareholder, director, and employee of Dibon. Jay
and his brother, Atul Nanda (“Atul”), participated in arbitration to settle disputes between them.
In November of 2011, an arbitrator awarded Atul ownership of Dibon and ordered Atul to pay
Jay $517,162. Following the arbitration award, Jay sent communications to several of Dibon’s
customers and Dibon’s bank, accusing Dibon of being subject to: (1) an IRS investigation; (2) an
ICE and FBI investigation for money laundering, visa fraud, human trafficking, and harboring
illegal aliens; (3) a DOL investigation for unpaid back wages; (4) multiple lawsuits; (5) making
bankruptcy threats; (6) diversion of assets; (6) multiple liens; (7) non-performance on bank
loans; and (8) forging documents.
Dibon states these communications caused it to file the instant lawsuit against Jay and his
company, BDI, for defamation, business disparagement, breach of fiduciary duty, and tortious
interference with existing contract. Dibon further sought injunctive relief to bar “Defendants
from contacting those of [Dibon’s] customers who were customers while [Jay] was a director,
officer or employee of [Dibon] for the purpose of communicating disparaging information
regarding [Dibon] to such customers.”
On July 24, 2012, the trial court issued a temporary restraining order against Jay and
BDI, enjoining them from initiating contact, directly or through a surrogate, with Dibon’s
customers and vendors for the purpose of communicating disparaging information (specifically
accusations of civil or criminal wrongdoing) regarding Dibon.
Following the August 7, 2012 hearing, the trial court denied Dibon’s application for
temporary injunction.
Analysis
In a single issue, Dibon contends the trial court erred “in denying Dibon’s application for
a temporary injunction restraining Jay Nanda from targeting Dibon’s customers with anonymous
and disparaging e-mail communications aimed at destroying Dibon’s contractual relationships
with its customers, where the law holds that a temporary injunction is necessary and appropriate
in such circumstances, and does not implicate the First Amendment’s right of free speech.”
–2–
The decision to grant or deny a temporary injunction lies within the sound discretion of
the trial court, and we will not reverse that decision absent a clear abuse of discretion. Walling v.
Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). This Court may not substitute its judgment for that of
the trial court nor consider the merits of the lawsuit. Brammer v. KB Home Lone Star, L.P., 114
S.W.3d 101, 105 (Tex. App.—Austin 2003, no pet.). We review the evidence in the light most
favorable to the trial court’s order, indulging every reasonable inference in its favor and
determine whether the order was so arbitrary as to exceed the bounds of reasonable discretion.
Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.—Austin 2000, no
pet.).
The purpose of a temporary injunction is to preserve the status quo pending a trial on the
merits. Walling, 863 S.W.2d at 58. A temporary injunction is an extraordinary remedy and does
not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
Rather, an applicant must plead and prove: (1) a cause of action against the opposing party; (2) a
probable right on final trial to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim. Walling, 863 S.W.2d at 57.
The United States and Texas Constitutions prohibit prior restraints on free speech. See
U.S. CONST. amend. I; TEX. CONST. art I, §8. A prior restraint is a judicial order forbidding
certain communications when issued in advance of the time that such communications are to
occur. See Alexander v. U.S., 509 U.S. 544, 550 (1993). Accordingly, a prior restraint of
expression bears “a heavy presumption against its constitutional validity.” See In re Newton, 146
S.W.3d 648, 653-54 (Tex. 2004).
Here, Dibon argues the communications at issue fall within an exception to the
presumption against prior restraints. Specifically, Dibon contends appellees’ speech is false and
misleading commercial speech and is, therefore, not subject to protection. See Marketshare
–3–
Telecom, LLC v. Ericsson, Inc., 198 S.W.3d 908, 918 (Tex. App.—Dallas 2006, no pet.); Owens
v. State, 820 S.W.2d 912, 914 (Tex. App.—Houston 1991, writ ref’d) (stating intentionally false
and misleading speech made in the commercial context is not protected by the first amendment).
We disagree.
In its brief, and without citation to the record, Dibon contends the communications were
misleading and “blatantly false.” However, the record before us does not support Dibon’s
argument that the statements made by Jay were false and misleading. Instead, at the temporary
injunction hearing, Jay testified the statements made in the e-mail to Dibon’s bank (which were
substantially the same statements made to Dibon’s customers) were “true statements . . . not
allegations.” Jay Skinner, the vice president of Dibon, affirmed there was “an ongoing
investigation of Dibon” by ICE. He admitted he was “not privy to everything that goes on in the
organization,” and later explained he had no information from Atul regarding a DOL
investigation. When asked whether he could testify to whether he had any “knowledge that there
[was] no Department of Labor investigation ongoing of Dibon,” Skinner replied he “cannot
testify to that.” No other representative of Dibon testified at the hearing to refute the truthfulness
of the statements and no documents were introduced by Dibon to demonstrate the falsity or
misleading nature of the communications. The record, therefore, does not support Dibon’s
contention that the speech was false and misleading.1
Dibon further argues that, because it brings a claim for tortious interference, this case
falls into another exception to the proscription against prior restraints. In reviewing its argument,
we must consider whether Dibon presented sufficient evidence of a probable right to recover
under its tortious interference claim. See Walling, 863 S.W.2d at 57; Branch Banking & Trust
1
Because the record before us does not establish that the speech was either false or misleading, its classification as commercial speech or
noncommercial speech is not controlling. Tex. Mut. Ins. Co. v. Surety Bank, NA, 156 S.W.3d 125, 130 (Tex. App.—Fort Worth 2005, no pet.).
–4–
Co. v. TCI Luna Ventures, LLC, No. 05-12-00653-CV, 2013 WL 1456651, *2 (Tex. App.—
Dallas Apr. 9, 2013, no pet.) (op. on reh’g). The following elements must be established in a
cause of action for tortious interference with contract: (1) the existence of a contract subject to
interference; (2) a willful and intentional act of interference; (3) the act was a proximate cause of
the plaintiff’s damages; and (4) actual damage or loss resulted. Friendswood Dev. Co. v.
McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). Because it is dispositive, we focus on
appellees’ alleged willful and intentional act of interference. Texas courts have held that to
satisfy this element of the cause of action for tortious interference, a party must be more than a
willing participant; it must knowingly induce one of the contracting parties to breach its
obligations. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993).
In its brief, Dibon contends Jay “intentionally interfered with Dibon’s contract with its
customer, Appirio, thus causing Dibon to lose millions of dollars and suffer non-monetary
harm.” However, a necessary element of the plaintiff's cause of action is a showing that the
defendant took an active part in persuading a party to a contract to breach it. See John Paul
Mitchell Sys. v. Randall’s Food Mkts., 17 S.W.3d 721, 731 (Tex. App.—Austin 2000, pet.
denied) (citing Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex. App.—Eastland 1992, writ
denied)). It is necessary that there be some act of interference or of persuading a party to breach,
for example by offering better terms or other incentives, for tort liability to arise. See id. The
record before us provides no such evidence.
At the hearing on temporary injunction, Jay testified he sent the complained-of
communication to Appirio. Skinner testified that, after Appirio received Jay’s communication, it
decided not to do business with Dibon. However, there is no evidence, documentary or
testimonial, showing appellees took an active part in persuading Appirio to breach its contract
with Dibon. See John Paul Mitchell., 17 S.W.3d at 731.
–5–
Thus, we conclude the issuance of a temporary injunction would have been an improper
prior restraint. See In re Newton, 146 S.W.3d at 653-54. After reviewing the evidence in the
light most favorable to the trial court’s order, we conclude the trial court did not abuse its
discretion. See Walling, 863 S.W.2d at 58; Universal Health, 24 S.W.3d at 576.
We overrule appellant’s sole issue and affirm the judgment of the trial court.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
121112F.P05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DIBON SOLUTIONS, INC., Appellant On Appeal from the 192nd Judicial District
Court, Dallas County, Texas
No. 05-12-01112-CV V. Trial Court Cause No. DC-12-02163.
Opinion delivered by Justice Bridges.
JAY NANDA AND BON DIGITAL, INC, Justices Lang and Lewis participating.
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees JAY NANDA AND BON DIGITAL, INC recover their
costs of this appeal from appellant DIBON SOLUTIONS, INC..
Judgment entered July 29, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
–7– | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1616720/ | 38 So.3d 1122 (2010)
STATE of Louisiana
v.
Darrell James FONTENOT.
No. 09-1044.
Court of Appeal of Louisiana, Third Circuit.
May 12, 2010.
*1123 James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Darrell James Fontenot.
Michael Cade Cassidy, District Attorney, Stacey C. Naquin, Assistant District Attorney, Thirty-First Judicial District Court, Jennings, LA, for Appellee, State of Louisiana.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS and J. DAVID PAINTER, Judges.
PETERS, J.
The State of Louisiana initially charged the defendant, Darrell James Fontenot, by grand jury indictment with aggravated rape, a violation of La.R.S. 14:42. Thereafter, pursuant to a plea agreement, the state reduced the charge to forcible rape, a violation of La.R.S. 14:42.1, and the defendant entered a nolo contendere plea to that charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court then sentenced the defendant to serve forty years at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence. After the trial court rejected his motion to reconsider his sentence, the defendant perfected this appeal. For the following reasons, we affirm the defendant's conviction and sentence in all respects.
DISCUSSION OF THE RECORD
At the May 19, 2009 hearing wherein the defendant entered his plea, the state provided the trial court with the following factual basis:
Okay. Had this matter proceeded proceeded to trial, the State would have introduced the following evidence: That on or about March 15th, 2008, Jennings Police Department responded to 419 *1124 Martin Street here in Jennings, Louisiana, in response to an aggravated rape. Whenever the Jennings Police Department arrived there, they spoke with the victim, Mrs. [M.][G.], whose date of birth is June 2nd, 1922, who for the record is present for this proceeding.
Mrs. [M.][G.] explained to the police officers that she had been asleep in her bed whenever she heard a noise at her back door. She got up to see what it was and found that there was a male standing in her bedroom at her bed. He told her to givehe told her to give him her money. She got out of bed, walked to the kitchen, got her purse and handed him one hundred dollars ($100.00). He took the money. Told her to get on the living room floor. Take off her clothes, and he proceeded to rape her vaginally. Whenever he was done, she made the statement to himshe asked him if he believed in God. He said yes. She stated that heshe would pray for him. That's whenever she [sic] left, and she called 911.
On appeal, the defendant raises two assignments of error: (1) that his sentence is excessive, and (2) that the trial court erred in failing to advise him of his right to trial by jury before accepting his plea. Because the second assignment of error addresses the validity of the conviction itself, we will consider it first.
Louisiana Code of Criminal Procedure Article 556.1 provides that before accepting a felony plea of guilty or nolo contendere, the trial court must determine that the defendant understands the consequences of his or her plea as well as the rights given up by entering a plea. One of those rights that must be addressed is the defendant's right to a jury trial. La.Code Crim.P. art. 556.1(A)(3). Although the trial court informed the defendant of his right to trial in the plea proceedings, the trial court made no mention of the defendant's right to a jury trial.
Despite the trial court's failure to directly address the defendant's right to a jury trial, we find no merit in this assignment of error. The record reflects that, when initially arraigned, the defendant requested a jury trial. Thus, he was aware from the beginning of his prosecution that he was entitled to a jury trial. Additionally, on the day he entered his plea, the defendant executed a written form in conjunction with his plea agreement entitled "PLEA OF NO CONTEST AND WAIVER OF RIGHTS." The written form provided that he had been informed of his rights, including specifically his right to a jury trial; that by entering his plea he waived his rights, including specifically his right to a jury trial; and that he understood his plea subjected him to the same punishment as if he had been "TRIED AND CONVICTED BY A JURY."
In State v. Mendenhall, 06-1407, p. 1 (La.12/8/06), 944 So.2d 560, the supreme court discussed the obligations of the trial court in advising a defendant of his or her right of confrontation, another right covered by La.Code Crim.P. art. 556.1. In addressing this issue, the supreme court stated:
A majority on the court of appeal panel found that the trial judge's statement informing defendant that the state would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state's witnesses at a trial did not suffice as an advisement to defendant of his right to confront his accusers. State v. Mendenhall, 40,986 (La.App. 2nd Cir.5/19/06), 930 So.2d 1196 (Brown, C.J., dissenting). However, this Court has stressed that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), nor *1125 the Court's implementation of Boykin in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a "magic word formula" which may "serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea. . . ." State v. Bowick, 403 So.2d 673, 675 (La.1981). With respect to the Confrontation Clause of the Sixth Amendment, "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (internal quotation marks and citation omitted; emphasis deleted); see also State v. Anderson, 34,491, p. 3 (La. App.2d Cir.4/4/01), 784 So.2d 749, 751 ("In common usage, the phrases confront and cross-examine always connote adversarial activities."), writ denied, 01-1431 (La.4/12/02), 812 So.2d 666. In this instance, the language used by the trial judge appears sufficiently tailored to inform a 29-year-old defendant, who was educated through the twelfth grade and employed as a plant assistant manager, that he was waiving his right to confrontation, and that, because he was pleading guilty, there would be no further trial. See State v. Martin, 382 So.2d 933, 935 (La.1980) (purpose underlying the Boykin and Jackson rules "is to ensure the defendant's receipt of adequate information, so that his decision to plead guilty is truly intelligent and voluntary.. . . [T]his information may successfully be conveyed in words tailored to a particular individual's vocabulary and comprehension"), overruled in part on other grounds, State v. Williams, 392 So.2d 448 (La.1980). Accordingly, we agree . . . that the circumstances in the record reflect a knowing and voluntary waiver of defendant's rights and compliance with the constitutional requirements for the taking of voluntary guilty pleas in Louisiana.
In the matter before us, we find that the record reflects a knowing and voluntary waiver of the defendant's right to a jury trial. Therefore, we find no merit in this assignment of error.
In his remaining assignment of error, the defendant argues that his sentence is excessive. Specifically, he asserts that the trial court failed to properly consider as mitigating factors his age (thirty-four at sentencing), that this was his first felony offense, and that he suffers from a brain injury.
The Eighth Amendment to the United States Constitution and La. Const. art. 1, § 20 prohibit the imposition of cruel or excessive punishment, and the law is well settled with regard to what constitutes cruel or excessive punishment. An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La. 1981). Additionally, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La. 1979). Additionally, "[m]aximum sentences are reserved for the most serious violations and the worst offenders." State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, *1126 225. The only relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial court should impose an imprisonment sentence if any of the following are established by the record:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant's crime.
Additionally, the trial court must "state for the record the considerations taken into account and the factual basis therefor in imposing sentence." La.Code Crim.P. art. 894.1(C). However, in complying with this article, the trial court "need not articulate every circumstance or read through a checklist of items." State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.
In sentencing the defendant, the trial court stated that it had considered the contents of a pre-sentence investigation report provided to it, the factors found in La.Code Crim.P. art. 894.1, and the nature of the offense itself. The trial court noted that the pre-sentence investigation report established that the defendant was born on November 17, 1974, and was raised by his mother. It further established that he had two siblings and four half-siblings; that he was married at age eighteen, divorced two years later, and had no children; that he had a GED and some training as an electrician, but that most of his employment history was manual labor; and that he sustained a head injury resulting in an brain abscess which required surgery and ended his working career; and that he had no juvenile or adult criminal history. The trial court specifically considered his age and the fact that he was a first felony offender as the only mitigating factors present. In denying the defendant's motion to reconsider his sentence, the trial court stated that it did so "because the matter was originally charged as aggravated rape and was amended down to forcible rape" such that the maximum sentence that could be imposed was that which was imposed instead of life at hard labor without benefit of probation, parole, or suspension of sentence.
Citing the supreme court in State v. Telsee, 425 So.2d 1251 (La.1983), the fifth circuit, in State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, suggested that:
The court should consider three factors in reviewing a judge's sentencing discretion:
1. the nature of the crime,
2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.
With regard to the nature of the offense, we recognize that any rape is a repugnant offense. However, our legislature has seen fit to determine that any rape of a victim over the age of sixty-five is the worst of such repugnant offensesaggravated rape. La.R.S. 14:42(A). While the defendant received the benefit of a plea agreement in being allowed to plead to forcible rape, factually his offense fits the *1127 definition found in La.R.S. 14:42(A). Anyone convicted of aggravated rape when the victim is over the age of thirteen is subject to a single sentencelife imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:42(D)(1).
Considering the second Lisotta factor, the defendant's nature and background, the defendant does not argue that the trial court considered any inaccurate information. Instead, he argues that his age and brain injury are sufficient mitigating factors to reduce his sentence. As to his age, the trial court specifically considered it as a mitigating factor, but concluded that it was not sufficient to reduce the penalty below the maximum for forcible rape. With regard to the brain injury, the record establishes that he was subjected to surgery as treatment for a brain abscess and he suffers from aftereffects of that surgery. However, the trial court did not consider this to be a mitigating factor.
The defendant's mental state had been the subject of a sanity commission during the trial court proceedings, and the appointed sanity commission concluded that he was competent to proceed. While the record lacks a transcript of the sanity hearing, a summary of the experts' analysis was introduced. Both experts noted that the defendant has a history of short-term memory loss and that he apparently suffered seizures. However, the record contains nothing to suggest that the defendant's aftereffects of his injury and subsequent surgery played any role in the commission of the offense. Furthermore, the defendant's problems do not necessarily mandate a lesser sentence or cast doubt upon the trial court's sentencing discretion:
Furthermore, in State v. Hart, 397 So.2d 518 (La.1981), the Louisiana Supreme Court upheld a defendant's 75-year sentence for armed robbery and his maximum 50-year sentence for attempted first degree murder despite his diagnosis as a schizophrenic. Despite the defendant's mental condition, the supreme court concluded the trial court did not manifestly abuse its broad sentencing discretion. Also, in State v. Allen, 478 So.2d 589 (La.App. 2 Cir.1985), writ granted, 491 So.2d 12 (La.1986), affirmed as amended, 496 So.2d 301 (La. 1986), the Second Circuit upheld the defendant's maximum 50-year sentence for attempted first degree murder despite the defendant's argument that the trial court did not consider his mental problems. The Second Circuit noted the defendant's extensive mental health treatment records, which showed he was a schizophrenic, were considered by the trial court as evidenced by the trial court's statement that defendant's mental illness could not mitigate the sentence because of the seriousness of the offense.
State v. Taylor, 06-839, p. 7 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 29, writ denied, 06-859 (La.6/15/07), 958 So.2d 1179. See also State v. Gilbert, 00-1822 (La.App. 5 Cir. 5/16/01), 788 So.2d 574.
Even considering all of the defendant's arguments as mitigating factors, the fact remains that the defendant is the worst of offenders. Farhood, 844 So.2d 217. He committed the aggravated rape of an eighty-six-year-old victim after breaking into her home and robbing her.
Finally, a comparison of sentences as contemplated by Lisotta is somewhat meaningless when the offense for which the defendant was sentenced is not the offense he committed.
This court has explained the problems arising when considering sentences where a defendant has entered a plea to a lesser offense where the facts support the conviction on the greater offense:
*1128 In his brief to this court, the Defendant asserts that because he is a first time offender, the sentence of thirty-five years of imprisonment without benefits, near maximum for the offense, is constitutionally excessive. This court has held that maximum sentences are usually reserved for the most egregious and blameworthy of offenders. State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir. 1991), writ denied, 620 So.2d 833 (La. 1993); State v. Mallett, 552 So.2d 28 (La.App. 3 Cir.1989), writs denied, 556 So.2d 1258, 558 So.2d 567 (La.1990) (citing State v. Telsee, 425 So.2d 1251 (La. 1983)).
In State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, the trial court gave the defendant the maximum sentence possible for a conviction of indecent behavior with a juvenile. However, this court found the defendant was a first time offender whose crime did not warrant the trial court's imposition of the maximum sentence because he was not one of the most egregious types of defendant for whom the maximum sentence was intended. In addition to Whatley's lack of previous convictions, this court considered the absence of the use of physical violence and the fact that the defendant ceased his conduct upon rebuff by the sixteen-year-old victim to indicate that the defendant should not have received a maximum sentence. Id. In the present matter, like the defendant in Whatley, the Defendant is also a first time offender. However, unlike the defendant in Whatley, the Defendant in this case was convicted of forcible rape, defined by La.R.S. 14:2(13) as a crime of violence. In addition to its high level of physical violence, the conduct of the Defendant was directed against an eleven-year-old girl who futilely attempted resistance. Further, the Defendant did not receive the maximum sentence available under the offense of which he was convicted. Clearly, the circumstances in Whatley, which led this court to conclude that a maximum sentence was excessive for that first time offender, are not present in the instant case. Considering the foregoing, the near maximum sentence given the Defendant in the instant matter was not excessive, even though he is a first time offender.
It should also be noted that the Defendant pled guilty to forcible rape when the facts fully supported the original charge of aggravated rape. In State v. Lanclos, 419 So.2d 475 (La.1982), the supreme court addressed the issue of whether a maximum sentence was appropriate following a plea agreement. The Lanclos court held that because the lesser offense to which the defendant pled did not adequately describe the first time offender's conduct, the trial court did not abuse its discretion in imposing the maximum sentence. Likewise, in this case, the Defendant pled guilty to forcible rape, an offense that does not adequately describe the conduct shown in the record as directed toward the eleven-year-old victim, which conduct is more accurately described as conduct constituting aggravated rape.
Additionally, the Defendant was originally charged with aggravated rape, a violation of La.R.S. 14:42. By agreeing to plead guilty to forcible rape, a violation of La.R.S. 14:42.1, the Defendant received a significant benefit by reducing his sentence exposure from a minimum of life imprisonment to a maximum of forty years imprisonment. The sentence was within the statutory range for forcible rape.
There is no indication in the record of any plea agreement, or that the Defendant agreed to plead guilty for any particular sentence exposure. Accordingly, in light of the significant benefit gained by the Defendant in agreeing to plead *1129 guilty to forcible rape, rather than face an aggravated rape charge, the trial court did not abuse its wide discretion in imposing a sentence of thirty-five years of imprisonment without benefits. Cook, 674 So.2d 957.
State v. Vallery, 04-1589, pp. 4-6 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, 839-40.
In reviewing the sentences imposed where the defendant was allowed to plead guilty to forcible rape after being charged with aggravated rape, we find support for the trial court's imposition of the maximum sentence. In State v. Colgin, 43,416 (La. App. 2 Cir. 8/13/08), 989 So.2d 876, where the defendant was originally charged with aggravated rape but pled guilty to forcible rape, the appellate court found that the maximum sentence of forty years at hard labor, the first fifteen to be served without the benefit of probation, parole, or suspension of sentence, was appropriate given the emotional damage to the ten-year-old victim and the defendant's status as a second sex-crime offender. In State v. Jarrett, 37,928 (La.App. 2 Cir. 12/10/03), 862 So.2d 440, the defendant was originally charged with aggravated rape, aggravated burglary, armed robbery, and aggravated sexual battery; when he pled guilty to forcible rape and aggravated burglary, the appellate court found that his sentences of forty years for forcible rape and thirty years for aggravated burglary were not excessive. In State v. Gray, 36,389 (La. App. 2 Cir. 9/18/02), 828 So.2d 176, the defendant was originally charged with two counts of aggravated rape, but pled guilty to two charges of forcible rape, and the state agreed not to charge the defendant as a habitual offender and to dismiss other charges, including attempted aggravated rape, simple robbery, and simple kidnapping. The trial court imposed two consecutive sentences of forty years, which the appellate court found not to be excessive.
Here the defendant was originally charged with aggravated rape and the facts supported that charge, the defendant gained significant benefit from his plea agreement, and there exists no indication that the defendant agreed to plead for any particular sentence exposure. We conclude that the sentence imposed on the defendant before us is not excessive.
DISPOSITION
We affirm the defendant's conviction and sentence in all respects.
AFFIRMED.
THIBODEAUX, C.J., dissents in part and assigns written reasons.
THIBODEAUX, Chief Judge, dissenting in part.
I dissent from the imposition of a forty-year sentence as I feel it is constitutionally excessive.
The present case is similar to State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, cited by the majority, in that the facts were consistent with aggravated rape.[1] However, the present crime appears to have been less overtly violent than the one at issue in Vallery. Also, Vallery addressed a sentence five years shorter than the one imposed on Defendant. Further, the forty-year term was the maximum that Defendant could have received. As noted in State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, "`[m]aximum sentences are reserved for the most serious violations and the worst offenders.' State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225."
It is questionable whether Defendant is the "worst kind of offender." The record *1130 does not indicate that he struck the victim or committed physically violent acts, other than the rape itself. Although all rapes are disgusting offenses, and are classified as "crimes of violence" under La.R.S. 14:2(B), not all involve equal levels of violence. As noted earlier, the rape in Vallery was more violent than the one in this case.
Our court has not hesitated to vacate sentences we considered to be excessive. In a case involving the simple rape of an intoxicated victim, this court stated:
The record reveals the following facts relevant to review within the guidelines articulated in La.Code Crim.P. art. 894.1: The Defendant was thirty-one years old at the time of the offense. He is a single father raising his daughter alone. He spent over twelve years as a member of the U.S. Army, receiving an honorable discharge, and, later, the National Guard. His mother, sister, and daughter testified on his behalf. He expressed an acceptance of responsibility for his actions which constituted simple rape and apologized to the victim and her family. Finally, the Defendant is a first felony offender.
Regarding aggravating factors, there is only onethe allegation that Defendant attempted sexual contact with another woman on the night of this offense, but she declined his advances. Other than the facts which constitute the elements of simple rape, there is nothing in the record to warrant a fifteen-year sentence for this defendant. By way of analogy, we refer to the case of State v. Sergon, 449 So.2d 193 (La. App. 3 Cir.1984). There the defendant pled guilty to simple rape of a mental patient at Pinecrest State Hospital. The trial court determined the victim did not understand the nature of the offense because of her mental condition and the defendant, a twenty-nine-year-old member of the Louisiana National Guard, knew of the victim's incapacity. This court held the defendant's sentence of five years at hard labor was not excessive.
We direct the sentencing court's attention to the fact that a sentence of five years or less is appropriate in this case. See La.Code Crim.P. art. 881.4(A).
State v. Clark, 05-647, pp. 4-5 (La.App. 3 Cir. 12/30/05), 918 So.2d 552, 556.
In a manslaughter case, this court explained:
Defendant Runyon did initiate the violence into this situation; however, he played a limited role in Mr. Wiley's death. He inflicted the wound on Mr. Wiley's head, but Defendant McDonald, unbeknownst to Defendant Runyon, subsequently inflicted six stab wounds. All seven wounds contributed to Mr. Wiley's death, but the nature and severity of the wounds inflicted by Defendant McDonald would have contributed more to Mr. Wiley's demise than the single wound inflicted by Defendant Runyon. Defendant Runyon's involvement pales in comparison to that of Defendant McDonald. For these reasons, we find Defendant Runyon is not one of our worst offenders, and the sentence imposed on him is excessive. Accordingly, we vacate his sentence and remand the case for re-sentencing.
State v. Runyon, 05-36, p. 24 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, 424, writ denied, 06-1348 (La.9/1/06), 936 So.2d 207, writ denied, 06-667 (La.11/17/06), 942 So.2d 526.
Regarding a sentence for indecent behavior with a juvenile, this court said:
The offense of indecent behavior with a juvenile is a heinous crime. It involves the use of innocent children to satisfy the sexual desires of an adult and requires the commission of a "lewd or lascivious act" upon, or in the presence *1131 of the child. La.R.S. 14:81. In this case, the defendant fondled the victim's breasts and buttocks. Clearly, society finds such activity inexcusable. Still, the legislature has seen fit to limit the incarceration penalty to a maximum of seven years at hard labor, and as previously stated, the maximum penalty is reserved for the worst offenders. Farhood, 844 So.2d 217.
The defendant was fifty-three years old at the time of the offense and apparently had led a crime-free life. While the evidence indicates that he did use some physical restraint of the victim, the offense entailed no physical violence. Additionally, despite the clear opportunity to do so, the defendant did not attempt to press his physical and timing advantage on his victim. Instead, after she rebuffed his advances, he left. The nature of the defendant's touching, although inexcusable, is not compatible with the degree of touching associated with those cases in which the courts have chosen to render a maximum sentence.
In this case, the trial court "considered deeply the psychological impact" the defendant's actions had on the victim. However, the record reflects that the victim admitted that she was already "somewhat depressed" at the time of the incident because of the recent deaths of her great-grandmother, uncle, and a close family friend. In fact, the victim had seen a physician in April of 2002, or two months before the offense, for "depressive behavior." The state has not cited any indecent behavior cases comparable to the defendant's where the maximum sentence was imposed. Considering only a bare claim of excessiveness, and without considering the merits of the specific assignments of error, we still conclude that, based on the record before us, the evidence does not establish that the defendant is one of those worst offenders upon whom the maximum penalty should be imposed. We find that the trial court abused its wide discretion in sentencing the defendant to the maximum incarceration sentence for this particular offense.
Whatley, 867 So.2d 955.
Though we affirmed a twenty-five year sentence for simple rape in State v. Despanie, 06-1269 (La.App. 3 Cir. 2/7/07), 949 So.2d 1260, Despanie provides some insights. Despanie involved the rape of a ninety-two-year-old female victim suffering from dementia in a long-term care facility. The defendant was a certified nursing assistant at the facility. The victim in this case was eighty-five.
This Defendant and the defendant in Despanie were both charged with aggravated rape, and pleaded guilty to a lesser offense.
The maximum forty-year sentence imposed by the trial court makes no measurable contribution to acceptable penal goals, and is a needless imposition of pain and suffering. See State v. Campbell, 404 So.2d 1205 (La.1981). The trial court abused its discretion in imposing this sentence.
For the foregoing reasons, I respectfully dissent.
NOTES
[1] Aggravated rape is defined by La.R.S. 14:42, which states, in pertinent part, "Aggravated rape is a rape committed upon a person sixty-five years of age or older. . . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98029/ | 231 U.S. 571 (1913)
THE PULLMAN COMPANY
v.
CROOM, COMPTROLLER OF THE STATE OF FLORIDA.
SAME
v.
SAME.
Nos. 28,158.
Supreme Court of United States.
Argued October 31, November 3, 1913.
Decided December 22, 1913.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA.
*574 Mr. Frank B. Kellogg, with whom Mr. Gustavus S. Fernald was on the brief, for appellant.
Mr. T.F. West, Attorney General of the State of Florida, with whom Mr. Park Trammell, former Attorney General of the State of Florida, was on the brief, for appellee.
After making the foregoing statement, MR. JUSTICE DAY delivered the opinion of the court.
Section 266 of the Judicial Code, practically a reenactment of § 17 of the act of June 18, 1910 (c. 309, 36 Stat. 539, 557), regulates the granting of injunctions by Federal courts in cases depending upon the alleged repugnancy of state statutes to the Federal Constitution. The requirement is that applications for temporary injunction in such cases shall be heard before three judges, one of whom shall be a justice of this court or a circuit judge, and an appeal from an order granting or denying an interlocutory injunction in such cases may be prosecuted directly to this court. These appeals are brought under that *575 section. They are from the orders of the court below denying the application for an interlocutory injunction. In that aspect alone the cases are now before the court. In the second suit, it is true, the Treasurer was brought in, with a view to the recovery from him of the moneys wrongfully collected over the protest of the Pullman Company; but no injunction was asked against him, and his presence in the case does not concern the inquiry as to the right to the temporary injunction against the Comptroller, restraining him from levying and collecting the taxes.
The order of substitution was made upon the stipulation and was granted without discussion. In the brief of the Attorney General the matter is submitted to the decision of the court, with an expression of doubt as to whether such substitution of parties can be made in cases of this character, and the question is thus called to the court's attention. In this situation the cases are controlled by the repeated adjudications of this court governing the right of substitution where relief is sought against persons who are situated as was the Comptroller in this case.
The leading case upon substitution of parties in such cases is United States v. Boutwell, 17 Wall. 604, which involved the right to substitute in a suit for mandamus the successor of the Secretary of the Treasury for the one who held that office at the time the suit was commenced. Mr. Justice Strong, who delivered the opinion of the court, pointed out that the purpose of a writ of mandamus is to enforce the personal obligation of the individual, no matter how the duty arose, and that even if the party be an officer and the duty official, mandamus does not reach the office, but is directed solely to the person, who alone can be punished for failure to conform to the mandate, and the suit is therefore a personal action based upon the alleged fact that the defendant has failed to perform a personal duty. And the court concluded that, since the *576 personal duty of the defendant lasted only so long as he occupied the office, and as his successor was not his personal representative and could not be held responsible for his delinquencies, for the successor might have acted differently than the defendant, such action, in the absence of a statute to the contrary, must abate upon the death or retirement from office of the original defendant. This case has been uniformly followed, and applied to suits for injunction as well as for the writ of mandamus. Warner Valley Stock Co. v. Smith, 165 U.S. 28, 33.
And in United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, it was held that the substitution could not be made, although consent was given by the successor in office. In that case it was suggested that in view of the present state of the law it seemed desirable that Congress should provide for the difficulty by enacting a statute which would permit the successors of heads of departments who had died or resigned to be brought into the case by appropriate method. Thereupon Congress passed the act of February 8, 1899 (c. 121, 30 Stat. 822), under the provisions of which, by proper steps, successors of officers of the United States may be substituted for them in suits commenced against the latter in their official capacity. Subsequently, in Caledonian Coal Co. v. Baker, 196 U.S. 432, 442, this court held, after noticing the cases of United States v. Boutwell, supra, and United States ex rel. Bernardin v. Butterworth, supra, and other cases, and the statute just referred to, that, in so far as the successor to a territorial district judge was concerned, the statute had authorized substitution.
The above cases establish the practice of this court, and until the statute of 1899 the practice was uniformly adhered to. That statute affects only Federal officials and leaves the doctrine of the prior cases undisturbed as to the substitution of state officials. The only exception recognized in the decisions of this court has been boards *577 and bodies of a quasi-corporate character, having a continuing existence. See Marshall et al. v. Dye, ante, p. 250.
In Richardson v. McChesney, 218 U.S. 487, this court held that the defendant, McChesney, although named as Secretary of the Commonwealth of Kentucky, was sued personally and concluded that (p. 493) "as his official authority has terminated, the case, so far as it seeks to accomplish the object of the bill, is at an end, there being no statute providing for the substitution of McChesney's successor in a suit of this character. The case is governed by United States v. Boutwell, 17 Wall. 604; United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, and Caledonian Coal Co. v. Baker, 196 U.S. 432, 441."
It therefore follows that in the present aspect of these cases, upon appeal from orders denying an interlocutory injunction, the only party appellee involved in this inquiry, A.C. Croom, Comptroller, having died pending the proceedings and there being no statute concerning such cases, the order of substitution made at the former term must be vacated, the matter being still within the control of the court, there having been no final judgment in the case (Iowa v. Illinois, 151 U.S. 238).
It will therefore be ordered that these appeals be dismissed for want of a proper appellee to stand in judgment upon the only question brought to this court,
And it is so ordered. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/455816/ | 767 F.2d 1359
IDAHO POWER COMPANY, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
No. 84-7450.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 9, 1985.Decided Aug. 7, 1985.
James B. Vasile, Newman & Holtzinger, P.C., Washington, D.C., for petitioner.
John Conway, F.E.R.C., Washington, D.C., for respondent.
On Petition for Review of an Order of the Federal Energy Regulatory Commission.
Before WALLACE and SNEED, Circuit Judges, and CROCKER*, District Judge.
SNEED, Circuit Judge:
1
Petitioner Idaho Power Company (IPC) petitions for review of the dismissal by the Federal Energy Regulatory Commission (FERC) of IPC's application for a license to construct and operate a hydroelectric project. FERC dismissed the application on the grounds that IPC had failed to demonstrate a need for the power that would be produced by the proposed project. We deny IPC's petition.
I.
FACTS
2
In 1980, IPC applied to FERC for a license to operate and construct the A.J. Wiley project, an 84-megawatt hydroelectric project on the Snake River in Idaho. In 1982, FERC issued an Environmental Impact Statement (EIS) on the project. In the EIS, FERC estimated, based on load forecasts submitted by IPC in 1981, that the Wiley project would be needed before 1989 to avoid energy shortages on IPC's system.
3
In 1983, however, FERC requested that IPC provide an updated load forecast. In response, IPC supplied FERC with a 20-year forecast that it had prepared in 1982. This forecast predicted a slower rate of load growth than did the previous forecast. According to it, IPC would not need the power from the Wiley project before the year 2002.
4
On September 26, 1983, on its own motion and without a hearing, FERC dismissed IPC's application. See Idaho Power Co., 24 FERC p 61,344 (1983). In the order of dismissal, FERC estimated that if the licensing procedure went forward, a license would be issued within one year (1984), construction would begin within the two-year limit imposed by the Federal Power Act (1986), and construction would be completed, as estimated by IPC, in three additional years (1989). Because IPC's forecast showed that the project's power would not be needed before 2002, FERC concluded that going forward with licensing would be unjustified. FERC's dismissal was without prejudice to IPC's right to refile the application if and when it could demonstrate a timely need for the project.
5
IPC requested a rehearing. In an order dated December 28, 1983, FERC responded to the request by staying the order of dismissal and giving IPC sixty days to demonstrate that the power from the Wiley Project would be needed by 1989. See Idaho Power Co., 25 FERC p 61,436 (1983).
6
IPC's response conceded that it would not need the power from the Wiley Project by 1989. IPC submitted a new load forecast that indicated that the power probably would not be needed until 1999, but that under a "high growth" scenario it would be needed in 1995. IPC argued that FERC should nonetheless proceed with licensing the Wiley Project because the licensing process was likely to take longer than the one year estimated by FERC, and because FERC had licensed other hydroelectric projects without requiring a showing of need. IPC also argued that FERC should engage in "site banking," the licensing of power projects before they are needed, in order to provide flexibility in energy planning.
7
FERC rejected IPC's arguments and, on May 4, 1984, lifted the stay of its September 26, 1983 order of dismissal. See Idaho Power Co., 27 FERC p 61,175 (1984).
8
IPC petitions for review of both the September 26, 1983 order and the May 4, 1984 order.
II.
DISCUSSION
A. Requirement of a Showing of Need
9
Section 23(b) of the Federal Power Act of 1920, 16 U.S.C. Sec. 817, requires a license from FERC for the construction and operation of a hydroelectric facility. Section 4(e) of the Act, 16 U.S.C. Sec. 797(e), authorizes FERC to license projects that are "necessary or convenient" for the development of hydroelectric power. FERC may issue a license only if, after considering all relevant factors, it finds that to do so would be in the public interest. Udall v. FPC, 387 U.S. 428, 450, 87 S.Ct. 1712, 1724, 18 L.Ed.2d 869 (1967).
10
In 1978, Congress passed the Public Utility Regulatory Policies Act (PURPA), Pub.L. No. 95-617, 92 Stat. 3117 (1978). Section 213 of PURPA, 16 U.S.C. Sec. 823a, authorizes FERC to grant exemptions from the licensing requirement to small (under 15 megawatts, see id. Sec. 823a(b)) hydroelectric facilities that utilize water-supply conduits that are operated primarily for purposes other than power generation. Section 210 of PURPA, 16 U.S.C. Sec. 824a-3, requires electric utilities to purchase power from qualifying small (under 80 megawatts, see id. Sec. 796(17)(a)(ii)) power production facilities.
11
IPC claims that FERC has acted inconsistently with its own precedents in conditioning a license for the Wiley Project on a showing of need. IPC points to cases where FERC has, pursuant to PURPA section 213, issued exemptions from licensing for small hydroelectric projects without requiring a showing of need. IPC, with some umbrage, notes that one such project, exempted in Magic Water Co., 28 FERC p 61,165 (1984), is within IPC's service area and that, under PURPA section 210, IPC will be required to purchase the power from that project at the same time that IPC is unable to construct its own hydroelectric project because it has not made an adequate demonstration of need.1 In this fashion, IPC's prerequisite need becomes increasingly difficult to establish. IPC also argues that FERC's dismissal of its application is inconsistent with FERC's decision in one large-facility case, City of Idaho Falls, 25 FERC p 62,345 (1983).
12
The inconsistency of which IPC complains springs from the pertinent statutes. The requirement of a showing of need for large facilities arises from the Federal Power Act's requirement that licenses be granted only for projects that are "necessary or convenient." The exemption of certain small conduit facilities from that requirement is authorized by PURPA section 213. There is no reason, therefore, to expect the standards for the two types of facilities to be the same. See Idaho Power Co. v. FERC, 766 F.2d 1348 (9th Cir.1985).
13
The distinction drawn between the two types of facilities is quite rational. By utilizing existing conduits, small facilities that qualify under PURPA section 213 produce electric power with minimum impact on the environment and on navigation and with little or no use of depletable resources. Congress therefore wished to encourage the development of such facilities, even in the absence of power deficits, in order to displace other sources of power. See FERC v. Mississippi, 456 U.S. 742, 750-51, 102 S.Ct. 2126, 2132-33, 72 L.Ed.2d 532 (1982); Idaho Power Co., slip op. at ----; H.R.Rep. No. 543, vol. 1, 95th Cong., 1st Sess. 303 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 7659, 7671, 7796.
14
Nor is FERC's dismissal of IPC's application inconsistent with its action in City of Idaho Falls. In Idaho Falls, FERC found that the applicant needed the proposed Gem State hydroelectric project in order to meet a projected increase in its loads, in order to reduce its dependence on purchases of power from the Bonneville Power Administration, and in order to help meet projected regional energy deficits. See 25 FERC p 62,345, at p. 63,567. Thus, the case does not support IPC's claim that FERC has licensed large hydroelectric facilities without requiring a showing of need.
3. Time Required for Licensing
15
In requiring IPC to show that it would need the power from the Wiley Project by 1989, FERC assumed that, if the licensing procedure went forward, the license would be granted within one year. That assumption is unrealistic, asserts IPC. IPC cites examples of cases that took three years from the time that FERC decided to hold a hearing until a license was issued. IPC also argues that, because other parties have intervened to oppose its application, it is likely that a decision to grant a license will be appealed to the full Commission and that the appeal will consume another one to two years. Finally, IPC points out that judicial review of the Commission's decision could take an additional two or more years. Therefore, IPC concludes, it would be prudent to proceed with licensing now, even if the project will not be needed until the middle or late 1990's.
16
We agree with IPC that FERC's assumption that licensing of the Wiley Project could be completed within one year was not supported by substantial evidence. The error, however, was harmless. Even if IPC's most pessimistic time estimates were accurate, the project would still be completed before IPC would need the power even under its most generous load forecast, and long before the power would be needed under its most realistic forecast. Moreover, FERC, in its order of May 4, 1984, noted that IPC's projections did not take into account the North Fork Payette Project, a 300-megawatt hydroelectric facility that has been licensed by FERC but not yet constructed by IPC. Construction of that project would further delay IPC's need for the Wiley project.2 We therefore find that FERC's conclusion that IPC had not demonstrated a timely need for the Wiley project was reasonable.
17
C. "Site Banking"
18
IPC argues that FERC's dismissal of IPC's application is arbitrary and capricious because FERC failed to consider the option of "site banking." Site banking is the licensing of power projects in advance of a showing of need. The purpose of site banking is to promote flexibility by enabling construction to begin on short notice whenever a need develops. Site banking by the Bonneville Power Administration (BPA) is in fact advocated in the Northwest Conservation and Electric Power Plan promulgated by the Northwest Power Planning Council pursuant to the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. Secs. 839-839h (the Regional Act).
19
Alternatively, IPC suggests that FERC could "continu[e] to process the Wiley application on all issues other than the need issue" and then suspend proceedings until IPC can show a need for the project. This procedure would serve the same purposes as site-banking.
20
FERC's final order shows that FERC did consider IPC's site-banking suggestion, but that FERC rejected it as inconsistent with the Federal Power Act. See 27 FERC at pp. 61,321-22. FERC interprets the Act's requirement that a project be "necessary or convenient" to preclude the licensing of a project in the absence of a demonstrated need for power. We must accept FERC's interpretation if it is reasonable and not contrary to the intent of the Act. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, --- U.S. ----, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).
21
In this case, FERC's interpretation is not only clearly reasonable, see Udall v. FPC, 387 U.S. at 444-50, 87 S.Ct. at 1720-24 (Commission should consider whether power is needed before licensing project), it is also supported by the terms of the Act, which envisions prompt implementation of a project after it is licensed. Section 13 of the Act, 16 U.S.C. Sec. 806, requires that construction begin within two years of the issuance of a license. (FERC included this two-year period in its calculation of when the project could be operational if licensing went forward.) Although FERC may extend the period for commencement of construction, the extension may not be for more than an additional two years. Id. Thus, it is reasonable to interpret the Act as inconsistent with the concept of site banking.
22
FERC also found that if it suspended or "banked" IPC's application for the Wiley Project, the site of that project would be tied up and other potential applicants who may have a need for power would be prevented from using it. FERC reasonably found that such tying-up of the site is contrary to the public interest and to the purposes of the Federal Power Act.
23
IPC argues that, despite these considerations, FERC is required by the Regional Act to consider banking the Wiley site because site-banking is advocated in the Northwest Conservation and Electric Power Plan, which was promulgated pursuant to section 4(d) of the Regional Act, 16 U.S.C. Sec. 839b(d). IPC misconstrues the Regional Act and the Plan. The purpose of the Plan is to guide the Administrator of the Bonneville Power Administration (BPA). See 16 U.S.C. Secs. 839b(d)(2), 839b(e)(3)(D). Although the Act calls on the Administrator to encourage "appropriate Federal agencies" to assist in the implementation of the Plan, 16 U.S.C. Sec. 839b(g)(3), it does not call for such agencies to follow or consider the Plan in acting on proposals for projects unconnected with BPA. The Plan does not advocate the banking of sites by individual utilities; rather, it proposes the banking of projects that have been selected by the Power Planning Council and BPA as potentially needed by BPA to serve regional needs. See Addendum to Brief for Petitioner, Plan at 3-3. This may appear to IPC as tilting the scales of power development against individual utilities. If so, the correction must be supplied by Congress.
24
Thus, we conclude that FERC acted within the ambit of its authority in rejecting the site-banking idea as inconsistent with FERC's interpretation of the Federal Power Act and with FERC's view of the public interest.
25
The petition is DENIED.
*
Honorable M.D. Crocker, United States District Judge for the Eastern District of California, sitting by designation
1
In a companion case, Idaho Power Co. v. FERC, 766 F.2d 1348 (9th Cir.1985), we upheld, against a challenge by IPC, FERC's granting of an exemption in Magic Water Co
2
We also note that construction of the North Fork Payette Project has itself been postponed, at IPC's request, because of a diminished need for power by IPC. The postponement further supports FERC's position that IPC does not need an additional hydroelectric project | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/455856/ | 768 F.2d 20
18 Fed. R. Evid. Serv. 1261
UNITED STATES of America, Appellee,v.Anthony KADOUH a/k/a Toufic Ibrahim Kadouh, Defendant, Appellant.
No. 84-1823.
United States Court of Appeals,First Circuit.
Argued June 4, 1985.Decided July 24, 1985.
Bruce E. Colton, Springfield, Mass., by appointment of the Court, for defendant, appellant.
Henry L. Rigali, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL, Chief Judge, and DAVIS* and TORRUELLA, Circuit Judges.
TORRUELLA, Circuit Judge.
1
On May 30, 1984 a federal grand jury returned a four-count indictment charging Anthony Kadouh (appellant) with importation of heroin and aiding and abetting in the importation of heroin in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1), and 18 U.S.C. Sec. 2; importation of heroin in violation of 21 U.S.C. Sec. 963; conspiracy to possess with intent to distribute and distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1) and 846; and, distribution of heroin and aiding and abetting in the distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. A jury found him guilty of all counts and thereafter, on September 10, 1984, he was sentenced to a term of imprisonment of eight years and a five-year special parole term. The main issue here is whether the district court erred in admitting testimony about appellant's involvement with cocaine. We affirm.
2
During trial, the district court had allowed into evidence the testimony of two government witnesses regarding appellant's involvement with cocaine which testimony was not objected to. The testimony was obtained by the government from a codefendant named Paul Braz, and by defense counsel during the cross-examination of John Salem, another codefendant. Braz testified that Kadouh had once asked him for cocaine, and that he had delivered the cocaine to appellant at the residence of Madri Masri, a codefendant in the instant case. Under questioning by defense counsel, Salem testified that appellant had once used cocaine in his presence. The government neither requested nor received testimony from Salem pertaining to appellant's use of cocaine.
3
The government, however, did cross-examine appellant, who testified in his own defense as to whether or not he used cocaine and about the frequency with which he used it. Appellant testified that he was an occasional user of cocaine. The prosecutor also asked Kadouh if he was familiar with, and had ever done, cocaine "free-basing." In addition, the government asked Kadouh, this time over objection from defense counsel, if he had ever bought cocaine with his money and about how much money he had paid for the cocaine. After the district judge overruled the objection, appellant stated that he occasionally bought cocaine with his money and testified about how much he had paid for the substance.
4
Appellant argues that the district court committed reversible error in allowing testimony regarding his involvement with cocaine. The government contends that the testimony was properly admitted under Fed.R.Evid. 404(b) to show motive.
5
Fed.R.Evid. 404(b) allows admission of evidence of other crimes or wrongful conduct to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."1 The procedure for the admission of evidence under Rule 404(b) was delineated in United States v. Maldonado-Medina, 761 F.2d 12, 15 (1st Cir.1985). The first step is to determine whether the evidence has some "special" probative value that would show, for example, a defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. at 15. Here, the "special" probative value of the testimony was to show that appellant, who was unemployed at the time the offenses were committed, used cocaine, an expensive substance, and that trafficking in heroin could provide the money to buy it. This is certainly evidence from which a jury could reasonably find "motive" to commit the crimes charged. See United States v. Jackson, 576 F.2d 46, 49 (5th Cir.1978) (in prosecution for illegally dispensing controlled substances, evidence of 5,000 prescriptions for methaqualone that did not relate to any charged counts properly admitted to show that after doctor had lost surgical privileges at two hospitals he had gone into business of selling street drugs in order to maintain his income).
6
The second step to admit evidence under Fed.R.Evid. 404(b) involves a balancing process: the district judge must balance the probative value of the evidence against possible prejudice. United States v. Maldonado-Medina, supra, at 15. This is a responsibility committed to the judge's broad discretion. Id.; see also United States v. Morris, 700 F.2d 427, 431 (1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983). The record here shows the district court did not abuse its discretion.
7
First, the defendant generally failed to object to the introduction of the cocaine testimony. Indeed, he repeatedly induced such testimony through cross-examination. See United States v. Cyphers, 553 F.2d 1064, 1070 (7th Cir.), cert. denied, 434 U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107 (1977). Second, the evidence against appellant can fairly be characterized as overwhelming. Given the strength of the evidence against Kadouh and the massive quantity of heroin involved in this case, the remarks concerning the defendant's use of cocaine would seem to have little prejudicial effect. United States v. Snowden, 735 F.2d 1310, 1314 (11th Cir.1984). Finally, the judge offered limiting instructions expressly noting that the defendant was not on trial for cocaine. See United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982). In short, the court was entitled to conclude that the probative value of the evidence exceeded its possible prejudice. Therefore, it did not err in allowing the jury to hear the cocaine-related testimony under Fed.R.Evid. 404(b).
8
Appellant's remaining argument lacks merit. Accordingly, the judgment of the district court is affirmed.
9
Affirmed.
*
Of the Federal Circuit, sitting by designation
1
Fed.R.Evid. 404(b) provides:
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. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/426291/ | 719 F.2d 1373
9 Collier Bankr.Cas.2d 1065, 11 Bankr.Ct.Dec. 327,Bankr. L. Rep. P 69,434
Thomas F. LOVELL, Appellant,v.James G. MIXON, Trustee, Appellee.
No. 82-1844.
United States Court of Appeals,Eighth Circuit.
Submitted June 13, 1983.Decided Oct. 31, 1983.
1
James G. Mixon, Little, McCollum & Mixon, Bentonville, Ark., for appellee.
2
Truman H. Smith, Smith & Smith, Fayetteville, Ark., for appellant.
3
Before ROSS and McMILLIAN, Circuit Judges, and COLLINSON, Senior District Judge.*
4
COLLINSON, Senior District Judge.
5
This is an appeal from a judgment of the United States District Court for the Western District of Arkansas1 which affirmed an order of the bankruptcy court2 denying a discharge in bankruptcy to the appellant-debtor (hereinafter the "Debtor") under the provisions of 11 U.S.C. Sec. 727(a)(2). The case concerns several adversary proceedings brought against the Debtor by the appellee-trustee (hereinafter the "Trustee") of the Debtor's estate. The appeal brings into question the res judicata or collateral estoppel effects of a bankruptcy court proceeding to set aside fraudulent transfers on a later bankruptcy court proceeding concerning the Debtor's discharge.
6
The Debtor filed a voluntary petition in bankruptcy on March 6, 1980. Within a few months the Trustee appointed to represent the Debtor's estate discovered that the Debtor had made several questionable property transfers in the preceding year. On May 12, 1980, the Trustee filed a complaint to cancel a deed as a fraudulent conveyance under the provisions of 11 U.S.C. Sec. 548, alleging that the Debtor had transferred forty acres of real estate to his mother. Both the Debtor and his mother were named as defendants.
7
On or about June 1, 1980, the Trustee filed another complaint for an order to turn over property and to set aside fraudulent conveyances, also pursuant to 11 U.S.C. Sec. 548. Count I of this complaint involved the Debtor's transfer of a boat, motor and trailer to his girlfriend; Count II involved transfers of money to the Debtor's aunt and uncle; Count III involved money transfers to the Debtor's father; Count IV involved a transfer of money to the Debtor's mother; Count V involved a transfer of money to the Debtor's brother; and Count VI involved forty-one withdrawals from the bank account of the Debtor's business. The Debtor and the alleged transferees were named as defendants.
8
In June 1980, the bankruptcy court held a hearing on the complaint concerning the forty-acre transfer to the Debtor's mother. The Trustee, the Debtor and an attorney representing both the Debtor and his mother appeared at the hearing and presented evidence. In its order of September 15, 1980, the bankruptcy court made findings of fact that the Debtor had transferred the real property to his mother, that at the time of the transfer he received less than a reasonably equivalent value in exchange, and that he intended to incur and believed that he would incur debts that would be beyond his ability to pay as they matured. On the basis of these facts, the court concluded that the conveyance was a constructively fraudulent transfer as defined by 11 U.S.C. Sec. 548(a)(2)(A), (B)(iii), and the Debtor's mother was ordered to convey the property to the Trustee.
9
A settlement was reached among the Trustee, the Debtor and the transferees with regard to the claims involved in the six-count complaint. In orders dated October 27, 1980, and November 19, 1980, the bankruptcy court approved the compromise settlements; Counts I, II and IV were dismissed without prejudice and Counts III, V and VI were dismissed with prejudice.
10
On January 9, 1981, the Trustee initiated a proceeding under 11 U.S.C. Sec. 727 objecting to the Debtor's discharge in bankruptcy on the grounds that the Debtor transferred and concealed property with the intent to hinder, delay and defraud his creditors and that the Debtor failed to explain satisfactorily a substantial loss and deficiency of assets to meet his liabilities. The Trustee later amended his complaint to include as proof of the Debtor's actual intent to defraud his creditors the specific allegations that the Debtor transferred money to his aunt and uncle and to his mother, that he wrongfully withdrew assets of the bankrupt estate and that he conveyed forty acres of real estate to his mother. The above conveyances refer to the same transactions involved in the Trustee's first complaint to set aside fraudulent conveyances and Counts II, IV and VI of the second complaint.
11
In response to this complaint under Sec. 727, the Debtor raised the affirmative defenses of res judicata and collateral estoppel, arguing that the decision and dismissals in the previous Sec. 548 proceedings concerning fraudulent transfers precluded a later suit by the Trustee objecting to the Debtor's discharge based on those same transfers.
12
The bankruptcy court held that the principles of res judicata and collateral estoppel did not apply in this situation. The court also concluded, after the presentation of evidence including the testimony of the Debtor, that within one year prior to the filing of his bankruptcy petition, the Debtor had transferred property to himself and others with the intent to hinder, delay or defraud his creditors in violation of 11 U.S.C. Sec. 727(a)(2). The Debtor's discharge was therefore denied.
13
Although the district court did not agree with the bankruptcy court's determination that the doctrines of res judicata and collateral estoppel were inapplicable under these facts, the district court affirmed the denial of the Debtor's discharge on other grounds. In the district court's view, because the Sec. 548 proceeding to set aside the real estate transfer to the Debtor's mother had been decided adversely to the Debtor, the Trustee could rely on this determination as collateral estoppel in the later proceeding objecting to the Debtor's discharge under Sec. 727. The Debtor appeals.
14
Although the parties did not distinguish between the concepts of collateral estoppel and res judicata in their briefs, we cannot properly analyze the issues involved in this appeal without recognizing the critical differences between them.
15
Under the doctrine of collateral estoppel, four criteria must be met before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213 (8th Cir.1977). The doctrine of res judicata bars a later suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies. Ward v. Arkansas State Police, 653 F.2d 346 (8th Cir.1981). Thus, the application of collateral estoppel or issue preclusion is limited to those matters previously at issue which were directly and necessarily adjudicated. Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). In contrast, res judicata or claim preclusion bars the relitigation of issues which were actually litigated or which could have been litigated in the first suit. Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). However, both doctrines are applied only when the party against whom the earlier decision is being asserted had a "full and fair opportunity" to litigate the issue in question. Kremer v. Chemical Construction Corp., 456 U.S. 461, 481 n. 22, 102 S.Ct. 1883, 1897 n. 22, 72 L.Ed.2d 262 (1982).
16
Applying these general principles to the facts before us, it is clear that the concept of collateral estoppel is no bar to the Trustee's suit to block the Debtor's discharge.
17
Under 11 U.S.C. Sec. 548(a), the Trustee is given authority to avoid transfers made by the Debtor within one year before the date of the filing of the bankruptcy petition on the ground of actual fraud or on the ground of constructive fraud. Subsection (a)(1) of Sec. 548 sets out the ground of actual fraud and subsection (a)(2) sets out the ground of constructive fraud.3
18
On the other hand, in order to deny a bankrupt's discharge under 11 U.S.C. Sec. 727(a)(2), the Trustee must establish that the property was transferred with actual intent to hinder, delay or defraud creditors. Constructive intent cannot be the basis for the denial of a discharge in bankruptcy.4
19
The intentional fraud issue, central to the proceeding to prevent the Debtor's discharge, was never decided by the bankruptcy court in the suit to set aside property transfers. Most of the claims were settled and dismissed. A hearing was held on the question of the forty-acre transfer after which the bankruptcy court determined that the transfer was a constructively fraudulent conveyance and therefore voidable. The court made no determination that the Debtor intended or did not intend to defraud his creditors. The doctrine of collateral estoppel at most could prevent the Trustee from relitigating in the discharge hearing those matters decided in the earlier hearing. The court was not precluded, under principles of collateral estoppel, from considering and deciding an issue never before resolved. Therefore, the Debtor's attempt to invoke collateral estoppel is inappropriate under these facts.
20
The Debtor also contends that the doctrine of res judicata, which precludes the relitigation of issues that could have been litigated, precluded the bankruptcy court from considering the nature of the transactions previously involved in the Sec. 548 proceeding as a basis for the denial of the Debtor's discharge. In considering whether the principle of res judicata is applicable, we are guided by the decision of Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), in which the Supreme Court held that a bankruptcy court was not barred by the doctrine of res judicata from inquiring into the nature of a debt of the bankrupt in order to determine the dischargeability of the debt.
21
In Felsen, the parties had stipulated to judgment in a state court proceeding in which the debtor's debt to the creditor was reduced to judgment. The issue of misrepresentation had been raised in the pleadings but the stipulation did not indicate whether or not the debtor had committed fraud. When the debtor later filed a petition in bankruptcy, the creditor sought to establish that the debt to him was not dischargeable. The bankrupt argued that res judicata barred relitigation of the nature of the debt because it was a matter that could have been decided in the prior state court judgment. The bankruptcy court therefore confined its consideration to the prior state court record and held that the debt was dischargeable. The district court and appellate courts affirmed. The Supreme Court reversed and refused to apply res judicata to bar the bankruptcy court from considering evidence extrinsic to the state court judgment.
22
Among other reasons for its decision, the court noted that the issues relevant to the dischargeability proceeding were largely immaterial to the state court action; therefore, applying res judicata would force the dischargeability questions to be tried in state court at a time when they were not directly in issue and neither party had a full incentive to litigate them. In the present case, applying res judicata would also force the dischargeability issue of intentional fraud to be decided in the earlier proceeding to set aside transfers. As noted previously, to establish his right to set aside transfers, the trustee must only prove constructive fraud. Therefore, there is little motivation on the part of the trustee to take the litigation further. Likewise, the debtor has little incentive to prove that he is not guilty of fraud when such proof would have no effect on the question of constructive fraud and the ultimate result of voiding the transfers. Therefore, neither party is fully motivated to litigate the fraud issue at this stage of the bankruptcy proceedings. Under the reasoning of Felsen this factor militates against the application of res judicata.
23
In the Felsen case, the Supreme Court also reasoned that Congress intended to commit all questions regarding dischargeability to the bankruptcy court and this intent would be thwarted by forcing the dischargeability questions to be tried in the earlier state court action. In this case, forcing consolidation of claims relating to voidable transfers and claims relating to the debtor's discharge would also thwart legislative intent to permit the trustee to litigate these claims separately.
24
A trustee may file a Sec. 548 complaint to set aside fraudulent conveyances at any time after he is appointed to represent the debtor's estate. In contrast, under Bankruptcy Rule 404, the time for filing a complaint objecting to the debtor's discharge is fixed by the court, and the creditors and trustee are generally given at least thirty days notice of the date fixed. In addition, the complaint objecting to discharge cannot be filed prior to the first meeting of creditors. Thus, the Bankruptcy Act does not require that an action to avoid property transfers and an action to object to the debtor's discharge be brought together. Indeed, they may not be sought simultaneously when a Sec. 548 proceeding is commenced prior to the first meeting of creditors.
25
The differing time requirements are justified by the differing purposes served by each proceeding. Recovery of property pursuant to Sec. 548 is intended to insure fairness to the creditors in the distribution of the assets of the bankrupt's estate. As a fiduciary of the estate, the trustee has a duty to avoid such transfers if to do so would benefit the estate and it is usually advisable for the trustee to act quickly. By waiting, the trustee is merely risking the loss of his ability to trace the property and the transferees.
26
In contrast, a proceeding under Sec. 727 is an attempt to deny the debtor the benefits of a discharge based on his misconduct. Quick action by the trustee on this action is not needed or often possible. To develop the greater proof required in Sec. 727 actions as compared to Sec. 548 actions may require more investigation by the trustee. If res judicata forced the claims to be brought together or forever barred, the trustee might be compelled to choose between the claims: if he acted quickly to recover property transfers for the benefit of the credit community, he may be forced to forego opposition to the debtor's discharge due to a lack of evidence at this stage in the bankruptcy proceedings; but if the trustee took time to gather proof of actual intent to defraud creditors, the property and the transferees may slip from his reach.
27
In this case the Debtor's petition in bankruptcy was filed on March 6, 1980. The Trustee properly took immediate steps to recover property transferred without consideration in the preceding year. (The complaints under Sec. 548 were filed on May 12, 1980, and June 1, 1980.) At this stage of the proceedings the Trustee accomplished all that he intended: he recovered the forty acres of real estate from the Debtor's mother, which was determined to be a constructively fraudulent conveyance and he entered into settlements with regard to the remainder of the claims. Approximately six months later the Trustee finished his investigation and filed an opposition to the Debtor's discharge based on the fraudulent nature of the transfers. This chronology of events conforms to that envisioned by the Bankruptcy Act. To apply res judicata to bypass the further hearing under Sec. 727 would defeat that statutory scheme which permits the trustee to litigate Sec. 548 claims and Sec. 727 claims separately.
28
Another factor important to the Court in Felsen and likewise applicable here, was the congressional intent that the "fullest possible inquiry" be made into dischargeability determinations and that only honest debtors be granted a discharge. The Court stated:
29
Refusing to apply res judicata here would permit the bankruptcy court to make an accurate determination whether respondent in fact committed the deceit, fraud, and malicious conversion which petitioner alleges. These questions are now, for the first time, squarely in issue. They are the type of question Congress intended that the bankruptcy court would resolve. That court can weigh all the evidence, and it can also take into account whether or not petitioner's failure to press these allegations at an earlier time betrays a weakness in his case on the merits.
30
442 U.S. at 138, 99 S.Ct. at 2212.
31
Finally, we note the Felsen court's cautioning instruction that the principle of res judicata should be invoked only after careful inquiry because it blocks "unexplored paths that may lead to truth" and "shields the fraud and the cheat as well as the honest person." 442 U.S. at 132, 99 S.Ct. at 2210. After that careful inquiry, and in view of the Supreme Court's opinion in Felsen, we decline to impose the principle of res judicata to preclude the Trustee who has utilized proceedings to recover fraudulent transfers under 11 U.S.C. Sec. 548 from later objecting to the Debtor's discharge based on those same transfers. We recognize the Supreme Court's holding was limited to the effect of a prior state court judgment on a later dischargeability proceeding, but believe that our extension of this holding to the context of a bankruptcy proceeding to set aside fraudulent transfers is fully compatible with the Supreme Court's reasoning.
32
Because we have concluded that res judicata and collateral estoppel do not apply in this case, the bankruptcy court was free to consider the nature of the transfers previously involved in the Sec. 548 proceeding as the basis for the denial of the Debtor's discharge in bankruptcy. Following an evidentiary hearing, the bankruptcy court found that the Debtor had transferred property to himself and others with the actual intent to defraud his creditors in violation of Sec. 727(a)(2). This finding is not clearly erroneous and therefore we affirm the judgment of the district court affirming the decision of the bankruptcy judge.
*
The Honorable William R. Collinson, Senior District Judge, Eastern and Western Districts of Missouri, sitting by designation
1
The Honorable H. Franklin Waters, United States District Judge for the Western District of Arkansas
2
The Honorable Charles W. Baker, United States Bankruptcy Judge for the Western District of Arkansas
3
Title 11, United States Code, Sec. 548(a) states:
(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor--
(1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer occurred or such obligation was incurred, indebted; or
(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred; or became insolvent as a result of such transfer or obligation;
(ii) was engaged in business, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or
(iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured.
4
Title 11, United States Code, Sec. 727(a)(2) states:
(a) The court shall grant the debtor a discharge, unless--
* * *
(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed--
(A) property of the debtor, within one year before the date of the filing of the petition; or
(B) property of the estate, after the date of the filing of the petition. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2587915/ | 205 P.3d 890 (2009)
227 Or. App. 289
IN RE A.C.M.
STATE EX REL. DEPT. OF HUMAN SERVICES
v.
M.C.M.
Court of Appeals of Oregon.
March 25, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616729/ | 38 So. 3d 145 (2010)
SMITH
v.
STATE.
No. 2D08-6340.
District Court of Appeal of Florida, Second District.
June 18, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616791/ | 201 So. 2d 402 (1967)
STATE of Alabama
v.
UNION TANK CAR COMPANY.
3 Div. 247.
Supreme Court of Alabama.
June 22, 1967.
Rehearing Denied August 17, 1967.
MacDonald Gallion, Atty. Gen., Willard Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellant.
Bradley, Arant, Rose & White and John P. Adams, Birmingham, for appellee.
*403 SIMPSON, Justice.
The facts in this case were stipulated and are as follows: Union Tank Car Company is a New Jersey corporation and is qualified to do business in Alabama. It manufactured in Indiana two railroad cars which are the subject of the use tax assessment involved in this case. It then leased these two railroad cars to United States Steel Corporation who used the two cars in the State of Alabama and elsewhere.
On January 22, 1965, a use tax assessment against Union Tank Car Company was made final in the amount of $630.82. The assessment made by the Department of Revenue was based upon the cost of materials used by Union Tank Car Company in manufacturing the two cars. Following the final assessment Union Tank Car Company appealed to the Circuit Court of Montgomery County under the provisions of Title 51, § 140, Code of Alabama. That court entered a final decree in favor of appellee and the State has appealed to this court.
The Circuit Court found that appellee was exempt from the payment of the use tax under the provisions of Title 51, § 789 (q), which is as follows:
"789. ExemptionsThe storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article * *.
"(q) The storage, use, or consumption of railroad cars, and vessels and barges of more than 50 tons burden when purchased from the manufacturers or builders thereof."
The single issue which we must decide initially is whether the foregoing sections exempt the appellee from the payment of use tax under the facts of this case. The Circuit Court so found.
The State's contention is that the exemption is unavailable to appellee because the two cars were not "purchased from the manufacturer or builder thereof" within the language of the exemption section. The appellee's position is that it is precisely within the category of persons exempted from the imposition of use tax by the State and that the kind of property here involved is expressly exempted regardless of the fact that there has been no "purchase from a manufacturer". The appellee itself is the manufacturer.
The State contends that the word "purchased" must be given its literal meaning; that exemption sections of taxing statutes are to be strictly construed; and that in the absence of a purchase from a manufacturer or builder, the taxpayer cannot claim the benefit of the exemption.
We think that the State's argument puts an undue emphasis on the word "purchased" and ignores the obvious intention of the legislature in granting the exemption in the first place. Our responsibility is to give effect to the legislative intention where it is manifested. Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596. When approached in this fashion, it seems clear to us that the legislature intended by § 789(q) to exempt railroad cars from the payment of use taxes when there have been no dealings with respect thereto except direct dealings between manufacturers of railroad cars and the taxpayer. The exemption is aimed at a specific class of persons and a specific category of personal property. The State would have us ignore these provisions and look only to the transaction. We think to do so would be to adopt a mechanistic approach not warranted by the legislation itself.
The State relies upon our decision in Paramount-Richards Theatres v. State, 256 Ala. 515, 55 So. 2d 812 (second appeal) where we held that Title 51, § 788 authorized a tax only where there had been a sale and that the section did not authorize the State to impose a tax on bona fide rentals.
*404 There we were construing the following language:
"§ 788. Property taxed; persons liable. An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property * * * purchased at retail * * *"
In construing this language we held that the statute was intended to prevent evasions of the act where there is an actual sale of tangible personal property, and that the definition of the word "purchase" as contained in the Use Tax Act was designed to prevent camouflaging an actual sale by designating it as a lease, etc. But where there was an actual bona fide lease and no "purchase" there could be no use tax imposed.
The State takes the position that the word "purchase" must be given the same meaning where it appears in § 789(q) and where it appears that there has been a bona fide lease (which is the case here) there can be no exemption under that section. We cannot agree. Such an interpretation is inconsistent with the obvious intention of the legislature in enacting this legislation. It would disregard the significance of the designation of a class of taxpayers and a class of property exempted by the legislature.
In a some what similar case, the late Judge Walter B. Jones wrote a decree which was adopted by this court as its opinion. He, too, was called upon to construe an exemption clause in a taxing statute. There he said:
"While exemption clauses are, of course, to be construed most strongly against the taxpayer, they are not to be so strictly construed as to defeat or destroy the intent and purpose of the enactment, and no strained construction will be given them that will effect that end, State v. Wertheimer Bag Co., 253 Ala. 124, 127, 43 So. 2d 824, and it has been said that `If the act expresses the intent to exempt certain property, judicial Construction is not appropriate to defeat the exemption.' In re Bandheim's Estate [100 Cal. App. 2d 398] 223 P.2d 874." State v. Advertiser Co., 257 Ala. 423, 59 So. 2d 576.
Similarly, here, we think that there is an obvious intent by the legislature to exempt certain property and a certain class of taxpayers. We think that the appellee is within this category and there is no question but that the type of property involved is expressly exempt.
The State would admit that no tax could be assessed against U. S. Steel Corporation, the lessee of these two cars. The construction given to § 788 in Paramount-Richards, supra, would not permit the imposition of the use tax where there has been a bona fide leasing of the property. Further, if U. S. Steel had in fact purchased these two case at retail, within the meaning of the taxing section, it would obviously be exempt from the tax under the express provisions of § 789(q). We think the appellee here is likewise entitled to the exemption. Such an interpretation is the only one permitted which will consistently uphold the intention of the legislature in granting the exemption.
This being the view we take of this case, there is no need to write to various constitutional questions raised by the parties hereto.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616786/ | 266 Wis. 2d 852 (2003)
2003 WI App 184
668 N.W.2d 834
James M. POVOLNY and Deborah A. Povolny, Plaintiffs-Appellants,
v.
James B. TOTZKE, Dawn M. Totzke, Bremer Bank National Association, Fleet Mortgage Corporation, Town of Cady, and All Other Persons Concerned, Defendants-Respondents.
No. 02-3011.
Court of Appeals of Wisconsin.
Submitted on briefs June 24, 2003.
Decided July 29, 2003.
*855 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas J. Basting, Jr., Jack Y. Perry, and Briggs and Morgan, P.A., of Minneapolis, Minnesota.
On behalf of the defendants-respondents, the cause was submitted on the brief of Catherine R. Munkittrick and Rodli, Beskar, Boles & Krueger, S.C., of River Falls.
On behalf of defendant-respondent Town of Cady, the cause was submitted on the brief of Robert A. Parsons, Steven B. Goff, and Bye, Goff & Rohde, Ltd., of River Falls.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1. HOOVER, P.J.
James and Deborah Povolny appeal a judgment that held the town road, over which their easement by necessity crosses, had been abandoned. As a result of the judgment, the road is discontinued and therefore governed by the easement, which is limited to personal and agricultural uses. The Povolnys contend that the road has been continuously used. Thus, it has not been entirely abandoned and cannot be deemed discontinued. We disagree and affirm the judgment.
Background
¶ 2. The Povolnys own a landlocked parcel that abuts James and Dawn Totzkes' land. The Povolnys purchased their land in September 1998, shortly before the Totzkes purchased theirs. The Povolnys used a path that was once a town road to access their property. This path crosses the Totzkes' land, although the Povolnys *856 and their predecessor in interest, Michael Haase, believed it was entirely on their land.
¶ 3. When the Totzkes purchased their parcel, the Town of Cady required they reserve a sixty-six-foot easement for access to the Povolny lot. The easement was recorded on the certified survey map without discussion of whom it was to benefit or for what purpose. The land subject to the easement includes the former town road.
¶ 4. The Povolnys planned to use their lot for various commercial activities, including a motor cross track. When the Totzkes objected, claiming the use was inappropriate under the easement, the Povolnys filed this action seeking a declaration that the easement locus was really an open town road and the Totzkes could not prevent the Povolnys from using it to access their property for any reason.
¶ 5. Following a trial to the court, the court concluded as both a factual and legal matter that the town road had been abandoned as of 1994. Because a five-year period[1] had passed in which the town spent no money on the road, the court concluded that the road was discontinued as a route of travel under WIS. STAT. § 80.32(2). The court then construed the recorded easement, concluding that it was limited to personal and agricultural uses and effectively precluding the Povolnys from using their lot for the commercial enterprises *857 they had planned. The Povolnys appeal the portion of the judgment declaring that the road had been abandoned, but do not challenge the court's construction of the easement.
Standard of Review
[1, 2]
¶ 6. The parties disagree as to the appropriate standard of review. We are faced with a mixed question of fact and law. The trial court made certain findings regarding the road's condition and use. These are factual findings that we leave undisturbed unless they are clearly erroneous. WIS. STAT. § 805.17(2). However, whether these facts fulfill the statutory requirements is a question of law we consider de novo. See Ide v. LIRC, 224 Wis. 2d 159, 166, 589 N.W.2d 363 (1999).
Discussion
¶ 7. WISCONSIN STAT. § 80.32(2) states in relevant part that "any highway which shall have been entirely abandoned as a route of travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued." The parties agree that no highway funds have been expended for five years. Thus, the only question for us to resolve is whether, as a matter of law, the road was entirely abandoned as a route of travel.
[3]
¶ 8. Wisconsin courts have previously interpreted the meaning of "entirely abandoned." Lange v. Tumm, 2000 WI App 160, ¶ 7, 237 Wis. 2d 752, 615 N.W.2d 187. In State ex rel. Young v. Maresch, 225 Wis. 225, 231-32, 273 N.W.2d 225 (1937), the supreme court explained *858 that if a highway or road "was traveled by such of the public that had occasion to use it," that is sufficient to keep the roadway from being entirely abandoned. Lange, 237 Wis. 2d 752, ¶ 7. In other words, the "key inquiry is whether the highway has remained open to all who had occasion to use it." Id., ¶ 10.
¶ 9. The court here emphasized two factors in determining that the road had been entirely abandoned: The roadway was overgrown and difficult or impossible for vehicles to travel without damage and members of the public sought permission to use the road. The Povolnys contend it was error for the trial court to consider these factors. However, we believe these considerations underpin the "open to all" inquiry and that, by considering these two factors, the trial court implicitly and correctly applied the Lange standard.
Condition of the Roadway
[4, 5]
¶ 10. We leave factual findings undisturbed as long as they are supported by the record. Dunn County v. Judy K., 2002 WI 87, ¶ 38, 254 Wis. 2d 383, 647 N.W.2d 799. The trial court ultimately determined the roadway was impassible by vehicles. Supporting this, the court heard testimony from Haase, a hunter named Ed Swenson who had used the property prior to the Povolnys' purchase, and the Povolnys' neighboring landowner Jae Anderson.
¶ 11. Haase testified that at some point before the Povolnys purchased his land:
When I would inspect the property after the saplings had grown up to a point where it wasn't really . . . feasible to go through . . . I would drive in on the road *859 and get off the county road and then walk down [the town road].... There was a[n] area that you could drive partially down ....
Similarly, Anderson noted that the roadway is "grass in the middle, grass grown over lots of little trees."
¶ 12. Swenson testified that when he would hunt on the Povolny lot, he sometimes used the roadway to access the parcel. However, he noted, "we could drive down it to a point . . . there was a tree that had fell across the road, and we didn't remove it. We just stopped there."
¶ 13. The real estate agent showing the Povolnys the property in 1997 indicated he had been able to drive his car down the roadway, but noted it was weedy. Finally, the former Cady patrolman noted that in 1998, he went to clear the area as a sort of favor to the Totzkesthe town would clear the easement since it had required the Totzkes to reserve the section. The patrolman stated that he had to remove brush and trees from the roadway before he could place crushed rock on the path.
¶ 14. The court also viewed a photograph of the roadway dated April 1997 by the camera's dating system.[2] Although the Povolnys invited us to interpret this *860 photograph ourselves,[3] we believe it is simply a graphic reinforcement of the testimony provided, showing saplings growing in the easement proper.
¶ 15. From the evidence concerning the road's condition, the court concluded that it was not fit for vehicular travel. The Povolnys argue that vehicular traffic need not be the only traffic for the road to remain a route of travel. However, the inquiry is whether the road remained "open to all who had occasion to use it." The fact that at least Haase and Swenson testified that they would sometimes walk the route after driving part of it because they could not progress with their vehicles leads us to conclude that the road was not open as a matter of law because members of the vehicle-driving public that had occasion to use the road could not.
Permissive Use
[6, 7]
¶ 16. The trial court also relied on the fact that some individuals sought permission to use the road. We note at the outset of this discussion that had any of the property owners purposely obstructed the roadway, this would be a more difficult inquiry. It is self-evident that a private landowner has no right to treat a public highway as his or her own private roadway so as to force abandonment. However, there is no evidence that this happened and, indeed, Haase indicated no one had ever been denied access on the roadway during the time he owned the property from 1982 to 1998.
¶ 17. The trial court heard testimony that individuals would seek permission to use the Povolny lot. *861 Although this does not directly address the abandonment issue, the evidence indicates that the road was perceived as a private driveway. Swenson testified that he always thought it was a driveway. Haase and the realtor both believed that as well based on the location of a cattle fence off the roadway.[4] Thus, when individuals sought permission to use the land, by extension they asked for permission to use the road.
[8, 9]
¶ 18. A private owner cannot force the public to abandon a roadway. He or she cannot, for example, require that the public seek permission to traverse and thus transform a road from public to private.[5] However, the public's perception of the roadway's status is a proper, but not dispositive, consideration in determining whether a public way has been abandoned. Here, the public that had occasion to use the roadway demonstrated that it considered the road's public nature abandoned because it sought permission to use the road. The trial court properly considered this evidence by ultimately determining that the road no longer remained open to the public that had occasion to use it.
Subsequent Use of the Roadway
[10, 11]
¶ 19. The Povolnys spend much time detailing how they, along with their friends and others, have used *862 the road since they purchased the lot. This is irrelevant. The court determined that the road was discontinued as of 1994, and resuming use of the road does not make it unabandoned. Even if that use were a consideration, once the Totzkes bought their lot and recorded the easement, it would be impossible for us to separate use of the "road" from use of the easement.
¶ 20. The Povolnys also interject a public policy argument regarding the landlocked nature of their parcel should the road be considered discontinued. The parcel is not currently landlocked; the Povolnys have an easement by necessity for accessing their land.[6]
¶ 21. The trial court heard testimony regarding the condition of the former town road, concluding it was not open to vehicular travel. The court also heard testimony that members of the public treated the roadway as private, seeking permission when they wished to use it. Because of this, the court reasonably concluded that the roadway was not open to all members of the public who had occasion to use it. With the Lange standard unfulfilled, the roadway was abandoned as a route of travel. Coupled with the fact that highway funds had not been expended on the roadway for at least five years, the court properly categorized the road as discontinued, and the easement controls the use of the land.
By the Court.Judgment affirmed.
NOTES
[1] We note that under WIS. STAT. § 80.32(2), the five-year period pertains specifically to town expenditures, not the road's abandonment as a route of travel. Thus, the road could have been entirely abandoned before or after 1994. However, the earliest the road could be considered discontinued would be after the five-year period of nonexpenditure.
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] Haase, Swenson, and Anderson provided adequate testimony from which the trial court could have concluded the roadway was impassible in 1994. The testimony about the road's condition in 1997 and 1998 enforces that testimony and, in any event, there is sufficient evidence from which the trial court could conclude that the roadway was abandoned before the Povolnys bought it.
[3] See Cohn v. Town of Randall, 2001 WI App 176, ¶ 7, 247 Wis. 2d 118, 633 N.W.2d 674 (Where the evidence is documentary, the appellate court is not bound by inferences drawn therefrom by the trial court.).
[4] This should not be mistaken for Haase treating the roadway as his own and restricting its use so as to force abandonment; Haase testified that he never prevented anyone's use of the road.
[5] That the Totzkes apparently barricaded the route is irrelevant because the court determined the road had been abandoned before the Totzkes bought their land. Thus, the Totzkes did not force the public to abandon the road.
[6] We note that the record contains letters from the Povolnys' attorney to owners of adjoining lots. In these letters, the Povolnys attempt to buy access easements, claiming that the parcel became landlocked in 1979. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616796/ | 190 S.W.3d 423 (2006)
SOUTHERN STAR CENTRAL GAS PIPELINE, INC., Appellant,
v.
David R. MURRAY a/k/a David R. Murphy, Respondent.
No. 26930.
Missouri Court of Appeals, Southern District, Division Two.
March 15, 2006.
Motion for Rehearing or Transfer Denied April 10, 2006.
Application for Transfer Denied May 30, 2006.
*425 John Nichols, Teresa J. James and Teresa L. Mah, Overland Park, for appellant.
Andrew P. Wood, Neosho, for respondent.
ROBERT S. BARNEY, Judge.
Southern Star Central Gas Pipeline, Inc. ("Appellant") appeals the trial court's judgment denying it injunctive relief against David R. Murray a/k/a David R. Murphy ("Respondent") arising from its allegations that Respondent was impairing its use of a pipeline easement by the presence of a permanent dwelling within the boundaries of its easement. Appellant alleges four points of trial court error discussed below. We affirm.
The record reveals that on July 8, 1999, Respondent purchased real property on which was located a modular home. Prior to Respondent's purchase of the property, one of Respondent's predecessors in interest granted a pipeline easement to one of Appellant's predecessors in interest on September 28, 1967. The easement document was devoid of any language from which the easement size or location could be determined, i.e., it simply provided an easement somewhere "over and through the following real estate in Newton County, State of Missouri, to-wit: E/2 SW/4 SW/4 Sec 13-T24N-R33W except the West 208 feet of the North 416 feet thereof." The easement further provides, in part, that
a Right-of-Way to construct, reconstruct, renew, operate, maintain, inspect, alter, replace, repair and remove a pipe line, and (subject to the payments hereinafter provided) additional pipe lines for the transportation of gas, oil, petroleum, or any of its products, water and *426 other substances and such drips, valves, fittings, meters and other equipment and appurtenances as may be necessary or convenient for such operations . . . . As part of the consideration hereof, [Appellant] agrees, upon Grantor's written request therefor, to make a tap upon its gas pipeline constructed hereunder at a point nearest the principal dwelling house now on said land, and sell, or cause to be sold, to Grantor at said connection natural gas for domestic purposes in the principal dwelling house now on said land under and subject to such [Appellant's] rules and regulations now and from time to time hereafter governing such sales, at the price from time to time charged domestic consumers of natural gas from this or [Appellant's]pipeline and continue to so sell, or cause to be sold, such gas as long as [Appellant] transports gas through said pipeline, all subject to governmental restrictions upon the sale, delivery and use of natural gas.
And also from time to time additional such pipe lines and appurtenances together with the right of ingress and egress at convenient points for such purposes; together with all rights necessary for the convenient enjoyment of the privileges herein granted.
In 1968, Appellant's predecessor in interest installed a twenty-inch pipeline underneath the property subject to the easement. The pipeline is buried four to six feet underneath the ground, and is part of a natural gas conveyance system that "runs from McDonald County, Missouri, up to [Appellant's] Saginaw compressor station just on the south side of Joplin," and has "a maximum operating pressure of 900 pounds." The pipeline is classified as a "high pressure" line and the record reveals, "just for a perspective, a typical house delivery [line] is a half a pound. So this [pipeline] is 1,800 times greater than what somebody would have in their house."
The modular home was on the real property at the time Respondent purchased the property in 1999 and Respondent testified he believed it had been at that location since at least 1992. After purchasing the property in 1999, Respondent did not move the modular home, which at that time was without foundation and was merely sitting on concrete blocks.
Respondent also testified that during the first year he owned the property representatives from Appellant's predecessor in interest visited his property to make inspections, but never mentioned the modular home was too close to the pipeline.
In September of 2000, Respondent moved into the home with his girlfriend and her two daughters; they began remodeling the home and Respondent eventually spent about $60,000.00 making improvements to it, including pouring a foundation for the home in 2001. After Respondent's girlfriend called "Dig-Rite" in preparation for the pouring of the footing for the foundation, representatives from Appellant's predecessor in interest visited Respondent's property again. At that time, using yellow paint, the company marked the gas line about five feet from the residence.[1] According to Respondent, he discussed the pipeline with the company representatives at that time, and again they did not mention the home was too close to the pipeline. Thereafter, Respondent added a porch, stairs, a new roof, and additional rooms to the home.
*427 The record also shows that Appellant sent Respondent a form letter on March 12, 2004, informing him that
[a]s part of maintaining a safe and reliable pipeline system . . . it is necessary for [Appellant] to clear all or part of its right-of-way of brush, trees and debris that interfere with the effective inspection and patrol of its pipeline system. During this project, [Appellant] will be clearing approximately 33 feet centered over the pipeline ... The end results [sic] will be a cleared corridor that is accessible by maintenance crews and enhances the effectiveness of aerial patrol.
Appellant's representatives then visited Respondent on several occasions; each time Respondent prevented them from cutting any trees or brush on his property.
On May 27, 2004, Respondent received another letter from Appellant regarding the clearing of its easement right-of-way. The letter stated:
Incumbent on [Appellant], as a prudent and safety conscious operator of an interstate natural gas pipeline system, is the periodic obligation and right to keep clear its Rights-of-Way and easements of brush, trees and debris that might interfere with the effective inspection, patrol, operation and maintenance of its system, to assure that the pipeline remains safe to the general public ... In your particular case, [Appellant] has the need to remove 8-10 trees from your property which have been determined by [Appellant] to be a potential hazard to the continued safety of the pipeline that runs through your property. It is my understanding that you have stated that to accomplish that necessary work that [Appellant] `will have to get a court order.' By this letter, [Appellant] wants to inform you that the clearing crew will be on your property on June 15, 2004, to perform such clearing. I trust that this can be performed without [Appellant] having to resort to seeking the assistance of the courts.
On June 16, 2004, Appellant filed its "Verified Petition for Preliminary Injunction" against Respondent. In its petition, Appellant stated, in part, that
7. Eight to ten trees have grown on top of the pipeline or within ten (10) feet of [Appellant's] pipeline, and [Respondent] has placed a mobile home on top of the pipeline or within thirty-three (33) feet of [Appellant's] pipeline on the Subject Property. . . .
8. Such trees and mobile home located on top of or very near [Appellant's] pipeline materially interfere with [Appellant's] maintenance and inspection of the Easement, and pose a grave threat to public safety, as follows: (a) [Appellant] monitors the pipeline through overhead, aerial inspections. The location of trees and of [Respondent's] mobile home on top of the pipeline significantly impairs [Appellant's] surveillance of the pipeline and ability to monitor the integrity of the pipeline; (b) such obstructions necessarily make it significantly more difficult for [Appellant's] personnel to access and excavate the pipeline, valves, and appurtenances for repairs and routine maintenance; and (c) the trees at issue are a type that has a tendency to topple over from dryness or wind, bringing large root balls up with them and possibly creating a dangerous situation and/or jeopardizing the integrity of the pipeline.
The petition also sets out that "[t]he trees and mobile home referenced above materially and substantially interfere with [Appellant's] [e]asement rights and its ability to properly monitor, inspect and maintain its pipeline, and pose a grave threat to public safety ..." and that the trees and mobile home "may cause irreparable *428 harm to [Appellant]." Appellant prayed that the trial court would enter an injunction "[r]estraining and enjoining [Respondent] . . . from interfering in any manner with [Appellant's] removal of the eight to ten trees and of [Respondent's] mobile home from on top of [Appellant's] pipeline, or within thirty-three (33) feet thereof. . . ."[2] Appellant also prayed that Respondent be permitted thirty days in which to voluntarily move the mobile home, and that if Respondent did not comply within that time frame, Appellant would thereafter be permitted to re-locate the mobile home itself. Appellant also sought the trial court's grant of a "temporary restraining order to the same effect."
Following a hearing on the temporary restraining order, on June 16, 2004, the trial court granted Appellant's request and ordered that Respondent be prohibited from interfering with the removal of the trees, and that he had until July 14, 2004, to move the mobile home voluntarily. The temporary restraining order was later dissolved by the trial court on October 4, 2004.
In his answer to Appellant's petition, Respondent raised the affirmative defense of estoppel and asserted the trees and mobile home had been in the same location for a number of years and Appellant had knowledge of their existence, thus, Appellant was estopped from now demanding they be moved. Respondent also set out that if Appellant were allowed to move the trees and mobile home, Respondent should receive "just compensation ... in excess of One Hundred Thousand Dollars ($100,-000.00)," in addition to attorney fees and costs.
At trial, Gary Hines ("Hines"), Appellant's district manager, testified that he often deals with encroachment issues. Hines testified that the easement language contained in Respondent's deed was typical of the language employed in the pipeline business at the time the easement was created. Hines stated that his concern about the proximity of the pipeline to Respondent's home was for the "general safety" of Respondent and the other people residing in the home. Hines also related Appellant was asserting it needed thirty-three feet on either side of the pipeline, "[b]ased on standard construction practices and in maintenance," and was being used by Appellant as a "standard minimal requirement distance. . . ." Hines also stated that his company performs at least an annual leak survey and at least an annual inspection "for construction, soil disturbances, [and] land movement. . . ." Hines testified that such inspections are performed by use of a helicopter in which Appellant's employees look for places that might indicate a pipe leak, such as areas with dead vegetation. According to Hines, there had not been a problem with the location of the home at issue until Respondent poured the foundation to the home, thus, making it a permanent structure. Hines also related that in dealing with permanent structures that have foundations there is a concern that if there were to be a gas leak, the leaking gas could accumulate underneath the structure, thereby creating safety concerns.
As for the trees at issue, Hines stated that in addition to the trees causing problems with Appellant's ability to "get access to the pipe . . ." there is a concern that if there were a leak Appellant would have to waste time removing the trees in order to *429 repair the pipeline. Furthermore, Hines related that
if something were to happen to one of those trees, whether it's the wind blowing it over or excessive rain cause the ground to become so moist that a tree were to fall over, then based on the depth of that pipeline there could be some integrity issues with the pipeline as far as disturbing the soil around the pipe if a tree were to fall over.
Hines went on to state that moving the pipeline was not a valid option because it would cost in excess of $300,000.00.
The trial court ultimately found that Appellant was "entitled to the relief prayed for in it's [sic] Petition in regard to the six (6) trees identified in [Appellant's] Exhibit `7,'" but that Appellant was "not entitled to the relief prayed for in it's [sic] Petition in regard to [its] request for removal of [Respondent's] residence/mobile home." The trial court then decreed that Appellant's "Petition for Injunction in regard to the six (6) trees . . . be and is hereby made permanent," and ordered Appellant at its "sole cost and expense, to remove the six trees ..." in question "and to clear [Respondent's] property of all refuge, stumps and debris resulting from the cutting down and removal of said six (6) identified trees." Furthermore, the trial court decreed that Appellant's "request for permanent injunction in regard to the moving of [Respondent's] residence/mobile home, be and is hereby denied." This appeal by Appellant followed.
"An action seeking an injunction is an action in equity." Systematic Bus. Servs. Inc. v. Bratten, 162 S.W.3d 41, 46 (Mo.App.2005). "The standard of review in a court-tried action in equity is that of a judge tried case: the trial court's judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or unless it erroneously applies the law." Id; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When setting aside a judgment on the ground that it is against the weight of the evidence, appellate courts should proceed with caution. Murphy, 536 S.W.2d at 32. An appellate court should set aside a decree or judgment on the ground that it is against the weight of the evidence only if it has a firm belief that the decree or judgment is wrong. Id. "When reviewing a court-tried case, we view all evidence and inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences." Ortmann v. Dace Homes Inc., 86 S.W.3d 86, 88 (Mo. App.2002). We defer to the trial court's determinations as to the credibility of witnesses. Id. We review a trial court's decision to grant an injunction under an abuse of discretion standard. Colbert v. Nichols, 935 S.W.2d 730, 734 (Mo.App.1996).
Appellant's first point relied on contends that "[t]he trial court's judgment works an impermissible partial `taking' of [Appellant's] vested property rights and [Appellant] is entitled to an injunction due to [Respondent's] willful encroachment."
We immediately observe that "[t]he relief granted in a judgment is limited to that sought by the pleadings or else tried by the express or implied consent of the parties." City of Kansas City v. New York-Kansas Bldg. Assocs., L.P., 96 S.W.3d 846, 853 (Mo.App.2002). "The powers of a court of equity to adjudicate are broad but limited to the claim for relief and issues made by the pleadings." Id.
Here, in its pleadings, Appellant did not allege that Respondent's actions amounted to an "impermissible partial `taking' of [Appellant's] vested property rights . . . ." Additionally, the issue of a *430 "partial taking" was not raised before the trial court.
The issue of whether there has been a taking of a person's property is a constitutional issue. The "[t]aking of private property for private use is a violation of Article I, Section 28 of the Missouri Constitution."[3]Ridgway v. TTnT Devel. Corp., 26 S.W.3d 428, 434 (Mo.App.2000). "To properly raise a constitutional issue, a party must: (1) raise it at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review." Laubinger v. Laubinger, 5 S.W.3d 166, 173 (Mo.App.1999). "`Constitutional issues are waived unless raised at the earliest possible opportunity consistent with orderly procedure.'" Smith v. Shaw, 159 S.W.3d 830, 836 (Mo. banc 2005) (quoting Hollis v. Blevins, 926 S.W.2d 683, 683 (Mo. banc 1996)). Neither in its pleadings nor at trial did Appellant raise the constitutional issue it now espouses. Thus, it is not preserved for our review. Id.; see New York-Kansas Bldg. Assoc., L.P., 96 S.W.3d at 854. Point denied.
In its second point relied on, Appellant asserts trial court error based on its refusal "to enforce [Appellant's] Easement because it is undisputed that the Easement is valid; no evidence was presented at trial to challenge the reasonableness of the sixty-six foot Easement; and [Respondent's] house substantially impairs the Easement."
As best we can discern from Appellant's second point relied on, Appellant appears to be challenging the evidence upon which the trial court based its judgment. As previously related, when reviewing a court-tried case, we view all evidence and inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. Ortmann, 86 S.W.3d at 88. Based on the foregoing, we find there was substantial evidence to support the trial court's judgment.
"As a general rule `a party holding an easement with a right to use the land for a particular stated purpose does not hold title to the property affected by that easement.'" Helgeson v. Ochs, 988 S.W.2d 545, 547-48 (Mo.App.1999) (quoting Baum v. Glen Park Props., 660 S.W.2d 723, 726 (Mo.App.1983)). "An easement, strictly speaking, does not carry any title to the land over which it is exercised; it is rather a right to use the land for particular purposes." Blackburn v. Habitat Dev. Co., 57 S.W.3d 378, 389 (Mo.App.2001) (internal quotations omitted).
A landowner whose property is affected by an easement may not use the property in a manner inconsistent with the terms of the easement; however, the servient estate's owner retains the rights of full dominion and use of the land `except so far as a limitation thereof is essential to the reasonable enjoyment of the dominant estate.'
Tsevis v. J & F Indus., Inc., 51 S.W.3d 91, 93 (Mo.App.2001) (quoting Baum, 660 S.W.2d at 72).
*431 "The general rule applicable to descriptions in conveyances of easements holds that where the conveyance does not definitely fix the location of the easement, the grantee is entitled to a convenient, reasonable and accessible way within the limits of the grant." Edward Runge Land Co. v. Busch, 594 S.W.2d 647, 650 (Mo. App.1980); see also Hall v. Allen, 771 S.W.2d 50, 53 (Mo. banc 1989) (holding that "[i]f the location is not precisely fixed when the easement is first created, the grantee is entitled to a convenient, reasonable and accessible use"). As such,
`if an easement in land is created in general terms but without giving a definite location and description, a selection may be inferred within the boundaries of the land over which the right is granted by proof of the use of a particular course or way on the part of the grantee or owner of the dominant estate along with the acquiescence of the grantor or owner of the servient estate.'
Helgeson, 988 S.W.2d at 548 (quoting Edward Runge Land, 594 S.W.2d at 650 (emphasis added)); see also Superlube, Inc. of Camdenton v. Innovative Real Estate, Inc., 94 S.W.3d 480, 484 n. 8 (Mo.App. 2003). "`Where no definite location is given as to the easement, the course over which it is to be exercised can be fixed in either of two ways, that is, by express agreement or by a selection that can be inferred by proof of the use of a particular way.'" Helgeson, 988 S.W.2d at 548 (quoting Edward Runge Land, 594 S.W.2d at 650); see Williams Pipeline Co. v. Allison & Alexander, Inc., 80 S.W.3d 829, 836 (Mo.App.2002) (recognizing that "a general easement can be converted to a fixed easement based on the parties' intent, as evidenced by their conduct and original use of rights granted").
In cases such as the present one, where an easement is undefined in its length and extent, the law is clear that we look at the use to which Appellant has put the easement in order to determine its boundaries. See Helgeson, 988 S.W.2d at 548.
In our review, we note, as pointed out by Respondent's counsel at oral argument, the initial letter received by Respondent from Appellant stated that it would "be clearing 33 feet centered over the pipeline." (Emphasis added). Then, in its petition and at trial, Appellant maintained it needed thirty-three feet on either side of the pipeline or sixty-six feet in total to be able to properly maintain the pipeline. Appellant's expert witness, Hines, testified that there was no specific reason as to why the sixty-six foot easement was necessary, except that it appeared to the company to be a "standard minimal requirement distance. . ." for the company to be able to get near the pipeline to make repairs. Hines acknowledged that the home had been located on the property at its present location since at least 1992, when Appellant's predecessor in interest installed "the tap for the structure" in order to access gas from the pipeline. Accordingly, by Appellant's own admission, what it now claims as its easement has had this structure encroaching upon it with its knowledge for over twelve years before it filed suit.
Additionally, Appellant's employee also admitted it inspected the pipeline on at least an annual basis and had never, prior to this litigation, requested that the home or any trees be removed from the easement, nor had Appellant ever entered the property and removed any trees that ostensibly encroached on the easement.[4]*432 Further, there was no evidence Appellant had ever had to make repairs to the pipeline or affixed anything to the pipeline, except during the installation of the pipeline in 1968 and the installation of the "tap" in 1992.
With that being said, the trial court made no express findings of fact and conclusions of law in this case, nor were any requested by either party. As such, we "may not speculate as to the grounds on which a trial court bases its ruling." Kunkel v. Kunkel, 84 S.W.3d 557, 560 (Mo. App.2002). It appears from the face of the judgment that the trial court found that Appellant had an undefined easement, but that the evidence did not necessitate the relocation of Respondent's home.
Whether an injunction should be granted is a matter of the trial court's discretion in balancing the equities. Heinrich v. Hinson, 600 S.W.2d 636, 640 (Mo. App.1980). "In `balancing the equities,' the trial court is to consider all the equities between the parties as disclosed by the circumstances of the case." Edmunds v. Sigma Chapter of Alpha Kappa Lambda Fraternity, Inc., 87 S.W.3d 21, 29 (Mo. App.2002). "The issuance of injunctive relief, along with the terms and provisions thereof, rests largely within the sound discretion of the trial court." Id. The trial court "is vested with a broad discretionary power to shape and fashion the relief it grants to fit particular facts, circumstances, and equities of the case before it." Id. (internal quotations omitted). As stated in Heinrich, 600 S.W.2d at 640-41,
In `balancing the equities' consideration is given to all the equities between the parties as disclosed by the circumstances of each particular case and the conflicting conveniences of the respective parties, the willfulness of the encroaching party, and the conduct of the party whose land has been encroached upon regarding acquiescence and laches are some of the factors to be weighted in `balancing the equities.'
see also Ridgway, 26 S.W.3d at 433. Based on the evidence presented at trial we cannot say that the trial court abused its discretion in fashioning the remedy that it decreed. Colbert, 935 S.W.2d at 734. Point denied.
Appellant's third point relied on maintains "[t]he trial court erred in that the judgment refusing to enforce [Appellant's] Easement as to [Respondent's] house is inconsistent with the judgment as to [Respondent's] trees." Appellant goes on to explain that "[t]he judgment recognizes the validity of [its] Easement by ordering removal of [Respondent's] trees, but then would force [Appellant] to operate its pipeline without sufficient space to properly monitor, inspect, and repair it, and in an unsafe condition with [Respondent's] house only a few inches or feet away."
Again, reviewing the evidence and inferences in the light most favorable to the judgment, we find that the trial court's judgment was not inconsistent as asserted by Appellant. See Ortmann, 86 S.W.3d at 88. The evidence here revealed that Appellant monitors the pipeline by flying over the pipeline in a helicopter on a regular basis. The trees at issue, which range in diameter from twelve inches to twenty-eight inches, could be seen as a substantial hindrance to Appellant's aerial visibility of the pipeline. Additionally, the evidence showed that root growth could adversely affect the pipeline, and that soil disturbance caused by the possibility of trees falling down could be injurious to the integrity of the pipe. Also, Hines testified that in the event of a leak the trees could present a problem because they would have to be removed at that time in order to properly repair the pipe.
*433 On the other hand, based on our review of the evidence, Respondent's home does not lay on the pipeline and, thus, does not impede Appellant's visual inspection, nor does it lay close enough to substantially interfere with the proper repair of the pipeline in the event of a leak. It appears that any repairs that may need to be made in the future could be made from the side of the pipeline opposite from Respondent's house or in the area between Respondent's house and the pipeline. In holding as it did, the trial court ordered the trees to be removed, but allowed the home to stay in the location in which it had been sitting for over twelve years. This is not an inconsistent judgment. Appellant here requested an injunction and it was within the trial court's discretion to "fashion [its injunctive] relief . . . to fit particular facts, circumstances, and equities of the case before it." Edmunds, 87 S.W.3d at 29 (internal quotations omitted). Based on the evidence presented we cannot say that the trial court abused its discretion in its judgment. Point denied.
Fourth, Appellant asserts "[t]he trial court erred in determining that [Appellant] was estopped from enforcing its Easement rights because [Respondent] failed to establish the essential elements of estoppel and because he willfully encroached upon [Appellant's] pre[-]existing Easement."
Again, we note that "[t]his court may not speculate as to the grounds on which a trial court bases its ruling." Kunkel, 84 S.W.3d at 560. Here, the trial court made no ruling on whether Respondent was encroaching on the easement, nor did it rule that Appellant "was estopped from enforcing its Easement rights . . . ." While Respondent did raise the affirmative defense of estoppel in its answer to Appellant's petition, there is nothing in the trial court's judgment which sets out that the trial court concurred with Respondent's affirmative defense of estoppel. As there is nothing in the judgment to support Appellant's point of error, Appellant's fourth point is denied.[5]
The judgment of the trial court is affirmed.
SHRUM, P.J., and BATES, C.J., concur.
NOTES
[1] The record suggests that the pipeline runs almost parallel to the end of Respondent's home and is variously described in the record as being five feet away from the home, three feet away from the home, and eight inches away from the home.
[2] As best we discern, there is no evidence in the record that the home at issue was actually located "on top of [Appellant's] pipeline. . . ."
[3] Article I, Section 28 of the Constitution of Missouri sets out:
That private property shall not be taken for private use with or without compensation, unless by consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in the manner prescribed by law; and that when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.
Mo. Const. art. 8, § 28 (1945, amended 1976).
[4] There was testimony by an arborist at trial that the trees on the easement ranged in age from 32 to 62 years of age.
[5] All pending motions are also denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456508/ | 253 P.3d 386 (2011)
STATE
v.
WESTFALL.
No. 104615.
Court of Appeals of Kansas.
June 24, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920189/ | 921 So.2d 708 (2006)
Mark FOWLER, Appellant,
v.
STATE of Florida, Appellee.
No. 2D04-5522.
District Court of Appeal of Florida, Second District.
February 10, 2006.
James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Mark Fowler appeals his judgment and sentence for second-degree murder. Because *709 the State failed to rebut Fowler's prima facie case of self-defense, the trial court should have granted Fowler's motion for judgment of acquittal. Therefore, we do not reach Fowler's remaining two points on appeal, and we reverse his judgment and sentence and remand for discharge.
The State charged Fowler with first-degree murder based on the death of Samuel Dunbar on July 22, 2003. Dunbar died from one gunshot wound to the head. No State witnesses testified to the events leading up to the shooting or to the actual shooting. Three witnesses testified that they heard a sound like a firecracker or a gunshot. Telina Nichols was driving down Olive Street at a little after 8:00 p.m. on July 22, 2003, when she heard the shot. She looked around and saw a large man with dreadlocks struggling with a bicycle, and he seemed to be in a hurry. She did not see anything in his hands. When she crossed the intersection, she saw another man lying on his back on the pavement with blood around his head. Nichols called 911.
Pasclovis "Mark" McDonald heard what he thought was a firecracker, and when he went outside and looked, he saw a man lying on his back on the pavement. He also saw a bicycle going down the street, but he could only see the rider's back.
Calvin Standifer testified that he was watching television when he heard the shot. He had been concentrating on the television, but he testified that when he heard the noise he jumped up and went to his window. He saw a man falling backward onto the ground. He also saw, out of the corner of his eye, a man on a bicycle.
During their investigation, the police had telephone contact with an unidentified female who gave them a description of a person and directed them to a residence that was near the location of the shooting. Officers surrounded the residence and instructed whoever was inside to come out. The officers heard crashing noises coming from inside the residence. An officer saw Fowler fling open the back door, and when the officer leveled his shotgun at Fowler and told Fowler to get on the ground, he slammed the door shut. Another officer heard some loud crashing noises and then saw Fowler in the kitchen. He instructed Fowler to come out, and within a minute he did and was taken into custody.
When they entered the residence, the officers found it had no electricity, and they saw holes in the ceiling with attic insulation hanging down. A detective found a knit ski mask in the attic. In the mask were a gun in a holster and a plastic bag containing bullets. A gray Buccaneers t-shirt was found under other items in a cardboard box on the washing machine. The shirt had blood on it.
The forensic evidence showed that the blood on the t-shirt matched the DNA profile of Dunbar's blood sample. A firearms examiner testified that the gun was missing its "cylinder hand." She explained that this would not affect the first shot when there is a live cartridge in the chamber, but for any subsequent firings the cylinder must be rotated manually. Otherwise, the gun will misfire.
Dr. Volnikh, an associate medical examiner, testified that Dunbar was six feet tall and weighed 257 pounds. She stated that he died from a gunshot wound to the forehead. The shot was fired from a distance of at least three to three and a half feet.
At the close of the State's case, Fowler made a motion for judgment of acquittal. The trial court granted the motion as to first-degree murder based on a lack of proof of premeditation but stated that the case could go to the jury as to second-degree murder or manslaughter.
*710 Fowler was the only person to testify as to the events leading up to the shooting and to the actual shooting. He testified that he is Jamaican, thirty-six years old, married, and has three children. He admitted that he had three prior felony convictions. Fowler, his wife, and his children were in the process of moving from their residence to a new apartment on July 22, 2003. The electricity had already been turned off, and he had been packing. He was also working on his truck, but he could not get it started. He was stressed out, so he decided to go buy a "nickel sack," or five dollars worth, of marijuana.
He had $240 in his pocket, which was the deposit money for the new apartment. With five dollars in his hand, he rode his bicycle to a location on Olive Street where he had bought marijuana in the past. Instead of his usual source, "Slim," Fowler encountered a stranger who was a large, well-built man (later identified as Dunbar). Dunbar had what looked like a piece of crack cocaine in his hand, and Fowler asked where Slim was and said that he wanted to buy a nickel bag of weed. Dunbar balked at the small amount, and Fowler, who was straddling his bicycle, said he would go to the "hood" to get what he wanted. Dunbar then said that he would sell a "dime."
Fowler testified that Dunbar approached closer, and he saw Dunbar holding a black bag. Fowler sensed from the look on Dunbar's face that something was not right. Dunbar had his right hand inside the bag, and his left hand on top of the bag. Fowler then recognized that the bag was actually a ski mask. The mask was hanging down and elongated like something was in it. Dunbar stuck the barrel of a gun through one of the holes and, using a racial epithet, told Fowler that he was going to rob him.
Fowler stated that Dunbar put the gun to Fowler's face and cocked it. Dunbar said that he did not like "cross water niggers," which Fowler understood to mean Dunbar did not like Jamaicans or foreigners. Fowler was terrified for his life and thought he was going to die. Dunbar moved the gun down to Fowler's side as Fowler reached into his pocket to get money. When Dunbar was distracted by a passing car, Fowler swung his arm, hitting the gun from Dunbar's hand, and he grabbed the gun and pulled it through the ski mask hole. While Fowler grabbed the gun, the bicycle slid to the side and was falling down between his legs. Dunbar was looking in the mask, which he still held in his hand, and Fowler testified that it looked like there was something still in the mask because it looked like it was weighted down. Fowler testified that he could not have easily pedaled away because the bike had fallen down between his legs.
Fowler pointed the cocked gun at Dunbar but said he did not have his finger on the trigger. Dunbar took a few steps away, then turned back towards Fowler. Dunbar then said, "Fuck this shit," and charged at Fowler, like a football player going to make a tackle. Fowler did not have a chance to say anything. He said he then touched the trigger and a shot went off. He estimated that Dunbar was six to eight feet from him when he started to charge him and about halfway to him when the shot was fired. Fowler did not know if Dunbar was hit, but Dunbar came crashing into his arm and grabbed his shirt. Fowler did not know if Dunbar had another weapon in the mask. Fowler squeezed the trigger again, but the gun did not fire. Fowler reached down to grab the mask that had fallen, and then he saw that Dunbar was just standing there with blood on his face. Fowler picked up his bike, got back on it, and pedaled away.
*711 Fowler rode straight home and vomited. He realized that he still had the gun and mask and threw them in the attic. He vomited again, and he testified that he called his wife for her to come home. He did not want to tell her what had happened over the phone, but he stated that when his wife came home he would tell her. He wanted to wait for her before calling the police.
Fowler testified that he was scared, nervous, upset, and feeling sick. When the police arrived, he started to go out the back door, but then he shut the door. He admitted that he was not thinking straight. He decided to get the gun out of the attic so the police would not think he was hiding it, but the attic was dark and his foot went through the floor. He heard the police calling for him to come out. After his foot went through the floor again, he came down out of the attic, and the police took him into custody.
The defense also presented Leroy Parker, a supervisor with the Florida Department of Law Enforcement (FDLE) and an expert in bloodstain pattern analysis. Parker testified that the blood stains on Fowler's t-shirt were contact stains. He concluded that a bloody object came into contact with Fowler's shirt. Parker opined that none of the stains were velocity stains or "blow back."
The evidence also showed that Dunbar had crack cocaine and two bags of marijuana on his person at the time of the shooting. A toxicology report showed that Dunbar's urine contained cocaine and benzoylecgonine, a substance that is produced when cocaine is metabolized by the body. His blood also contained benzoylecgonine.
At the close of all the evidence, the defense renewed the motion for judgment of acquittal as to second-degree murder. The defense also argued that because the State failed to rebut Fowler's testimony that he shot Dunbar in self-defense, Fowler was entitled to be discharged. The trial court denied the motion, and the jury returned a verdict of guilty of second-degree murder. The trial court also denied Fowler's motion for new trial and for a postverdict judgment of acquittal. The trial court imposed a mandatory minimum sentence of twenty-five years.
Our standard of review on the denial of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The State must prove the defendant's guilt beyond a reasonable doubt, and when the defendant presents a prima facie case of self-defense, the State's burden includes "`proving beyond a reasonable doubt that the defendant did not act in self-defense.'" Thompson v. State, 552 So.2d 264, 266 (Fla. 2d DCA 1989) (quoting Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986)). In Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984), superseded by statute on other grounds as stated in Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005), the court explained as follows:
While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.
We recognize that the question of whether a defendant committed a homicide in justifiable self-defense is ordinarily one for the jury. Id. However, when the State's evidence is legally insufficient to rebut the defendant's testimony establishing self-defense, the court must grant a motion for judgment of acquittal. State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA *712 1998); Sneed v. State, 580 So.2d 169, 170 (Fla. 4th DCA 1991). In Sneed, the court concluded that a motion for judgment of acquittal should have been granted when "the state's evidence was legally insufficient to prove guilt beyond a reasonable doubt, because the state failed to rebut the defendant's direct testimony that he acted in self-defense and, in fact, some of the state's evidence corroborated defendant's testimony of self-defense." 580 So.2d at 170 (quoting Hernandez Ramos, 496 So.2d at 838). Like Sneed, in this case there were no eyewitnesses to the shooting.
In Fowler v. State, 492 So.2d 1344, 1352 (Fla. 1st DCA 1986),[1] the First District reversed a murder conviction because "the defendant's hypothesis that the shooting was purely accidental and in self-defense has not been overcome." As in the present case, no eyewitnesses saw the shooting or the events preceding it, and the defendant fled after the shooting. In fact, in Fowler, the defendant fled the jurisdiction. In discussing whether the State met its burden to withstand a motion for judgment of acquittal, the court stated, "Evidence that leaves room for two or more inferences of fact, at least one of which is consistent with the defendant's hypothesis of innocence, is not legally sufficient to make a case for the jury." Id. at 1348.
Here, the State argues that evidence of Fowler's flight after the shooting shows consciousness of guilt and is inconsistent with his theory that he acted in self-defense. The State cites Sims v. State, 681 So.2d 1112 (Fla.1996), to support its argument that evidence of the defendant's flight after a shooting is sufficient to rebut evidence of self-defense. In Sims, the defendant shot a law enforcement officer, threw the gun in a river, and arrived by bus four days later in California. In addition to the defendant's actions after the shooting, however, the court noted that the physical evidence, as testified to by the firearms expert and medical examiner, was inconsistent with the defendant's version of events. Further, the defendant's version of events was inconsistent with the testimony of three other witnesses. Id. at 1116. Sims is distinguishable from the present case because here, the evidence was not inconsistent with Fowler's version of events.
While flight can evidence consciousness of guilt, it is not inconsistent with Fowler's hypothesis that he fled because he was panicked, scared, and not using good judgment. In Fowler, the court stated as follows:
We do not doubt that the evidence adduced by the state, particularly the evidence as to Fowler's actions after the shooting, casts considerable suspicion upon him. But mere "suspicion" is not enough. When the state presents circumstantial evidence of a particular fact which is arguably consistent with the defendant's story, then the fact is simply not probative of the defendant's guilt.
492 So.2d at 1350 (citations omitted).
Here, in opposing Fowler's motion for judgment of acquittal at the close of all the evidence, the prosecutor relied on (1) the testimony of Calvin Standifer and (2) Fowler's behavior after the shooting. With respect to Standifer's testimony, nothing in his testimony contradicts the defense evidence that Fowler acted in self-defense. Standifer testified that he was watching television when he heard the gunshot and that he immediately went to the window and saw Dunbar falling backward. The State contends that if Fowler's version of events is correct, then when Standifer went to the window he would *713 have seen Dunbar falling into Fowler before falling backwards to the ground. First, although Standifer acknowledged that he jumped up immediately, nothing reflects how far Standifer's chair was from the window or how long it took him to get to the window. Fowler's testimony established that the events all happened very quickly, and a reasonable explanation as to what Standifer saw is that by the time he got up and went to the window, Dunbar had already fallen against Fowler and was falling backwards to the ground.
Furthermore, the physical evidence is consistent with Fowler's explanation that Dunbar fell against him before falling to the ground. The FDLE serologist testified that the blood stains on Fowler's shirt matched the DNA profile of Dunbar's blood sample. Leroy Parker, a supervisor for the FDLE and an expert in the field of bloodstain pattern analysis, testified that all of the blood stains on Fowler's t-shirt were contact stains and that they were not "blow back" stains. Thus, the physical evidence supports Fowler's testimony that Dunbar fell against him, and then Dunbar fell to the ground. Standifer's testimony that he only saw Dunbar falling backward does not contradict Fowler's testimony and the physical evidence.
With respect to Fowler's behavior after the shooting, the prosecutor stated, "The consciousness of guilt of fleeing the scene, of hiding the gun and his behavior thereafter clearly indicate that he did not handle the situation properly." We agree that Fowler did not handle the situation properly. Although his actions could show consciousness of guilt, his actions are also consistent with someone who exercised poor judgment and panicked. After all, Fowler was in a high crime neighborhood, he has a prior felony record, and he had gone to the area where Dunbar was located to purchase marijuana. He admitted that he used poor judgment, and he testified that he was not thinking straight after the shooting and that by the time he returned home he was physically sick and vomiting. As Fowler argues on appeal, his actions "were consistent with fear, panic, impaired thinking, and, perhaps based on his background, a sinking feeling that the police would not believe him." Thus, we conclude that the State's evidence of Fowler's actions after the shooting does not rebut his prima facie case of self-defense.
In Fowler, 492 So.2d at 1346, the First District observed as follows:
The inability of the state to articulate an understandable theory of the evidence that contradicts Fowler's explanation and excludes his hypothesis of innocence leads us to conclude, after detailed study of the record, that the evidence is legally insufficient to support the judgment of conviction entered by the trial court.
Similarly, here the State has offered no understandable theory of evidence that contradicts Fowler's explanation of self-defense. In fact, in responding to the motion for judgment of acquittal at the close of the State's case, the prosecutor acknowledged that "there's no indication of a reason for this happening." Fowler presented a prima facie case of self-defense, and the State simply did not carry its burden to rebut the claim of self-defense and to prove Fowler's guilt beyond a reasonable doubt. Therefore, we reverse Fowler's judgment and sentence and remand for discharge.
Reversed and remanded.
VILLANTI and WALLACE, JJ., concur.
NOTES
[1] The defendant in that case was Larry Fowler, not Mark Fowler. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920094/ | 447 N.W.2d 132 (1989)
FIRST NATIONAL BANK IN LENOX, Lenox, Iowa, Plaintiff,
v.
CRESTON LIVESTOCK AUCTION, INC., and First National Bank in Creston, Defendants.
CRESTON LIVESTOCK AUCTION, INC., Appellant,
v.
FIRST NATIONAL BANK IN CRESTON, Appellee.
No. 88-879.
Supreme Court of Iowa.
October 18, 1989.
Steven W. Guiter of Johnston, Hicks & Guiter, Knoxville, for appellant.
*133 Jon P. Sullivan of Dickinson, Throckmorton, Parker, Mannheimer & Raife, P.C., Des Moines, for appellee.
Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, NEUMAN and SNELL, JJ.
HARRIS, Justice.
The controlling question is whether a bank's endorsement on a check affected the bank's status as a holder in due course. We agree with the trial court's determination that it did not.
Jerry Parker, a Union County farmer, had dealings with two banks. He first obtained a loan from the First National Bank in Lenox, Iowa (Lenox Bank). Lenox Bank took a security interest in all of Parker's livestock and livestock proceeds. Parker later obtained another loan from the First National Bank in Creston (Creston Bank) and that bank also took a security interest in Parker's livestock and livestock proceeds.
Sometime later Parker sold steers to Creston Livestock Auction, Inc. (Creston Livestock). There is no dispute that Lenox Bank held a perfected security interest in the steers at the time and had mailed notice of this fact to Creston Livestock.
Creston Livestock nevertheless paid for the steers by delivering to Parker a check made payable to Parker and Creston Bank. The back of the check contained the following language:
This check is issued to the payee in payment of personal property, delivered to the Creston Livestock Auction of Creston, Iowa, and sold by the undersigned payee, (said Creston Livestock Auction acting as agent only), and by endorsing this check the payee represents and warrants to the purchasers of said property that he is the sole owner thereof, and that said property is free and clear of all liens whatsoever. Endorser certifies that all animals sold were taken off all drugs and Stib according to the Federal Food and Drug Regulations in effect on date of this sale.
Parker endorsed the check and turned it over to Creston Bank in satisfaction of his indebtedness to it. Creston Bank endorsed the check, unaware of Lenox Bank's prior perfected security interest.
Lenox Bank brought a conversion action against Creston Livestock, claiming it was entitled to the funds received by Creston Bank. Creston Livestock paid the amount of the check to Lenox Bank in settlement, then brought this cross-petition against Creston Bank for contribution.
The trial court determined that Creston Bank was a holder in due course, stating:
Despite plaintiff's vigorous assertions to the contrary, there is absolutely nothing in this language or any language on the check or in the stipulation of facts which shows that [Creston Bank] had any notice of any claim by [Creston Livestock Auction, Lenox Bank], or anyone else. Indeed the very language cited states as an assertion by [Creston Bank] that it had no notice of any such claim. Also, the parties have stipulated that [Creston Bank] had no actual knowledge of [Lenox Bank's] security interest in the proceedings.... [Creston Bank] had no notice of any defense against or claim to the check. See Iowa Code § 554.3304 (1987). [Creston Bank] is a "holder in due course."
This determination is controlling of the question in the case because, if Creston Bank was the holder in due course, it held the check free and clear of the claims of Lenox Bank. Iowa Code § 554.3305 (1987). If Creston Bank was not a holder in due course it held the check subject to all claims and defenses. See Iowa Code § 554.3306.
I. The Iowa Code defines a "holder in due course" as follows:
1. A holder in due course is a holder who takes the instrument
(a) for value; and
(b) in good faith; and
(c) without notice that it is overdue or had been dishonored or of any defense against or claim to it on the part of any person. *134 Iowa Code § 554.3302(1) (1989). Creston Livestock does not dispute Creston Bank's claim that it received the check for value, leaving only the questions of good faith and notice.
Notice and good faith, which are often interrelated, have been called "first cousins." White & Summers: U.C.C. § 14-16 (2d Ed.1980). There is a certain confusion concerning whether the tests of notice and of good faith are to be objective or subjective. Id. at 563. We think the test for good faith is subjective. Farmers Coop. Elevator, Inc. v. State Bank, 236 N.W.2d 674, 678 (Iowa 1975). The test for notice is essentially objective. Valley Nat'l Bank v. Porter, 705 F.2d 1027, 1029 (8th Cir.1983). It is somewhat rare but entirely possible for a payee to be a holder in due course. Iowa Code § 554.3302(2).[1] It is somewhat unusual because a payee ordinarily has been involved in the transaction which gave rise to the check and hence will most often have actual knowledge of claims or defects in it. But "[i]t is participation in the transaction out of which the instrument arose, rather than the taking of the instrument, which precludes holder-in-due-course status." 11 Am.Jur.2d § 418 at 447 (1963); Annotation, Payee as Holder in Due Course, 2 A.L.R.3d 1151 (1965). Creston Bank did not participate in the sale of the steers at the livestock auction. Its status as copayee does not prevent it from being a holder in due course.
In challenging the trial court finding, Creston Livestock points to the quoted language on the back of the check. It contends Creston Bank cannot be a holder in due course after endorsing the check as copayee, in view of the warranty that the livestock was "free and clear of all liens." The argument is that this endorsement is an acknowledgement of notice of Lenox Bank's claims. This is the extent of Lenox Bank's claim of notice to Creston Bank. It is agreed that Creston Bank had no actual knowledge of any claims against the check, and there is no assertion it received any notification of it. Hence the company's claim that Creston Bank had notice is limited to a theory under section 554.1201(25)(c).
Under the Uniform Commercial Code "notice" has a specific statutory meaning:
A person has "notice" of a fact when
a. the person has actual knowledge of it; or
b. the person has received a notice or notification of it; or
c. from all the facts and circumstances known to the person at the time in question the person has reason to know that it exists. A person "knows" or has "knowledge" of the fact when that person has actual knowledge of it. "Discover" or "learn" or a word or phrase of similar import refers to knowledge rather than to reason to know....
Iowa Code § 554.1201(25).
Creston Bank argues that it cannot be associated with the words on the back of the check, that the words themselves show they were intended for endorsement only by Parker, the farmer who sold the steers. Because we rest our affirmance on Creston Bank's alternative theory, we need not consider the point.
Notwithstanding the livestock company's contention to the contrary, notice does not appear by way of a concession made by the bank in the endorsement on the back of the check. As the trial court pointed out, the language relied on expressly contradicts, rather than acknowledges, knowledge of any claim against or defect in the check. Even if the quoted language on the check can be ascribed to the bank, there is nothing in it which hints that Creston Bank had reason to know of Lenox Bank's claim.
II. We also agree with the trial court's finding that Creston Bank took the check in good faith. Good faith is "honesty in fact in the conduct or transaction concerned." Iowa Code § 554.1201(19). See also Porter, 705 F.2d at 1209. The parties stipulated that when Creston Bank took the check it had "no actual knowledge of the *135 Lenox Bank's security interest in Parker's livestock or the proceeds thereof." The record is devoid of any hint that Creston Bank considered the transaction as anything other than the routine collection of an honest debt.
We conclude that Creston Bank was a holder in due course. This being true, its rights do not yield to those of Lenox Bank's earlier perfected security interest. Iowa Code § 554.9309 (holders in due course "take priority over earlier security interest even though perfected"). Creston Bank took the check free of the claims of Lenox Bank.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
NOTES
[1] "The payee may become a holder in due course to the same extent and under the same circumstances as any other holder, whether he takes the instrument by purchase or directly from the obligor." Comment 2, U.C.C. § 3-302. See also, White & Summers U.C.C. § 14-7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588098/ | 205 P.3d 101 (2009)
226 Or. App. 603
STATE
v.
SANDERS.
Court of Appeals of Oregon.
March 11, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/604572/ | 990 F.2d 1263
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Robert Gary LEESON, Defendant-Appellant.
No. 92-10236.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 12, 1993.Decided April 13, 1993.
Before NORRIS, HALL and FERNANDEZ, Circuit Judges.
1
MEMORANDUM*
2
Robert Gary Leeson appeals his conviction and sentence for conspiracy, manufacture, and aiding and abetting the manufacture of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. He challenges the constitutionality of the directive in U.S.S.G. § 2D1.1 that each marijuana plant is treated as one kilogram of marijuana when fifty or more plants are involved, and the district court's denial of his motions to suppress evidence and for a Franks hearing.
3
We AFFIRM.
BACKGROUND FACTS
4
In January 1990, Drug Enforcement Agency (DEA) agents dismantled a marijuana cultivation operation in a residence in the west section of Las Vegas, Nevada. In the garage were found several shipping boxes addressed to Lee Roberts at 2812 Highland, Las Vegas. During a follow-up investigation, Leeson was observed retrieving packages from the Highland address which were addressed to Lee Roberts from Light Manufacturing Company, Hamilton Technology Corporation and Seedbank, known suppliers of equipment and seed used for indoor marijuana cultivation. Agents obtained additional evidence which tended to show that Leeson was engaged in marijuana cultivation from Leeson's trash and utility records.
5
In December 1990, DEA agents surveilled Leeson's residence using a thermal imager to detect heat emissions. The readings were consistent with readings from other indoor marijuana cultivations. Agents also observed two rooftop air conditioners and six vents commonly used to ventilate indoor marijuana cultivation. Based on these facts, agents obtained and executed a search warrant, which resulted in the confiscation of 83 marijuana plants, dry marijuana and growing equipment. Leeson was convicted upon his conditional guilty plea and sentenced to 43 months.
DISCUSSION
6
A. Sufficiency of Affidavit.
7
We need not decide whether use of an infrared sensing device to detect heat emissions violates the Fourth Amendment prohibition against unreasonable searches because there is sufficient evidence in the warrant affidavit to establish probable cause independent of the results of the thermal imager. See United States v. Feeney, No. 91-10589, slip op. 837, 843, 1993 WL 17727 (9th Cir. Feb. 1, 1993); United States v. Kerr, 876 F.2d 1440, 1443-44 (9th Cir.1989). The affidavit indicated that:
8
(1) Shipping boxes addressed to "Lee Roberts" were found on the premises of a known marijuana cultivator;
9
(2) "Lee Roberts" received numerous shipments in July 1989 and August and September 1990 from businesses known to the DEA to supply equipment and seeds for indoor marijuana cultivation;
10
(3) Leeson personally retrieved packages addressed to "Lee Roberts" on four occasions;
11
(4) After picking up boxes, Leeson drove in a circuitous manner (including making U-turns and going down dead-end streets);
12
(5) Drug traffickers commonly use aliases of the type where a name like "Robert Leeson" is turned into "Lee Roberts;"
13
(6) An issue of High Times magazine, a publication for persons interested in marijuana, was found in trash which Leeson had discarded away from his home. On another occasion, Leeson discarded an empty box from Light Manufacturing Co. in a dumpster away from his home;
14
(7) Utility records for Leeson's residence showed that he was using a lot of electricity and water; and
15
(8) Rooftop air conditioners and vents commonly used to vent indoor marijuana cultivations were observed at Leeson's residence.
16
These facts provide a substantial basis for the magistrate to conclude that there was a fair probability that marijuana was being grown in Leeson's residence. See Feeney, slip op. at 842-43; United States v. Motz, 936 F.2d 1021, 1023 (9th Cir.1991); Kerr, 876 F.2d at 1444-45. Thus, the district court did not err in denying Leeson's motion to suppress.
17
Leeson failed to make a preliminary showing that false statements material to a finding of probable cause were intentionally or recklessly included in the warrant affidavit. Similarly, there was no showing of intentional or reckless material omissions. Thus, he was not entitled to a hearing to investigate the veracity of the affiant, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
18
Leeson objected to the following statements by the affiant: three companies from which Leeson received packages were regarded by DEA as suppliers of equipment and seeds for indoor marijuana cultivation, drug traffickers commonly use aliases, and a check of local criminal records revealed a "positive record" for Leeson. Although it is possible to infer more from these statements than appears on their face (e.g., that the companies only sell to drug dealers), there is nothing to indicate that the magistrate drew those inferences. Moreover, a Franks hearing would not be illuminating in that regard. Accordingly, the district court did not err in denying Leeson's motion for a Franks hearing.
19
Leeson also alleged that evidence should be suppressed because the government improperly destroyed the seized marijuana plants. Leeson failed to demonstrate either bad faith by the government or prejudice. See United States v. Heffington, 952 F.2d 275, 280-81 (9th Cir.1991). The government complied with 21 U.S.C. § 881(f)(2) and 28 C.F.R. § 50.21(e) in destroying the plants. Leeson was not prejudiced because evidence of the number and condition of the plants was preserved on film. Indeed, Leeson admitted to the number of plants and cuttings at the sentencing hearing.1 The district court properly denied the motion for suppression.
20
B. Sentencing.
21
In the case of an offense involving 50 or more live marijuana plants, a footnote to U.S.S.G. § 2D1.1(c)2 directs the sentencing court to treat each plant as equivalent to one kilogram of marijuana in calculating the quantity of drugs involved in the offense. Leeson contends that this instruction violates due process because the ratio has no basis in science or fact, and operates to punish a grower who is apprehended before harvest more severely than a grower who is apprehended after a grow has been harvested and dried. These arguments are foreclosed by Ninth Circuit precedent. The one plant/one kilogram ratio is rationally related to a legitimate government interest because it recognizes the heightened culpability of growers and factors in the ongoing nature of a growing operation. United States v. Jordan, 964 F.2d 944, 947 (9th Cir.), cert. denied, 113 S.Ct. 478, 121 L.Ed.2d 384 (1992); United States v. Belden, 957 F.2d 671, 675-76 (9th Cir.), cert. denied, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992); Motz, 936 F.2d at 1025-26.
22
Consequently, use of the § 2D1.1 ratio for converting live plants to drug quantity reflects the scale of the offense for guideline purposes, and the district court did not need to resort to an approximation under Application Note 12 to § 2D1.1, and Application Note 2 to § 2D1.4. These Notes do not reflect an intent to lower the guideline offense level in a case where an actual quantity of drugs is seized. Rather, they indicate an intent to account for situations where not all of the drugs in question are seized. Certainly, they do not offer a reason to circumvent the precise equivalency direction that applies to this case.
23
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
While there may have been a slight discrepancy in the numbers, it was not one that would change the Guideline level of 24
2
All references to the Sentencing Guidelines are to the version effective November 1, 1991 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1616819/ | 190 S.W.3d 747 (2005)
The CITY OF SAN ANTONIO, As Owner of the San Antonio Water System, Appellant,
v.
BSR WATER COMPANY; Sneckner Partners, Ltd.; Debra Sneckner Kennedy; Sherri Martineau Sneckner; William Kendrick Sneckner; Lova Catherine Sneckner Buckner, Appellees.
No. 04-05-00495-CV.
Court of Appeals of Texas, San Antonio.
December 28, 2005.
*750 Daniel McNeel Lane, Jr., Monica J. Rodriguez, Jo Beth Eubanks, Akin Gump Strauss Hauer & Feld L.L.P., San Antonio, for appellant.
Seagal V. Wheatley, Jenkens & Gilchrist, P.C., San Antonio, for appellees.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
OPINION
Opinion by SANDEE BRYAN MARION, Justice.
This is an accelerated appeal from the trial court's denial of the City's plea to the jurisdiction. In the underlying suit, BSR Water Company and others (collectively "BSR") sued the City on claims of breach of contract, fraud, fraudulent inducement, and conversion. In this appeal, we determine whether (1) the City is immune from suit on BSR's tort claims, (2) BSR's contract claim is ripe, and (3) the Texas Commission for Environmental Quality ("TCEQ") has either exclusive or primary jurisdiction over BSR's contract claim. We affirm in part and reverse in part.
BACKGROUND
BSR owns a 442-acre ranch in northwest San Antonio, Texas, and holds a Certificate of Convenience and Necessity ("CCN")[1] from the State that allows it to *751 operate a potable water system on the ranch. The San Antonio Water System ("SAWS") is a public utility that provides services in Bexar County, Texas through service areas established by its CCNs. The TCEQ is the state agency that grants CCNs and ensures that all CCN applicants possess the financial, managerial, and technical capability to provide continuous and adequate water utility service. See TEX. WATER CODE ANN. §§ 13.241, 13.242 (Vernon 2000).
In 1998, SAWS filed an application with the TCEQ for a CCN covering several thousand acres west of Highway 281 in northern Bexar County. BSR owns 412 acres west of Highway 281. BSR has the CCN to provide retail water service within its 412 acres, although it has never provided such service to any customer. BSR wanted to expand the area covered by its CCN to include 800 acres of neighboring land surrounding its property (the "Expansion Area"). BSR's Expansion Area fell within the land covered by SAWS's application for a CCN. BSR also filed a protest to SAWS's application with the TCEQ because BSR wanted to expand its CCN to cover the Expansion Area. The Bexar County Metropolitan Water District ("Bexar Met") filed a similar protest with TCEQ.
On February 15, 2000, representatives of BSR and SAWS engaged in contract negotiations to resolve their differences, eventually entering into a Water Supply Contract and Service Area Settlement Agreement. Among the obligations assumed by the parties under the agreement are the following: (1) BSR agreed to withdraw its request for a contested hearing on its protest to SAWS's CCN application and agreed to submit a letter supporting SAWS's application for an expansion of its CCN in those areas surrounding BSR's CCN; (2) SAWS agreed to not oppose, and to support any attempt by BSR to expand the area of its CCN provided such expansion is within the limits of the Expansion Area; (3) SAWS agreed not to oppose, and to support, the transfer to BSR of any portion of SAWS's CCN located within the Expansion Area; (4) BSR agreed to sell to SAWS water on a wholesale basis; and (5) BSR granted SAWS the right to produce up to 1,500 acre feet per year of groundwater from wells SAWS agreed to drill on BSR's land. In compliance with the agreement, BSR withdrew its opposition to SAWS's CCN application and submitted a letter to TCEQ supporting SAWS's application.
On September 22, 2000, representatives of Bexar Met and SAWS engaged in contract negotiations to resolve their differences, eventually entering into an Interlocal Operational Agreement. Among the obligations assumed by the parties under the agreement are the following: (1) SAWS agreed to withdraw its application for a CCN covering the Expansion Area, thereby freeing Bexar Met to file an application to include those properties in its application for a CCN; and (2) Bexar Met agreed to withdraw its protest to SAWS's CCN application on the remaining property. SAWS later amended its CCN application to exclude the Expansion Area. BSR contends SAWS did not disclose to it the terms of its agreement with Bexar Met.
On March 27, 2001, SAWS and BSR amended their contract to provide SAWS with additional time in which to drill and construct the wells on BSR's property.
On August 2, 2001, BSR filed a CCN application to amend its own CCN to include the Expansion Area. BSR also asked SAWS to submit a letter to TCEQ supporting its application, which SAWS did.
On January 15, 2002, Bexar Met and neighbors owning land in the Expansion *752 Area filed protests to BSR's CCN application. On April 1, 2002, Bexar Met filed an application for a CCN, which would cover the Expansion Area. BSR filed a protest.
At some point, BSR engaged in negotiations with Bexar Met to sell water. In July 2003, BSR withdrew its application to amend its CCN to include the Expansion Area.
SAWS eventually completed construction of the wells on BSR's property; however, BSR asserted several complaints. BSR alleged SAWS failed to purchase 1,500 acre feet of water from BSR's land, SAWS has not optimized production on the land, and SAWS's execution of the Interlocal Operational Agreement with Bexar Met and its withdrawal of its application for a CCN over the Expansion Area breached SAWS's obligation to BSR under the Water Supply Contract and Service Area Settlement Agreement. In February 2004, BSR sued SAWS for breach of contract, fraud, fraudulent inducement, and conversion. The City filed a plea to the jurisdiction, asserting the trial court lacked subject-matter jurisdiction over the contract and tort claims. The trial court denied the plea.
IMMUNITY FROM SUIT
In its first issue, the City argues it is immune from suit on BSR's tort claims[2] based upon the exercise of its governmental functions: the construction, ownership, and operation of a water service system. BSR counters that the City is not immune from suit because its tort claims arise from the City's proprietary operation of a public utility.
The functions of a municipality fall into one of two categories. City of Houston v. Southwest Concrete Constr., Inc., 835 S.W.2d 728, 730 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448, 455 (Tex.Civ.App.-Corpus Christi 1968, writ ref'd n.r.e.). Governmental functions are those functions that are enjoined on a municipality by law and are given to it by the state as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public. TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a) (Vernon 2005). A municipality performing a governmental function is afforded sovereign immunity unless immunity has been waived under the Texas Tort Claims Act. See id. §§ 101.001-.109.
Proprietary functions are those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality. See id. § 101.0215(b). Proprietary functions are not integral to a municipality's function as an arm of the state. Southwest Concrete Constr., 835 S.W.2d at 731. "The sovereign immunity of the state does not protect a municipality from liability for actions taken in a proprietary capacity because such are undertaken for the benefit of private enterprise or the residents of the municipality rather than for the benefit of the general public." Id.
Relying on the "arising from" language of Texas Civil Practice and Remedies Code section 101.0215, BSR asserts courts must first determine the specific function from which a plaintiff's damages arise, before determining whether the municipality is immune. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a) ("A municipality is liable... for damages arising from its governmental functions ...."); § 101.0215(b) ("This chapter does not apply to the liability of a municipality for damages arising *753 from its proprietary functions...."). BSR argues there must be a nexus between the asserted claims and the alleged governmental function. BSR contends its claims do not arise from SAWS's providing water and sewer services, and instead, its claims arise from SAWS's refusal to maintain its application for a CCN covering the Expansion Area so that BSR could later provide water and sewer service. According to BSR, (1) its fraud claim rests on SAWS's never actually intending to continue its application for a CCN for the Expansion Area, and (2) its conversion claim rests on BSR being deprived of the right to capture the water under its property because SAWS failed to drill wells on the property, which resulted in surrounding landowners capturing the water and selling it to SAWS. Therefore, BSR concludes that because its claims arise from the operation of a public utility, and not the providing of "water and sewer service," the City is not immune from suit.
A municipality does not enjoy immunity from suit for the performance of its proprietary functions, such as "the operation and maintenance of a public utility." TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(b)(1). There is no dispute that SAWS is a public utility. The provision of water services, waterworks, and irrigation were considered proprietary functions under the common law. City of Texarkana v. Cities of New Boston, 141 S.W.3d 778, 783 (Tex.App.-Texarkana 2004, no pet.); City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392, 397 (Tex.App.-Dallas 2002). However, the Legislature did not adopt the same classifications the common law employed when it classified municipal functions in section 101.0215. Reata Constr. Corp., 83 S.W.3d at 397. And, plaintiffs may not "split various aspects of [a municipality's] operation into discrete functions and recharacterize certain of those functions as proprietary." See City of San Antonio v. Butler, 131 S.W.3d 170, 178 (Tex.App.-San Antonio 2004, pet. filed Apr. 15, 2004). Although the operation of a public utility is a proprietary function, a municipality's proprietary functions do not include those activities listed as governmental in section 101.0215(a). TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(c); Butler, 131 S.W.3d at 177; see Southwest Concrete Constr., 835 S.W.2d at 731 (referencing section 101.0215(c) and noting "the legislature included a caveat in addition to the language which indicated that the list of proprietary functions was not exclusive."). Among the governmental functions listed in section 101.0215(a) for which a municipality enjoys immunity from suit is the provision of "water and sewer service." TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(32). Furthermore, "all activities associated with the operation of one of the government functions listed in section 101.0215(a) are governmental and cannot be considered proprietary, regardless of the [municipality's] motive for engaging in the activity." See Butler, 131 S.W.3d at 177; see also Cities of New Boston, 141 S.W.3d at 784.
BSR contends the City is not required to operate a utility, the City assumed this activity as a matter of discretion, and the City's competitive activity in negotiating contracts and obtaining property for its own use does not benefit the public at large, and instead, benefits only SAWS and the citizens of San Antonio. For these reasons, BSR contends SAWS is operating a public utility for profit, which is a proprietary function. While it may be true that the City profits from the contracts SAWS enters into, if SAWS's actions are encompassed within the governmental function of providing "water and sewer service," we have no discretion to declare the actions proprietary, regardless of the City's motives. Texas River Barges v. *754 City of San Antonio, 21 S.W.3d 347, 357 (Tex.App.-San Antonio 2000, pet. denied); see also Butler, 131 S.W.3d at 178 (holding that "the existence of a profit motive [does not reclassify] one aspect of a government function into proprietary conduct.").
Here, BSR's claims arise from SAWS's decisions regarding the drilling of wells, the purchase of water, and an application for a CCN over the Expansion Area. These decisions cannot be distinguished from the City's governmental function to provide "water and sewer service." See Butler, 131 S.W.3d at 178; Texas River Barges, 21 S.W.3d at 356. "The City has discretion to perform or not perform many activities in connection with its government functions." Butler, 131 S.W.3d at 178. That discretion does not reclassify one aspect of a government function into a proprietary function. Id. Because SAWS's actions were encompassed within its governmental function of providing "water and sewer service," the City is entitled to immunity. Therefore, the trial court erred in denying the City's plea to the jurisdiction based on its entitlement to immunity on BSR's tort claims.
WAIVER OF IMMUNITY
BSR asserts that, if immunity applies to SAWS's conduct, immunity was waived by the City's Charter and by the Local Government Code. BSR relies on this court's opinion in Alamo Community College District v. Obayashi Corp., 980 S.W.2d 745, 749 (Tex.App.-San Antonio 1998, pet. denied), abrogated on other grounds by Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex.2001). In Obayashi, a panel of this court held that an Education Code provision that school district trustees may sue and be sued was an unambiguous waiver of immunity from suit for all independent school districts and junior colleges. However, in Butler, a panel of this court held that, "[e]ven if it could be argued that the `sue and be sued' language of the Local Government Code was originally intended to waive a city's immunity from suit on all types of claims, that general waiver of immunity was severely limited in the tort context by the passage of the TTCA." Butler, 131 S.W.3d at 176-77 (citations omitted). With regard to whether immunity was waived under the City Charter, the Butler court held that "the language of the City Charter should not be read to waive the City's immunity from suit with respect to tort claims." Id. 176-77 (citations omitted). Therefore, under Butler, we hold that immunity is not waived by the City's Charter or the Local Government Code.
RIPENESS
In its second issue, the City contends the trial court erred in denying its plea to the jurisdiction because BSR's contract and tort claims are not ripe. We have already determined that the City is immune from suit on BSR's tort claims; therefore, we consider only whether BSR's contract claim is justiciable. For a claim to be justiciable, the claim must be ripe, and the concept of ripeness emphasizes the need for a concrete injury and focuses on when an action may be brought. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000). Under the ripeness doctrine, we consider whether, at the time a lawsuit is filed, the facts are sufficiently developed and show that an injury has or is likely to occur. Id. at 851-52. A case is not ripe if determining whether a plaintiff has a concrete injury depends on events that have not come to pass or that are based on hypothetical or contingent facts. Id. at 852.
The City asserts BSR does not have a concrete injury because BSR's claims are based on a future event: whether *755 the TCEQ would grant or deny BSR a CCN in the Expansion Area. On the other hand, BSR asserts SAWS's actions denied BSR "any expansion rights and the valuable right to receive payments of several millions of dollars from SAWS or other water purchasers for water to be purchased in [BSR's] new agreed expanded area." BSR also asserts that SAWS has directly caused it "to lose extremely valuable rights to sell its own water to other land developers." Further, BSR contends it lost the benefit to expand its water area because it "simply does not have the ability to compete with a huge utility like Bexar Met for a certificate to serve the same area." BSR claims to have suffered injury regardless of the TCEQ's future decision. Taking the facts stated in BSR's petition as true, if SAWS breached its agreement with BSR, then BSR suffered an injury by losing its expansion rights and rights to sell its water to other developers. Therefore, it is not determinative that the TCEQ has not issued a final ruling regarding the CCN application and we hold that BSR's breach of contract claim is ripe.
TCEQ'S JURISDICTION
In its third issue, the City asserts the trial court lacks subject-matter jurisdiction because the TCEQ has exclusive jurisdiction over the underlying CCN dispute. Alternatively, the City asserts the TCEQ has primary jurisdiction. The City insists the Legislature gave the TCEQ exclusive jurisdiction to decide the issues raised in this case and that BSR must exhaust all administrative remedies available to it before seeking judicial review. The City contends that because BSR has not exhausted all administrative remedies available, the trial court does not have subject-matter jurisdiction to hear this case.
A. Exclusive Jurisdiction
Courts of general jurisdiction presumably have subject-matter jurisdiction unless a contrary showing is made. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). There is no presumption that administrative agencies are authorized to resolve disputes. Id. Instead, an agency may exercise only those powers the law, in clear and express statutory language, confers upon it. Id. "Courts will not divine by implication additional authority to agencies, nor may agencies create for themselves any excess powers." BCY Water Supply Corp. v. Residential Investments, Inc., 170 S.W.3d 596, 600 (Tex.App.-Tyler 2005, pet. denied).
Under the exclusive jurisdiction doctrine, the Legislature grants an administrative agency the sole authority to make an initial determination in a dispute. See Cash Am. Int'l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000). An agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. Subaru, 84 S.W.3d at 221. Whether an agency has exclusive jurisdiction depends on statutory interpretation. Id. Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency's action. Bennett, 35 S.W.3d at 15. Until then, the trial court lacks subject-matter jurisdiction and must dismiss without prejudice the claims within the agency's exclusive jurisdiction. Subaru, 84 S.W.3d at 221.
Determining if an agency has exclusive jurisdiction requires statutory construction and raises jurisdictional issues. Id. at 222. Thus, whether an agency has exclusive jurisdiction is a question of law we review de novo. Id. Our objective *756 when construing a statute is to determine and give effect to the Legislature's intent. See Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). To ascertain that intent, we look first to the statute's plain language and give words their ordinary meaning. Id. We must view the statute's terms in context and give them full effect. Id. Further, we presume that the Legislature acted with knowledge of the common law and court decisions. Id.
The Texas Water Code was adopted to "protect the public interest inherent in the rates and services of retail public utilities." Id. § 13.001(a). The purpose of Water Code chapter 13 ("Water Rates and Services") is "to establish a comprehensive regulatory system that is adequate to the task of regulating retail public utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the retail public utilities." TEX. WATER CODE ANN. § 13.001(c). The TCEQ has "exclusive original jurisdiction over water and sewer utility rates, operations, and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services as provided in this chapter." Id. § 13.042(e) (emphasis added). Thus, under section 13.042(e), the TCEQ's exclusive jurisdiction is limited to those "rates, operations, and services" governed by chapter 13 of the Water Code. See BCY Water Supply, 170 S.W.3d at 601 (Legislature "intended to limit the TCEQ's jurisdiction specifically to matters directly related to water and sewer utility rates, operations, and services....").
To accomplish the Water Code's purpose, retail water or sewer utility service may not be rendered, directly or indirectly to the public, by a utility or a water supply or sewer service corporation unless the utility or service corporation first obtains from the TCEQ "a certificate that the present or future public convenience and necessity will require that installation, operation, or extension...." Id. § 13.242(a). Thus, the TCEQ is responsible for granting a CCN, id. § 13.246(b), (c); and it allows any party affected by a CCN application to intervene at a hearing on the application. See id. § 13.246(a). However, here, BSR asserts a common law breach of contract claim against SAWS. Chapter 13 does not specify a procedure for resolving such disputes. Also, although the TCEQ has the authority to levy penalties, it does not have the authority to award damages.
The Code's failure to establish any claims-resolution process through which the TCEQ may resolve contract claims between a utility and a private party, as well as the TCEQ's inability to award monetary damages, supports our conclusion that the Water Code does not give the TCEQ exclusive jurisdiction to resolve BSR's contract claim. See Subaru, 84 S.W.3d at 226 (Motor Vehicle Board's exclusive jurisdiction applied to dealer's Code-based DTPA and bad-faith claims because Texas Motor Vehicle Commission Code provides a hybrid claims-resolution process); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 206-07 (Tex.2002) (Motor Vehicle Commission Code's failure to establish procedure through which Board could resolve claim that a manufacturer unlawfully refused to accept a dealer's transfer request, coupled with Board's inability to award monetary damages, demonstrated that the Board did not have exclusive jurisdiction to resolve tortious interference and declaratory judgment claims). Therefore, the trial court had subject-matter jurisdiction over BSR's contract claim. See BCY Water Supply, 170 S.W.3d at 601 (holding that common law claims for negligent misrepresentation and promissory estoppel *757 did not fall within TCEQ's exclusive jurisdiction); see also City of Donna v. Victoria Palms Resort, Inc., No. 13-03-375-CV, 2005 WL 1831593, *5 (Tex.App.-Corpus Christi Aug.04, 2005, pet. filed) (holding that TCEQ does not have jurisdiction over claims for deceptive trade practices and breach of contract).
B. Primary Jurisdiction[3]
Primary jurisdiction is a judicially created doctrine in which a court may dismiss or stay an action pending resolution of some portion of the case by an administrative agency. Harris County Mun. Util. Dist. v. Mitchell, 915 S.W.2d 859, 863-64 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Under the doctrine of primary jurisdiction, a matter delegated by statute to an administrative agency for initial action must be determined by that agency before the matter may be reviewed by a court. Id. at 864; see also Subaru, 84 S.W.3d at 221.
"[P]rimary jurisdiction is prudential whereas exclusive jurisdiction is jurisdictional." Subaru, 84 S.W.3d at 220. Thus, to the extent the TCEQ has primary jurisdiction over BSR's claims, the trial court did not lack subject-matter jurisdiction. If an agency has primary jurisdiction, rather than dismiss the case, a trial court should abate the lawsuit and suspend final adjudication of the claims until after the agency has an opportunity to act on the matter. Id. at 221.
A trial court should allow an administrative agency to initially decide an issue when: (1) the agency is typically staffed with experts trained in handling the complex problems in the agency's purview; and (2) great benefit is derived from the agency's uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations. Subaru, 84 S.W.3d at 221. Here, the merits of the pending CCN application are not at issue. Instead, the rights and obligations of SAWS and BSR under the Water Supply Contract and Service Area Settlement Agreement are at issue. We, therefore, hold the TCEQ does not have primary jurisdiction over BSR's contract claim.
CONCLUSION
We reverse the trial court's order to the extent it denies the City's plea to the jurisdiction on BSR's tort claims and we render judgment dismissing BSR's tort claims against the City for lack of subject-matter jurisdiction. We affirm the trial court's order in all other respects, and remand for further proceedings consistent with this opinion.
NOTES
[1] A CCN allows an entity to provide retail water service if it is for the public's convenience and necessity. TEX. WATER CODE ANN. § 13.242(a) (Vernon 2000).
[2] On appeal, the City does not challenge the trial court's denial of its plea to the jurisdiction on the grounds of immunity from suit on BSR's breach of contract claim.
[3] BSR asserts this court does not have jurisdiction to address the City's primary jurisdiction claim because the doctrine of primary jurisdiction does not deprive a trial court of subject-matter jurisdiction. According to BSR, because this is an interlocutory appeal from the trial court's denial of a plea to the jurisdiction, our review is limited to only jurisdictional arguments. We disagree, and conclude this court has jurisdiction to consider whether the TCEQ has primary jurisdiction over BSR's contract claim. See Butnaru, 84 S.W.3d at 208 (Supreme Court considered both exclusive and primary jurisdiction arguments); Cash America International v. Bennett, 35 S.W.3d 12 (Tex.2000) (same). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616824/ | 190 S.W.3d 545 (2006)
Randall COPELAND, Movant-Respondent,
v.
STATE of Missouri, Respondent-Appellant.
No. 26908.
Missouri Court of Appeals, Southern District, Division Two.
April 28, 2006.
*546 Jeremiah W. (Jay) Nixon, Atty. Gen., and Shaun J. Mackelprang, Office of Atty. Gen., Jefferson City, for appellant.
Mark A. Grothoff, Columbia, for respondent.
KENNETH W. SHRUM, Presiding Judge.
Randall Copeland ("Movant") sought post-conviction relief via a Rule 29.15 motion after he was convicted of statutory sodomy in the first degree (§ 566.062).[1] In his motion, Movant alleged that his trial lawyer was ineffective for failing to introduce into evidence at the criminal trial the deposition testimony of the child victim in the case. After an evidentiary hearing, the motion court vacated Movant's conviction and sentence.
The State appeals. We remand the case to the trial court. We do so because the order appealed from does not comply with Rule 29.15(j). Specifically, it does not contain sufficient findings of fact and conclusions of law on all issues that will allow for meaningful appellate review.
STANDARD OF REVIEW
To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984). This prejudice is shown where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.
In a post-conviction case, an appellate court must affirm the rulings of the motion court unless it appears that its findings, conclusions, and judgment are "clearly erroneous." Rule 29.15(k); Johnson v. State, 102 S.W.3d 535, 537[1] (Mo. banc 2003). A motion court's findings and conclusions are clearly erroneous if, after a review of the entire record, the reviewing court is left with the definite and firm impression that a mistake has been made. Id. at 537[2].
FACTS
The facts that underlie Movant's conviction are recounted in State v. Copeland, 95 S.W.3d 196 (Mo.App.2003), Movant's direct appeal. Suffice it to say that sufficient evidence existed for a jury to conclude Defendant sodomized his son ("Victim") by penetrating Victim's anus with his finger or penis. Victim did not testify at Movant's criminal trial, but statements he made to other witnesses were presented to the jury via testimony from those particular witnesses.
Before the criminal trial, Movant's attorney, James Stevens ("Stevens"), deposed Victim and intended to introduce this deposition at trial. He failed to do so, however. His explanation at the post-conviction hearing was that he "forgot about it."
During the deposition, Victim reluctantly answered questions. As Stevens explained it, "to get him to say anything took *547 some cajoling." In the deposition, Victim testified that Movant "beat" him with "his hands, boards and switches" and was usually doing drugs when this occurred. When Stevens asked, "What is it that you claim that your dad did that was inappropriate," Victim answered, "Nothing." Stevens' next question to Victim was, "Did he [Movant] ever touch you sexually?" Victim answered in the affirmative by nodding his head.
Later in the deposition, Stevens asked Movant the following leading question: "Now, you say he did not touch you inappropriately, but he did beat you?" Victim again answered by nodding his head. Thereon, Stevens went through the list of what Movant used to hit Victim (boards, hand, and switches), and Victim reaffirmed that the physical abuse occurred. Stevens ended the deposition by asking Victim, "But he didn't touch you sexually inappropriately?" and Victim said, "No."
At Movant's criminal trial, the defense strategy was to show the sexual abuse allegations were fabricated by Victim as a means of escaping Movant's home and the physical abuse. Movant now insists that Victim's deposition testimony would have bolstered his defense even though it contained contradictory statements of sexual abuse and revealed other negative aspects of Movant's character such as drug usage.
In his Rule 29.15 motion, Movant alleged, inter alia, that there was no reasonable trial strategy for failing to introduce Victim's deposition testimony that Movant did not sexually abuse Victim. Movant also claimed that "a reasonable probability exists that the jury would have believed [Victim's] sworn [deposition] statements over the hearsay statements of others, and they would have acquitted movant of first degree statutory sodomy."
Following an evidentiary hearing, the motion court granted Movant's post-conviction relief via what it denominated "Findings, Conclusions and Judgment." Therein, the court started with a brief procedural history. It then declared generally that "Movant was denied effective assistance of counsel in violation of his Constitutional rights under the Sixth and Fourteenth Amendments ... in that his trial counsel ... failed to exercise the required customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances and Movant was prejudiced thereby." The only "analysis" provided in support of the finding was this: "That [Stevens] was ineffective... in that he failed to introduce into evidence the deposition of the victim... which contained exculpatory statements which may have allowed the jury to conclude that Movant was not guilty." (Emphasis added.) Based on this, the motion court vacated Movant's conviction and sentence and ordered a new trial. The State's appeal followed.
DISCUSSION AND DECISION
In its brief, the State points to numerous deficiencies in the motion court's order and judgment. Specifically, it complains the motion court used the wrong standard when it ruled Movant was prejudiced by counsel's alleged error; that the standard is not whether the omitted or "forgotten" evidence "may have" led to an acquittal (as the motion court found), but whether there was a "reasonable probability" that the jury would have acquitted. See Strickland, 466 U.S. at 687, 104 S. Ct. 2052. In conjunction with that, the State also complains that the motion court's findings were deficient in that they did not comport with nor contain the analysis mandated by Strickland. Id.
With those arguments made, the State then devotes most of its brief to arguments on why Movant was not prejudiced by the *548 failure to introduce Victim's deposition testimony. From that, the State urges outright reversal, i.e., we reverse without remand and deny Movant's post-conviction claim of ineffective assistance based on his lawyer's failure to put Victim's deposition before the jury.
Rule 29.15(j) mandates that a post-conviction court issue findings of fact and conclusions of law on all issues presented whether or not a hearing is held. Morrison v. State, 75 S.W.3d 893, 896[2] (Mo.App.2002). An appellate court's role in reviewing a post-conviction order and judgment is limited to determining if the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); State v. Ervin, 835 S.W.2d 905, 928 (Mo.banc 1992). However, to perform its duty, an appellate court must have before it findings and conclusions from a motion court that are specific enough to permit meaningful review. State v. Parker, 886 S.W.2d 908, 932[102] (Mo.banc 1994); Morrison, 75 S.W.3d at 896. When a motion court's findings on an issue lack specificity to the point the appellate court cannot make a meaningful review, a remand for specific findings and conclusions on that issue is required. Id.
Here, the motion court found counsel ineffective for failing to introduce Victim's deposition testimony but did so without making any analysis of why it concluded the omission was ineffective assistance, and if so, why it prejudiced Movant. The fact that defense counsel admittedly "forgot" to introduce the deposition did not eliminate the need for analysis, fact findings, and conclusions of law. Forgetfulness as an explanation for failing to introduce the deposition did not automatically equate to a finding of ineffective assistance, nor did it mandate such a finding. It was imperative that the motion court give a reasoned answer to the following: First, on the record presented, would it have been reasonable trial strategy to forego use of the subject deposition? Second, if the answer to the first question was "No," was there a reasonable probability that the outcome would have been different if the deposition had been admitted?
Here, those questions are unanswered. For example, we do not know if the motion court considered whether a reasonably competent attorney under the circumstances might have opted to keep Victim's deposition away from the jury since it supported (at least in one part) the State's case and also revealed negative aspects of Movant's character, i.e., his drug usage and physical abuse of Victim. Bearing in mind everything in Victim's deposition, did the trial court consider whether a reasonably competent lawyer could have decided to forego use of Victim's deposition as a matter of sound trial strategy? Christeson v. State, 131 S.W.3d 796, 799 (Mo.banc 2004) (holding reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance). Faced with only the motion court's conclusory finding of ineffectiveness and with no analysis of that prong of the Strickland standard, we cannot make a meaningful review.
Similarly, the motion court's decision on the prejudice prong is nothing more than a mere conclusion. Specifically, the motion court found that the exculpatory statement contained in the deposition "may have allowed the jury to conclude that Movant was not guilty." This, however, provides no clue as to "why" or "how" the motion court so decided. What was the motion court's assessment of the evidence in Movant's criminal trial, i.e., did the motion court view the evidence of Movant's guilt as overwhelming? See, e.g., Anderson v. State, 66 S.W.3d 770, 778 (Mo.App.2002) *549 (holding where overwhelming evidence of guilt exists, such that it cannot be said that, but for the challenged actions of trial counsel, the jury would have found movant not guilty beyond a reasonable doubt, the movant suffers no prejudice and his claim of ineffective assistance must be denied). Did the motion court, as part of its prejudice analysis, consider why the jury would have given more weight to the exculpatory part of Victim's deposition, i.e., where he denied sexual contact by Movant, than the inculpatory part (where Victim said sexual contact occurred)? This question is particularly relevant when, as here, the exculpatory answer came via a leading question from the defense during a deposition where the child victim was obviously reluctant to answer any questions.
The questions posited above are merely examples of relevant things the motion court might consider and answer via specific findings and conclusions. Certainly, they are not intended as an exhaustive or exclusive list. Each case will encompass its own peculiar facts, circumstances, and salient questions. The point is there must be some analysis of the post-conviction evidence in light of the evidence adduced at trial. Because of the absence here of any analysis and discussion of how the alleged ineffective assistance impacted the entirety of the case, we are left with nothing to review; consequently, remand is necessary. Clayton v. State, 164 S.W.3d 111, 115 (Mo.App.2005); Crews v. State, 7 S.W.3d 563, 567-569 (Mo.App.1999).
We also note that the motion court used the wrong standard. The court found that Victim's deposition statements "may have allowed the jury to conclude that Movant was not guilty." (Emphasis added.) The proper standard is found in Strickland: Whether an attorney's alleged deficient performance prejudiced the movant's case is shown where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
What a jury "may" have done falls far short of this standard. As aptly stated by the United States Supreme Court:
"Without a doubt, [an eyewitness's] testimony was prejudicial in the sense that it made petitioner's conviction more likely than if she had not testified, and discrediting her testimony might have changed the outcome of the trial.
"That, however, is not the standard that petitioner must satisfy in order to obtain relief.
....
"The District Court was surely correct that there is a reasonable possibility that either a total, or just a substantial, discount of [the witness's] testimony might have produced a different result.... As the District Court recognized, however, petitioner's burden is to establish a reasonable probability of a different result."
Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53, 144 L. Ed. 2d 286 (1999); see also State v. Gray, 887 S.W.2d 369, 381 (Mo.banc 1994) (holding, "some conceivable effect on the outcome of the case" is insufficient to show prejudice); Poyner v. Murray, 964 F.2d 1404, 1420-21 (4th Cir.1992) (holding, "mere possibility" of prejudice is insufficient).
There certainly is a possibility that the jury might have seized on the exculpatory statement in the deposition as being the truth and used that to acquit Movant. That possibility, however, is not the proper standard. On remand, the motion court shall issue findings of fact and conclusions of law using the proper standard.
*550 Finally, we note that the motion court failed to issue findings of fact and conclusions of law on all issues raised by Movant's Rule 29.15 motion. The parties agree that the motion court failed in this regard. On remand, the motion court shall issue findings of fact and conclusions of law on all issues raised in Movant's Rule 29.15 motion.
The judgment granting Movant's request for post-conviction relief is remanded with directions to the motion court to issue findings of fact and conclusions of law consistent with this opinion.
BARNEY, J., and BATES, C.J., concur.
NOTES
[1] All rule references are to Supreme Court Rules (2005), unless otherwise stated. All statutory references are to RSMo (2000), unless indicated differently. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616831/ | 190 S.W.3d 4 (2005)
In re Gary L. BROWN, M.D., P.A., and Gary L. Brown, M.D., Relators.
No. 07-04-0455-CV.
Court of Appeals of Texas, Amarillo.
January 27, 2005.
*5 B. Kent Buckingham, The Buckingham Law Firm, Midland, for Real Party in Interest.
Thomas C. Riney, Mitzi S. Mayfield, Kerri L. Stampes, Gwinn & Roby, Amarillo, for Relator.
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINION
PHIL JOHNSON, Chief Justice.
In this original proceeding, relators Gary L. Brown, M.D., P.A., and Gary L. Brown, M.D. (collectively, "Brown"), defendants in a health care liability claim,[1] seek writ of mandamus directing the trial court to vacate an order granting a 30-day grace period to file an expert report. We conditionally grant the petition.
BACKGROUND
Real party in interest Adam Fraley filed a health care liability claim against Brown, a urologist, alleging failure to timely diagnose Fraley's testicular cancer. Pursuant to his obligation to file an expert report, Fraley filed a report from Badrinath Konety, M.D. Brown filed a motion to dismiss, asserting that Konety's report was insufficient. In response, Fraley asserted that the report was sufficient, but also filed a motion for a grace period under section 13.01(g) in which he claimed that, if Konety's report was insufficient, then he was entitled to a 30-day grace period because he mistakenly believed that the report *6 satisfied the requirements of section 13.01(r)(6). After hearing, the trial court found Konety's expert report insufficient, granted Fraley's motion for grace period and denied Brown's motion to dismiss.
Referencing Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003), In re Rodriguez, 99 S.W.3d 825, 827-28 (Tex.App.-Amarillo 2003, orig. proceeding), and In re Windisch, 138 S.W.3d 507, 510 (Tex.App.-Amarillo 2004, orig. proceeding), Brown asserts that the trial court abused its discretion in granting Fraley a 30-day grace period. Brown prays for issuance of a writ of mandamus directing the trial court to vacate its order granting Fraley a grace period to file an expert report, and to dismiss Fraley's suit with prejudice.
Fraley first urges that mandamus is not appropriate to correct an improper grant of a grace period because an adequate remedy is available by appeal. He also maintains that if Konety's report was not sufficient, the insufficiency was not intentional or the result of conscious indifference, but was due to an accident or mistake, and the trial court did not abuse its discretion in granting a grace period.
We will address the issues in the order presented by the parties.
AVAILABILITY OF MANDAMUS
Writ of mandamus is an extraordinary remedy that will issue only (1) to correct a clear abuse of discretion or the violation of a duty imposed by law, when (2) there is no adequate remedy by law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994) (orig.proceeding). A court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A court also abuses its discretion by a clear failure to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).
This court has determined that an erroneous grant of a grace period denies a party an adequate remedy by law. See In re Rodriguez, 99 S.W.3d at 827-28; In re Morris, 93 S.W.3d 388, 390 (Tex.App.-Amarillo 2002, orig. proceeding). We continue to adhere to such view. See In re Windisch, 138 S.W.3d at 510. Accordingly, if the trial court abused its discretion in granting the grace period, mandamus is available to remedy the error.
DID THE EXPERT REPORT OMIT REQUIRED ELEMENTS
The trial court found that Konety's report did not adequately address the elements of standard of care and causation. Fraley recognizes that when a health care claim expert report is inadequate because it omits one or more of the elements required by section 13.01(r)(6), then the assertion that the claimant believed the report to be adequate and that the inadequacy was due to a mistake or accident does not negate a finding of intentional conduct or conscious indifference. See Walker, 111 S.W.3d at 65; Horizon/CMS Healthcare Corp. v. Fischer, 111 S.W.3d 67, 68 (Tex.2003). However, he attempts to factually distinguish Walker and Horizon/CMS Healthcare Corp. from his situation. Fraley asserts that Konety's report did not omit any of the required elements.
In his report, Konety asserts that he is familiar with the standard of care required of a urologist in evaluation, diagnosis, and treatment of the type of tumor involved in Fraley's case. Konety notes that a sonogram ordered by Brown and taken in April 2002, showed that Fraley had an extratesticular mass with vascularity, Brown's working diagnosis was a benign cholesterol *7 pearl, and Brown decided to observe the mass. At a follow-up interval of one year, the mass had enlarged, was diagnosed as malignant, and was surgically excised. Konety's report then outlines the remainder of Fraley's course of treatment and gives a prognosis.
Konety opines in his report that at the time of the sonogram in April 2002, presence of vascularity within the mass "should have raised reasonable concerns" regarding a possible malignancy. The report also sets out that it would have been "more in keeping with the standard of care" for Brown to have considered either reevaluation after a shorter follow-up period to closely monitor the mass, or to have advised surgical intervention. Konety does not, however, express an opinion in the report that a reasonably prudent urologist would have diagnosed Fraley's testicular mass as a malignancy following the April 2002 consultation, or that certain specific actions or courses of action would have been taken by a reasonably prudent urologist to diagnose Fraley's mass.
It is the substance of the opinions in question, not the technical words used, that determines whether a report complies with statutory mandates. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). Merely inserting the words "standard of care" in a report, without setting out or describing what actions or courses of action are encompassed within the standard, does not substantively express a standard of care. The conclusion follows that Konety's report omitted the standard of care which § 13.01(r)(6) requires to be included.
Because Koenty's report omitted an element required by the statute, a belief on behalf of Fraley and his attorney that the report complied with the statute is not sufficient to support a finding of accident or mistake. See Walker, 111 S.W.3d at 64-65. Under such circumstances the trial court was not authorized by § 13.01(g) to grant a grace period and abused its discretion in doing so. Id.
Our determination that Konety's report omitted the standard of care obviates the need for us to address whether his report addresses the causation element, as required by § 13.01(r)(6). See TEX.R.APP. P. 47.1.
CONCLUSION
Brown is entitled to the relief sought. We conditionally grant the petition for writ of mandamus. We are confident the trial court will grant the relief to which Brown is entitled pursuant to § 13.01(e) and this opinion. We will direct the clerk to issue the writ only in the event the trial court does not do so.
NOTES
[1] See TEX.REV.CIV. STAT. ANN. art. 4590i (Vernon Supp.2003). Article 4590i was repealed effective September 1, 2003. Health-care liability claims are now governed by TEX. CIV. PRAC. & REM.CODE ANN. ch. 74 (Vernon Pamph. Supp.2004). References in this opinion will be to the former statute and its provisions. References to subsections of article 4590i will be by reference to "section ____" or "§ ____." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616843/ | 201 So. 2d 706 (1967)
Charles Alexander CIRACK, Appellant,
v.
The STATE of Florida, Appellee.
No. 35250.
Supreme Court of Florida.
July 5, 1967.
Rehearing Denied September 12, 1967.
*707 William W. Judge, Daytona Beach, for appellant.
Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
O'CONNELL, Chief Justice.
The appellant, Charles Alexander Cirack, and Richard Vernon White were tried and convicted of murder in the first degree of Moses Jackson. The jury recommended mercy for White, but not for Cirack who seeks reversal here of the judgment of guilty and sentence of death. White is not involved in this appeal.
On May 8, 1965 Cirack and White, driving in Cirack's convertible automobile, saw two negroes standing on a street corner in Titusville. As they drove by White asked if they were hitchhiking and Andrew Cash, Moses Jackson's companion, replied in the negative.
The evidence reveals that Cirack and White then went to the house of George Reid Scobie, Jr., from whom they obtained a 38 calibre revolver with four shells. Scobie, who testified for the State, stated that Cirack and White told him that they had seen "these hitchhikers and wanted to rob them."
Cirack and White returned to the two negroes, who were still on the street corner, and offered them a ride to their home in Oviedo. Jackson and Cash finally entered the car and White drove away with the two negroes sitting in the rear and the two white men in the front. After traveling some 15 or 20 miles, and into Volusia County, White turned off the highway, parked the car, and got out saying he was going to urinate. Jackson also left the car leaving Cirack and Cash in it. Cirack then told Cash that he wanted "3 bucks apiece from you guys." While Cash and Jackson were talking over this demand from a distance, Cash in the car and Jackson some yards away, Cirack ordered Cash out of the car. Cash refused. Cirack got out of the car, pulled the pistol and holding *708 it on Cash saying, "Get out or I'll blow your brains out." Jackson grabbed White and moved toward Cirack ultimately getting close enough to push White aside and grab for Cirack's gun hand. Cash testified he saw Cirack get his hand loose and shoot Jackson in the face. Cash went to where Jackson had fallen, knelt, and turned him over. Although White pleaded that he not do so, Cirack then shot Cash in the back of his neck and shoulder as he either knelt by Jackson or tried to escape through Cirack's legs. Cash escaped to the highway and hailed a motorist who took the two negroes to a hospital in Titusville where Jackson died shortly thereafter. Cash recovered from his wound and testified for the State.
We have omitted many details of the incidents prior to and following the shooting for we do not feel them to be significant to the issues we must decide.
Appellant contends first that the evidence does not support the verdict of murder in the first degree. On the contrary after careful and critical reading of the whole record we find that the evidence adequately supports the verdict.
Secondly, appellant contends that the trial judge committed error in ruling that the opinion of a court appointed expert witness, a psychiatrist, as to the sanity of the defendants "must be based upon your examination, observations, and tests of the defendants, and not on the factual matters stated by the defendants to you, which are not in evidence and which you assumed to be true."
Whether or not this ruling might or might not be infallible as an abstract statement or rule is unimportant. Under the circumstances in which it was made in this case it is absolutely correct. A resume of these circumstances will so demonstrate.
The defendants pled not guilty, and not guilty by reason of insanity. Thereafter, the court appointed Dr. Estes and Dr. Chambers, psychiatrists, to examine Cirack and White as to their mental condition. Both of these doctors examined each of the defendants and filed written reports of their findings and opinions. Both reports found the defendants sane at the time of the examinations in November, 1965. Dr. Chambers reported that in his opinion Cirack was also sane, i.e., knew right from wrong, on May 8, 1965, the day Moses Jackson was killed. However Dr. Estes reported that in his opinion on May 8th Cirack became temporarily unable to exercise his ability to determine right from wrong, as a result of the effects of alcoholic intoxication on his basically unstable mind and emotionally immature personality. It was the opinion of Dr. Estes that although Cirack's temporary emotional derangement, resulting from consumption of too much alcohol and too little food, produced impaired judgment, it did not constitute a fixed mental disorder of psychotic insane proportions.
After the state rested its case, the defense rested without producing any evidence. Then on motion of the defense the court ordered that both psychiatrists be called as court witnesses.
Dr. Estes was called first and after qualifying questions by the trial judge and a few preliminary questions by the prosecution the jury was excused on request of the prosecution. In making this request the prosecution explained that it wished to lay a "predicate for a certain matter that should be done outside of the hearing of the Jury."
The prosecution then continued its examination of Dr. Estes. During this examination it was established that in arriving at his opinion, that on May 8, 1965 Cirack was unable to distinguish between right and wrong or to exercise ordinary good judgment, Dr. Estes relied upon statements made to him by the defendants in November, 1965 that they had consumed large quantities of alcoholic beverages and eaten too little food for a three day period before and including the day Moses Jackson was killed. Dr. Estes stated that he *709 assumed these statements of the defendants to be true, however, no evidence had been or was thereafter introduced that would support those statements.
The prosecution then stated to the court that the testimony and opinion of Dr. Estes as to "sanity" of the defendants was inadmissible in evidence because "it invades the province of the Jury to determine the truth and validity of the facts and circumstances upon which he bases his opinion."
Following argument of both sides the trial judge made the ruling quoted above and explained its effect to Dr. Estes. The jury was recalled, the defense attempted to have Dr. Estes state his opinion as to the ability of the defendants to distinguish between right and wrong, and Dr. Estes was prevented from giving his opinion under the court's ruling here under attack. Here it should be noted again that the defense offered no evidence, and while the state's evidence showed that the defendants did drink alcoholic beverages on the day of the crime it did not support the statements which Dr. Estes said the defendants made to him. On the contrary, the state's witnesses Cash and Scobie both testified that the defendant Cirack may have been tight but was not intoxicated or "drunk."
Although the opinion of Dr. Estes appears to have been treated as dealing with the sanity of Cirack it obviously did not. The doctor stated in his report and on examination outside the presence of the jury that he found no evidence of a psychosis, mental disease or disorder of the mind in Cirack. His opinion held merely that Cirack's judgment and ability to distinguish between right and wrong was impaired by too much alcohol and too little food. The law recognizes insanity super-induced by the long and continued use of intoxicants so as to produce "a fixed and settled frenzy or insanity either permanent or intermittent." Garner v. State, 1891, 28 Fla. 113, 9 So. 835; Cochran v. State, 1913, 65 Fla. 91, 61 So. 187; and Britts v. State, 1947, 158 Fla. 839, 30 So. 2d 363. This condition was not found in Cirack.
Dr. Estes opinion could only go to proving the defense of voluntary intoxication, not insanity. While not a complete defense, voluntary intoxication is available to negative specific intent, such as the element of premeditation essential in first degree murder. Garner v. State, supra.
Dr. Estes, as an expert, could properly testify as to the effect of a given quantity of intoxicants on Cirack's mind. But the question here is whether he could furnish the basis for his testimony and opinion by testifying to the self-serving declarations of the defendants from which he concluded that Cirack had consumed about a fifth of whiskey per day for three days and eaten only "nick-nacks." We think not.
The rule that hearsay evidence, including self-serving declarations and statements, is not admissible is essential to the truth finding process of our adversary system of jurisprudence. The basic reason for its existence is that it prevents the fabrication of testimony and evidence. This is accomplished by requiring the maker of a statement to testify in person and be subject to cross-examination so that the trier of fact, be it judge or jury, will have the opportunity of judging the veracity of the statements. The cases holding such evidence inadmissible are legion. See those cited in 13 Fla.Jur., Evidence, Sections 208, 209.
We know of no reason to depart from the hearsay rule in this case simply because the one who would testify to or utilize the self-serving statements is an expert. The rules relating to opinion evidence likewise require that the opinion of an expert be based on facts in evidence, or within his knowledge. 32 C.J.S. Evidence § 546(63); 9 F.L.P., Evidence, Section 172 and cases cited therein. Also Arkin Construction Company v. Simpkins, Fla. 1957, 99 So. 2d 557. Admittedly, there are *710 exceptions to this rule, but none of them are applicable here.
The opinions in McCullers v. State, Fla. App. 1962, 143 So. 2d 909, and Land v. State, Fla. 1963, 156 So. 2d 8 constitute exceptions to or a relaxation of the rule against use of hearsay evidence by an expert in the formulation of an opinion as to sanity. The reasons for the exception are explained in Land. These cases are not controlling in this one because the opinion involved here dealt not with insanity, but voluntary intoxication.
Even if the opinion of Dr. Estes can be said to go to the question of sanity, and he be entitled to the latitude granted in the above cited cases, it still would not be admissible. The fact remains that Dr. Estes opinion was based entirely on the unsupported factual assumption that Cirack had consumed the quantities of alcohol and food discussed above. The exception to the rule and latitude granted in the McCullers and Land cases cannot be construed to mean that an expert can by repeating them at trial establish as fact self-serving statements of the subject of his inquiry. As we understand those cases they simply mean that for the purpose of arriving at his scientific opinion as to sanity the expert may consider matters not put in evidence, unless such matters are the major or substantial basis for the opinion. In the instant case the unsupported statements of the defendants were the major or substantial, if not whole, foundation for the excluded opinion.
This case is unique in that the two psychiatrists were not called as witnesses until both sides had rested their case. It is unique, also, in that Dr. Estes was examined outside the presence of the jury; it was then determined that the basis for his opinion was not supported by the evidence; and the trial judge ruled in advance that he would not be permitted to give his opinion to the jury.
Appellant argues that it was error for the trial judge to proceed as he did. He says that the doctor should have been allowed to state his opinion to the jury without first relating the facts upon which it is based citing Underhill's Criminal Evidence 5 ed., Vol. 2, Section 460, and Blocker v. State, 1926, 92 Fla. 878, 110 So. 547. There is no doubt that a trial judge may adopt this procedure. But the procedure followed by the trial judge in this case is a wise one. It is to be commended, not condemned. In such an extra-jury proceeding the court can determine whether the opinion of the expert is admissible, or not, which is far better than letting the jurors hear an opinion and then telling them they cannot consider it, a feat difficult for the best disciplined mind. Such a procedure is fairest to the party offering the expert because it gives him some advance notice of the court's ruling so that he may offer evidence to make the opinion admissible, if desired. In the instant case the appellant had this opportunity and elected not to utilize it.
As required by our consciences, our oaths and F.S. § 924.32, F.S.A., we have carefully considered all of the proceedings in this case, and that the ends of justice do not require a new trial.
The judgment and sentence are affirmed.
ROBERTS, DREW and CALDWELL, JJ., concur.
THOMAS, J., dissents with Opinion.
THORNAL and ERVIN, JJ., dissent and agree with THOMAS, J.
THOMAS, Justice (dissenting).
I respectfully dissent from the majority opinion.
The appellant, Charles Alexander Cirack, and one Richard Vernon White were indicted for the murder of one Moses Jackson *711 alleged to have been committed from a premeditated design to effect Jackson's death. There was no charge that the killing was done in the perpetration of any felony.
The appellant, Cirack, first challenges the sufficiency of the evidence to support the verdict of guilty without recommendation of mercy, but I think it would be more logical to deal first with his criticism of the ruling of the court with reference to the admissibility of the testimony of a psychiatrist about Cirack's ability the day of the homicide to distinguish right from wrong.
This point urged by the appellant should be determined so appellant insists and the appellee concedes, and I agree, by application of the decision of the District Court of Appeal, First District, in McCullers v. State, Fla., 143 So. 2d 909, and of this court in Land v. State, Fla., 156 So. 2d 8. I am unable to agree that the opinions in those cases rule this one. The problem presented in this case is how much a psychiatrist called as an expert may rely for his conclusion about the subject's sanity on information given by the subject himself, while in McCullers the court held inadmissible testimony of a psychiatrist based substantially on what third parties not available for cross-examination had told him about the subject's behavior.
If the rule permitting the admission of the testimony of a psychiatrist is too loosely applied, an avenue for the introduction of hearsay would become disproportionate to the true object of the inquiry. On the other hand, it seems to me only logical that a psychiatrist should be permitted in his determination of the sanity of a subject to take into account what the subject tells him in the course of the examination. Land v. State, supra. The line of demarcation between the area when such hearsay may be considered and when it may not be is finely drawn. But at this point is seems decided that the prognosis may not be based wholly on testimony of third parties who are not available for cross-examination, McCullers v. State, supra, and "an opinion, founded upon the expert's scientific examination of the subject and conversations with third persons, would not be inadmissible, absent a showing that his conclusion was based in major or substantial part upon such conversations." [Italics supplied.] Land v. State, supra. The court in Land distinguished between that case and McCullers by stating that in the latter the expert opinion "was based almost entirely on conversations with third persons", while in the former such conversations were "incidental and of little or no influence." Somewhere between these two definitions is the dividing line and we apprehend, using them as guides that decision of the problem as it arises must be determined by the facts surrounding the expert testimony in the case at hand.
Back to the case immediately under consideration I find that during the examination of the psychiatrist the ruling of the court with reference to the information on which his opinion was to be based did not comport either with the ruling in McCullers or the ruling in Land. In the first place the information on which the psychiatrist proposed to base his reply to the question about the sanity or insanity of the defendants on the date of the homicide was not obtained from third persons but from the defendants themselves. Gist of the trial judge's ruling is found in this language used in addressing the psychiatrist: "The court is of the opinion that your opinion, any opinion that you may give, in this case, upon the examination of either the State Attorney or the attorney for the defendants, must be based on your examination, observations and tests of the defendants, and not on factual matters stated by the defendants to you, which are not in evidence, and which you assumed to be true."
Since the psychiatrist then on the witness stand was obviously an expert, it seems appropriate to give his reaction to the judge's ruling. First he asked if he was to understand from the court's ruling that he could not "express any opinion based on *712 data or information gathered on questioning of the subjects at the time of examination." Then came this further comment from the judge: "You may base your opinion on your observations, on the answers they gave, the manner in which they were given, but not by assuming factual matters stated by them as being true." Continued the judge:
"Of course, you would not know what those things are until such time that they might, if they do, propound such hypothetical questions to you. In the abstract, you would not be permitted to venture an opinion assuming the factors of facts or statements assumed to be true.
"I believe that is about as clear as I can state it for you."
When the judge concluded this pronouncement he asked the doctor if he thought or understood, whereupon the doctor replied:
"I must admit, I am having a little trouble adjusting my thinking to this. The psychiatric examination, itself, is based on the facts as reported by the person being examined, and in addition to the way in which these facts are given, whether or not they hang together or not, and if they are corroborated by other statements. So, it might just be then that if each opinion has to be based on something that is found to be unequivocally true, that this would leave [sic] for a very limited psychiatric examination, to say the least."
The attorney for Cirack then propounded to the doctor the question whether or not in an examination to determine the mental condition of a person it was recognized procedure to question the subject about factual matters having bearing on his mental condition. He answered in the affirmative.
In a report theretofore filed in the case this doctor had stated that on the day of the homicide Cirack had become temporarily unable to distinguish right from wrong because of the effects of alcoholic intoxication on his basically unstable and emotionally immature personality which combined with lack of adequate nourishment impaired his judgment though it did not constitute a fixed mental disorder of psychotic "`insane' proportions".
The doctor concluded with the statement that he was unable to give an opinion as to the mental condition of Cirack on the day of the homicide if, as I understand the record, he was bound to the restricted interpretation by the judge.
I have quoted extensively from the colloquy among judge, attorney and witness to give accurately the picture formed by the exchanges.
The result was to keep from the jury testimony which might have produced a different verdict, that is, one of not guilty or one of guilty with recommendation of mercy.
It is easily seen what might have resulted by strict adherence to the judge's view. If the defendant had been forced to obtain testimony of outsiders about the amount of alcohol he had consumed or the scarcity of the food he had taken, assuming such witnesses had been available, he would likely have lost the privilege, to his lawyer, of the concluding argument to the jury which is considered by lawyers in the criminal practice to be a distinct advantage and has been secured by statute at least since 1853. Sec. 918.09.
Because of my view that the ruling constituted reversible error and the case must be re-tried on that account, I have not felt bound to examine and report all the evidence as we are ordinarily required to do under Sec. 924.32(2).
It is my conviction that the judgment should be reversed and the case remanded for a new trial.
THORNAL and ERVIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616815/ | 190 S.W.3d 451 (2006)
MISSOURIANS AGAINST HUMAN CLONING, et al., Appellants,
v.
Robin CARNAHAN, Secretary of State, et al., Respondents.
Nos. WD 66495, WD 66496.
Missouri Court of Appeals, Western District.
March 28, 2006.
Motion for Rehearing and/or Transfer Denied April 25, 2006.
Application for Transfer Denied May 11, 2006.
*452 Kevin Hayden Theriot, David Christopher LaPlante, Joel L. Oster, James M. Jenkins, Leawood, KS, Stephen Gilbert Sanders, Kansas City, for Appellants, Missourians Against Human Cloning, David W. Mason, Sarah E. Mason, William P. Biermann, Tammy Coleman, Mary S. Weber.
Lawrence Alan Weber, Jefferson City, Bernard C. Huger, Lucie Furstenber Huger, St. Louis, Kevin Francis Hormuth, St. Louis, for Appellants, Bishops Robert Finn, John Gaydos, Raymond Burke, Robert Hermann, John Leibrecht, Raymond Boland.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen King Mitchell, Deputy Atty. Gen., Heidi Christine Doerhoff, Daniel Y. Hall, Asst. Attys. Gen., Jefferson City, for Respondent Secretary of State, Robin Carnahan.
Ann Kettering Covington, St. Louis, David A. Welte, Cathy Joy Pitman Dean, Kansas City, for Respondent John Danforth.
George Alex Bartlett, Charles William Hatfield, Jefferson City, for Thomas Eagleton and Donn Rubin.
James Bernard Deutsch, Jefferson City, for Jeffrey McCaffrey and Cynthia Kramer.
The cause was argued by Joel L. Oster for appellants MAHC, by Kevin Hormuth for the intervenor Bishops, and by Karen King Mitchell for Respondent Secretary of State.
Before SMART, P.J., and HOWARD and HOLLIGER, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 25, 2006.
VICTOR C. HOWARD, Judge.
Missourians Against Human Cloning, et al., appeal the circuit court's order approving the Secretary of State's summary statement portion of the certified ballot title for the "Missouri Stem Cell Research and Cures Initiative." Appellants' sole point on appeal[1] contends that the certified title is "insufficient or unfair," in contravention of Mo.Rev.Stat. section 116.190.[2] Affirmed.
Facts and Procedural Background
The "Missouri Stem Cell Research and Cures Initiative" proposes to amend the Missouri Constitution by citizens' initiative, as provided in Chapter 116 of the Missouri Revised Statutes. Appellants comprise a number of Missouri citizens and a non-profit organization. The respondents are Secretary of State Robin Carnahan, a required *453 defendant, and a number of Missouri citizens that the trial court allowed to intervene as additional defendants.
The initiative would permit researchers in Missouri to conduct any stem cell research allowed by federal law. Stem cell research is research on cells that have the ability to divide multiple times and produce specialized cells in the body. In paragraph two, the initiative states that its purpose is:
To ensure that Missouri patients have access to stem cell therapies and cures, that Missouri researchers can conduct stem cell research in the state, and that all such research is conducted safely and ethically, any stem cell research permitted under federal law may be conducted in Missouri, and any stem cell therapies and cures permitted under federal law may be provided to patients in Missouri, subject to the requirements of federal law and only the following additional limitations and requirements[.]
This appeal focuses on one of the initiative's proposed limitations and restrictions on stem cell research. Central to the controversy is the initiative's restriction that "[n]o person may clone or attempt to clone a human being." The initiative defines human cloning as causing or attempting to cause the birth of a human being by implanting in a uterus anything other than the product of fertilization of a human egg by a human sperm. Appellants disagree with this definition because human cloning, they argue, actually occurs when a body cell and an egg are fused together during a process known as somatic cell nuclear transfer (SCNT). SCNT, which appellants consider cloning, is a process used in stem cell research and is currently permitted by federal law. A human cell produced by SCNT can be used for two purposes: biomedical research or, theoretically, to produce a human child, although the latter has never been attempted. Appellants argue that, while the initiative does ban human cloning to produce a child, it would still allow SCNT to perform research which they also consider human cloning. Therefore, appellants claim, the ballot title's statement that the initiative would "ban human cloning or attempted cloning" is deceptive.
It is the responsibility of the Secretary of State to certify the official ballot title of an initiative. § 116.180. The ballot title consists of two parts: a summary statement and a fiscal note summary. § 116.010(4).[3] After initiative proponents submit a proposed petition and the Secretary of State and Attorney General approve it as to form, § 116.332, the Secretary of State prepares a summary statement of the initiative not to exceed 100 words, § 116.334. The summary "shall be in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." Id. This summary statement must be affixed to each page of the petition before being circulated for signatures. § 116.180.
On November 14, 2005, the Secretary of State certified the official ballot title, including the summary statement, challenged by appellants. The complete language of the summary reads as follows:
Shall the Missouri Constitution be amended to allow and set limitations on stem cell research, therapies, and cures which will:
ensure Missouri patients have access to any therapies and cures, and allow Missouri researchers to conduct any research, permitted under federal law; *454 ban human cloning or attempted cloning;
require expert medical and public oversight and annual reports on the nature and purpose of stem cell research;
impose criminal and civil penalties for any violations; and
prohibit state or local governments from preventing or discouraging lawful stem cell research, therapies and cures?
Specifically, appellants challenge the summary's statement that the initiative would "ban human cloning or attempted cloning." They contend this summary language is unfair and/or insufficient, in violation of section 116.190, because, while the initiative does ban "cloning to produce children," it permits the process of SCNT which, appellants claim, constitutes "human cloning."[4] Appellants ask us to either certify an alternative summary or reverse and remand, instructing the trial court to do so. Specifically, appellants ask us to replace the phrase "ban human cloning or attempted cloning" with either of the following pairs of phrases:
ban human cloning or attempted cloning to produce children; [but] allow human cloning for biomedical research
or
ban reproductive human cloning or attempted reproductive human cloning; [but] allow human therapeutic cloning or attempted human therapeutic cloning.
(Emphasis added to indicate appellants' proposed added language.)
At the heart of the controversy is how the parties characterize the process of somatic cell nuclear transfer (SCNT), which is one of the methods used in stem cell research that the initiative would constitutionally protect. The parties' differences are clearly defined when projected against the backdrop of the basic science of SCNT.
SCNT occurs when the nucleus of an unfertilized egg (an oocyte) is removed (enucleated) and replaced with the nucleus of an ordinary body cell (a somatic cell). A somatic cell is any body cell other than a sperm or an egg, for example, a skin cell. The product of this fusion (a zygote) is a single cell that contains the 46 chromosomes of the body cell donor. With stimulation by electrical current or an ionic solution, the zygote can be coaxed to begin a series of divisions called cleavage. After three or four days, the zygote has divided into approximately eight or ten cells and is called the morula. This cell division continues, and on the fourth or fifth day, the result is a ball of about 150 cells called a blastocyst, a very small cluster of cells approximately 1/200 of an inch in diameter. The blastocyst has an outer cell layer and a hollow, fluid filled, inner cavity containing undifferentiated stem cells. Undifferentiated stem cells are cells that have not yet committed to which specific type of body cell they will mature into, for example, a skin, heart, or brain cell. Scientists hope to extract these four- to six-day-old inner stem cells and employ this potential to mature into virtually any type of body cell to provide a repair system for the treatment of a wide variety of illnesses like Parkinson's or diabetes. It is also at this stage of development that a blastocyst produced through SCNT could theoretically be implanted into a womb resulting in the birth of a human being, although the constitutional *455 initiative would specifically ban such a procedure in Missouri.
Appellants' position is that, at the moment when a human somatic cell and a human enucleated egg are fused, human cloning occurs because the resulting zygote is, appellants argue, a human embryo at the one-celled stage of human development with genetic information that is virtually identical to the body cell donor. Appellants argue that upon completion of this event, fusion of an egg and a somatic cell, human cloning has occurred and the resulting cell can then be utilized for one of two purposes. If a zygote were to be developed into a blastocyst and implanted into a uterus, appellants describe this as "reproductive cloning" or "cloning to produce children." If the inner stem cells of the blastocyst are extracted for research or treatment, appellants consider this "cloning for biomedical research" or "therapeutic cloning." Use of SCNT for either purpose, according to appellants, involves human cloning.
Appellants' position is in obvious conflict with the definition of human cloning contained in the initiative which states that human cloning "means to implant or attempt to implant in a uterus anything other than the product of fertilization of an egg of a human female by a sperm of a human male for the purpose of initiating a pregnancy that could result in the creation of a human fetus or the birth of a human being." Respondents defend this definition because, they say, a blastocyst is scientifically defined as an embryo only from the time it is implanted in a uterus until the end of the eighth week, when it becomes known as a fetus. They argue that the cloning of a human being is not the production of a single cell in a petri dish. Instead, producing a "human clone" would be defined as the creation of a complete born human. Respondents further assert that SCNT only involves cells from a blastocyst, never cells from an embryo or fetus, as those terms are scientifically defined. Also, they say, a blastocyst left in a petri dish would never develop into an embryo or a human child.
The parties' differences are stark. According to appellants, human cloning occurs upon the transfer of a body cell's nucleus into an enucleated egg. According to respondents, and the initiative language, human cloning occurs only where SCNT is used in the attempt to cause the birth of a human being, in other words, to create a human version of the much-publicized Dolly the sheep. Both sides introduced evidence to support their definition of human cloning. However, for reasons we later explain, it is not necessary for us to resolve this definitional disagreement in the context of this ballot title challenge.
Appellants challenged the ballot title in the circuit court of Cole County. The trial court heard evidence and arguments and found that the appellants did not sustain their burden to establish that the summary statement portion of the ballot title was insufficient or unfair as those terms are used in section 116.190 and denied relief. This appeal followed.
Standard of Review
In a court-tried case, we will sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Hancock v. Sec'y of State, 885 S.W.2d 42, 46 (Mo.App. W.D.1994).
Discussion
Chapter 116 provides that "[a]ny citizen who wishes to challenge the official ballot title . . . prepared for a proposed constitutional amendment . . . by initiative petition *456. . . may bring an action in the circuit court of Cole County." § 116.190.1. "The petition shall state the reason or reasons why the summary statement portion of the official ballot title is insufficient or unfair and shall request a different summary statement . . . ." § 116.190.3. "[T]he court shall consider the petition, hear arguments, and in its decision certify the summary statement portion of the official ballot title to the secretary of state." § 116.190.4.
Our role is not to act as a political arbiter between opposing viewpoints in the initiative process:
When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation. . . .
. . . .
Courts are understandably reluctant to become involved in pre-election debates over initiative proposals. Courts do not sit in judgment on the wisdom or folly of proposals.
Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). "Before the people vote on an initiative, courts may consider only those threshold issues that affect the integrity of the election itself, and that are so clear as to constitute a matter of form." United Gamefowl Breeders Ass'n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000).
The burden is on the opponents of a summary statement to show that the language is "insufficient and unfair." Hancock, 885 S.W.2d at 49. We have previously defined "insufficient or unfair":
Insufficient means "inadequate; especially lacking adequate power, capacity, or competence." The word "unfair" means to be "marked by injustice, partiality, or deception." Thus, the words insufficient and unfair . . . mean to inadequately and with bias, prejudice, deception and/or favoritism state the [consequences of the initiative].
Id. (citations omitted). The purpose of the ballot title "is to give interested persons notice of the subject of a proposed [law] to prevent deception through use of misleading titles. If the title gives adequate notice, the requirement is satisfied." Union Elec. Co. v. Kirkpatrick, 606 S.W.2d 658, 660 (Mo. banc 1980).
Appellants argue that the summary is insufficient and unfair because it states that the initiative bans human cloning when, in fact, the initiative allows what they consider human cloning. Appellants' argument is not based on the contention that the summary is a mismatch with the language of the initiative; they conceded during oral argument that the summary's language is not inconsistent with the initiative. Appellants' real dispute seems not so much with the summary statement as it is with the initiative's definition of human cloning, a definition supported by evidence introduced at the hearing. While appellants may disagree with the initiative's definition of human cloning, that alone does not make the summary inaccurate. The summary states that the initiative bans human cloning and, in fact, by its very terms, the initiative does. The summary could be considered misleading only if we ignore the definition of human cloning actually set out in the initiative and substitute appellants' definition.
Appellants contend that their proposed substitute language would more clearly reflect the purpose of the initiative. Appellants' suggested language would revise the summary to state that the initiative would permit "human cloning" for "therapeutic" or "biomedical research" purposes. Respondents object to the substitute language arguing that the suggested language is vague, confusing, and would introduce undefined terms not commonly *457 used in the scientific community. We agree with respondents to the extent that adding language to indicate that the initiative does not ban human cloning would certainly be misleading because human cloning, as defined in the initiative, is banned. In effect, Appellants want us to revise the summary to highlight the underlying controversy surrounding the merits of the initiative. Resolution of that controversy must be left to the political process.
Even if, as appellants argue, their substitute language would provide more specificity and accuracy in the summary statement "and even if that level of specificity might be preferable, whether the summary statement prepared by the Secretary of State is the best language for describing the [initiative] is not the test." Bergman v. Mills, 988 S.W.2d 84, 92 (Mo. App. W.D.1999); Overfelt v. McCaskill, 81 S.W.3d 732, 738 (Mo.App. W.D.2002). "The important test is whether the language fairly and impartially summarizes the purposes of the [initiative.]" Bergman, 988 S.W.2d at 92. Within the confines of the 100-word limit, the summary "need not set out the details of the proposal." United Gamefowl Breeders Ass'n of Mo., 19 S.W.3d at 141.
Ultimately appellants ask us to choose their definition of human cloning over that set out in the initiative. We decline to choose between the two definitions. To do so would edge us toward a review of the merits of the initiative itself. That is beyond the scope of review we have been assigned by the legislature in section 116.190. There may well be a situation where an initiative's language and purpose are so absurd or unsupportable that merely summarizing the initiative without explanation would be deceptive and misleading. That is not our case.
One of the purposes of the initiative is to ban human cloning, a term it defines. The Secretary of State's summary states that the initiative would "ban human cloning or attempted cloning." The summary accurately describes what the initiative says it will do and gives voters sufficient and fair notice of the subject and purpose of the initiative. "While there may be aspects of the ballot initiative or consequences resulting therefrom that [a]ppellant[s] would have liked to have seen included in the summary statement, their exclusion does not render the summary statement either insufficient or unfair." Overfelt, 81 S.W.3d at 739.
The conclusion of the trial court that appellants did not sustain their burden of establishing that the summary statement of the official ballot title is either insufficient or unfair is not erroneous. The judgment is affirmed.
HOLLIGER, J., concurs.
SMART, J., concurs in part and dissents in part in separate opinion.
JAMES M. SMART, JR., Judge, concurring in part and dissenting in part.
The controversy in this case is about a phrase that has become a shibboleth of both sides of the debate about somatic cell nuclear transfer. Because of the frequent use of the phrase "human cloning" in inconsistent ways in the legal and political controversies about somatic cell nuclear transfer ("nuclear transfer" for convenience), the ballot summary, standing alone, does not provide sufficient reference or context to clarify the meaning of the phrase and will tend to mislead those who are philosophically opposed to all nuclear transfer. Accordingly, I regard the phrase as insufficient for ballot purposes to properly register the dictates of an informed citizenry as to the governmental *458 policy issue presented. For that reason, my path partially diverges from that of my colleagues.
For the constitutional right of initiative to function properly, the proponents of an initiative must have reasonable access to the ballot, and the voters must have a reasonably accurate impression as to what they are voting on so that the vote can truly reflect the sentiments of the electorate.
Because the right of initiative is firmly grounded in our constitution, the courts of Missouri have established a pattern of allowing substantial latitude with regard to the technicalities of seeking to place an initiative measure on the ballot. See, e.g., United Labor Comm. of Mo. v. Kirkpatrick, 572 S.W.2d 449, 454-55 (Mo. banc 1978)("[P]rocedures designed to effectuate these democratic concepts should be liberally construed to avail the voters with every opportunity to exercise these rights.") Statutes dealing with initiative procedures are not allowed to "limit or restrict the rights conferred by the constitutional provision." State ex rel. Elsas v. Mo. Workmen's Comp. Comm., 318 Mo. 1004, 2 S.W.2d 796, 801 (1928).
At the same time, in order for the people to effectively exercise self-government through the initiative process, they must know what it is they are voting on. See, e.g., Union Electric Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo. banc 1984) (ballot title is to "fairly and impartially summarize[] the purposes of the measure, so that the voters will not be deceived or misled").
This has been true from the earliest days of the initiative process. Section 6751, Chapter 59, of the 1909 statutes assigned the duty of drafting the ballot language to the attorney general (rather than the secretary of state) in very similar terms to those which are now a part of Chapter 116. The original language stated:
In making such ballot title the attorney-general shall, to the best of his ability, give a true and impartial statement of the purpose of the measure, and in such language that the ballot title shall not be intentionally an argument likely to create prejudice either for or against the measure.
§ 6751, RSMo 1909 (emphasis added). The statute thus asked the attorney general to set aside any political role, and, as neutral arbiter for the benefit of the voter, briefly describe the purpose of the measure to be voted upon. Section 6751 went on to provide that any person dissatisfied with the ballot title may "appeal" the attorney general's "decision" to the circuit court on the ground that the title is "insufficient or unfair," and authorized the court to determine whether the language certified by the attorney general was an adequate summary.
Most of the provisions of Section 6751, RSMo 1909, now appear in Section 116.334 and Section 116.190. The language in Section 116.334 directs the Secretary of State to prepare the ballot summary, saying that the statement shall use "language neither intentionally argumentative nor likely to create prejudice either for or against a proposed measure."
The general principle is that ballot information is designed to provide an informed vote.
A ballot description must be complete enough to convey an intelligible idea of the scope and import of the proposed law; it ought not to be clouded by undue detail, or so abbreviated as not to be readily comprehensible. It must give a true and impartial statement of the purpose of the measure in such language as not intentionally to be an argument or to *459 be likely to create prejudice either for or against the measure.
Mid-State Distrib. Co. v. City of Columbia, 617 S.W.2d 419, 423 (Mo.App.1981) (quoting 42 AM.JUR.2D, Initiative and Referendum, § 46 (1969)).
Our cases have construed the terms "unfair" and "insufficient" of Section 116.190 as safeguarding the right to the voter to be free from language that would mislead:
The words "insufficient" and "unfair" mean "inadequate" and "marked by injustice, partiality, or deception." Hancock v. Secretary of State, 885 S.W.2d 42, 49 (Mo.App. W.D.1994). The important test is whether the language fairly and impartially summarizes the purpose of the measure, so that the voters will not be deceived or misled. Union Elec. Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo. banc 1984).
Bergman v. Mills, 988 S.W.2d 84, 92 (Mo. App.1999). The cases recognize the importance of having an election produce a result that actually reflects the intent of the electorate.
Presumably, this is also part of the reason that Article III, section 50 provides that an initiative "shall not contain more than one subject and matters properly connected therewith." See, e.g., Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 830 (Mo. banc 1990). If there were more than one subject in a single proposition approved or rejected by voters, one could not be sure that each was approved or rejected on its own merits. The difficulties of making sure that voters understand from a ballot title what they are voting on are evident, and are such that at least one state has required that an initiative be passed by voters in two successive general elections before it can become law. See NEV. CONST. Art. 19, § 2.
Stem Cell Research and Cloning
To understand the issues in this case, it is necessary to understand how the biology and practice of "stem cell research" relates to the science of cloning. The fact that Article III, section 50 has a "single subject" requirement for initiatives itself raises the question as to the relationship between "stem cell research" and "human cloning," so that they may both be the subjects of a single ballot measure. See United Gamefowl Breeders Assn. v. Nixon, 19 S.W.3d 137, 140 (Mo. banc 2000) (one measure may effect several changes if all are germane to one controlling purpose).
Although the parties dispute certain semantical assertions, and dispute what should be included in the summary, there is no dispute in this case about the basic biological facts. Stem cell research is research with "stem cells," cells that can, in the words of the initiative, "divide multiple times and give rise to specialized cells within the body." Stem cells can be derived from sources such as umbilical cords and placentas, called "adult stem cells." "Embryonic stem cells" are stem cells derived from excess blastocysts produced by "in vitro fertilization" ("IVF") at fertility clinics and from "cell reprogramming technology," such as "somatic cell nuclear transfer."
Nuclear transfer is not a union of egg and sperm. In nuclear transfer, the nucleus of an egg (containing the chromosomes) is removed. A human somatic (body) cell, (which already has the full complement of 46 chromosomes containing the DNA) is placed in the enucleated egg and fused with it by an electrical charge. The result is a single-celled living organism which is a genetic copy, from a cellular standpoint, of the person from whose body the cell was taken. That one-celled organism is not a fertilized egg, but it contains the 46 chromosomes *460 that are characteristic of human life, all drawn from the cell donor. It is called a zygote, just as a fertilized egg would be called a zygote. After nuclear transfer has produced the zygote, which quickly develops to the blastocyst stage, a stem cell researcher cuts open the blastocyst and harvests the stem cells that are in it. These stem cells would then be used to develop stem cell lines that can be used for various medical research purposes.
The one-celled zygote produced by nuclear transfer is a cloned organism. The testimony at trial shows that the verb "to clone" means simply to make copies of something. According to Dr. Melton, an expert at trial presented by Intervenor Danforth, the term cloning is used among scientists in various contexts. It might refer to making copies of DNA, cancer cells, stem cells, or other cells. Nuclear transfer is cloning. See, e.g., Christopher L. Logan, Note, To Clone or Not to Clone: Should Missouri Allow Cloning for Biomedical Research?, 73 UMKC L.REV. 861, 862-64 (Spring 2005). Indeed the brochure of the MCLC, in referring to nuclear transfer, says, "[t]his is sometimes called therapeutic cloning because it involves copying, or cloning, genetic material. . . ."
The Purposes of the Initiative
The Stowers Institute for Medical Research is a member of the Missouri Coalition for Lifesaving Cures. The president and chief executive of the Institute is Dr. William Neaves, an expert in reproductive cell biology and endocrinology. Dr. Neaves was involved in the drafting of the proposed initiative. When asked at trial in this case to identify the purpose of the initiative, he stated that "one purpose was to address the persistent threat of criminalizing legislation in the Missouri General Assembly directed toward medical research with somatic cell nuclear transfer." Another objective was "to outlaw human cloning in the sense that human cloning is producing a human version of Dolly, the sheep." Thus, he highlighted the objectives of (1) protecting medical research using somatic cell nuclear transfer, and (2) prohibiting an attempt to give birth to a cloned human.
The Terms of the Initiative
The initiative, by its terms, would prohibit state and local governmental action that would interfere with or impose special burdens on efforts of Missouri researchers to conduct stem cell research to the full extent permitted under federal law. It would permit research with stem cells derived from excess blastocysts obtained from in vitro fertilization ("IVF") clinics and blastocysts obtained by nuclear transfer. It prohibits the harvesting of stem cells from a blastocyst that has remained unfrozen more than fourteen days. The initiative would prohibit the production of human embryos by fertilization solely for the purpose of stem cell research. The initiative provides other regulations of stem cell research, including a prohibition against any person selling blastocysts or eggs for stem cell research purposes. The initiative also restricts governmental entities from arbitrarily restricting funds designated for purposes other than stem cell research as a means of prohibiting such research.
The initiative also provides that no one may "clone or attempt to clone a human being," and defines that phrase to mean that no one may attempt to implant anything other than a fertilized egg in a uterus for the purpose of initiating a pregnancy. The initiative provides criminal penalties for violation of several provisions. Thus, the amendment is designed to "allow and set limitations on stem cell *461 research, therapies, and cures," as stated in the summary.
The Missouri Coalition for Lifesaving Cures ("MCLC") is a coalition proposing the initiative. The MCLC offers an explanation of the provisions of the initiative in a brochure it distributes and at the website www.MissouriCures. com.
The Summary Statement
The summary statement certified by the Secretary of State states as follows:
Shall the Missouri Constitution be amended to allow and set limitations on stem cell research, therapies, and cures which will:
ensure Missouri patients have access to any therapies and cures, and allow Missouri researchers to conduct any research, permitted under federal law;
ban human cloning or attempted cloning;
require expert medical and public oversight and annual reports on the nature and purpose of stem cell research;
impose criminal and civil penalties for any violations; and
prohibit state or local governments from preventing or discouraging lawful stem cell research therapies and cures?
This ballot summary was adopted directly from language proposed to the Secretary of State by the MCLC. The Secretary of State ("Secretary"), who is directed by Section 116.334 to certify a summary, adopted the language suggested to her by the MCLC, including the phrase, "ban human cloning or attempted cloning."
Differences Between the Summary and the Initiative
The Secretary says that the summary tracks much of the language of the initiative, and argues that this insulates her summary from any attack. While there is overlap of language, there are very significant differences between the summary and the initiative. For instance, the initiative makes clear that the term "stem cell" includes both "adult" stem cells and "embryonic" stem cells, while the summary uses the term "stem cell" but does not mention that the term includes 1) adult stem cells, 2) embryonic stem cells from IVF blastocysts, and 3) embryonic stem cells from nuclear transfer. Second, the initiative uses the phrase "clone or attempt to clone a human being," which is then defined in the initiative to mean the implantation in a uterus of anything other than a fertilized human egg. In other words, it forbids the implantation of a cloned organism. The summary, in contrast, sets forth the phrase "human cloning" without further description of what is meant by that phrase.
Conflict of Perspectives
Underlying this litigation is a conflict of perspectives about the ethics of nuclear transfer. The MCLC is a coalition of groups and individuals who have considered the biology of stem cell research and have satisfied themselves that the harvesting of stem cells from early embryos, and the use of nuclear transfer, are consistent with human dignity and are ethically proper. They have attempted to place in the initiative certain restrictions and limitations they consider ethically appropriate. The Proponents of the initiative, including intervenors Danforth and Eagleton, are motivated by what they see as the potentially powerful results from the research. They draw an ethical distinction between *462 nuclear transfer for research, on one hand, and nuclear transfer to produce a child, on the other. They propose allowing nuclear transfer cloning for research purposes only, not to create a pregnancy.
On the other hand, the Missourians Against Human Cloning (MAHC) is a coalition of groups and individuals who believe that not all sources of stem cells for research are ethically acceptable. They and the intervenor Bishops are opposed to nuclear transfer because, they say, such a process creates a living zygote having the full complement of human chromosomal DNA contributed by the cell donor. They believe that it is ethically unacceptable to "artificially attempt to create a human embryo." They oppose the initiative because of their ethical convictions.
The nature of the underlying controversy is pertinent to understanding the Opponents' complaints about the summary. It is not exactly correct to believe the controversy is about research with stem cells. The controversy is about the sources of stem cells. And part of the controversy is about whether to use cloning techniques to produce blastocysts from which to obtain embryonic stem cells. The Opponents want a summary that highlights the precise nature of the underlying controversy. Of course, the MCLC, in drafting its initiative and in recommending the summary, is not required to cast the matter in terms that would please its opponents. Indeed, the MCLC has a constitutional right to draft the initiative as it sees fit. At the same time, the MCLC has no constitutional right to dictate the terms of the summary. See Hancock v. Secretary of State, 885 S.W.2d 42 (Mo.App.1994) and Bergman v. Mills, 988 S.W.2d 84 (Mo.App. 1999), in which the proposers of the amendment in each case were the ones unsuccessfully challenging the ballot titles.
Because of the importance of reasonable accuracy and impartiality with regard to the ballot summary, section 116.190 has placed the courts in a position of applying the law to help ensure that the ballot summary gives sufficient information to lead to an informed vote, while limiting judicial intervention to that which is necessary to protect clear constitutional objectives. The politicians, pundits, and activists can take sides on the underlying conflict, but the courts have no business taking one side or the other of the philosophical and scientific issues presented by the initiative.
So that whatever may be the individual opinions of the justices of this court as to the wisdom or folly of any law or constitutional amendment, and notwithstanding the right which as individual citizens we may exercise with all other citizens in expressing through the ballot box our personal approval or disapproval of proposed constitutional changes, as a court, our single inquiry is, have constitutional requirements been observed, and limits of power been regarded.
Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 1133 (1896) (quoting Prohibitory Amendment Cases, 24 Kan. 700, 706 (1881)).
We operate within the framework of the constitution and laws of this state. The 1909 statute did not provide for appeals from the circuit court decision, so for many years there were no appellate decisions concerning ballot titles. The cases that are reported reveal a willingness to allow latitude as to the summary statement and the fiscal note and summary in the face of a challenge by opponents of an initiative or referendum, as long as the ballot title is reasonably supported in the evidence.
This is illustrated in Hancock v. Secretary of State, 885 S.W.2d 42 (Mo.App. 1994), where this court dealt with a fiscal *463 note and fiscal note summary as to an initiative prepared by Mel Hancock and the "Hancock II Committee." The fiscal note and fiscal summary were drafted by the Committee for Legislative Research. Hancock, 885 S.W.2d at 44. The initiative, which was known as "Hancock II," would have changed a number of provisions of Article X, sections 16-24 of the Missouri Constitution (the original "Hancock Amendment"). Id. at 46. The initiative could have had an impact on state spending and the issuance of refunds to taxpayers. Id. at 48. The fiscal note summary, in attempting to describe the fiscal impact of the measure, stated:
This proposal would require state and local spending cuts ranging from $1 billion to $5 billion annually. Cuts would affect prisons, schools, colleges, programs for the elderly, job training, highways, public health, and other services.
Id. at 44.
This court held, on appeal, that the fiscal prediction was a sufficient and fair summation of the fiscal impact. Id. at 49. The court also held that the reference in the summary to "prisons, schools, colleges," and so forth was not insufficient or unfair. Id. The Committee had selected these areas, the court noted from the evidence, because they were the areas affected by budget reductions in the prior year. Id. The court thus believed that the prior experience constituted a legitimate basis for forecasting the areas of future budget cuts. Id. This court reinstated the original summary (which the trial court had decertified) because the evidence supported the language. Id.
Petition Stage v. Voting Stage
Before turning to an analysis of the evidence as to specific alleged deficiencies of the summary, I first note that the Opponents have focused their arguments on the possibility of voters being misled, and the vote being prejudiced. They have not addressed at all, in this court at least, the concerns that the summary will mislead petition signers. One could argue that the Opponents have abandoned any claim to de-certify the ballot title for petition purposes. But even assuming they intended to attack the summary at the petition stage as well, I would suggest that a ballot summary ambiguity is easily curable by the interested citizen at the petition stage (because the language of the initiative is attached to the petition), and the cost and burden of recirculating petitions is so great, that it would tend to frustrate constitutional objectives in such a case to require recirculation of the petitions.
Although sections 116.010(4) and 116.180 contemplate that generally the same "official ballot title" (including the summary statement and the fiscal note and summary) would appear both on the petitions and the ballot, the court, in upholding constitutional values, is not bound by usual statutory procedures where the strict enforcement thereof would burden the constitutional values in question. See, e.g., State ex rel. City of El Dorado Springs v. Holman, 363 S.W.2d 552 (Mo. banc 1962) (the Court refused to invalidate a ballot title that exceeded the statutorily prescribed word limitation where there was a necessity to do so to avoid being misleading); State ex rel. Nixon v. Blunt, 135 S.W.3d 416 (Mo. banc 2004) (the ten-week legal notice requirement of Section 116.240 could not take precedence over the Governor's constitutional authority to call a special election for a proposed constitutional amendment).
In Union Electric Co. v. Kirkpatrick, 678 S.W.2d 402 (Mo. banc 1984), the Court, in obiter dictum, stated that it believed the trial court had been "unduly concerned" about the ballot title (which the trial court *464 did not think clearly stated the proposal) which was on the petitions. Id. The Court noted that the "full [proposed] act appeared on the back of each petition and was entitled `A Proposed Act Respecting Electrical Corporations.'" Id. The Court said, "we cannot see how the signers could have been deceived or misled at this stage of the initiative process." Id. (emphasis added). The Court said that the "important title test" would be whether voters would be "deceived or misled," and noted that (because of the procedural posture of the case) that question was not before the Court. Id. (emphasis added). The Court thus recognized that a summary may be sufficient at the petition stage, because the initiative itself is attached to the petition, but not at the voting stage, where there is no reference beyond the summary itself. Once a voter steps into the booth and reads the summary, however, there is no one to ask, and no initiative to refer to for definitions.
In this case, Missourians Against Human Cloning and the intervenors aligned with them (collectively, "Opponents") bring a challenge that is unique among Missouri cases in that they presented specific evidence that there is an ongoing controversy about the ethics of human nuclear transfer that creates confusion about what otherwise might be relatively clear terminology. The underlying controversy entered the political arena long before the MCLC proposed this initiative.
The Opponents argue that the phrase "human cloning" is misleading and prejudicial because it will have a tendency to cause people to vote for a measure they actually do not favor. They argue that instead of saying the measure "bans human cloning," the summary should say that the measure will protect human cloning for "research purposes" or "therapeutic purposes" while prohibiting human cloning for "reproductive purposes." Their assertion must be examined in the light of the evidence at trial.
The evidence at trial, and much of the published literature, shows that nuclear transfer, by its very nature, is cloning because it creates an organism that is a genetic copy of the cell donor. The evidence also showed that the issue of whether all human nuclear transfer should be called "human cloning," or whether that label should be applied only to efforts at reproductive cloning, has become a significant part of the controversy. The Opponents showed at trial that people on both sides of the issue as to the ethical propriety of nuclear transfer cloning wish to wave the banner of being against "human cloning." As a result, the debate has become highly semantical.
Although the evidence at trial related mostly to the legislative maneuvering in the states, there is no secret that there are several proposals in Congress related to nuclear transfer, and, though the effects of the proposals are contradictory, each one makes use of the term "human cloning" in a way that corresponds with one or the other of the positions of the parties in this case. For instance, the proposed Human Cloning Prohibition Act of 2005, S. 658, 109th Cong. (2005), and its counterpart in the House, H.R. 1357, 109th Cong. (2005), define "human cloning" as nuclear transfer that would produce a "living organism (at any stage of development) that is genetically virtually identical to an existing or previously existing human organism." The bill would prohibit the use of "nuclear transfer or other cloning techniques" as to human genetic material. The Senate bill, which has thirty cosponsors, is currently in committee.[1] The President's Council on Bioethics, defines "human cloning" in very *465 much the same way as S. 658, as "[t]he asexual production of a new human organism that is, at all stages of development, genetically virtually identical to a currently existing or previously existing human being." See Logan, To Clone or Not to Clone, 73 UMKC L.REV. at 863 (quoting President's Council on Bioethics, Human Cloning and Human Dignity: An Ethical Inquiry, xxiv (July 2002), available at http://www.bioethics.gov).
At the same time, the proposed Human Cloning Ban and Stem Cell Research Protection Act of 2005, S. 876, 109th Cong. (2005), and its counterpart in the House, H.R. 1822, 109th Cong. (2005), define the term "human cloning" as "implanting or attempting to implant the product of nuclear transplantation into a uterus or the functional equivalent of a uterus." The bill would make it unlawful to "conduct or attempt to conduct human cloning." The Senate bill, which has twelve cosponsors, is also currently in committee.[2]
The respective uses of the phrase "human cloning" in these federal bills could be shown as follows:
----------------------------------------------------------------------------------------------
S. 876 S. 658
"human cloning" = human nuclear transfer "human cloning" = all human nuclear transfer,
for reproduction purposes. This bill would whatever the ultimate purpose. This bill
protect human nuclear transfer for research, would forbid all nuclear transfer cloning of a
but forbid it to produce a pregnancy. human body cell, including nuclear transfer
for research.
----------------------------------------------------------------------------------------------
Thus one bill protects nuclear transfer for research, while the other bill outlaws nuclear transfer for research (or any other purpose).
The use of "human cloning" continues when we turn to the statutes of other jurisdictions. Some states have banned human nuclear transfer, or have withheld public funding for nuclear transfer. Often, they refer to all aspects of human nuclear transfer as "human cloning." For instance, Arizona law provides that public monies of the state shall not be used for "human somatic cell nuclear transfer, commonly known as human cloning." ARIZ. REV.STAT. ANN. § 35-196.04 (2005). Also in the same category are Arkansas, Indiana, Iowa, Michigan, South Dakota, and North Dakota. See ARK.CODE ANN. § 20-16-1001 (2006); IND.CODE ANN. § 16-18-2-56.5 (2005); IOWA CODE ANN. § 707B.3 (2006); MICH. COMP. LAWS ANN. § 333.16274 (2006); S.D. CODIFIED LAWS §§ 34-14-27 and 34-14-27 (2006); and N.D. CENT.CODE § 12.1-39-02 (2005).
At the same time, other state statutes, in contrast, appear to have defined "human cloning" in essentially the same way as the initiative has defined it in this case. As the Secretary points out, the State of California forbids "cloning," defining it as "the practice of creating or attempting to create a human being by [nuclear transfer] to initiate a pregnancy that could result in the birth of a human being." CAL. HEALTH & SAFETY CODE § 24185 (2006) (emphasis added). To a similar effect are Connecticut and New Jersey. See CONN. GEN.STAT. ANN. § 19a-32d (2006); N.J. STAT. ANN. § 2C:11A-1 (2006).
The legislation of these states could be charted so as to indicate which state uses the term "human cloning" to mean all nuclear transfer and which use the term to mean only nuclear transfer for reproductive purposes:
*466
-------------------------------------------------------------------------------------------------
"Human cloning" means all human nuclear "Human Cloning" means human nuclear
transfer cloning regardless of purpose, at any transfer cloning for pregnancy purposes. It
stage of developmentthese states either does not refer to nuclear transfer cloning of
ban or restrict public funding for all nuclear humans for research purposes. These states
transfer, calling it all "human cloning." specifically allow human nuclear transfer for
research.
-------------------------------------------------------------------------------------------------
Arizona California
Arkansas Connecticut
Indiana New Jersey
Iowa
Michigan
South Dakota
North Dakota
-------------------------------------------------------------------------------------------------
The legislative conflict over the term "human cloning" suggests that when politicians and partisans on either side of the ethical and political divide seek a rhetorical advantage, they select "human cloning" as one of their catchphrases. While the evidence does not show how visible these controversies will be in November, 2006, it does show that the ongoing controversies create a climate of uncertainty as to the meaning of the phrase.
It is true, as the Secretary suggests, that the biggest news about cloning was the news in 1997 about Dolly the sheep. As the photographs revealed, Dolly was a fully developed sheep born after her nuclear transfer embryo had been implanted in the womb of a surrogate mother. Thus, in the absence of the ethical controversies about nuclear transfer for therapeutic purposes, it would be reasonable to believe that many voters would, upon seeing the phrase "human cloning," tend to envision a human version of Dolly the sheep.
The Opponents of the summary say, however, that the people who share their philosophical views are aware of the ethical controversy and will be misled by the summary because they oppose all "human cloning." Our record shows that there are in fact citizens likely to vote, including those following the teaching of the Roman Catholic Church, who believe that all forms of human cloning are ethically unacceptable. The Opponents presented Bishop Robert W. Finn, who advised the court approximately how many Roman Catholics reside in Missouri (approximately 850,000) and what the Roman Catholic Church teaches its people on the subject of "human cloning."
The Bishop testified that the Church opposes "human cloning" of all kinds, including nuclear transfer, because it "attempts to manufacture in an artificial way a human embryo, a human life." While the Bishop acknowledged that not all Catholics will follow the teachings of the Church in this regard, there is a reasonable inference from his testimony that many will. The Bishop testified that the Secretary's summary statement, considered in the voting booth in the absence of other information, would cause him to vote in favor of the initiative, though he actually would oppose it if properly informed. The Opponents say such voters who oppose nuclear transfer may end up, based on the summary, voting in favor of something he or she actually opposes ethically, especially if the voter steps into the booth relatively unprepared and makes a decision based on the ballot summary.
Thus, the Opponents argue, the initiative could become a permanent change to the constitution without the initiative actually having been favored by the voters, merely because the ambiguous and allegedly misleading *467 summary was favored by the voters. According to the argument of the Opponents, there is nothing about the summary that would even inform people of the fact that there is a controversy about whether the law should accommodate and protect nuclear transfer. Because people desire sophisticated medical research to obtain cures, and because practically everyone opposes efforts to produce human clones, the ambiguity in the summary language in its limited context is likely to generate prejudice in favor of passage among people who do not understand that one of the main purposes of the initiative is to vote on whether to help protect nuclear transfer.
The Secretary says that such a prejudice could not happen because voters do not think of nuclear transfer as cloning. She points to the evidence that one of the Proponents' experts conceded that "if you ask the person on the street about a cloned human, they are going to expect a baby." (Emphasis added.) The Secretary fails to note, however, that the summary specifically says "human cloning;" it does not say "cloned human."
The syntax of the phrase "human cloning," and the use of a participle rather than a noun in the summary, allows the ambiguity. The Proponents are correct that we usually think of a "clone," a noun, as indicating a full copy in the full development sense, as when speaking of a computer as an "IBM clone." Thus, as one of the Opponents' experts conceded, the phrase "human clone" is likely to conjure up the image of a baby produced through cloning. If the summary said that the initiative would "ban attempts to make a human clone," it would be more likely to be properly understood by all.
There is no evidence as to how many Missourians understand stem cell research, and how many know that one of the two main purposes of the initiative is to protect the opportunity for scientists to engage in nuclear transfer. If a voter knew that the term "stem cell" in the initiative is defined to include cells derived from nuclear transfer, the voter would be able to infer that the ban on "human cloning" does not ban nuclear transfer. The summary, however, does not define "stem cell," or "stem cell research," leaving the matter uncertain.
The record contains abundant evidence that the phrase "human cloning," when dealing with issues related to nuclear transfer, is considered ambiguous by so many writers and publications that they have found it necessary to distinguish nuclear transfer for research purposes from nuclear transfer for reproduction by the use of the adjectives "therapeutic and reproductive."
Many copies of publications of various governmental and private entities, such as the International Society of Stem Cell Research, the Harvard Stem Cell Institute, and the President's Council, were introduced at trial to show that it is common to draw a distinction between "therapeutic cloning" and "reproductive cloning." This distinction is drawn because many believe there are reasons to distinguish between cloning for medical research purposes and cloning to give birth to a cloned child. The Opponents in this case also point out that the brochure of the Missouri Coalition for Lifesaving Cures, in attempting to define for the reader what the initiative would accomplish, itself uses the phrases "therapeutic cloning" and "reproductive cloning":
This definition clearly prohibits implanting a cloned blastocyst into a woman's uterus. In other words, it prohibits the creation of a human version of Dolly the Sheep (i.e., what is sometimes called "reproductive cloning").
*468 It also prohibits implanting a cloned blastocyst or embryo in a woman's uterus for any other purpose. For example, it prohibits implanting a cloned blastocyst into a woman's uterus and later using it as source of stem cells or "body parts." The Initiative only allows SCNT technology to be used to copy a patient's cells in a lab dish. This is sometimes called "therapeutic cloning" because it involves copying, or cloning, genetic material from a patient's cell to make lifesaving stem cells that will match the patient's genetic makeup and avoid transplant rejection problems. (Underlining in original; italics added.)
It may have some significance that when Dr. Neaves was asked at trial to comment on the purpose of the initiative, one thing he mentioned was the purpose to "outlaw human cloning in the sense that human cloning is producing a human version of Dolly, the sheep." (Emphasis added.) Perhaps because he was in court, he wanted to be especially clear; but it evidently seemed right not to simply say the second purpose was to "outlaw human cloning." He went on to explain in what sense he was using that terminology. That is, in fact, what writers generally have done when they wished to be clear about what they mean.
The experts acknowledge that the terms "therapeutic cloning" and "reproductive cloning" are used commonly in the popular articles and in the popular media. Even if scientists do not routinely use the terms "reproductive" and "therapeutic," the terms are used so often that some voters will be familiar with them. A large percentage of the people who will be asked to vote on this measure are not biological scientists. They are ordinary people who get most of their information from the "popular articles" and the popular media.
Although no one seems particularly concerned about the ambiguity working against passage of the initiative, the ambiguity could in fact do so. That could happen as to voters who strongly favor encouraging nuclear transfer. Because "stem cell research" and "stem cell" are not defined in the summary, such voters could end up exercising a vote against the measure because they are afraid that a vote to ban "human cloning" would result in banning the use of the very nuclear transfer techniques they favor. Ironically, if the initiative had been generated by people who oppose nuclear transfer (such as the MAHC), and if the drafters had defined "stem cell" in the initiative to mean only adult stem cells, the summary could read exactly as it does, but the effect would be the opposite of the initiative in this case.
This case is unlike Hancock and other Missouri ballot title cases because it is about the use of a term that will be ambiguous as to some voters. The evidence does not support the notion that the phrase "human cloning" is clear enough that all citizens, regardless of philosophical bent, will generally know what they are voting on.
Conclusion
There is evidence that a significant number of people will be uncertain about what is meant by "human cloning" when they see the ballot title. Of course, newspaper articles and other information sources will help inform some. The Secretary's "fair ballot language summaries" prepared pursuant to section 116.025 (and posted in polling places) should also help,[3] but there is no evidence that very many people will *469 see them. Although judicial intervention in the initiative process must be cautiously exercised, I cannot ignore an ambiguity that is easily curable, with minimal intervention, so that it will give voters a summary less likely to prejudice the vote.
The record shows that the ambiguity could be sufficiently cured for voting purposes simply by the addition of a word. I would suggest the word that usually comes up in this contextthe modifier "reproductive," a word used by the MCLC itself in its brochure. I believe the modifier "reproductive" would help alleviate the ambiguity because it would allow the inference that "stem cell research" would include the use of cloning to produce stem cells for research purposes, but not for purposes of trying to create a human version of Dolly, the sheep.
The use of the adjective "reproductive" would allow it to be said that all voters whether favoring the viewpoint of the MCLC or the MAHC or having some other viewpointare more likely to cast a free, intelligent, and informed voteone not prejudiced by misunderstanding. In my view, the change would achieve a proper balance between constitutional objectives by protecting a citizen's valuable right to place initiatives on the ballot without undue interference, and the right of the voting citizens of this state to have a relatively clear idea as to what they are voting on. Accordingly, while I would not de-certify the summary for petition purposes, I would require the addition of a clarifying adjective to the ballot so that the vote on this important measure better captures the actual desires of the electorate.
NOTES
[1] Multiple appellants and respondents have filed multiple briefs in this case. Appellants' arguments are almost, but not quite, in unison. We will address all of appellants' claims together.
[2] All statutory citations are to Mo.Rev.Stat. (Cum.Supp.2005) unless otherwise noted.
[3] The fiscal note summary portion of the ballot title is not contested in this case.
[4] The initiative is also applicable to stem cell research other than that involving SCNT, for example, work with adult stem cells that are undifferentiated cells found in body tissue, such as an umbilical cord, or research using blastocysts left over from fertility treatments utilizing in vitro fertilization.
[1] S. 658, available at http://thomas.loc.gov.
[2] S. 876, available at http://thomas.loc.gov.
[3] The "fair ballot language statements" are not before us in this case. They are to be drafted within twenty days "of receiving a statewide ballot measure." § 116.025, RSMo Supp.2005. It is not clear what "receiving" the measure means, but it may refer to receipt of the signed petitions. These statements are not limited to 100 words, and are designed to give a fuller description than the ballot title. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616872/ | 201 So. 2d 235 (1967)
Frederick HIELD, Appellant,
v.
STATE of Florida, Appellee.
No. 1140.
District Court of Appeal of Florida. Fourth District.
July 24, 1967.
Frederick Hield in pro. per.
Earl Faircloth, Atty. Gen., Tallahassee, and Fred T. Gallagher, Asst. Atty. Gen., Vero Beach, for appellee.
BARNS, PAUL D., Associate Judge.
This is an appeal from an order denying appellant's petition for a writ of habeas corpus. We affirm.
After the appellant's motion for relief under Criminal Rule 1, F.S.A. ch. 924 Appendix was denied, the appellant sought relief by habeas corpus, seeking relief from sentences of imprisonment on three informations filed by the State Attorney for Seminole County. The sentences of imprisonment by the circuit court were after the defendant entered pleas of guilty when assisted by the services of the public defender, as his counsel. The petitioner was arrested on May 27, 1964, and sentenced on August 24, 1964.
Armed Robbery, Case No. 2035, charged the petitioner with armed robbery in Seminole County of one Anderson on May 27, 1964, as proscribed by Section 813.011, F.S.A.
Escape, Case No. 2036, charged that petitioner in Seminole County "* * * did unlawfully and feloniously being a prisoner at State Road Prison Camp #57, did *236 escape from said prison, without the permission * * *" on May 27, 1964, (proscribed by Section 944.40, F.S.A.).
Aggravated Assault, Case No. 2051, charged that the petitioner in Seminole County did make an assault with a deadly weapon on one "* * * Anderson, without intent to kill * * *" and "* * * did then and there beat, bruise, wound and ill treat * * *" on May 27, 1964, (proscribed by Section 784.04, F.S.A.).
After pleas of guilty, the court on August 24, 1964, imposed a sentence of:
(1) Escape Ten years imprisonment for escape, "sentence to begin running as provided by statute."
(2) Armed Robbery Twenty years imprisonment for armed robbery, "to run concurrently with other sentences imposed this date."
(3) Aggravated Assault Five years imprisonment, "to run concurrently with other sentences imposed this date."
The record reflects that on August 10, 1964, the petitioner and one Bell were arraigned when represented by the public defender and through the public defender entered pleas of not guilty to six informations including the two of the above-mentioned cases. Thereafter, Information No. 2051 was filed on August 21, 1964, which was pursuant to intentions imparted to the accused and his attorney on August 17th; at this time discussion in open court was had between the petitioner's counsel, the state attorney and the trial judge concerning the defendants pleading guilty and nolle pros. and the state attorney's intention to file an additional charge.
On August 24, 1964, in open court when the state attorney, the defendants and their counsel were present, the petitioner and his co-defendant, in answer to the judge's inquiry to each of them, advised the court that they wanted to withdraw their pleas of not guilty and enter a plea of guilty in each of the above-mentioned cases; and after having been advised in open court of the consequences of their acts, the defendants said, they still wanted to withdraw their plea of not guilty and enter their plea of guilty. Thereupon, the court accepted their pleas of guilty and duly adjudged them guilty and imposed sentence in three of the seven pending informations.
The petitioner makes reference to previous confessions made and obtained when he did not have the benefit of an attorney, which were therefore illegally obtained. Petitioner also makes reference to a defect in that one of the informations was defective in that it was not sworn to, which defect is not jurisdictional. Busby v. Holman, 5th Cir.1966, 356 F.2d 75, relative to the effect of a plea of guilty contains a good statement of the law on these points, viz.:
"* * * It is settled by a host of authorities that a judgment on a plea of guilty which has been entered voluntarily on advice of counsel is not rendered invalid because the defendant had previously made a confession under circumstances which might have rendered it inadmissible in evidence if the defendant had pleaded not guilty and had gone to trial. This is so because the plea, if voluntarily and understandingly made, is conclusive as to the defendant's guilt, admitting all the facts charged and waiving all non-jurisdictional defects in the prior proceedings against him. The judgment and sentence which follow a plea of guilty are based solely upon the plea and not upon any evidence which may have been acquired improperly by the prosecutor. Accordingly, a confession in the possession of the prosecutor which has been illegally obtained cannot be made the basis for a collateral attack upon a judgment of conviction entered upon a plea of guilty voluntarily and understandably made."
*237 It is clear that the pleas of guilty were negotiated pleas freely and voluntarily made, which resulted in saving of time and expense to the state and mitigated the sentences which could have been imposed as authorized by law, and the abandonment of prosecution by the state of other pending informations. It appears that at all critical stages the petitioner was effectively represented by counsel and that his convictions, sentences and custody are valid.
The judgment appealed from is affirmed.
Affirmed.
WALDEN, C.J., concurs.
ANDREWS, J., concurs specially with opinion.
ANDREWS, Judge (specially concurring).
I concur in the opinion and judgment of Justice Barns. However, the reference to "pleas of guilty were negotiated pleas" prompts me to comment specially.
The public generally does not understand the basic principle that under our system of jurisprudence a person charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt. The rights of an accused are often confused with the rights of a person already found guilty of a crime. In the complicated process of establishing guilt, a prosecuting attorney must consider all of the facts which are admissible as evidence in court and must determine that such facts are sufficient to convince a jury that an accused is guilty. Accordingly, a prosecuting attorney is given wide latitude in determining what charges against an accused are sufficient to justify proceeding to trial, both in the interests of society and of the accused. After filing charges, if later discovered facts and considerations of related factors are such, the prosecuting attorney may "nolle prosequi" or "be unwilling to prosecute" without permission of the court up until the time the jury is sworn to try the cause. Wilson v. Renfroe, Fla. 1956, 91 So. 2d 857.
It is also an accepted and recognized procedure for prosecuting attorneys after considering all the facts available to them to determine which, if any, of the charges against an accused will be prosecuted. In addition, it is also acceptable and recognized practice to enter into "plea discussions" and "plea agreements" with the accused or his counsel and to dismiss certain charges in return for a plea of guilty on other charges. In such instances it must be determined that the accused had opportunity for advice of counsel and that the plea of guilty was truly voluntary. Martin v. United States, 5th Cir.1958, 256 F.2d 345.
Rules governing such procedures are under consideration by the Advisory Committee on Criminal Trials of the American Bar Association project on minimum standards for criminal justice. A tentative draft of the recommendations of the Advisory Committee on standards relating to pleas of guilty has been published by the Institute of Judicial Administration (February 1967). It is to be hoped that from this study will come uniform definitive rules of practice and procedures governing the plea discussion and plea agreements in criminal cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616879/ | 623 So. 2d 747 (1992)
DEPARTMENT OF REVENUE, State of Florida, Appellant,
v.
NU-LIFE HEALTH AND FITNESS CENTER, Appellee.
No. 92-4.
District Court of Appeal of Florida, First District.
December 30, 1992.
Opinion Clarifying Disposition on Rehearing August 30, 1993.
*748 Robert A. Butterworth, Atty. Gen., and Leland L. McCharen, Asst. Atty. Gen., Tallahassee, for appellant.
Larry E. Levy, Tallahassee, for appellee.
ZEHMER, Judge.
The Florida Department of Revenue appeals an adverse final judgment in this action by Nu-Life Health and Fitness Center to contest tax assessments allegedly owed pursuant to chapter 212, Florida Statutes (1986-1988). The circuit court denied the Department's motion to dismiss for lack of subject matter jurisdiction and entered final judgment for Nu-Life on the merits of its complaint. The Department asserts error in the circuit court's ruling that the provisions in section 72.011(3), Florida Statutes (1989), specifying the jurisdictional prerequisites for filing an action in circuit court to contest the legality of a tax assessment made under chapter 212, are unconstitutional. It also asserts that the circuit court erroneously entered judgment for Nu-Life on the merits of its action. We reverse the ruling that section 72.011(3) is unconstitutional and remand with directions to dismiss the complaint for lack of subject matter jurisdiction based on Nu-Life's failure to comply with that section.
In December 1988, the Department issued two warrants for the collection of delinquent sales taxes under chapter 212 allegedly owed by Nu-Life for the months of January 1, 1986, through November 1, 1988. In February 1989, Nu-Life filed its complaint in circuit court, alleging that these assessments were illegal, null, and void. Nu-Life also alleged that the requirements in section 72.011(3) that a taxpayer post a bond or tender a deposit in the court registry in the amount of the assessed taxes and penalties as a jurisdictional condition to its proceeding in circuit court unconstitutionally deprived it of the right to reasonable access to courts as guaranteed in article I, section 21, of the Florida Constitution, and constituted an unlawful delegation of legislative authority to the executive director of the Department to determine whether to waive the deposit or bond requirement. The Department moved to dismiss the complaint on the ground that the circuit court lacked subject matter jurisdiction because Nu-Life had not paid the assessed taxes and had failed to follow any of the conditions to maintaining this suit as required by section 72.011(3).
After a pretrial hearing, the circuit court denied the Department's motion to dismiss. Agreeing with Nu-Life, the court ruled that section 72.011(3) is unconstitutional because it denies aggrieved taxpayers such as Nu-Life access to courts as provided in the Florida Constitution, and it unlawfully delegates legislative authority to determine when and under what conditions and circumstances a bond will be required. The court entered final judgment for Nu-Life, ruling that the challenged assessments were illegal, null, and void.[1]
On appeal, the Department first challenges the circuit court's ruling that section 72.011(3) violates article I, section 21, of the Florida Constitution, governing access to courts. Section 72.011(3), Florida Statutes (1989), reads:
(3) In any action filed in circuit court contesting the legality of any tax, interest, or penalty assessed under a section or chapter specified in subsection (1), the plaintiff must:
(a) Pay to the applicable department the amount of the tax, penalty, and accrued interest assessed by such department which is not being contested by the taxpayer; and either
(b) 1. Tender into the registry of the court with the complaint the amount of the contested assessment complained of, including penalties and accrued interest, unless this requirement is waived in writing by the executive director of the applicable department; or
2. File with the complaint a cash bond or a surety bond for the amount of the contested assessment endorsed by a surety *749 company authorized to do business in this state, or by any other security arrangement as may be approved by the court, and conditioned upon payment in full of the judgment, including the taxes, costs, penalties, and interest, unless this requirement is waived in writing by the executive director of the applicable department.
Failure to pay the uncontested amount as required in paragraph (a) shall result in dismissal of the action and imposition of an additional penalty in the amount of 25 percent of the tax assessed.
In North Port Bank v. State, Department of Revenue, 313 So. 2d 683 (Fla. 1975), the supreme court held that a similar statute did not violate the Florida constitutional provision for access to courts. Section 199.242(3), Florida Statutes (1975), required that prior to filing any court action contesting the legality of a tax or penalty assessed under chapter 199, unless the assessed taxes and penalties had been paid, the complainant must
tender into the court and file with the complaint the full amount of the assessment complained of, including penalties, or file with the complaint a cash bond or a surety bond endorsed by a surety company authorized to do business in this state or by such sureties as may be approved by the court, conditioned to satisfy any judgment or decree in full, including the taxes complained of, costs, and penalties.
(Emphasis added.) The court observed that, if construed literally and without regard to the constitutional requirement of access to courts, section 199.242(3) would deny the taxpayer access to courts specifically granted by the Florida Constitution. The court continued by stating, however, that courts have the judicial obligation to sustain legislative enactments whenever possible and upheld the validity of section 199.242(3) by construing its provision in a manner that avoided the apparent unconstitutional aspects of the literal statutory language. The court stated:
It seems logical and reasonable that, whenever a taxpayer feels the intangible taxes assessed are too high, the administrative remedies should first be exhausted; and, if the amount is still unsatisfactory, the taxpayer can either comply literally with Section 199.242(3), Florida Statutes, or, alternatively, petition the Court to fix the amount to deposit in the registry of the Court or to post as bond pending the outcome of the litigation. Immediately upon filing such petition for judicial review, if the Court finds the Petitioner has not literally complied with its above provision, the Court should hold a preliminary hearing to set such amounts and condition of the bond or funds to be deposited into the Court registry. Such assessments are considered prima facie correct and unless this presumption is overcome by the taxpayer to require reduction, the amounts claimed should be set by the Court as proper. If the taxpayer does not comply with the conditions set by the Court, the suit should be dismissed. Such dismissal could be appealed only if supersedeas fixed by the Court is posted to protect the state against loss occurring during litigation or caused by the delay.
Thus, in North Port Bank, the supreme court read section 199.242(3) as providing an alternative to literal compliance with the statute. If the taxpayer did not tender and file with the complaint the full amount of the assessment and penalties or file a cash or surety bond conditioned to satisfy any judgment or decree in full, including the taxes complained of, costs, and penalties, the taxpayer could petition the court to fix the amount to deposit in the registry of the court or fix the amount of the bond pending the outcome of the litigation.
Section 72.011(3) merely implements this aspect of the court's decision in North Port Bank. This section contains two alternatives to tendering the full amount of the contested assessment, including penalties and interest, for filing in the court registry, or filing a cash or surety bond conditioned on payment of the judgment, including the taxes, costs, penalties, and interest. The taxpayer may either obtain a written waiver of these requirements from the executive director of the Department or file a motion for an alternative security arrangement to be approved by the court. Thus, section 72.011(3), unlike section 199.242(3), the statute at issue in North Port Bank, contains two express alternatives, one of which is similar to, if not the same as, the alternative the supreme court read into section 199.242(3). The rationale of the supreme court's decision in North Port *750 Bank that section 199.242(3) does not violate the constitutional provision for access to courts leads us to similarly conclude that section 72.011(3) does not deprive Nu-Life of the constitutional right of access to courts.
This conclusion is reinforced by the supreme court's decision in Bystrom v. Diaz, 514 So. 2d 1072 (Fla. 1987), wherein the taxpayers challenged a 1982 tax assessment. While the suit was pending, their 1984 taxes became delinquent. The tax collector moved to dismiss pursuant to the provision in section 194.171(5), Florida Statutes (1985), that a taxpayer may not maintain a suit contesting a tax assessment, and that such an action shall be dismissed unless all taxes on the property assessed in years after the action is brought that the taxpayer in good faith admits to owing are paid before they become delinquent. The motion also relied on the provisions in section 194.171(6) that the requirements of the foregoing section are jurisdictional and a court shall lose jurisdiction of the case if the taxpayer fails to comply therewith. (A similar provision is found in section 72.011(3).) The trial court granted the motion to dismiss, although the taxpayers had paid the 1984 taxes by the time the order was entered. On appeal, the taxpayers challenged the constitutionality of the statute on the ground that it violated their constitutional right of access to courts. The supreme court affirmed the trial court's decision and upheld the constitutionality of this statutory requirement, stating:
"[A]lthough courts are generally opposed to any burden being placed on the rights of aggrieved persons to enter the courts because of the constitutional guarantee of access, there may be reasonable restrictions prescribed by law." Carter v. Sparkman, 335 So. 2d 802, 805 (Fla. 1976), receded from on other grounds, Aldana v. Holub, 381 So. 2d 231 (Fla. 1980). Examples of reasonable restrictions include "the fixing of a time within which suit must be brought, payment of reasonable court deposits, [and] pursuit of certain administrative relief such as zoning matters or workmen's compensation claims... ." Id. As a prerequisite to maintaining suit, subsection 194.171(5) requires only that a taxpayer pay, prior to delinquency, the undisputed amount of taxes assessed while his suit is pending. This requirement does not unreasonably restrict a taxpayer's access to court.
514 So.2d at 1075. The principles espoused by the supreme court in Bystrom and in North Port Bank support our conclusion that the restrictive conditions for filing suit in circuit court to contest the validity of a tax assessment contained in 72.011(3) are reasonable and not violative of article I, section 21, of the Florida Constitution, and that the circuit court erred in finding section 72.011(3) unconstitutional on this ground.
There is, moreover, a further reason for not holding the statute unconstitutional on this ground. A taxpayer is authorized by section 72.011 to file an administrative petition with the Division of Administrative Hearings under chapter 120 to contest the legality of any tax assessment in lieu of filing suit in circuit court. Unlike the requirement in the circuit court action, the taxpayer is authorized to file an administrative petition to have the disputed tax assessment heard by a hearing officer or panel of hearing officers without having to tender the amount of the assessment or post a bond for the disputed tax assessment. § 120.575, Fla. Stat. (1989). Only the amount of the assessment that is not contested must be paid as a condition to filing an administrative petition under this section. The administrative decision on the taxpayer's petition is reviewable in the appropriate district court of appeal pursuant to section 120.68, and this provision for review in an article V court is sufficient to satisfy the access to courts provision in article I, section 21. See Department of Agriculture and Consumer Services v. Bonanno, 568 So. 2d 24 (Fla. 1990); Scholastic Systems, Inc. v. LeLoup, 307 So. 2d 166 (Fla. 1974); Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d 368 (Fla. 2d DCA 1985), rev. denied, 488 So. 2d 68 (Fla. 1986).
We next discuss the circuit court's ruling that the waiver provision of section 72.011(3) constitutes an unlawful delegation of legislative authority and thereby renders the statute unconstitutional. In Jones v. Department of Revenue, 523 So. 2d 1211 (Fla. *751 1st DCA 1988), this court explained the concept of unlawful delegation of legislative authority as follows:
Unlawful delegation refers to the power to make a law rather than the authority as to its execution; the legislature may expressly authorize designated officials within valid limitations to provide rules for the complete operation and enforcement of the law within its expressed general purpose. [Citation omitted.] Certain functions may be transferred by the legislature to permit administration of legislative policy by an agency with the expertise and flexibility needed to deal with complex and fluid conditions. [Citations omitted.] The very conditions which may operate to make direct legislative control impractical or ineffective may also, for the same reasons, make the drafting of detailed or specific legislation impractical or undesirable. [Citation omitted.]
523 So.2d at 1214.
Section 72.011(3) does not delegate to the executive director of the Department the power to make a law; rather, it authorizes the law to be applied with obviously necessary flexibility. The Department has not been shown to have exercised its delegated authority in an arbitrary or capricious manner or in excess of the statutory intent. On the contrary, pursuant to section 212.18, the Department promulgated rule 12-3.007(33), Florida Administrative Code, setting out clear, non-arbitrary guidelines for the exercise of that flexibility. Rule 12-3.007(33) states:
(33) The Executive Director may waive the requirements of Section 72.011(3)(b) or (c), Florida Statutes, under the following circumstances:
(a) When, in the judgment of the Executive Director, the financial resources of the taxpayer are sufficient to ensure that any final judgment upholding an assessment of tax, penalty and interest will be satisfied.
(b) When, in the judgment of the Executive Director, payment into the registry of the court or the obtaining of a surety bond would be manifestly unjust because of the circumstances of the assessment or of the taxpayer.
Section 72.011(3) delegates to the executive director of the Department limited authority concerning the execution of the statutory provisions in that section. The circuit court erred in ruling that section 72.011(3) amounts to an unconstitutional delegation of legislative authority.
As provided in section 72.011(5), the requirements of section 72.011(3) are jurisdictional. Since Nu-Life has not satisfied any of the requirements of section 72.011(3) and did not attempt to obtain a written waiver from the director or file a motion for a court-approved security arrangement, the final judgment must be reversed and the case remanded with directions to dismiss the complaint for lack of subject matter jurisdiction. See Mirabal v. State, Department of Revenue, 553 So. 2d 1297 (Fla. 3d DCA 1989) (court affirmed a final order dismissing an action challenging a tax levy and assessment because the plaintiff failed to satisfy any of the requirements of section 72.011(3), including the alternative requirements of either a written waiver or a motion for security arrangement, and thus the court lacked subject matter jurisdiction). However, the dismissal should grant Nu-Life leave to amend the complaint, as Nu-Life may be able to cure the jurisdictional deficiencies by complying with the jurisdictional prerequisites contained in section 72.011(3). Brooks v. Interlachen Lakes Estates, Inc., 332 So. 2d 681 (Fla. 1st DCA 1976) (where taxpayer failed to comply with statutory prerequisite to filing suit challenging tax assessment, trial court correctly dismissed complaint with leave to amend); Vermont Mutual Ins. Co. v. Cummings, 372 So. 2d 990 (Fla. 2d DCA 1979) (the law encourages liberality in permitting amendments to pleadings unless it clearly appears that the deficiencies of the pleading cannot be cured).
The Department's final point on appeal attacks the circuit court's ruling that the tax assessments were illegal, null, and void. In respect to this argument, we note that the circuit court made its ruling pretrial in the absence of any pending motion for summary judgment, and that tax assessments such as the one at issue must be considered prima facie correct, with the burden of showing the *752 contrary on the party against whom the assessment is made. § 212.12(5)(b), Fla. Stat. (1989). However, in view of our ruling on the jurisdictional issue, it would be premature for us to reach this point at this time.
The final judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
ERVIN and BARFIELD, JJ., concur.
ON MOTION FOR REHEARING
ZEHMER, Chief Judge.
The Department contends on motion for rehearing that we erred in directing the trial court to dismiss the complaint with leave to amend. We adhere to this disposition with the following clarification.
We reiterate that the requirements of section 72.011(3), Florida Statutes (1989), are jurisdictional. Whether the conduct of Nu-Life at or before the filing of the lawsuit is legally sufficient to satisfy these jurisdictional requirements is a matter of dispute between the parties. Under the statute, Nu-Life cannot, by actions taken subsequent to the filing of the lawsuit, cure the jurisdictional defects raised by the Department. Nu-Life contends, however, that its conduct prior to filing the lawsuit legally satisfied the jurisdictional requirements of the statute, although these facts were not alleged in its complaint. Since the trial court granted Nu-Life the relief it requested by declaring the jurisdictional requirements of section 72.011(3) unconstitutional, which ruling we have reversed, this case is being remanded to the trial court with directions to dismiss the complaint without prejudice solely for the purpose of allowing Nu-Life to file an amended complaint that alleges the timely occurrence of the necessary jurisdictional facts, if there is evidence that will support such allegations.
With this clarification, the motion for rehearing is denied.
ERVIN and BARFIELD, JJ., concur.
NOTES
[1] The record is unclear as to why the court determined the merits of the case at the conclusion of the pretrial hearing. The record does not contain a motion for summary judgment filed by Nu-Life, and the court did not indicate the motion on which it was ruling in entering final judgment for Nu-Life prior to trial. | 01-03-2023 | 10-30-2013 |
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